The Marine Mammal Protection Act: Reauthorization Issues
The Marine Mammal Protection Act:
Reauthorization Issues
Updated June 11, 2007
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
The Marine Mammal Protection Act:
Reauthorization Issues
Summary
The Marine Mammal Protection Act (MMPA) was last reauthorized in 1994.
The MMPA’s authorization of appropriations expired at the end of FY1999. At issue
for Congress are the terms and conditions of provisions designed to reauthorize and
amend the MMPA to address a variety of concerns relating to marine mammal
management. In the 109th Congress, the House passed a bill to reauthorize and
amend the MMPA, but no further action was taken on this measure. The 110th
Congress may again consider measures to amend and reauthorize the MMPA as well
as bills to address specific marine mammal regulatory and management issues.
Several issues that may arise in reauthorization relate to modifying management
of the interactions between marine mammals and commercial fishing operations.
Other concerns relate to marine mammals in captivity and subsistence use of marine
mammals by Native Americans. Additional issues include providing for trade in
marine mammal products, managing robust marine mammal stocks, understanding
the effect of noise on marine mammals, fostering international cooperation,
regulating large incidental takes, modifying the scientific research permit process,
improving agency compliance with MMPA deadlines, facilitating marine mammal
research by federal scientists, dealing with harassment of marine mammals,
considering a directed research program, and appropriating adequate funding for
federal agency programs. While some of these issues could be addressed
administratively, in regulations proposed and promulgated by the National Marine
Fisheries Service, the U.S. Fish and Wildlife Service, or the USDA Animal and Plant
Health Inspection Service, others likely would require statutory changes.
Most potential participants in the reauthorization debate anticipate extended
negotiations on some of these issues. Although the authorization for appropriations
expired at the end of FY1999, the MMPA itself did not expire. Eventually, however,
an extension of funding authority may need to be considered to continue federal
program operations. Most of the issues associated with this law are not time-
sensitive, and a number of oversight hearings have been held to increase
understanding of various issues, positions, and possibilities.
This report lays out the range of issues likely to be raised during any
reauthorization debate, the reasons behind them, and possible proposals that could
be offered to address these concerns. This report will be updated as warranted to
reflect the evolution of these issues.
Contents
In troduction ......................................................1
Constituency Groups...............................................2
Commercial Fishing Industry.................................2
Environmental Groups......................................3
Public Display Community..................................3
Animal Protection Advocates................................3
Native Americans..........................................3
Marine Mammal Scientists..................................3
Marine Mammal Managers..................................4
Marine Mammal Protection Act......................................4
1994 MMPA Reauthorization........................................6
Implementation of the 1994 Amendments...........................6
Miscellaneous MMPA Amendments...............................8
Issues for Congress................................................9
Commercial Fishing Interactions with Marine Mammals...............9
Optimum Sustainable Population.............................9
Calculating Potential Biological Removal......................10
Zero Mortality Rate Goal...................................11
Stock Assessment Process..................................12
Deterrence ..............................................12
Reinstate Limited Authority for Intentional Lethal Taking.........14
Integration with Fishery Management.........................15
Fishery Impacts and Southern Sea Otters......................16
Marine Mammals in Captivity...................................16
Authority for Captive Marine Mammals.......................17
Export of Captive Animals.................................18
Import of Captive Animals.................................19
Scientific Research on Captive Marine Mammals................20
More Extensive Medical Exams for Transferred Animals.........20
Necropsies ..............................................22
Genetic Mixing..........................................23
Wild Versus Captive Survivorship...........................24
Air Quality and Noise at Facilities............................24
Rehabilitation and Release..................................24
Quality of Captive Environments............................25
Programs Promoting Human Interaction with Captive Dolphins....26
Insurance Requirement....................................27
Prohibition of Traveling Exhibits............................27
Prohibition of Wild Captures for Public Display.................27
Native Americans and Marine Mammals..........................27
Co-Management with Native American Tribes..................27
Reporting Subsistence Takes................................28
Limitation on the Sale of Edible Subsistence Takes..............29
Definition of Subsistence Whaling...........................30
Cultural Exchange........................................31
Permits and Authorizations.....................................32
Polar Bear Sport Hunting in Alaska...........................32
Large Incidental Takes.....................................32
Noise and Its Effects......................................33
Research Permits for NMFS and FWS Scientists................35
Scientific Research Permits.................................36
State Approval of Federal MMPA Permits.....................37
Program Management and Administration.........................37
Definition of “Take”......................................37
Trade in Marine Mammal Parts and Products...................38
Management of Robust Stocks..............................38
Fostering International Cooperation..........................40
Harassment ..............................................40
Management Consistency Between FWS and NMFS.............42
Directed Research Program.................................42
Federal Agency Roles.....................................43
Agency Delays in Compliance with MMPA Deadlines............43
Appropriation of Agency Funding............................44
Congressional Outlook.............................................44
Oceans Commissions Reports...................................46
List of Tables
Table 1: Ocean Commissions Recommendations Relating to
Marine Mammals............................................47
The Marine Mammal Protection Act:
Reauthorization Issues
Introduction
The Marine Mammal Protection Act (MMPA) of 1972 (P.L. 92-522, as
amended; 16 U.S.C. §§1361, et seq.) was last reauthorized in 1994 by P.L. 103-238.
The authorization of appropriations under the MMPA expired at the end of FY1999.
The 104th, 105th, 106th, 108th, and 109th Congresses enacted additional amendments
addressing single or limited issues (see “Miscellaneous MMPA Amendments”); no
MMPA amendments were enacted by the 107th Congress.1 At issue for Congress are
the terms and conditions of provisions to reauthorize and amend the MMPA to
address a variety of concerns related to marine mammal management. Legislationththththth
introduced, but not enacted, in the 105, 106, 107, 108, and 109 Congresses
suggests a number of issues that may be discussed during a reauthorization debate.
To identify a larger universe of potentially relevant concerns, the Congressional
Research Service queried commercial fishing, scientific research, public display,2
animal protection, Native American, and environmental interests to identify issues
that might surface during a reauthorization debate.3 This report identifies these
concerns and provides background to facilitate a better understanding of various
positions on these issues. These concerns, along with other factors, may be
considered as Congress determines whether and how to address MMPA
reauthoriz ation.
Other than recommendations contained in reports to Congress mandated by the
MMPA Amendments of 1994 (discussed later in this report) and in testimony
presented at a June 29, 1999 oversight hearing before the House Resources
Subcommittee on Fisheries Conservation, Wildlife, and Oceans, the Clinton
Administration did not release any comprehensive proposals related to MMPAth
reauthorization. In the 109 Congress, H.R. 4075 incorporated some of the MMPA
1 MMPA amendments were included in P.L. 104-297 (§405(b)(3)), P.L. 105-18 (§2003 and
§5004), P.L. 105-42 (International Dolphin Conservation Program Act), P.L. 105-277, P.L.
P.L. 108-136 (§319), and P.L. 109-479 (Title IX). For additional information, see CRSth
Report RL33459, Fishery, Aquaculture, and Marine Mammal Legislation in the 109
Congress, by Eugene H. Buck. Archived issue briefs covering legislation in previous
Congresses are also available from this author.
2 Zoos and aquariums holding marine mammals for public education and entertainment.
3 To facilitate a candid discussion of issues, individual respondents were guaranteed they
would not be identified by name. Opinions of individuals and groups may not accurately
reflect the opinion of the majority. Presentation of constituent opinion in this report
represents a sampling, and is not a quantitative assessment.
amendments proposed by the Bush Administration.4 Congress has been active on
marine mammal protection issues in recent years, responding primarily to balancing
concerns of the commercial fishing industry and environmental interests. Congress
generally views the MMPA as working well, but possibly needing changes to address
an increasing number of concerns that have arisen since the 1994 amendments. In
the House, the Committee on Natural Resources has jurisdiction over any MMPA
reauthorization legislation. In the Senate, the Committee on Commerce, Science, and
Transportation has jurisdiction over any legislation on this issue.
Constituency Groups
An array of groups and individuals hold common and conflicting interests in our
nation’s marine mammals. Despite their diversity, they generally share the goals of
ensuring sustainable marine mammal populations and maintaining healthy marine
ecosystems. These groups, however, sometimes disagree about how best to achieve
these goals and use these common resources, and thus, conflict is inevitable. As
Congress considers reauthorization of the MMPA, these diverse groups will advocate
a wide variety of policy proposals.5
Commercial Fishing Industry. There were more than 65,000 commercial
fishing vessels estimated to be operating in U.S. marine fisheries in 2001,6 and 3,242
processor and wholesale plants employing 65,690 individuals in 2004.7 In 2005, the
total catch of marine fish was more than 9.6 billion pounds, with an estimated ex-
vessel value8 of more than $3.9 billion.9 For 2005, the overall economic contribution
of commercial fishing to gross national product (in value added) was estimated to
exceed $32.9 billion.10
4 The Administration’s draft language of June 16, 2005, is available at [http://www.nmfs.
noaa.gov/ pr/pdfs/laws/mmpa_bill.pdf].
5 These are general characterizations. There is enormous variability and crossover of
membership in these groups, which often blurs the distinction among the concerns within
each group. For example, marine mammal scientists may act both as objective independent
analysts and serve as advocates for a specific sector.
6 National Marine Fisheries Service, Fisheries of the United States, 2002, Current Fishery
Statistics No. 2002 (Sept. 2003), p. 94. No revised estimate has been published more
recently.
7 National Marine Fisheries Service, Fisheries of the United States, 2005, Current Fishery
Statistics No. 2005 (February 2007), p. 82. This number represents individuals employed
by processors and wholesale plants. It does not include catching, transporting, or retail
marketing of commercially caught fish, nor does it include jobs supported by commercial
fisheries.
8 Ex-vessel value is the money paid to the harvester for fish, shellfish, and other aquatic
plants and animals, i.e., the dollar value of the harvest when it is offloaded from the boat.
9 Supra note 7, p. 4.
10 Id., p. 79.
This sector is chiefly concerned with ensuring sustainable fisheries that balance
environmental protection with the continued short-term and long-term viability of the
industry. An additional concern is how best to manage conflicts between
increasingly abundant marine mammals and commercial fishing. Within this sector
is a diverse group of interests, each with specific concerns regarding the rational use
of living marine resources and the allocation of resources among user groups. These
sectors divide according to scale of operation; type of activity (fishermen, catcher-
processor, processor); type of fishing gear used (trawl, longline, gillnet, pots, seine);
and location (inshore or offshore).
Environmental Groups. More than 50 U.S. environmental and conservation
organizations focus primarily or largely on marine issues. Membership in these
groups ranges into the millions. With respect to the MMPA, environmental groups
are principally concerned with the lack of assessment data for many managed stocks,
the direct and indirect harm to less resilient marine species (including marine
mammals), the protection of marine biodiversity, and the continuing loss of marine
habitat.
Public Display Community. This community includes about 200 U.S.
marine life parks, aquariums, and zoos dedicated to the conservation of marine
mammals and their environments through public display, education, and research.
The public display community has not taken a formal position on any of the issues
raised in this report.
Animal Protection Advocates. More than 30 U.S. animal protection
organizations have programs focusing on the protection of marine mammals and
other marine species. Animal protection groups are concerned with impacts on
individual animals as well as species, with harassment as well as killing and injury,
and with captive as well as free-ranging animals. They share concerns with
environmental groups regarding habitat loss and degradation, but are also concerned
with intentional and incidental takes that result in animal suffering. Their key focus
is on protection.
Native Americans. Because of their culture, tradition, and subsistence needs,
many tribes and indigenous groups are concerned about the management of marine
mammals. Some Alaska Native groups are represented by commissions (e.g.,
Eskimo Walrus Commission, Alaska Eskimo Whaling Commission, Harbor Seal
Commission, Aleut Marine Mammal Commission, Alaska Nanuuq Commission,
Alaska Sea Otter and Steller Sea Lion Commission) that coordinate management of
certain species with federal agencies. The long-term goals of tribes and indigenous
groups generally include economic stability, resource sustainability, and regulatory
certainty. Of particular concern during MMPA reauthorization will be cooperative
management of marine mammals, which they believe fosters economic vitality,
environmental health, and rational management of natural resources.
Marine Mammal Scientists. Scientists from academia, the private sector,
and state and federal agencies are principally involved in analyzing the ecological,
social, and economic effects of MMPA provisions and marine mammal management
policy. Like the other groups, they are concerned with the health and integrity of
marine ecosystems and the rational use of marine resources. Specifically, they are
interested in the availability of adequate funding and accurate data to perform the
necessary analyses. Such scientists are also often members of or associated with
other constituent groups.
Marine Mammal Managers. Federal and state marine mammal managers
are charged with implementing the MMPA and complementary state programs.
Because of this responsibility, their interests and concerns are more keenly focused
on the pragmatic aspects of the MMPA. Specifically, they are interested in clarity
in the intent of management requirements and in federal appropriations to fund data
collection and research.
Marine Mammal Protection Act
Congress enacted the Marine Mammal Protection Act (MMPA) in 1972, due in
part to the high level of dolphin mortality in the eastern tropical Pacific tuna fishery
(estimated at more than 400,000 animals per year in the late 1960s). The MMPA
established a moratorium11 on the “taking” of marine mammals in U.S. waters and
by U.S. nationals on the high seas.12 The MMPA also established a moratorium on
importing marine mammals and marine mammal products into the United States.
The MMPA protects marine mammals from “clubbing, mutilation, poisoning,
capture in nets, and other human actions that lead to extinction.” It also expressly
authorized the Secretaries of Commerce and the Interior to issue permits for the
“taking” of marine mammals for certain purposes, such as scientific research and
public display.
Under the MMPA, the Secretary of Commerce, acting through the National
Marine Fisheries Service (NMFS, in the National Oceanic and Atmospheric
Administration, also popularly referred to as “NOAA Fisheries”), is responsible for
the conservation and management of whales, dolphins, porpoises, seals, and sea
lions. The Secretary of the Interior, acting through the U.S. Fish and Wildlife Service
(FWS), is responsible for walruses, sea otters, polar bears, manatees, and dugongs.
This division of authority derives from agency responsibilities as they existed when
the MMPA was enacted. Title II of the MMPA established an independent Marine
Mammal Commission (MMC) and its Committee of Scientific Advisors on Marine
Mammals to oversee and recommend actions necessary to meet the requirements of
the MMPA. Title III authorized the International Dolphin Conservation Program.
Title IV authorized the Marine Mammal Health and Stranding Response Program.
Title V implemented the Agreement Between the United States and the Russian
Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear
Population.
11 Some consider this action a ban or prohibition, rather than a moratorium, because it was
(and is) permanent.
12 Under the MMPA, in 16 U.S.C. §1362(13), take means “to harass, hunt, capture, or kill,
or attempt to harass, hunt, capture, or kill.”
Prior to passage of the MMPA, states were responsible for managing marine
mammals on lands and in waters under their jurisdiction. The MMPA shifted all
marine mammal management authority to the federal government. It provides,
however, that management authority, on a species-by-species basis, could be returned
to a state that adopts conservation and management programs consistent with the
purposes and policies of the MMPA.13 It also provides that the moratorium on taking
can be waived by the federal government or states with management authority for
specific purposes, if the taking will not disadvantage the affected species or
population. Permits may be issued to take or import any marine mammal species,
including depleted species, for scientific research or to enhance the survival or
recovery of the species or stock. Non-depleted species may be taken or imported for
purposes of public display. The MMPA allows U.S. citizens to apply for and obtain
authorization for taking small numbers of mammals incidental to activities other than
commercial fishing (e.g., offshore oil and gas exploration and development), if the
taking would have a negligible impact on any marine mammal species or stock, and
if monitoring requirements and other conditions are met.
The MMPA’s moratorium on taking does not apply to any resident Alaskan
Indian, Aleut, or Eskimo who dwells on the coast of the North Pacific (including the
Bering Sea) or Arctic Oceans (including the Chukchi and Beaufort Seas), if such
taking is for subsistence purposes14 or for creating and selling authentic Native
articles of handicrafts and clothing, and is not done wastefully. However, such taking
can be regulated or even prohibited if the Secretary determines a stock is depleted.
The MMPA also provides for co-management of marine mammal subsistence use by
Alaska Native groups, under which authority Native commissions have been
established.
The MMPA also authorizes the taking of marine mammals incidental to
commercial fishing operations. In 1988, most U.S. commercial fish harvesters were
exempted from otherwise applicable regulations and permit requirements for five
years, pending development of an improved system to govern the incidental taking
of marine mammals in the course of commercial fishing operations.15 The taking of
marine mammals incidental to the eastern tropical Pacific tuna fishery is governed
by specific and separate provisions in Title III of the MMPA.
The Endangered Species Act of 1973 (ESA; P.L. 93-205, as amended; 16 U.S.C.
§§1531, et seq.) provides additional protection for some marine mammal species that
have been determined to be threatened or endangered with extinction. When
protective actions are taken under both ESA and MMPA authorities, interactions
13 Although the State of Alaska began the process to request management authority for some
marine mammal species, no state has been granted such management authority.
14 Section 109(f)(2) defines subsistence uses as “the customary and traditional uses by rural
Alaska residents of marine mammals for direct personal or family consumption as food,
shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft
articles out of nonedible byproducts of marine mammals taken for personal or family
consumption; and for barter, or sharing for personal or family consumption.”
15 Subsequently, the MMPA Amendments of 1994 established a new regime to govern the
incidental taking of marine mammals by commercial fishing operations.
between implementation efforts under these two statutes may increase management
complexity and legal uncertainty in dealing with some species, such as the southern
sea otter in California.
1994 MMPA Reauthorization
The 1988 commercial fishing exemption expired at the end of FY1993, and new
provisions were enacted in P.L. 103-238, which reauthorized the MMPA through16
FY1999. These new provisions indefinitely authorized the taking of marine
mammals incidental to commercial fishing operations and provided for (1) preparing
assessments for all marine mammal stocks in waters under U.S. jurisdiction, (2)
developing and implementing Take Reduction Plans for stocks that may be reduced
or are being maintained below their optimum sustainable population levels due to
interactions with commercial fisheries, and (3) studying pinniped17-fishery
interactions. In addition, the 1994 amendments substantially changed provisions
relating to public display of marine mammals, authorized imports of polar bear
trophies from Canada, authorized the limited lethal removal of pinnipeds, and
enacted a general authorization for research involving only low levels of harassment.
Implementation of the 1994 Amendments
Implementation of the 1994 MMPA amendments by NMFS and FWS has been
controversial on several issues. In some cases, implementation of new provisions
took more than the full five years of the authorization to complete. One of the most
difficult and controversial amendments to implement was the convening of Take
Reduction Teams (TRTs)18 and the development of Take Reduction Plans by these
TRTs. Critics believe an insufficient number of TRTs have been convened and that
development of plans is far behind schedule.
NMFS has convened nine TRTs to reduce bycatch of strategic stocks of marine
mammals in selected commercial fisheries. One of these, the Atlantic Offshore
Cetacean TRT, was disbanded in August 2001 due to changes in the affected
fisheries. Another, the Mid-Atlantic TRT, became the Mid-Atlantic Harbor Porpoise
TRT, because of priority given to particularly vulnerable harbor porpoise. Six of the
remaining TRTs address bycatch issues on the Atlantic Coast, while the remaining
16 For more information, see CRS Report 94-751 ENR, Marine Mammal Protection Act
Amendments of 1994, by Eugene H. Buck.
17 Pinnipeds include seals, sea lions, and walrus.
18 Members of TRTs “include representatives of federal agencies, each coastal state which
has fisheries which interact with the species or stock, appropriate Regional Fishery
Management Councils, interstate fisheries commissions, academic and scientific
organizations, environmental groups, all commercial and recreational fisheries groups and
gear types which incidentally take the species or stock, Alaska Native organizations or
Indian tribal organizations, and others as the Secretary deems appropriate” (16 U.S.C.
§1387(f)(6)(C)).
TRT addresses marine mammal bycatch in the Pacific driftnet fishery for swordfish
and sharks.19
Several TRTs have yet to be convened and plans developed. Although NMFS
recognizes that fishery-related mortality exceeds the PBR level in some marine
mammal stocks, no new TRTs are to be convened until additional funds are
appropriated or redirected from existing Take Reduction Plans that have been
declared successful. Congress recognized that funds would be limited and
established criteria for prioritization of this effort in 16 U.S.C. §1387(f)(3).
Overall, NMFS believes that the time allowed by the MMPA to convene a TRT
and develop a plan has been adequate. However, NMFS found it difficult to publish
a final rule based on a plan in the time allotted by the MMPA, due primarily to the
complexity and difficulty of implementing regulations that minimize impacts to the
industry as required by the MMPA, and by the economic analyses and requirements
of other statutes. The difficulties in meeting statutory deadlines and implementing
plans for these strategic stocks has been both frustrating to many, sometimes
resulting in litigation, and satisfying to others in that serious bycatch/fishery issues
have been addressed.
In response to the 1994 MMPA amendments at 16 U.S.C. §1386, NMFS and
FWS have completed reports assessing more than 170 different marine mammal
stocks as required by the MMPA,20 and have developed a list of fisheries that monitor
their annual takes of marine mammals by stock. These lists are frequently being
revised and are also the target of controversy as new information is incorporated into
the assessments. However, some of the stock assessments conducted by FWS have
been criticized for using outdated (e.g., decades old) data. In addition, Alaska Native
interests continue to be concerned that some stock assessment reports have little
information on incidental take from commercial fishing operations. The sparse
information in these reports, based on data collected during the 1988-1992
exemption, was the result of an emphasis on some U.S. fisheries having interactions
with marine mammals at a rate that was considered more serious than that occurring
in fisheries of concern to Native Alaskans. An observer program was therefore not
initiated in Alaska until 1998. NMFS anticipates becoming better able to address the
concerns of Alaska Natives.
The 1994 amendments also directed the federal government to undertake an
ecosystem-based research and monitoring program for the Bering Sea to identify the
causes of ecosystem decline. There is controversy over the extent to which this
provision has been fulfilled. Meanwhile, the Alaska Native community would like
to initiate a complimentary effort to understand Bering Sea ecological processes by
drawing upon traditional Native knowledge and wisdom. The Alaska Native
community was unable to obtain public funding to convene meetings among affected
villages to review the draft federal Bering Sea research plan, and eventually sought
independent funding to support a March 1999 Bering Sea conference.
19 For additional background on TRTs, see [http://www.nmfs.noaa.gov/pr/interactions/trt/].
20 For individual stock assessment reports, see [http://www.nmfs.noaa.gov/pr/sars/species.
htm].
Miscellaneous MMPA Amendments
Subsequent to the 1994 reauthorization, several additional MMPA amendments
were enacted separately:
!Section 405(b)(3) of P.L. 104-297 amended the MMPA’s definition
of the term “waters under the jurisdiction of the United States.”
!In P.L. 105-18, §2003 provided a “good samaritan” exemption
allowing individuals to free marine mammals entangled in fishing
gear or debris, while §5004 modified the requirements for the
importation of polar bear parts from polar bears legally harvested in
Canada before the MMPA Amendments of 1994 were enacted.
!P.L. 105-42 modified dolphin conservation provisions of the MMPA
applicable to the eastern tropical Pacific tuna seine fishery and
specified under what conditions tuna products can be labeled
“dolphin-safe.”
!Administrative provisions for the U.S. Fish and Wildlife Service in
P.L. 105-277 clarified that polar bear trophy permit fees remain
available until expended for cooperative research and management
programs.
!Title II of P.L. 106-555 authorized grants to benefit marine mammal
stranding programs.
!Section 149 of P.L. 108-108 permitted the importation of polar bears
from Canada harvested prior to the enactment of final regulations.
!Section 319 of P.L. 108-136 modified the MMPA’s definition of
harassment and provisions relating to taking marine mammals as
they relate to military readiness activities and federal scientific
research. 21
!Title IX of P.L. 109-479 implemented the Agreement Between the
United States and the Russian Federation on the Conservation and
Management of the Alaska-Chukotka Polar Bear Population.
In compliance with the International Dolphin Conservation Program Act (P.L.
105-42), the Secretary of Commerce, on April 29, 1999, made an initial finding that
there was insufficient evidence of significant adverse impact from chase and
encirclement of dolphins during tuna fishing.22 Subsequently, NMFS promulgated
a new standard for dolphin-safe tuna in January 2000.23 However, this standard was
challenged by environmental groups and overturned by the U.S. District Court for the
Northern District of California on April 11, 2000.24 Although the Department of
21 For additional information, see CRS Report RS22149, Exemptions from Environmental
Law for the Department of Defense: Background and Issues for Congress, by David M.
Bearden.
22 64 Fed. Reg. 24590-24592 (May 7, 1999).
23 65 Fed. Reg. 30-59 (Jan. 3, 2000).
24 Brower v. Evans, 93 F. Supp 2d 1071, 2000 U.S. Dist. LEXIS 4624 (N.D. Cal. 2000).
Commerce appealed this ruling, the 9th Circuit Court of Appeals affirmed the lower
court decision in July 2001.25
Issues for Congress
The remainder of this report reviews issues that may be raised during
discussions on reauthorizing the MMPA. The major issue categories include
commercial fishing interactions with marine mammals, marine mammals in captivity,
Native Americans and marine mammals, permits and authorizations, and program
management and administration. Some of these issues could be addressed
administratively, in regulations implemented by NMFS, FWS, or the Animal and
Plant Health Inspection Service (APHIS, Department of Agriculture). Others would
require legislative action.
Commercial Fishing Interactions with Marine Mammals
Optimum Sustainable Population. Optimum sustainable population
(OSP) is defined in 16 U.S.C. §1362(9) as “the number of animals which will result
in the maximum productivity of the population or the species, keeping in mind the
carrying capacity of the habitat and the health of the ecosystem of which they form
a constituent element.” However, the variable nature of populations in marine
ecosystems makes it nearly impossible to determine carrying capacity. In addition,
for many species, the limiting habitat factors that govern carrying capacity are not26
known or well understood.
Animal protection, scientific, and environmental interests generally agree that
OSP is an important concept for assessing the viability of a population or stock.
Some scientists, however, express concern that, if current rather than historic
population data are used to calculate OSP, OSP levels may be calculated too low for27
some marine mammal stocks. Some in the commercial fishing industry, however,
argue that OSP, as currently defined, is complex and vague in concept. They contend28
that “maximum productivity” is difficult to determine and imprecise, and
complicates work on developing Take Reduction Plans for marine mammal stocks.
25 Brower v. Evans, 257 F. 3d 1058, 2001 U.S. App. LEXIS 16504 (9th Cir. 2001).
26 Some scientists have attempted to define OSP for a population based on the carrying
capacity for an ecosystem that may no longer exist for many reasons, both human-caused
and natural.
27 These scientists are concerned that, since most marine mammal species have suffered
dramatic population decreases over the last two centuries, the true carrying capacity of the
environment is unknown. In addition, they believe that carrying capacity for some species
would increase if certain commercial fish harvests were curtailed and other human uses of
the marine environment were modified.
28 Maximum productivity is based on inexact population surveys subject to natural
fluctuations and can be derived scientifically in several ways. Improving survey techniques
with more advanced technology holds promise for improving the precision of these
variables. Full realization of this potential may be dependent upon increased funding.
The difficulties in declaring that a species is at OSP (1) frustrate fishing industry
interests by impeding the ability of the federal government to transfer management
authority to states and (2) prevent or delay fishermen from gaining authority to
deliberately kill marine mammals. In addition, commercial fishing interests chafe
when the MMPA, through OSP, grants marine mammals priority access to certain
fish stocks and allocates marine mammals de facto “harvest quotas” in direct
competition with and to the detriment of the fishing industry. Environmental and
scientific interests counter that marine mammals are part of the marine ecosystem
and should have their prey species protected from excessive fishing. These interests
also believe that critics within the commercial fishing industry may be too quick to
blame marine mammals for reductions in target fish populations where predator-prey
relationships are incompletely understood.
Commercial fishing interests would like to see the MMPA amended to modify,
simplify, and clarify the definition of OSP as the objective for marine mammal
management. Scientific, animal protection, and environmental interests believe that
OSP, as the central “core” innovation of the MMPA, should be retained and
improved. Other suggestions include directing the MMC to host a workshop,
involving marine ecologists, oceanographers, and climatologists, to further examine
the methods for determining OSP and its derivative potential biological removal (see
section below). Appropriation of funds necessary for this task would probably be
required.
Calculating Potential Biological Removal. The potential biological
removal (PBR) level is used to establish limits on incidental marine mammal
mortality for commercial fishing operations. It is defined in 16 U.S.C. §1362(20) as
“the maximum number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach or maintain
its optimum sustainable population.” PBR is calculated by multiplying a stock’s
minimum population estimate by half the known or presumed maximum net
productivity of the stock. This product is multiplied by a fractional multiplier known
as the recovery factor.29 Take Reduction Plans are based on two assumptions: (1)
that a stock or population currently within its OSP range will remain so, and (2) that
any stock or population below its maximum net productivity level will increase to
that level if the total human-caused mortality is kept below the PBR level. However,
some scientists believe that both these assumptions might be questionable in light of
today’s much better information.
MMPA critics in the fishing industry and Native Alaskan community believe
that NMFS has been so restrictive in calculating PBRs that the economic viability of
certain fisheries (e.g., the New England and mid-Atlantic gillnet fisheries, Bering Sea
pollock fishery) is being compromised. NMFS and FWS managers counter that the
lack of critical data used in PBR calculations limits their ability to calculate precise
PBR values for many species. These issues are particularly acute for Alaskan species
where population surveys, productivity rates, and harvest data are absent or based on
crude estimates several decades old. Some scientific and animal protection interests,
29 The recovery factor accounts for uncertainty in population estimates and reproductive
rates.
however, are concerned that, if the method for calculating them is changed, PBRs
could be set too high to provide adequate incentive for commercial fishermen to
develop better ways of targeting and catching certain species of fish (e.g., phasing out
indiscriminate harvesting methods).
Segments of the commercial fishing industry would like to have the concept or
definition of PBR revised to be less restrictive by, for example, manipulating one of
the multipliers (particularly the recovery factor). Scientific, animal protection, and
environmental interests believe that PBR is an extremely important concept and an
excellent management tool that should be maintained.30 Without a way to calculate
concrete limits on take, they argue, NMFS would have no way of adequately
determining the impact of human-caused mortality on marine mammal stocks or of
adequately enforcing regulations. Some scientists contend that the necessary
monitoring and research to accurately calculate useful PBRs is lacking. These critics
suggest that a deadline be set for completing development of models to address these
concerns.
As mentioned in the previous section, suggestions for MMPA reauthorization
include directing the MMC to host a workshop, involving marine ecologists,
oceanographers, and climatologists, to further examine the methods for determining
OSP and its derivative PBR. Considerations for such a workshop might include (1)
multiple mortality factors such as subsistence harvest, commercial fishery
interactions (including entanglement in net discards), and industrial activities (e.g.,
noise, contaminants); (2) standardized guidelines for using the recovery factor (e.g.,
endangered species that continue to decline should use 0.1 or less; endangered but
increasing should use 0.2); and (3) variability in natural mortality due to extreme
events (e.g., mass stranding, El Niño). Appropriation of funds necessary for this task
would probably be required.
Zero Mortality Rate Goal. In 16 U.S.C. §1387(b)(3), the MMPA requires
“the immediate goal that incidental kill or incidental serious injury of marine
mammals permitted in the course of commercial fishing operations be reduced to
insignificant levels approaching a zero mortality and serious injury rate within 7
years after April 30, 1994.” In July 2004, NMFS defined insignificant levels31
approaching the ZMRG as 10% or less of the PBR for any stock.
The animal protection and environmental communities believe the objective of
approaching the ZMRG must be maintained. However, while marine mammal
mortality in many fisheries has been reduced (in some cases, substantially), animal
protection and environmental interests do not consider these reductions to be
significant. They believe that the ZMRG can be implemented in ways that do not
impose burdensome costs on the fishing industry, and that promote marine ecosystem
30 These interests see PBR as a means of invoking the precautionary principle in marine
mammal management — by which the federal government takes action to avert possible
harm to marine mammals, even when the causal link between human behavior and those
damages is not completely clear. For additional information on the precautionary principle,
see [http://www.sehn.org/pdf/putvaluesfirst.pdf].
31 69 Fed. Reg. 43338-43345 (July 20, 2004).
sustainability that is in the interest of all parties. Similar to their reasoning on PBRs,
they believe ZMRG must be maintained as a means of encouraging the development
and use of more risk-averse fishing methods.
The fishing industry is concerned that ZMRG be implemented in a manner that
recognizes a reasonable balance between marine mammal protection and
economically viable fisheries, and that can be seen as having been already achieved
in many instances. Animal protection and environmental communities generally are
supportive of the NMFS definition of approaching the ZMRG — that is, 10% of the
PBR or less.
Stock Assessment Process. The MMPA outlines a stock assessment
process in 16 U.S.C. §1386. Several scientists and managers contend that this
process is insufficient to assess most marine mammal populations with a reasonable
degree of certainty. In addition, these critics as well as various advocacy groups
believe that federal funding is insufficient to improve species-specific methods for32
assessing marine mammal stocks, and that Congress should authorize specific and
substantial multi-year funding to improve our basic knowledge of marine mammal33
populations, especially for Arctic species. Alaskan Native interests suggest that the
MMPA (16 U.S.C. §1386(d)) be amended to confer greater authority to Regional
Scientific Review Groups, authorizing these groups to exercise more power in
addressing concerns of where research is needed, rather than be only advisory. In
addition, they suggest amendments to 16 U.S.C. §1386(c) to alter the timing of stock
assessment reviews, feeling that healthy stocks may not need review every three years
— every five years would be more reasonable. They believe that three years may be
too short an interval to detect meaningful trends and can be burdensome on the
agency performing the assessments. For most strategic stocks, since little new
information is gathered to necessitate an annual review, they believe an assessment
every two years might be sufficient.
Deterrence. In 16 U.S.C. §1371(a)(4), the MMPA allows the use of deterrents
to discourage marine mammals from damaging fish catch or gear. Currently, the
burden falls on the federal government to prove that a deterrent is harmful before it
can be prohibited. For example, the long-term effects on marine mammals of
acoustical harassment devices (AHDs), such as “seal bombs” and “seal scarers,” are
not known.34 NMFS and the Marine Mammal Commission sponsored a 1996
32 New methodology might include both population numbers and ecological relationships
as well as review by independent scientists.
33 “For updated stock assessments to be meaningful, this absence of sound scientific data
needs to be addressed by providing for enhanced capability to conduct high priority
population surveys, and studies for development of alternative population indices.”
Marshall Jones, Acting Deputy Director, U.S. Fish and Wildlife Service, June 29, 1999,
hearing before the House Resources Subcommittee on Fisheries Conservation, Wildlife, and
Oceans.
34 Marine mammals are persistent when they discover a food source. They may habituate
to acoustic devices unless these devices are quite loud, in which case the animal’s hearing
could become impaired. The ways and extent to which widespread use of acoustic alarms
(continued...)
scientific workshop that raised significant concerns about AHDs and recommended
that their use be severely limited. NMFS proposed35 but never finalized deterrence
regulations because of the difficulty in identifying measures for safely deterring
endangered and threatened marine mammals,36 and the use of AHDs has increased
substantially in recent years. Similarly, some scientists are concerned that there has
been insufficient research37 to determine at what threshold a deterrent device might
become harmful to marine mammals.38
With huge gaps of knowledge in marine mammal science,39 some animal
protection advocates argue that it would be prudent to allow only proven harmless
deterrents for use on marine mammals interacting with fishing vessels and/or fish
farms. Some have argued for reliance on the precautionary principle that would
require manufacturers to prove that a deterrent does not cause permanent harm to any
age/sex class of affected marine mammal species before allowing its use.40 In
addition, some scientists and managers believe that not enough emphasis has been
placed on encouraging fishermen to change their fishing practices, rather than use a
proven deterrent, to reduce interactions with marine mammals.41 However,
34 (...continued)
and deterrents may affect the natural ability of marine mammals to find food and use the full
extent of their foraging range is not well known, but may have unintended consequences.
For example, the loss of hearing due to loud noise might increase the dependancy of marine
mammals upon fishing boats and fish farms for food. In addition, AHDs could displace non-
target species (such as porpoises) several miles (e.g., Retreat Passage, British Columbia).
35 Guidelines and regulations for use of deterrents were proposed at 60 Fed. Reg. 22345-
36 See congressional testimony by Dr. William T. Hogarth, Assistant Administrator for
Fisheries, NMFS, NOAA, at [http://www.ogc.doc.gov/ogc/legreg/testimon/107f/hogarth
37 Some of this research has been conducted on captive marine mammals, which may have
limited applicability to the behavior of wild, free-ranging animals.
38 Even low-sound-output devices (e.g., “pingers”) may displace animals from critical
feeding habitat.
39 For example, the physiology of different species interacting in a particular habitat,
sensory processes, ecosystem implications, stock assessments, and specific behavioral
characteristics/region. Studies that have been conducted are inconclusive with respect to
(1) effects of a single deterrent device on multiple species inhabiting a given area (including
fish); (2) audiological and physiological understanding of the marine mammal ear (and
hearing thresholds); (3) impacts of both broad- and narrow-band spectra signals on the
marine mammal auditory system; (4) frequency, intensity levels, and duty cycles of such
devices with respect to ambient noise, vessel operations, etc.; and (5) acoustic behavior of
the animals.
40 Others assert that it is an extreme standard to be required to prove a negative — that an
AHD does not cause harm. They claim a much more reasonable standard might be to
prohibit the use of AHDs that have been shown to cause any kind of permanent damage.
41 Some fishery practices (e.g., discarding bycatch and fish waste) invite marine mammals
into close proximity with humans. In addition, an increase of fishery interactions with
(continued...)
fishermen are likely to make their choice between deterrents and changes in fishing
practice on the basis of their relative cost.
Some parties critical of the current situation may endorse proposals to alter the
burden of proof for deterrents found in 16 U.S.C. §1371(a)(4)(C); others may support
efforts to direct NMFS to study the causes of fishery-marine mammal interaction
problems to develop a different basis for regulating deterrents. Others suggest that
the MMPA be revised to require permits for AHD users, allowing NMFS to better
monitor the amount of ocean noise generated by these devices.42 NMFS has
recommended that Congress consider (1) removing impediments to testing non-lethal
deterrent technologies and (2) funding additional research, development, and
evaluation of innovative non-lethal pinniped deterrence techniques.43 Some
managers and scientists as well as certain interest groups caution, however, that
considerable care must be taken to fully assess the “side effects” of noise and other
emissions of non-lethal deterrents to identify any potential for damage to targeted and
non-targeted marine mammals, fish that may be more sensitive to noise (e.g., herring,
cod, other schooling fish), and divers. Any potential for damage will need to be
weighed against the benefits of these deterrents before their use becomes even more
widespread.
Reinstate Limited Authority for Intentional Lethal Taking. Prior to the
1994 MMPA amendments, commercial fishermen were allowed to kill certain
pinnipeds as a last resort to protect their gear and catch. The 1994 amendments
eliminated authorization for such lethal taking and replaced it with authority to use
deterrence measures that do not kill or seriously injure marine mammals. However,
conflicts between fishermen and pinnipeds have become more frequent, and
economic losses have increased. NMFS has recommended that Congress consider
authorizing the intentional lethal taking of California sea lions and Pacific harbor
seals in specific areas and fisheries to protect gear and catch until effective non-lethal
methods are developed.44 Critics oppose reinstating this authority, fearing that
allowing fishermen to kill California sea lions and Pacific harbor seals could reduce
the incentive to modify fishing practices or develop non-lethal deterrents, and would
likely result in accidental kills of similar-appearing species that are endangered, such
41 (...continued)
sperm whales in Alaskan waters appears to have coincided with the change from a “derby
fishery” (where the whole fleet fished for a short period of time) to an individual fishing
quota (IFQ) system (where individual fishermen choose when to fish during most of the
year). The IFQ system may have enabled sperm whales to develop their skill in taking fish
from fishermen. Before the change to IFQs, whales had, at most, two weeks to interact with
longline fisheries and, since all vessels were fishing at the same time, not every vessel
experienced problems with the whales. Now, sperm whales apparently go from boat to boat
in time and space, practicing their skills most of the year.
42 A simplified permit process might address the impacts on non-target species, and a
research program could be established to assess the long-term impacts on target and non-
target species from the use of AHDs.
43 National Marine Fisheries Service. Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems, Report to Congress (Feb. 10, 1999), p. 15.
44 Ibid., p. 15-16.
as the ESA-listed Steller sea lion.45 These critics suggest that more attention be given
to modifying fishing practices and fishery management policies to reduce contact
between commercial fishermen and marine mammals. One possible means for
accomplishing this might involve the creation of marine protected areas that
encompass key marine mammal habitats.46 In particular, animal protection advocates
strongly oppose any reinstatement of intentional lethal taking, fearing the increased
risks of merely injuring animals and causing significant suffering as shown by the
number of live-stranded sea lions that are sent to rehabilitation centers after having
been illegally shot.
With regard to sea otters rather than pinnipeds, Washington State sea urchin
fishermen are becoming more concerned about harmful interactions by increasingly
abundant sea otters, and may seek some means for limiting or controlling sea otter
abundance to benefit the sea urchin fishery. The state lists sea otters as endangered,
but no federal protection is afforded this population under the ESA. However, a
1996 stock assessment report prepared under MMPA authority indicated this
population was below OSP. In addition, Alaskans who blame sea otters, in part, for
declining fish catch may advocate a more liberal killing of sea otters by Alaska
Natives interested in expanding commercial trade in handicrafts made from their fur.
Others, however, are concerned about reported recent declines in Alaska sea otter
abundance. Animal protection groups rigorously oppose proposals to lethally take
sea otters.
Integration with Fishery Management. On several issues, observers
suggest that better integration between the management programs under the MMPA
and the Magnuson-Stevens Fishery Conservation and Management Act might be47
helpful. Currently, no formal mechanism exists for interaction between Take
Reduction Teams (TRTs) and the regional fishery management council committees,
established under the Magnuson-Stevens Act, which assess fish stocks, determine
total allowable catch (TAC), and make other fishery management decisions.
However, marine mammal take reduction is clearly an essential part of reducing
fishery bycatch and other incidental mortalities associated with fisheries. The Steller
Sea Lion Recovery Team has so far been the only quasi-TRT that has been included
in formulating fishery management plans (i.e., by the North Pacific Fishery
Management Council for Gulf of Alaska groundfish and for Bering Sea/Aleutian
Islands groundfish). Some marine mammal scientists suggest amending the MMPA
and the Magnuson-Stevens Act to require TRT input in fishery management
planning, to better address marine mammal-fisheries interaction problems.
45 The federal courts have ruled that the federal government cannot issue permits to kill an
abundant animal when they know that a protected animal is also likely to be killed. See
Kokechik Fishermen’s Association v. Secretary of Commerce, 839 F.2d 795 (D.C. Cir. 1988)
cert denied, 488 U.S. 1004 (1989).
46 For more information on marine protected areas, see CRS Report RS10810, Marine
Protected Areas: An Overview, by Jeffrey A. Zinn and Eugene H. Buck.
47 It has been suggested that some actions could be administrative (e.g., NMFS consultation
on designating “essential fish habitat”) such that protection of sensitive fish habitat might
also acknowledge the importance of critical foraging areas for sub-adult and reproductively
active female marine mammals.
Fishery Impacts and Southern Sea Otters. Because vessels conducting
trap and other inshore fisheries off southern California are often too small to carry
observers, monitoring the impacts of these fisheries on southern sea otters has been
especially challenging. Without evidence that significant mortality results from these
particular fishing activities, funds provided to NMFS under the MMPA are not
available to identify and monitor potential sources of mortality for southern sea
otters, much less to evaluate how trap design might affect sea otter entrapment or
otherwise help identify means to minimize conflicts. Some scientists and managers
suggest amending the MMPA to facilitate monitoring in small vessel fisheries and
to authorize funding to address potential interactions.
Southern sea otters appear to be attempting to extend their range southward.
Such behavior may be significant to the long-term survival of this population,
scientists contend. However, the commercial fishing industry opposes any expansion
of the southern sea otter’s range. When FWS was authorized to establish an
experimental population of southern sea otters at San Nicolas Island, one of Southern
California’s Channel Islands, in 1986, the agency was required to limit the potential
impacts of translocated southern sea otters on existing commercial fisheries and48
remove sea otters from a management zone south of Point Conception. In late
2005, FWS proposed that this translocation program be terminated.49 Commercial
fishermen suggest that the MMPA and the ESA might be amended to impose more
stringent requirements on managing populations to limit their potential to conflict
with existing uses. Opposing this, some environmental and animal protection
interests suggest that language establishing the 1986 experimental population and
translocation be repealed, eliminating the management zone and allowing sea otters
to expand their range naturally to meet their recovery needs.
Marine Mammals in Captivity
While some issues involving marine mammals in captivity discussed in this
section may require amendment of the MMPA, many of these issues could also be
addressed under the authority of the Animal Welfare Act (AWA) or be addressed
administratively in regulations implemented by APHIS (Department of Agriculture).
Procedurally, Congress faces the decision on whether to treat these issues within the
MMPA reauthorization process, to treat them as AWA issues and consider them
concurrently with MMPA reauthorization, or to address these issues as strictly AWA
concerns to be considered at another time. Congressional oversight of agency
implementation of the MMPA and the AWA in some of these issue areas may
identify regulatory concerns where further direction from Congress may be helpful50
in refocusing federal agency implementation of existing law.
48 Section 1 of P.L. 99-625. However, FWS decided in January 2001 to halt the removal of
southern sea otters from the management zone. For more information on this decision, see
[http://pacific.fws.gov/ news /2001/2001-23.htm] .
49 See [http://www.fws.gov/pacific/news/2005/seaotterNR.pdf].
50 Coordinated oversight on this issue can be complicated by committee jurisdiction, since
APHIS and the AWA fall under the jurisdiction of the House Committee on Agriculture and
(continued...)
Many of the issues in this section reflect the contentious relationship between
animal protection interests and holders of captive marine mammals. These
constituencies often disagree on whether, and if so under what conditions, marine
mammals should be held in captivity.51
Authority for Captive Marine Mammals. Prior to the 1994 MMPA
amendments, NMFS, FWS, and APHIS shared responsibility for the care and
maintenance of marine mammals held by public display facilities. However, the
1994 MMPA amendments delegated primary authority for captive marine mammals
to APHIS for regulation under provisions of the Animal Welfare Act.52 APHIS
conducted a negotiated rulemaking process to revise requirements for the humane
handling, care, treatment, and transport of marine mammals in captivity.53 It
involved representatives of animal protection groups, marine mammal facilities,
veterinary professionals, trainers, and government managers working cooperatively.
The animal protection community, believing that APHIS’s expertise and
experience is primarily with non-aquatic species, may propose to return jurisdiction
to NMFS and FWS, which they feel are better qualified to monitor marine mammal54
care and maintenance. On the other hand, some in the public display community
see no basis for stripping APHIS of primary authority for captive marine mammals,
since they contend that APHIS has a long history of developing and enforcing
standards of animal health and care and has vigorously exercised its jurisdiction.55
50 (...continued)
Senate Committee on Agriculture, Nutrition, and Forestry while NMFS and the MMPA are
under the jurisdiction of the House Committee on Resources and Senate Committee on
Commerce, Science, and Transportation.
51 Various aspects of this issue were recently highlighted in a five-part series, “Below the
Surface,” published in the South Florida Sun-Sentinel, May 16-19, 2004, available at
[ ht t p: / / www.sun-sent i n e l .com/ news/ sf l -ma r i nest or yga l l e r y,0,2119297.st or yga l l e r y?col l
=sfla-home-dots-utility].
52 In August 1998, NMFS, FWS, and APHIS signed a memorandum of understanding
(MOU) outlining their respective independent and collaborative roles. This MOU provides
implementation strategies to ensure priority care for marine mammals, and formalizes
information sharing among the agencies to promote enforcement and compliance.
53 APHIS began the process of amending marine mammal regulations under the AWA in
1990. Subsequently, APHIS published an advanced notice of proposed rulemaking at 58
Fed. Reg. 39458 (July 23, 1993). Proposed regulations were published at 64 Fed. Reg.
54 Animal protection advocates report that APHIS employs only one veterinarian with
marine mammal expertise among a staff of approximately 106 inspectors. These 106
inspectors are responsible for 8,800 licensed zoos, circuses, and trucks/airlines that transport
animals. Although the AWA requires one unannounced inspection per year, animal
protection groups contend that overworked inspectors visit some marine parts and aquaria
only once every three years, or only after the filing of public complaints.
55 APHIS has more than 20 years’ experience in monitoring and regulating the humane care
and treatment of marine mammals in captivity, employing a professional veterinary staff to
inspect facilities. APHIS was given authority under the AWA to regulate warm-blooded
(continued...)
This has included conducting broad rulemaking proceedings on revised requirements
for marine mammals in captivity. In contrast, the public display community views
NMFS and FWS as not typically dealing with or being involved in the animal
husbandry sector and having limited expertise in the captive maintenance and care
of marine mammals.56 Critics further assert that giving NMFS and FWS jurisdiction
in this area would necessitate an expensive program duplicating what APHIS already
administers. Some in the public display community further assert that the majority
of problems concerning the quality of care provided captive marine mammals
occurred prior to the 1994 MMPA amendments and in privately operated facilities
that were not regulated, rather than in regulated public display facilities.
Regardless of who regulates these facilities, some marine mammal scientists and
animal protection advocates believe that regulations need to be brought more closely
into accord with the physical, psychological, and social needs of marine mammals.
In addition, they suggest that existing regulations need to be enforced with more rigor
and with less influence from the facilities being regulated.57 They argue that reliance
on the public display community to be forthcoming when explaining the application
of particular husbandry practices may be open to question, particularly when public
display facilities fear that proprietary interest related to husbandry techniques (e.g.,
successful captive breeding techniques) might be revealed to competitors. They
suggest that Congress consider ways in which successful husbandry techniques might
be made more openly available in the interest of benefitting the care of marine
mammals throughout the public display industry. Under such conditions, husbandry
practices might be standardized to better protect animals.
Export of Captive Animals. The 1994 MMPA amendments repealed export
permit and public notification requirements, replacing them with a 15-day federal
agency notification requirement prior to export.58 NMFS has interpreted export59
provisions as requiring a letter of comity from the foreign government certifying
that the standards of the MMPA are upheld in foreign facilities. In addition, NMFS
requires a letter of comity for any further transfer of a marine mammal of U.S. origin
by one foreign nation to another foreign nation. Animal protection advocates claim
that the current status of some of the marine mammals (dolphins, in particular)
55 (...continued)
animals, including marine mammals, for public display in the early 1970s, and first
published regulations on marine mammals in 1979. APHIS resources include a National
Animal Health Monitoring System, National Veterinary Services Laboratories, and a
Veterinarian-in-Charge in every state.
56 Critics suggest NMFS and FWS are already overburdened with serious problems
concerning declining stocks of wild animals and a deteriorating environment.
57 Critics cite examples where APHIS appears content to wait for facilities to fix recurring
problems rather than taking more aggressive action, and where APHIS is alleged to have
accepted a facility’s tank measurements rather than taking independent measurements.
58 NMFS’s Marine Mammal Inventory Report now catalogs export and facility transfer
notifications as required by 16 U.S.C. §1374(c)(10)(F).
59 Comity is the legal doctrine under which countries recognize and enforce each others’
legal decrees.
shipped from the United States to Honduras, China, Portugal, Tahiti, and other
countries since the 1994 repeal is not known. The animal protection community is
concerned and may seek to amend the MMPA to restore the export requirements to
their original condition (i.e., requiring a permit, with a public comment period as part
of the process).60 Some scientists agree that a requirement for export permits should
be reinstated,61 but believe that MMC and NMFS/FWS review of export permits
might make public comment unnecessary. Some suggest that Congress require a full
accounting from NMFS/FWS for all past exported marine mammals before allowing
any further U.S. animals to be exported. In addition, they suggest the MMPA be
amended to require a $25,000 surety bond or insurance policy per exported marine
mammal to cover emergency medical and transfer costs in the event of financial or
natural disaster at a foreign facility. Animal protection advocates recommend
mandatory on-site inspections of foreign facilities before any U.S. marine mammal
can be exported. Elements of the public display community, however, believe the
current process includes extensive safeguards,62 and that the prior law requirements
were outmoded and cumbersome. Some in the public display community may
suggest further amending the MMPA to eliminate the 15-day prior agency
notification requirement for exports.63
Import of Captive Animals. Some in the public display community may
seek to amend the MMPA to treat the import of marine mammals the same way
exports are treated (i.e., agency notification required but no permit required and no
public comment solicited). They argue that the current process is cumbersome and
unnecessary. The animal protection community would likely oppose such an
amendment, desiring to retain and possibly strengthen federal agency review of
imports as well as the option for public comment. They believe that a public process
with agency review would better protect marine mammals, discouraging the import
of certain marine mammals such as those captured specifically for the importing
facility.
60 Animal protection advocates have serious concerns regarding the ability of NMFS/FWS
under the short notification regime and without public input to ensure the well-being of
marine mammals leaving this country for foreign, and often substandard, facilities. They
are concerned that the brief window of notification eliminates any and all opportunity for
public notification and comment and also limits the time available for the agencies to review
the documentation that must accompany an export.
61 The scientific issue is one of detailed and open record keeping, so that scientists know
where animals have gone and are able to compare wild to captive mortality rates, birth rates,
etc.
62 The primary safeguard is the requirement, certified by the recipient nation’s agency
responsible for marine mammals, that the receiving facility meets the same criteria for
holding such animals as were required of the originating U.S. facility (16 U.S.C.
§1374(c)(9)). While some critics suggest that stronger regulatory criteria might be imposed
by NMFS/FWS in implementing this provision, they believe such action may require
congressional direction, either through a statement in committee report language or as a
specific MMPA amendment.
63 16 U.S.C. §1374(c)(8)(B)(i)(II).
Scientific Research on Captive Marine Mammals. Research on captive
marine mammals has provided critical information and a substantial body of64
literature on many aspects of marine mammal biology. Some scientists assert that
research on captive marine mammals may be more useful for certain disciplines (e.g.,
physiology, immunology, nutrition, hearing sensitivity, and cognitive and acoustic
abilities) than others (e.g., acoustic behavior and intra- and inter-species65
interactions). Some scientists have proposed that more research be conducted on
how human activities might affect marine animals.66 They further contend that
research on and observation of marine mammals in captivity affords scientists the
opportunity to conduct studies with live animals that are not always possible or
practical to do in the wild, and contributes valuable data useful in determining
management criteria for wild populations. Many of these scientists believe the
MMPA has placed an unreasonable burden on scientific research (e.g., invasive
research is seriously impeded).
Other scientists as well as parts of the animal protection community question
how much of the research conducted on captive marine mammals actually benefits
marine mammals in the wild. These critics may suggest that the MMPA be amended
to require that more attention to benefits be given by federal agencies that review
permits for scientific research on captive marine mammals. Other scientists are
likely to oppose any amendment that might increase their regulatory burden or curtail
access to potential research animals. As an alternative to greater restrictions, some
scientists suggest amending the MMPA to impose a research requirement on all
regulated facilities holding marine mammals, with mandatory peer review of these
research programs to ensure that the capture and holding of marine mammals for
research is justified.67
More Extensive Medical Exams for Transferred Animals. Although
both APHIS and FWS require a health certificate from a licensed veterinarian prior
to transporting a marine mammal, the United States does not require any blood tests
be made on marine mammals destined for export. In addition, neither NMFS nor
FWS requires an exporter to prove that an animal harbors no infections,68 even if the
animal may have been exposed to Morbillivirus — a highly contagious, distemper-
64 For example, see [http://cerf.bc.ca/pubs/biblio/marmam_biblio.html]. Prior to the
establishment of marine mammal facilities, most of what was learned about marine
mammals resulted from whaling and sealing activities, rather than from field research.
65 Some scientists suggest that a workshop of experts be convened to provide guidance on
better defining what might be considered valid research on captive marine mammals, and
on increasing opportunities for legitimate research access to captive marine mammals.
Similar efforts have been conducted under the authority provided in 16 U.S.C. §1380.
66 Some scientists report that research on captive animals is also constrained by economics.
For example, estimates of the cost of obtaining a young healthy dolphin range from
$100,000 to $150,000.
67 However, captive marine mammals used for research often are orphaned, stranded, or
disabled animals that are not physically able to be returned to the wild.
68 Again, some believe it may be an extreme standard to be required to prove a negative.
like disease harmful to some marine mammal species.69 Therefore, critics assert that
some disease-carrying marine mammals could be exported to countries where they
might infect marine mammals in that region. Animal protection advocates suggest
that the MMPA or the AWA may need to be amended to require more safeguards
against transferring pathogens (including antibiotic-resistant pathogens) (a) among
captive populations when animals are moved; and (b) to wild populations when
captive animals are moved to sea-pens70 or when a public display facility discharges
untreated effluents into the marine environment.71 More extreme scientific critics
suggest that transferred animals should be prohibited from ever being placed in a sea
pen or other open enclosure, and that imported and exported marine mammals should
be treated like parrots and other exotic birds, with quarantines and thorough medical
examinations required at each end of the transfer.
Individuals at some public display facilities believe that these matters have been
addressed sufficiently in regulations finalized by APHIS.72 In addition, an individual
associated with the public display community relates that medical examinations prior
to transporting marine mammals, regardless of their destination, have been a long-
standing practice for many zoos and aquaria. Under such practice and before an
animal is transferred, a veterinarian conducts an examination and certifies the
animal’s healthy condition.73 They further state that, since humans are not required
to be proven disease-free before traveling, it would be ridiculous to impose a higher
standard for marine mammals. Managers of public display facilities are exceedingly
hesitant to accept any animal that could pose a potential pathogenic threat because
of their interest in their investment and the difficulty in replacing animals that die.
Furthermore, they assert that there is no documented case where release of a captive
marine mammal to the wild or to an open ocean pen, or discharge of facility effluent
has contributed to an epidemiological episode in the wild.74
69 This disease is prevalent in wild animals, but has never been reported in a non-stranded
captive animal.
70 This concern may arise when private organizations, often affiliated with animal protection
groups, promote the release of captive animals, as well as with some foreign public display
facilities.
71 For individual public display facilities discharging waste to a publicly owned treatment
works, local municipalities enforce wastewater treatment standards and effluent discharge
permits under the authority of the federal Clean Water Act. If the facility discharges directly
to the environment, standards and permits under this same act are administered by the
Environmental Protection Agency (EPA) or qualified states to which EPA has delegated
responsibility.
72 66 Fed. Reg. 239-257 (Jan. 3, 2001).
73 In rare instances, such as hazardous situations or removal of an animal from imminent
danger, it may be in the sick or threatened animal’s best interests to be transported to a
quarantined location where it can be treated. Animal protection interests are concerned to
ensure that cumbersome paperwork and bureaucracy do not jeopardize an animal’s life in
these situations.
74 In the reverse situation, cases have been reported where receipt of a stranded wild animal
or inadequate treatment of influent water has allowed pathogens from the wild to infect
(continued...)
Necropsies. Currently necropsies on dead marine mammals are performed
in-house by public display facility veterinarians.75 Prior to the 1994 MMPA
amendments, necropsy reports were required to be submitted to NMFS and FWS.
Current APHIS standards require such reports to be completed and kept on file at the76
public display facility for three years. Such medical records are available to APHIS
inspectors on-site when requested, but are not submitted to, nor kept on file at,
APHIS or any centralized point. The only requirement under the MMPA is to report
to NMFS and FWS the “date of death of the marine mammal and the cause of death77
when determined.” Thus, necropsies, which formerly were available to the public
under the Freedom of Information Act, are no longer public records.78
Animal protection advocates believe that public access to necropsy information
is important to protecting the well-being of marine mammals in captivity, and they
object to the 1994 changes in necropsy policy. They also fear that captive holding
facilities minimize the impact of animal deaths by under-reporting findings of a
necropsy, performing an inadequate necropsy, or failing to report actual findings.79
These critics would like to see the MMPA amended to again require that necropsy
reports, in standardized format, be submitted to a federal agency, thus guaranteeing
public access to them. In addition, animal protection interests may propose a
requirement that necropsies be performed by independent/impartial veterinarians
(federally employed, appointed, or contracted veterinarians) and that institutions
experiencing a marine mammal death report to APHIS within 48 hours, upon which
an official examiner would be dispatched to perform the necropsy or review the
tissue samples and examine the carcass. Scientists, however, point out that the more
time that passes between death and necropsy, the less there is to learn from the
necropsy. Thus, this suggests that, in addition to raising costs, the logistics of
implementing an external review also may frustrate the ability to gain worthwhile
information. Some scientists suggest an alternative approach that would direct
veterinarians employed by the public display facilities to conduct necropsies, but
allow veterinarians representing animal protection groups to have access to replicate
74 (...continued)
captive marine mammals.
75 Necropsies are routinely performed as soon as possible, normally within hours of death.
Histopathological samples are collected and a full spectrum of tests are conducted by
independent laboratories outside the facility. A full report of test results is normally
received within two to three weeks, with preliminary results usually available within a week.
76 9 C.F.R. 3.110(d).
77 16 U.S.C. §1374(c)(10}(H). NMFS requires, by policy, that deaths be reported within 30
days, and has announced its intent to put this policy into regulation.
78 With few exceptions, zoos and aquaria claim to be open regarding the disposition of
marine mammals within their care, with records available for public review. Animal
protection advocates dispute this claim, suggesting that a majority of facilities refuse to
share such information, considering it proprietary.
79 Animal protection advocates believe that considerable incentive exists for public display
facilities to provide false or incomplete information on the cause of death of marine
mammals, asserting that these institutions are unlikely to provide evidence that would lead
to accusations of wrongdoing, with subsequent scrutiny and possible fine.
tissue samples from necropsies, if requested. Critics of current policy may also
propose that the MMPA be amended to require submission of necropsies on all
animals transferred or exported under MMPA authority. In addition, some critics
suggest that APHIS be required to conduct more intensive inspections of facilities
holding captive marine mammals whenever mortalities at such facilities exceed a
certain annual minimum, such as the deaths of either 2 adult animals or 1 juvenile.
Managers of captive holding facilities state that they ensure good healthcare for
their animals by providing licensed veterinary care, thus also protecting themselves
from liability and claims of negligence.80 They assert that there is no evidence that
such care is suspect. Furthermore, they point out that necropsies were the subject of
a 2001 APHIS rulemaking;81 because these rules are still being implemented, the
need for legislation is unclear for now. If more expensive necropsies were required,
the issue of who would pay for them is likely to be controversial. Animal protection
interests believe that captive holding facilities should pay for supervised necropsies
as part of the costs of captive care; managers of captive animals contend that the
federal government should bear the costs if additional outside veterinary services
were required.
Genetic Mixing. Some federal managers have criticized release programs for
captive animals on genetic-mixing grounds. Similar concerns have not been stated
about husbandry practices related to the movement of animals between captive
facilities. The U.S. Navy’s use of Atlantic bottlenose dolphins in open-ocean training
exercises in the Pacific where they occasionally integrate with local populations of
wild Pacific bottlenose dolphins also has been criticized. Scientists, animal
protection advocates, and environmentalists question whether it is responsible
management to mix animals originating from different oceans, especially if there is
the possibility that they or their offspring might be inadvertently or intentionally
released into a wild breeding population. These interests suggest that the MMPA
should be amended to address the genetic mixing that invariably occurs when captive
animals are moved from one facility to another. MMPA provisions requiring
attention to this concern might engender greater confidence if such captive animals82
later became candidates for release programs. An opposing view encourages
genetic mixing within captive populations, especially for species with small
populations, as an appropriate husbandry practice to maintain genetic diversity,
counter inbreeding within the captive population, and reduce the demand for83
acquiring new animals from the wild. Some scientists believe that the incidental
80 Supporters of supervised or independent necropsies contend that requirements for such
might further protect facilities from liability and claims of negligence, whereas the current
unsupervised necropsies may leave them unprotected.
81 66 Fed. Reg. 239-257 (Jan. 3, 2001).
82 Alternatively, it could be required that genetically mixed offspring be neutered before
release.
83 Some scientists contend that, while encouraging breeding among groups of animals taken
from the same general population may be appropriate, encouraging mixing between
populations makes little sense given what is known about the movements and social
(continued...)
mixing of captive animals with wild stocks is rare and likely insignificant from an
evolutionary perspective. However, they suggest that additional research may be
required on these issues before appropriate policy can be determined, recommending
a government workshop be convened on the topic.84
Wild Versus Captive Survivorship. Claims differ on whether marine
mammals live longer, similar, or shorter lifespans in captivity compared to the same
species in the wild.85 Animal protection advocates suggest that the MMPA be
amended to direct and fund a government workshop to review the status of
knowledge on survivorship in captive and wild marine mammal populations.86 Such
a workshop might determine what, if any, concerns are relevant to the performance
of facilities holding such animals and influence the development of appropriate
captive care and maintenance standards. Since only a few wild populations are
reported to have been studied well enough to provide confident data on survivorship,
such a workshop likely would identify additional areas for research on wild
populations to obtain data necessary for comparison.
Air Quality and Noise at Facilities. Based on speculation from human
studies as well as limited reactivity research on wild cetaceans, local environmental
conditions may cause stress in individual animals. Some animal protection advocates
suggest that the MMPA be amended to mandate a study of the effect of the local
environment (e.g., urban noise, vibrations, air pollution) on animals at captive
holding facilities, to identify and substantiate any effect on their life expectancy and
general health. Such a study might define abusive levels and help determine
appropriate captive care and maintenance standards. Some in the public display
community, however, suggest that this concern be addressed administratively, and
observe that some aspects already were the subject of APHIS rulemaking.87
Procedures for monitoring environmental effects on marine mammals also have been
incorporated in American Zoo and Aquarium Association guidelines and facility
operations manuals.
Rehabilitation and Release. Closures of at least 21 North American marine
parks since 1990, a diminishing emphasis on marine mammal exhibits in remaining
parks, reductions in the military use of marine mammals, and increasingly successful
captive breeding programs have led to a surplus of marine mammals in captivity.
Because of this surplus, interest has increased concerning the rehabilitation and
83 (...continued)
isolation of many species of marine mammals.
84 Similar efforts have been conducted under the authority provided in 16 U.S.C. §1380.
85 Some public display interests and managers suggest that captive care and maintenance
practices are constantly evolving and improving such that historic survivorship data might
have limited relevance to the current situation. In addition, others suggest that survivorship
is so highly variable that it would be difficult to compare populations, captive and/or wild,
and come to any statistically significant conclusions.
86 Similar efforts have been conducted under the authority provided in 16 U.S.C. §1380.
87 66 Fed. Reg. 239-257 (Jan. 3, 2001).
release to the wild of marine mammals that have spent significant time in captivity,88
recognizing the need to prevent the spread of disease and release of unfit animals.
Some animal protection advocates may propose MMPA amendments authorizing
oversight of rehabilitation and release activities, requiring federal agency definition
of rehabilitation/release protocols,89 and establishing a scientific research permit for
rehabilitation and release activities as well as for establishing rehabilitation/release
facilities for long-captive marine mammals.90 Such facilities might also engage in
captive rotation programs, where animals are brought into captivity for
predetermined amounts of time or are maintained in enclosures where they have
periodic access to the open ocean. Proponents contend that the existence and
operation of such facilities under strict guidelines would promote the welfare of
captive and free-living marine mammals, including threatened and endangered
species. Some public display interests and a few scientists, however, assert that
rehabilitation and release does not work.91 These critics cite research indicating that
animals held in captivity for any length of time and those born in captivity are more
likely to die upon release because they do not or are not able to make the necessary
adjustments to life in the wild. They would oppose efforts that encourage the release
of long-captive animals. Other opponents include those worried about the federal
cost of financing such a program. A parallel concern relates to discouraging and
preventing unregulated releases of captive marine mammals by the more proactive
animal protection advocates.
Quality of Captive Environments. Under present MMPA regulations,
captive marine mammals can be relocated anywhere that complies with APHIS
regulations on captivity enclosure characteristics (e.g., bare concrete tanks are
acceptable). Some scientists and animal protection interests assert that the captive
environment of some U.S. marine parks is almost devoid of the features, richness, or
dimensions of the natural world92 of marine mammals — social animals that have
88 Animal protection advocates cite several instances where dolphins and pilot whales are
alleged to have been successfully released, with subsequent observation of apparently
successful social integration with wild animals over a period of time.
89 A scientific workshop might be convened to develop the protocols for conducting
rehabilitation/release projects.
90 How such facilities and programs might interact with existing marine mammal stranding
networks would need to be defined. These networks along the Atlantic, Gulf of Mexico, and
Pacific Coasts involve dozens of facilities that provide short-term assistance to beached and
stranded marine mammals when necessary to improve their condition sufficiently to be able
to return a healthy animal to the wild.
91 These critics suggest that veterinary examinations are unlikely to be able to pronounce
captive animals disease-free, and that released animals are unlikely to be accepted easily or
smoothly into the social structure of wild populations.
92 While some coastal species may inhabit a topographically diverse physical environment,
the open ocean is almost featureless. Some scientists suggest that emphasis should be
placed on cleanliness, space, and behavioral responses, rather than what humans might
assume constitutes a “quality” environment, since most marine mammals get their
stimulation from social interaction, feeding, etc.
evolved to exploit the complex and expansive natural marine environment.93
Furthermore, they claim that our increased understanding of the complex social,
psychological, and behavioral requirements of marine mammals reveals how lacking
most captive environments are in providing sufficient space for animals to make
normal postural and social adjustments or in allowing adequate freedom of
movement. These critics would like the MMPA to be amended to require APHIS to
define minimum acceptable levels of environmental and social stimuli for marine
mammals. The physical and social environment of any animal regulated by the
MMPA, it is argued, should conform to some standard for what is minimally
acceptable and strive for enrichment to fulfill animals’ needs. However, establishing
standards to respond to the differing requirements of various species may be
complex. For example, while some contend that overall size of the captive
environment is much more important than its features for cetaceans, others believe
that pinnipeds require more emphasis on geotopical elements in their artificial habitat
rather than a large enclosure. In addition, it may be difficult or impossible to provide
situations in captivity that permit the complex social systems, groupings, and bonding
normal among marine mammals.
Programs Promoting Human Interaction with Captive Dolphins.
Various facilities holding captive dolphins promote interactive petting and feeding
pools as well as programs for swimming with or wading with these animals. Animal
protection advocates as well as some scientists and managers claim that these
programs place both dolphins and humans at risk, and believe that APHIS regulation
of such activities is inappropriately minimal. Early in 1999, APHIS suspended
enforcement of all AWA regulations dealing with “swim-with-the-dolphin” programs
to solicit further public comment on expanding regulations to encompass activities94
involving shallow water interactive programs with dolphins. Some animal
protection interests would like the MMPA and/or AWA to either prohibit all
interactive programs, including petting and feeding pools which they claim have
never been regulated, or require more stringent regulation of these programs by
APHIS. These critics also suggest an inconsistency in policy and confusion of the
public wherein swimming with and feeding of wild dolphins is prohibited to protect
them from harassment while swimming with and feeding of captive dolphins, which
could be less able to escape interaction, is promoted by marine parks. Those
conducting interactive programs, however, argue that their activities are safe and
well-managed, with adequate measures enforced to protect both dolphins and
humans.
93 Generally, captive holding facilities and marine mammal trainers assume responsibility
for providing environmental enrichment in the form of playtime, toys, and other stimulating
objects or activities. In addition, facility design criteria have changed substantially to where
habitats currently under construction incorporate innovative shapes and varying rockwork
for alternating surfaces, providing swim-through areas (arches and tunnels) as well as areas
for rubbing and scratching.
94 64 Fed. Reg. 15918-15920 (Apr. 2, 1999). On May 30, 2002, APHIS sought comments
on standards for interactive swim-with-the-dolphin programs (67 Fed. Reg. 37731-37732).
No final rule has yet been published. For additional background on these programs, see
Quantitative Behavioral Study of Bottlenose Dolphins in Swim-With-The-Dolphin Programs
in the United States at [http://www.nmfs.noaa.gov/pr/pdfs/health/swimwithdolphins.pdf].
Insurance Requirement. Since 1990, at least 21 North American marine
parks are reported to have closed. Animal protection advocates suggest that
measures need be taken to assure that the welfare of captive marine mammals is
protected should research programs terminate or parks close. These interests may
propose amending the MMPA to require that a minimum of $25,000 per marine
mammal be placed in escrow or be covered by insurance as an additional permit
requirement for each marine mammal transfer, import, and export. In addition, such
a requirement might be imposed in permits covering each marine mammal born in
captivity. Such financial resources would be used if the federal government were
required to assume temporary responsibility for animals from closed parks or pay
transfer expenses for moving animals to new facilities.
Prohibition of Traveling Exhibits. Animal protection advocates believe
that circuses and traveling shows cannot maintain the highly specialized conditions
necessary to ensure the health and well-being of marine mammals. They cite the
recent experience with the Mexican-based Suarez Brothers Circus in Puerto Rico,
where performing polar bears were confiscated by FWS. Dolphin traveling circuses
exist and move throughout Latin America and the Caribbean, and could potentially
enter U.S. territories or use marine mammals from U.S. facilities. Animal protection
groups seek to amend the MMPA to prohibit these traveling exhibits.
Prohibition of Wild Captures for Public Display. The International
Union for Conservation of Nature and Natural Resources’ Dolphins, Whales, and95
Porpoises: Conservation Action Plan for the World’s Cetaceans, 2002-2010 notes
that the removal of live cetaceans from the wild for captive display is equivalent to
incidental or deliberate killing, as the animals brought into captivity (or killed during
capture) are no longer available to contribute to maintaining their populations.
Concerned that, when unmanaged and undertaken without a rigorous program of
research and monitoring, live capture can be fatally stressful to animals and pose a
serious threat to cetacean populations, animal protection interests support an
amendment to the MMPA to prohibit wild captures of marine mammals for public
display.
Native Americans and Marine Mammals
Co-Management with Native American Tribes. Some federal managers
believe that co-management agreements, when accompanied by dedicated funding,
have dramatically improved communication among Native subsistence users, Alaska
Native organizations, and FWS. However, Native Alaskan interests assert that
NMFS has been slower to enter into cooperative agreements to implement co-
management for marine mammals in Alaska (authorized under 16 U.S.C. §1388), and
that federal appropriations to provide grants to Native organizations under this
section have not been forthcoming.96 Some Native American interests are likely to
propose amending the MMPA to provide additional opportunities for Native
95 This document was available at [http://iucn.org/dbtw-wpd/edocs/2003-009.pdf].
96 Some managers suggest this is due, in part, to limited funds appropriated by Congress to
the various agencies, especially NMFS.
Americans to participate in co-managing marine mammal populations, especially
those that have subsistence value. Particular need is seen for coordinating federal
and Alaska Native priorities in the Bering Sea region, due to ongoing concerns to
better understand this marine ecosystem’s apparent decline. Countering the view in
support of additional co-management opportunities are some in the scientific and
environmental communities who fear the potential for overhunting by Natives
seeking economic gain, and who believe that current MMPA co-management
provisions are more than adequate (if not excessively lenient). These critics believe
co-management works well only when the federal government supports a multi-year
national program to assess population abundance, habitat conditions, and ecological
relationships to provide a sound basis for such co-management, as has been done
since the 1970s for bowhead whales. Similar national programs have not been
conducted on most other species. Some animal protection advocates are concerned
that reporting of subsistence kill levels often lags by five years of more and is based
on self-reporting, making it difficult to determine the impact of the subsistence on a
particular stock until well after the fact. Animal protection interests also believe
current cooperative agreements lack some transparency and provide little opportunity
for public comment before the agreement is negotiated.
Reporting Subsistence Takes. Knowledge of the number of animals killed
is necessary for managing any harvested resource. Nevertheless, many marine
mammal stock assessment reports lack substantial information on subsistence takes.
In 16 U.S.C. §1379(i), the MMPA states that “the Secretary may prescribe
regulations requiring the marking, tagging, and reporting of animals taken pursuant
to section 101(b).” FWS has promulgated regulations and instituted a marking,
tagging, and reporting program (MTRP) for polar bears, walrus, and sea otters taken97
by Alaska Natives. NMFS does not have a similar program, even though
comparable information could be useful for managing species of special concern such98
as Steller sea lions and harbor seals. Although NMFS has awarded contracts for the
development of harvest estimates, their accuracy has been questioned by some99
scientists. Some Alaska Native organizations conduct biosampling programs on
marine mammals taken for subsistence through cooperative agreements developed
under the authority of 16 U.S.C. §1388. Despite this, some in the Alaska Native and
environmental communities continue to call for NMFS to develop an MTRP similar
to that conducted by FWS, desiring more research on marine mammals taken for
subsistence use.
The Alaska Native community generally accepts the FWS program, considering
it to be well-run and to provide useful data. However, some managers and
97 These MTRPs do not collect data useful for accurately assessing the age/sex composition
of the harvest, nor for establishing annual productivity. Although it might require additional
agency funding, MTRPs could be restructured to obtain these data.
98 On May 24, 1999, NMFS published an interim final rule requiring the marking and
reporting of beluga whales harvested from Cook Inlet (64 Fed. Reg. 27925-27928).
99 The nature of human relationships in small rural Alaskan communities makes obtaining
consistently accurate data extremely difficult. Thus, the precision and accuracy of
retrospective household surveys for marine mammal harvest is questioned by some critics,
especially where such work has not been independently peer-reviewed. Such retrospective
surveys for marine mammal harvest might be considered minimum estimates.
environmental interests believe the level of detail available on subsistence takes for
many Alaska species could be improved. In particular, some animal protection
interests, scientists, and managers do not consider the FWS program “well-run” and
would like to see this program improved. Some scientists believe that a program for
each species should include a well-designed harvest survey based on structured
hunter samples from different communities that intensively exploit the targeted
species, with data analysis by good statistical methods to adequately fulfill
management needs. Other scientific and environmental interests suggest that the
MMPA be amended to require reporting, marking, tagging, and sampling of all
marine mammals taken by Alaska Natives for subsistence.100 Others in the
environmental and animal protection communities believe such reporting should be
required for seal hunting and for any subsistence takes of marine mammals by Native
Americans in the contiguous states (e.g., Washington, Oregon, and California).
Some scientists, however, contend that tagging of subsistence kills may not be
practical for species taken in large numbers, such as some seals, and that the sheer
volume of individuals’ subsistence activities may lead to under-reporting. In
addition, some scientists and managers believe that better subsistence estimates need
to be factored into the PBR process (see “Calculating Potential Biological
Removal”), especially in situations where (1) subsistence harvest may account for the
majority of the total number of animals removed and (2) subsistence harvest may
approach or exceed the PBR level.101
Limitation on the Sale of Edible Subsistence Takes. In 16 U.S.C.
§1371(b)(2), the MMPA states that “any edible portion of marine mammals may be
sold in native villages and towns in Alaska or for native consumption.” There are
legitimate reasons why Alaska Natives purchase legally taken parts of marine
mammals for their consumption.102 The current interpretation of the MMPA
language is that all Alaska locales, including the city of Anchorage, qualify as Native
villages and towns. Certain markets in Anchorage sell large quantities of marine103
mammal meat and muktuk, with a few Alaska Natives allegedly hunting primarily
to supply this commercial market.104
Scientists, animal protection advocates, and environmentalists suggest amending
the MMPA to limit or restrict the sale of edible parts from marine mammals taken
100 Exemptions from reporting might be granted when or where stocks are not in decline, not
listed under the ESA, and not harvested at levels exceeding 10% of the PBR level.
101 Some critics fear that federal managers may be pressured to set PBR levels higher than
the subsistence harvest levels for some Alaskan species (e.g., Pacific walrus).
102 Many Native Alaskans, regardless of where they reside, are employed full-time with
limited opportunity to continue hunting and gathering to support their traditional subsistence
lifestyle and diet. Thus, the commercial marketplace may provide their only access to
traditional foods, which is part of maintaining a cultural identity.
103 Whale skin and adhering blubber.
104 In the late 1990s, this was seen as a particular problem for the Cook Inlet beluga whale
stock, which was small and had been overharvested, largely because of market hunting. A
significant percentage of the Cook Inlet beluga whale stock was killed each year — between
98 and 147 animals were reportedly taken in 1996, with another 49 to 98 animals struck and
lost. This stock declined almost 50% in abundance from an estimated 653 animals in 1994
to 347 animals in 1998, and its summer range contracted.
for subsistence, such as prohibiting commercial sales in cities or in communities
where Native residents are in the minority. Others suggest amending the MMPA to
prohibit the commercial sale of marine mammal products from any stock that is
declining in abundance. Alternatively, NMFS and/or FWS already have the authority
to make administrative determinations that species are depleted under the MMPA or
are threatened/endangered under the ESA, allowing them to take regulatory action
to limit subsistence take without legislation.105
Alaskan Natives, however, believe that the Native community itself should take
the initiative to deal with these problems, using existing models that have proven
workable in similar Alaska Native situations. They suggest approaches similar to106
those used in the allocation of strikes among various whaling crews in the North
Slope Borough or the Sitka Tribe’s management of sea otter take in traditional107
territory. Others are concerned about the potential cultural costs of limiting access
to subsistence foods for individuals living in urban areas and the possibility that these
costs could outweigh the benefits to marine mammal stocks.
Definition of Subsistence Whaling. With the support of the U.S.
government, the Makah Tribe of Washington State petitioned the International
Whaling Commission (IWC) in 1996 for an allocation to harvest eastern Pacific gray
whales, to exercise whaling rights as part of their cultural heritage negotiated in the
1855 Treaty of Neah Bay between the Makah and the United States. In October
1997, a bilateral agreement between Russia and the United States on aboriginal quota
sharing resulted in the Makah gaining access to IWC aboriginal quota sufficient to
kill an average of four gray whales from the North Pacific stock annually from 1998
through 2002.108 Disagreement continues, both domestically and internationally,
concerning the appropriateness and legitimacy of the action taken on this issue.109
105 In the Cook Inlet beluga whale example, Congress acted in section 3022 of P.L. 106-31
to prohibit subsistence hunting of Cook Inlet beluga whales during FY2000 to give NMFS
time to take administrative action. Subsequently, NMFS conducted a status review of this
stock and designated it as depleted under the MMPA (65 Fed. Reg. 34590-34597, May 31,
2000), but determined that listing the stock as endangered under the ESA was not warranted
(65 Fed. Reg. 38778-38790, June 22, 2000).
106 A “strike” means hitting a whale with a harpoon, lance, or explosive device.
107 However, in the example of the Cook Inlet beluga whales, critics fault NMFS for relying
upon the Cook Inlet Marine Mammal Council to develop some mechanism for self-
regulation, which it was slow to do.
108 Makah whaling was suspended on June 9, 2000, by the Ninth Circuit Court of Appeals
(Metcalf v. Daley, No. 98-36135), with NMFS ordered to begin the National Environmental
Policy Act (NEPA) process afresh and prepare a new environmental assessment.
Subsequently, NMFS set the Makah gray whale quota at zero (65 Fed. Reg. 75186, Dec. 1,
2000), pending completion of the NEPA analysis. On December 20, 2002, the Ninth Circuit
Court of Appeals reversed a district court ruling that upheld NMFS’s issuance of a quota toth
the Makah in 2001 and 2002 (Anderson v. Evans, 314 F.3d 1006 (9 Cir. 2002)). The
federal government is considering whether to request rehearing of Anderson v. Evans.
Subject to the outcome of a possible rehearing, NMFS is preparing an environmental impact
statement on the issuance of annual quotas to the Makah for the years 2003 through 2007
(68 Fed. Reg. 10703-10704, Mar. 6, 2003).
109 Marine Mammal Commission, Annual Report to Congress, 1998 (Washington, DC: Jan.
(continued...)
While bowhead whaling by Native villagers along Alaska’s Beaufort and
Chukchi Sea coasts is seen as truly for the subsistence, animal protection advocates
are concerned that the Makah seek to kill whales without demonstrable proof of
nutritional need, but with an eye to the possibility of commercial trade in whale
products. To animal protection interests, this has the potential for reversing the
whale’s recovery and for inviting a return to whaling by all northern cultures which
claim whaling as part of their cultural tradition. In fact, after the Makah situation,
Native peoples in Canada demanded their “cultural right” to return to whaling.
Although Norwegians, Icelandics, Faroese, Irish, Japanese, Russian, and others assert
cultural traditions in whaling, their situations and that of Canadian aboriginal groups
differ from the Makah in that no “right to whale” has been acknowledged by treaty.110
Animal protection and some scientific interests suggest amending the MMPA to
make a clear distinction between non-subsistence and subsistence whaling and to
establish more stringent criteria for non-subsistence whaling, allowing only minimal
token quotas/takes of those stocks determined to be fully recovered. Others suggest
the MMPA be amended to require that the United States take no action that might
“diminish the effectiveness” of the IWC, similar to language in the Pelly Amendment
to the Fishermen’s Protective Act (22 U.S.C. §1978) that is applicable to foreign
nations with whom the United States trades. However, it is uncertain whether
Congress has the authority to take any action that might alter or limit the terms of the
Definition of Subsistence. Several parties suggest that policy relating to
“subsistence” is confused and needs clarification, requiring attention to both
ethics/tradition and biology/ecology for resolution. Some of the confusion was
created when the MMPA waived the moratorium on taking of marine mammals by111
Alaska Natives, placing federal and Alaskan law and regulations in conflict. This
confusion was exacerbated by the interaction of western technologies and economies
on traditional beliefs and practices. For example, reported annual walrus kills for the
St. Lawrence Island communities of Gambell (1,300 animals) and Savoonga (700
animals), composed mostly of females, appears excessive and questionable as
“subsistence” to some managers, scientists, and animal protection groups. FWS
regulations on the use of meat, skin, etc., are minimal and result in significant waste
in a harvest that focuses on obtaining ivory. Some scientists and managers suggest
that the MMPA be amended to base subsistence policy more firmly within the
context of a species’ biological and ecological requirements, with social/cultural
values taken into secondary account within that framework.
Cultural Exchange. While the 1994 MMPA amendments appeared to have
improved cultural exchange among Inuit peoples as far as imports of marine mammal
products by Alaskan Natives are concerned, problems remain with the export of
109 (...continued)
110 Some of these cultures might not elect to kill whales for strictly cultural benefits if
commercial trade in whale products, domestically and/or internationally, was not also
permitted.
111 Background on the federal/state conflict in Alaska over subsistence use can be found at
[ ht t p: / / www.subsi s t e nce.adf g.st a t e .ak.us/ downl oad/ subupd00.pdf ] .
marine mammal products by Alaska Natives for these purposes. In addition,
problems arose in July 1999 when handicraft whalebone and sealskin marionettes
used in portraying traditional Inuit legends were intercepted and seized by the U.S.
Customs Service as violating the MMPA. The marionettes had been shipped by
Canadian Inuit to a U.S. craftsperson for finishing-detail adjustments. Native and
some scientific interests suggest that the MMPA might be amended to be less
restrictive of cultural exchanges involving marine mammal products.
Permits and Authorizations
Polar Bear Sport Hunting in Alaska. After the 1994 amendment of the112
MMPA to permit the import of polar bear trophies from Canada, the sport hunting
community may seek further amendment to allow polar bear sport hunting in Alaska
under a strict, conservative quota. Proponents of such an amendment suggest that
this action might promote better polar bear management and could result in
additional funding for polar bear research and management. The animal protection
community almost certainly would oppose such a proposal, and some may even seek
repeal of the 1994 amendments allowing the import of polar bear trophies from
Canada. Animal protection advocates substantively disagree with the theory that
sport hunting promotes sound or sustainable management and that quotas in
Canada’s hunts are strict or conservative.113 In early 2007, FWS proposed that polar114
bears be listed as threatened species under the Endangered Species Act.
Large Incidental Takes. MMPA provisions (16 U.S.C. §1371(a)(5)(A))
authorize federal managers to issue permits for U.S. citizens to incidentally take115
small numbers of marine mammals. However, the MMPA lacks a comparable
program to deal with large incidental takes, other than those by the commercial
fishing industry (for more information, see “Commercial Fishing Interactions with
Marine Mammals”). Related to this, the regulatory burden for protecting marine
mammals appears to fall inequitably on different industries. For example, while
small incidental take permits are regularly required by NMFS for offshore oil and gas
exploration and development activities, NMFS does not regulate large commercial
vessel traffic under the small incidental take program,116 despite concerns that serious
112 A subsequent amendment in §5004 of P.L. 105-18 relaxed criteria that needed to be met
before polar bear trophies taken in Canada prior to the 1994 MMPA amendments could be
imported to the United States.
113 Canada is the only nation inhabited by polar bears that allows sport hunting. In January
2001, an emergency interim rule halted imports of polar bears taken from Canada’s
M’Clintock Channel population after the previously approved harvest was found to be
unsustainable (66 Fed. Reg. 1901-1907, Jan. 10, 2001). A final rule was adopted in October
114 For additional background on this proposal, see CRS Report RL33941, Polar Bears:
Proposed Listing Under the Endangered Species Act, by Eugene H. Buck.
115 Provided that these takings do not cause unmitigable damage to marine mammal
populations and have no more than a negligible effect on subsistence needs.
116 NMFS justification for not regulating this activity includes the large numbers of vessels,
the lack of identified cost-effective mitigation measures, the lack of authority over
(continued...)
injury and mortality of cetaceans due to vessel strikes may be significant. Other
activities that may “take” large numbers of marine mammals by harassment include
whale-watching vessels, high-speed ferries, recreational jet skis, and other sources
of anthropogenic noise. By statute, small take permits may be issued for periods of
as long as five years under regulations, or one year under incidental harassment
permits, with congressional report language indicating an intent that such permits be
renewable. NMFS claims that most permits limit taking to small numbers of
animals117 by harassment because mitigation measures imposed by NMFS on the
activity prevent serious injury or mortality to marine mammals. If it were proposed
that the MMPA be amended to address this issue, individuals who might be required
to comply with these modified permitting procedures (e.g., jet skis, whale-watching
vessels, ocean transport vessels) would likely oppose such a change if the new
requirements were viewed as imposing additional or burdensome restrictions on their
activities. Some environmentalists and animal protection advocates recognize that
the permitting process is a relatively inefficient way to mitigate impacts from vessel
traffic and suggest that a separate management scheme, protective of marine
mammals, would be more appropriate to address both vessel-strike and
anthropogenic noise concerns.
Noise and Its Effects. Noise as a category of potential harm to marine
mammals is unique in that sound propagates both horizontally (near/at the surface)
and vertically (down to substantial depths). Anthropogenic acoustics (e.g., ship
traffic, military active sonar, seismic exploration, explosives trials, acoustic
harassment devices used by fishermen) permeate the water column and have the
potential to affect numerous unseen marine mammals, fish, diving birds, and other
marine life. Although it is difficult to measure the potential that noise has to harm
or harass unseen animals, the U.S. Navy, the Minerals Management Service, and
other agencies have invested considerable time and funds on research to develop
monitoring capabilities and to document and quantify the impact from specific noise
sources on certain species under known conditions.118 However, significant
information remains lacking on sound impacts on cetaceans, on behavioral and
physiological reactions of marine mammals, and on which species are exposed at
what depths and distances from sound sources. For this reason, the effect of noise
116 (...continued)
international vessels to implement effective mitigation measures to decrease noise effects
on marine mammals, and the economic disadvantage potentially falling on those U.S.
vessels that might be required to implement costly mitigation.
117 NMFS had interpreted this to mean a portion of a marine mammal stock whose taking
would have a negligible effect on that stock. However, the ruling in NRDC v. Evans (279
F. Supp. 1129 (N.D. Cal. 2003)) concluded that NMFS improperly collapsed two standards
and eliminated the possibility that the two standards could serve as separate safeguards
restricting the extent of takes. NMFS was directed to redefine “small numbers” as a
separate standard.
118 Measurements are obtained by attaching time-depth recorders to animals which are then
exposed to the sounds. For details, consult [http://is.dal.ca/~whitelab/rwb/suction.htm].
Others have used autonomous seafloor acoustic recorders that record all sounds for as long
as 22 days or until batteries fail. Using such methods, whale vocalization rates have been
observed to be influenced by airgun pulses from seismic surveys.
on marine mammals is subject to much speculation, presumption, and
misinformation. FWS and NMFS have reacted to issue- or site-specific concerns,
generally through the permit process, but they have not issued any guidance or
regulations concerning anthropogenic noise, nor have they implemented any
systematic monitoring or enforcement programs.
Some scientists,119 believing that the benefits of acoustic research may outweigh
any potential effect on marine mammals, may propose amending the MMPA to
simplify procedures for federal authorization of incidental taking from acoustic noise.
As one approach, these scientists suggest that the MMPA might be amended to
authorize the regulation of impacts collectively as broad categories or classes of
sound-producing activity rather than separate individual actions.120 Other proposals
might include revising the definition of level B harassment (16 U.S.C.
§1362(18)(A)(ii)) to be applicable to actions that can reasonably be expected to
constitute a significant threat only to marine mammal stocks rather than also to small
numbers of individual animals. Reasons offered by some in the scientific community
for change include (1) some of the most prevalent anthropogenic noisemakers,
including personal watercraft (e.g., jet skis), large high-speed oceangoing ships, and
whale-watching vessels, are unregulated;121 (2) a disproportionate “harassment”
burden is placed on scientists using acoustics for research (i.e., direct research into
the potential effects of sound on marine life is subject to a higher regulation and
compliance burden than any other human-made ocean acoustic activity); and (3)
human-made sound in almost all cases is neither as loud nor as constant as
naturally-occurring ocean activity (e.g., subsea earthquakes, rain on the sea surface,
volcanic eruptions, and whale calls themselves).
The effects on marine mammals by active sonar development and deployment
by the military has been of intense concern. Coincident with low-frequency active
(LFA) sonar tests conducted by a NATO research vessel in the vicinity, a mass
stranding and death of 12 Cuvieri’s beaked whales was observed in May 1996 in the
eastern Mediterranean Sea (Ionia Sea).122 The mass stranding of at least 15 whales
of four species (at least 7 of these animals died) in the Bahama Islands on March 15,
Additional strandings of beaked whales have been observed in conjunction with mid-
119 This includes scientists using noise in their research as well as scientists consulting for
industries and agencies (e.g., the U.S. Navy) that release large amounts of noise into the
ocean.
120 These advocates also assert that various activities with the potential to kill, injure, and
harass marine mammals are regulated inconsistently and inequitably, with commercial
fishing given much more liberal treatment (e.g., liberal PBRs and use of deterrents) than
anthropogenic noise (e.g., concern over course deviations and other short-term behavioral
changes).
121 See the previous section, “Large Incidental Takes,” which considers whether the MMPA
should be amended to regulate these activities.
122 Reported in “Scientific Correspondence,” Nature, Mar. 5, 1998.
123 For more details, see [http://www.nmfs.noaa.gov/pr/pdfs/health/stranding_bahamas2000.
pdf].
frequency active sonar exercises in Madeira (2000) and the Canary Islands (2002).
A September 2002 beaked whale stranding in the Gulf of California occurred
concurrently when a vessel operated by Columbia University’s Lamont-Doherty
Earth Observatory pulsed the ocean with high-powered sound waves to map the
lithosphere beneath the ocean floor.124 More than five years of regulatory attention
to deployment of low frequency active sonar by the U.S. Navy, with accompanying
legal challenges, culminated in publication of a final rule in July 2002,125 with letters
of authorization required for subsequent deployment.126 In addition and in
recognition of concerns raised in federal court127 over use of the LFA system and to
further its commitment to responsible stewardship of the marine environment, the
Navy is preparing a supplemental environmental impact statement on this
technology.128
Some animal protection advocates, environmentalists, and scientists characterize
many sources of anthropogenic noise in the ocean as increasingly persistent and
regular. These critics point to a growing body of evidence, particularly the mass
mortalities of beaked whales associated with military active sonar use, as indicative
that current mitigation practices are insufficiently protective of marine mammals.
Believing that too little is known about the long-term effects of noise on marine
mammals,129 these critics believe a precautionary approach is necessary and oppose
any action that could be interpreted as liberalizing the regulation of anthropogenic
sources. In addition, these critics are especially concerned with low-frequency sound
that is produced at very high pressure levels and is designed to travel thousands of
miles through the ocean, as opposed to other anthropogenic noise that dissipates
relatively quickly in the ocean. Furthermore, these critics suggest that, rather than
exempting acoustic scientists from regulation and permitting additional sources of
ocean noise, other sources of non-research-related noise should be more aggressively
regulated to reduce this harassment. A variety of constituencies130 might support a
proposal to authorize and fund a major research effort directed at increasing
understanding of the potential effects of anthropogenic noise sources on marine
mammals.
Research Permits for NMFS and FWS Scientists. The MMPA (16
U.S.C. §1374(c)(3)(A)) provides a lengthy process for issuing scientific research
permits. NMFS and FWS are funded by Congress to study marine mammals as
124 See [http://www.geotimes.org/jan03/NN_whales.html].
125 See 67 Fed. Reg. 467121-46789 (July 16, 2002).
126 For example, see 68 Fed. Reg. 50123-50124 (Aug. 20, 2003).
127 See Natural Resources Defense Council v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003).
128 See 68 Fed. Reg. 44311 (July 28, 2003).
129 Some scientists assert that little has been published on this topic because insufficient
resources to address the problem have been provided by funding agencies. They further
question, if funding were provided, whether permits from NMFS and various Institutional
Animal Care and Utilization Committees mandated by the Animal Welfare Act would allow
necessary research to be conducted.
130 Other than, perhaps, taxpayer groups.
necessary to provide a sound basis for their conservation and management. Some
federal scientists would like to see the MMPA amended to facilitate federal research
on marine mammals by eliminating the cumbersome process of obtaining scientific
research permits. These federal researchers question the necessity of requiring
federal agency personnel to request permits from another part of their own agency
before they can do their work. These critics suggest that the MMPA be amended to
provide scientists within the federal management agencies with a blanket
authorization for research. Others suggest that relief from the lengthy permitting
process be extended to all those involved in conducting federally funded research.
This could include an exemption from permits or an expedited permit review
procedure offering a simpler issuance or renewal of permits for studies unchallenged
by public comment. It might also be applicable to state wildlife agencies when their
scientists work in direct cooperation with one of the federal agencies. Some
nonfederal scientists, animal protection advocates, and environmentalists argue that
regular reporting as well as outside peer and/or public review are especially necessary
for government scientists who could be influenced by political considerations. They
also would object to preferential treatment of federal researchers as discriminatory,
arguing that federal research should be required to meet the same standards,
requirements, and scrutiny as non-federal research.131
Scientific Research Permits. Several issues concern the administration of
scientific research permits by federal management agencies. Some scientists criticize
FWS and NMFS permit offices for delays in processing requests for scientific
research permits, even though the MMPA mandates a 30-day deadline for agency132
action. While some permits are processed quickly, others may take many months
longer, they charge, with no explanation or obvious differences between them.
Critics report that the delay between submission of a permit application and its
publication in the Federal Register for public comment can be six weeks or more.133
To assist the agencies in expediting the permit review process, they suggest that the
MMPA be amended to authorize committees of scientists that would review
scientific research permit applications in the same fashion that committees review
proposed research on human and animal subjects.134 Such committees might also be
helpful in addressing concerns about alleged misuse of scientific research permits by
whale-watching operators, dolphin encounter tour brokers, and others wherein
“paying volunteers” are recruited to help conduct “research” of questionable value.
Although this latter issue could be addressed administratively, some scientists believe
131 Some critics allege bias and/or conflict of interest in current federal agency permitting
procedures, wherein applications for highly controversial research pass quickly and quietly
through the review process when forwarded by field staff within the permitting agency,
while comparable proposals by non-agency researchers can take months or longer to receive
action.
132 16 U.S.C. §1374 (c)(3)(C).
133 Some agency managers suggest three days between receipt of a permit application and
publication in the Federal Register is reasonable and attainable.
134 Some, but not all, of this research may already be reviewed by institutional animal
committees required by 7 U.S.C. §2143 or by animal care committees required by 42 U.S.C.
§289d.
congressional direction might be helpful or even necessary if administrative action
is not forthcoming. Scientists are also concerned with permit restrictions that they
interpret as constraining their ability to conduct manipulative and invasive research
on marine mammals, albeit with adequate safeguards.
Some scientists suggest that the entire scientific research permit process needs
to be streamlined, especially what are seen as (1) restrictive, burdensome, and
unreasonable procedural requirements (i.e., level of specificity and amount of
paperwork) related to justify level B harassment (see also the discussion of
“Harassment”) for bona fide research; and (2) unduly tedious and specific
requirements of the annual reporting process. Scientists feel they are subjected to a
much more stringent regulatory regime (e.g., see also the discussion of “Noise and
Its Effects”) than is imposed on activities that appear to be potentially more harmful
to marine mammals (e.g., commercial fishing).
On the other hand, animal protection advocates assert that permit processes and
requirements are not too restrictive when it comes to invasive research, and both they
and environmentalists argue that there is little justification for treating the research
community as privileged. While certain amendments might streamline the permitting
process for certain research with a low harassment potential or to establish
streamlined programmatic permitting for certain kinds of research, the environmental
and animal protection communities both disagree that research should be seen as
having less of an impact on the marine environmental and marine mammals as a
general matter when compared to fishing or other human activities.
State Approval of Federal MMPA Permits. Under the authority of the
federal Coastal Zone Management Act, three states (Hawaii, Washington, and
Alabama)135 include in their state coastal plans the requirement that the state approve
federal permits granted under the authority of the MMPA. Some scientists are
concerned that state review of federal marine mammal permits is duplicative and
burdensome for marine mammal researchers and circumvents the procedures in the
MMPA (16 U.S.C. §1379) for granting state management authority over marine136
mammals. These critics suggest that Congress may wish to review whether this
action improves protection for marine mammals.
Program Management and Administration
Definition of “Take.” Some scientists suggest it might be worthwhile to re-
evaluate the MMPA definition of take in their belief that the current definition may
be overly broad and encompassing, as well as unenforceable in many situations.
These critics suggest that the MMPA be amended to incorporate a new definition of
take that establishes an enforceable, biologically significant standard for interactions
with individual marine mammals (for ESA-listed and depleted species) and for
marine mammal populations (for all other species). With such a standard, they argue,
management will focus specifically on interactions which are likely to have adverse
135 Also, Guam and the Northern Mariana Islands exercise similar authority.
136 Although the State of Alaska began the process to request management authority for
some marine mammal species, no state has been granted such management authority.
biological significance for these animals. However, animal protection advocates and
environmental groups might be anticipated to oppose any effort to redefine take that
might be perceived as reducing the scope of activities prohibited or regulated under
the MMPA.
Trade in Marine Mammal Parts and Products. The U.S. government has
experienced pressure from the World Trade Organization (WTO) regarding the trade
barriers inherent in many U.S. environmental statutes. Importing marine mammals
and their products into the United States is prohibited by 16 U.S.C. §1371(a), except
under special permits for scientific research, public display, photography for
education or commercial purposes, or enhancing the survival or recovery of a species
or stock. Permits also may be granted to import polar bear parts, other than internal
organs, taken in legal Canadian sport hunts. In addition, the ESA and the Convention
on International Trade in Endangered Species of Wild Fauna and Flora (CITES, the
international agreement implemented through the ESA) impose additional restrictions
on trade of certain listed marine mammals. Given the desire of several nations to
commercially trade in marine mammal products (particularly whalemeat and
pinniped products), some suggest that Congress could act to possibly forestall a WTO
challenge to U.S. prohibition of such trade by amending the MMPA to allow limited
trade137 or in some other limited manner to make the MMPA more compatible with138
WTO rules. Such a proposed change would likely be vigorously opposed by some
in the environmental, scientific, and animal protection communities who fear that
opening U.S. markets could promote increased kills in nations less protective of
marine mammals.139 They further assert that, if such a proposal were enacted, U.S.
policy would be inconsistent, prohibiting domestic commercial exploitation of
marine mammals while encouraging or allowing foreign commerce in these same
protected animals’ products in the United States. They also argue that the availability
of foreign marine mammal products on the U.S. market could encourage the illegal
harvest of domestic marine mammals for these same markets. An alternative,
although likely more difficult, approach seeks to broaden WTO rules such that the
MMPA could be found compatible.
Management of Robust Stocks. Populations of California sea lions and
Pacific harbor seals have been increasing along the Washington, Oregon, and
California coasts, leading to more frequent interactions between these animals and
fishermen and the general public (particularly the marina/boating public). On
137 Some suggest a limited MMPA amendment to permit importing of “byproducts of
aboriginal subsistence activities,” allowing, for example, ringed seal skins from Canadian
and Greenland Inuit subsistence hunters to enter U.S. markets.
138 The main concern by the WTO appears to be that the MMPA prohibits trade in marine
mammal products regardless of a species’ conservation status. Thus, the United States may
encounter difficulties in justifying the expansive MMPA ban on imports as necessary for
responding to legitimate conservation concerns. For those species where conservation is a
concern, listing under the ESA provides trade restrictions under CITES.
139 Elements of acceptable harvest management might include a sustainable kill based on
sound science with adequate animal welfare standards. However, some U.S. scientists and
managers might argue that, for the United States to be able to certify that our own science
meets these standards, substantial expansion of U.S. research programs might be required.
February 10, 1999, in response to the requirements of 16 U.S.C. §1389(f), NMFS
delivered an 18-page report to Congress and released a supporting 84-page scientific
document on management conflicts related to rapidly increasing populations of West
Coast harbor seals and California sea lions.140 How to manage these stocks is
expected to be an issue during MMPA reauthorization. The issue is seen by some as
whether an increasing human population on the West Coast can co-exist with a truly
robust pinniped population or whether these pinnipeds will be adversely affected by
coastal development and marine resource exploitation or will themselves have an
adverse effect on coastal resources.141
While some local residents and fishermen fear that these pinniped stocks may
be “over-populating,” scientists, environmentalists, and animal protection advocates
counter that populations may be merely returning to their historic carrying capacities
after over-exploitation diminished their abundance earlier in the 20th Century.
Fishing industry or local government officials may propose that the MMPA be
amended to permit selective culling or additional lethal nuisance animal control.
NMFS has recommended that Congress consider amending the MMPA to create a
new framework that would allow state and federal resource managers to immediately
address site-specific conflicts involving California sea lions and Pacific harbor
seals.142 In this report, NMFS suggests that a streamlined approach provide
procedures for lethal removal of these species where they are harming severely
depleted salmonids (including some populations listed as threatened or endangered
under the ESA), where they are harming salmonid populations identified as being of
special concern by states, and where they are in conflict with human activities. While
the MMPA in 16 U.S.C. §1389 already provides for the lethal removal of pinnipeds
to protect human safety and fish stocks, federal and state managers view the process
for implementing the existing provisions as lengthy and overly cumbersome.
Environmental, animal protection, and scientific critics, however, condemn the idea
of culls and lethal nuisance animal control as excessive. They believe that such an
approach deflects resources from addressing other expensive and contentious human
activities that contribute to fish stock declines (e.g., habitat degradation, siltation,
water diversions, fish passage at dams, overfishing)143 and that non-lethal deterrents
have not been adequately explored. Furthermore, they express concern that
authorizing the killing of marine mammals interacting with wild fish stocks appears
counter to the MMPA’s mandate to manage on an ecosystem basis.144 In addition,
these critics are adamant that nuisance animal control not be authorized for human
140 National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems, Report to Congress (Feb. 10, 1999).
141 Such adverse effects include competition for fish stocks and fecal contamination of
shellfish areas near seal and sea lion haulout areas.
142 National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems, Report to Congress (Feb. 10, 1999). p. 13-
143 In addition, some of these changes may also alter conditions determining where pinnipeds
congregate and feed, possibly increasing predation on juvenile salmon.
144 16 U.S.C. §1361.
activities (e.g., aquaculture) that can and should be sited so as to avoid areas of
potential conflict with marine mammals.
Fostering International Cooperation. Although the MMPA established
an international program (16 U.S.C. §1378), little framework exists to foster
international cooperation between the United States and foreign countries on marine
mammal issues. Under the MMPA, international cooperation — funding, exchange
programs, and cooperative research — has been limited largely to the145
industry-centered dolphin/tuna issue. MMPA funds for such activities are at least
an order of magnitude less than the millions of dollars in federal U.S. endangered
species funds that are used to foster international cooperation to protect elephants,
tigers, rhinoceros, great apes, and other species.146 Proponents of increased
international cooperation argue that no similar program for marine mammals is
provided in the MMPA or elsewhere in U.S. law. For example, although the U.S.-
managed North Atlantic right whale is endangered and its population is not
rebounding, the southern right whale population is flourishing. A Brazilian right
whale project focuses on reducing human/whale interactions where ship strikes have
been a major cause of death. Cooperative activities that might be promoted include
sharing whale monitoring and collision avoidance procedures as well as whale
reproduction, health, and population information with Latin American authorities.
Marine mammal scientists suggest that Congress may want to consider the benefits
of encouraging international cooperative relationships on marine mammals by U.S.
agencies. Most marine mammal constituencies appear supportive of efforts to
encourage more international cooperation, as long as such action does not promote
invasive research or commercial ventures.
Some also suggest there may be a critical need for expanding international
cooperative programs for Arctic species because of the virtual total demise of
Russian research and management programs, and the increasing pressure by protein-
impoverished Native peoples to take these species for subsistence purposes. Many
of these species are “shared” because their ranges include the waters of both the
United States and the Russian Federation. A decline of Russian management effort
has hampered population assessment programs for these shared species.
Critics, however, warn that, if Congress acts in this area, specific language
might need to be incorporated to prevent potential abuse (i.e., expenditure of funds
intended to recover and protect U.S. marine mammal stocks on questionable studies
of exotic marine mammals in interesting places) and to require appropriate guidance
and accountability to ensure that international efforts are reciprocal and relevant.
Harassment. The 1994 MMPA amendments revised the definition of
harassment to distinguish between two levels of interaction — those with the
potential to injure (level A harassment) and those with the potential to disturb (level
145 In addition, international dialogue on whale conservation has occurred under the auspices
of the International Whaling Commission.
146 For more information, see CRS Report RS21157, Multinational Species Conservation
Fund, by M. Lynne Corn and Pervaze A. Sheikh.
B harassment).147 Some federal managers have found the new definition of level B
harassment to be particularly difficult to enforce,148 and potentially harmful human
interaction with marine mammals continues.149 Other critics suggest whale-watching
vessels are insufficiently monitored for compliance with MMPA regulations.150
Animal protection advocates suggest that the MMPA should be amended to require
specific and more strictly enforced regulations concerning swimmer,151 kayaker, and
boater harassment of dolphins and whales, including provisions to significantly
increase the possible fines against commercial operators who introduce large groups
of swimmers into protected bays where dolphins rest. Others suggest authorizing
more funding specifically targeted to better educate private watercraft operators
concerning MMPA regulations and to increase MMPA enforcement efforts,152
including additional observers aboard whale-watching vessels to assess compliance.
Some scientists, on the other hand, would like to see the definition of level B
harassment revised to where it would be applicable only to situations where actions
would reasonably be expected to constitute a significant threat to an entire marine
mammal stock, rather than to just a few individual animals.
Changes to the harassment definition applicable to military readiness operations
and to scientific research activities conducted by or on behalf of the federal
government were enacted in §319(a) of P.L. 108-136. The new language defines
harassment as any action that “injures” or “has the significant potential to injure”
marine mammals, rather than any action that has the “potential to injure.”
Environmental and animal protection organizations generally oppose the modified
definition of harassment, arguing that it raises the burden of proof that a military
readiness activity would affect a marine mammal, making it more difficult to protect
147 16 U.S.C. §1362(18).
148 In addition, some scientists believe the current definition is meaningless and possibly
counterproductive. These critics suggest that an expert panel be convened to redefine this
term.
149 For example, animal protection advocates report that a pod of perhaps 50-75 spinner
dolphins in Calexico Bay, Hawaii, can be surrounded on some days by as many as 50
swimmers, 35 kayaks, and several motor-propelled boats. On other days, no more than
about 20 dolphins come into the Bay, where they are pursued from early morning until late
afternoon when they leave the bay. NMFS doesn’t have an enforcement agent on the Big
Island (where these violations occur), and an agent from the Hawaii Department of Land and
Natural Resources is responsible for responding to possible violations.
150 Others suggest the problem is regulatory, wondering why U.S. agencies do not adopt an
approach similar to that of Mexico where the number of vessels that can be in the proximity
of any whale or group of whales is strictly limited and enforced. Some suggest that the
revised operational guidelines for whale-watching vessels in the northeastern United States
(64 Fed. Reg. 29270-29271, June 1, 1999) are a positive step, and that additional region- or
area-specific guidelines or regulations of a similar nature should be developed.
151 Others, however, find MMPA management inconsistent in making it illegal to swim with
wild dolphins who willingly approach humans while allowing commercial ventures to hold
dolphins captive and charge humans for the chance to swim with them.
152 Current requirements for prosecuting harassment violations are stringent, requiring a
time-/date-stamped video of the incident and a court appearance by the complainant to
testify against the offender.
them.153 These interests believe that such changes are premised on an unrealistically
high assessment of our ability to differentiate between biologically significant and
insignificant responses. By doing so, they believe the modified definition effectively
reverses the precautionary burden of proof that has been the hallmark of the MMPA
since its inception. Supporters of the modified definition believe that it ensures that
activities are restricted only when scientific evidence demonstrates that such
protection is necessary. These changes remain highly controversial and could be
revisited during MMPA reauthorization.
Management Consistency Between FWS and NMFS. The division of
responsibility for various marine mammal species between NMFS and FWS is
provided for in 16 U.S.C. §1362(12) within the definition of “Secretary.” When the
MMPA was enacted in 1972, this division of species was seen as artificial and
temporary by many in Congress and the Administration, awaiting the creation of a
contemplated “Department of Environment and Natural Resources.” In addition, the
differing management approaches taken by NMFS and FWS have often confused the154
commercial fishing industry and Alaska Natives. Some Native American and
scientific interests suggest that it may be time for Congress to revisit this division of
management responsibility and consider amending the MMPA to promote greater
consistency in marine mammal management. Several approaches are suggested,
including the current movement toward an ecosystem approach to managing living
resources and minimizing possible conflicts of interest where marine mammals and
fisheries interact, that may have a bearing on which agency should manage which
species or groups thereof. Others suggest that NMFS and FWS might be directed to
develop joint regulations for all their marine mammal programs to achieve greater
consistency in management policy.155
Directed Research Program. Although the MMPA emphasizes research,
it does not create a national integrated marine mammal research program.
Emphasizing this need, a recommendation in the Secretary of Commerce’s February
1999 report to Congress included a list of information needs, with no suggestion as
to how or by whom this research was to be pursued.156 Specific information needs
identified for this relatively narrowly focused issue include (1) site-specific
investigations on the impacts of pinniped predation on salmonid populations; (2)
state-by-state and river-by-river investigations of salmonid populations vulnerable
to pinniped predation; (3) studies of comparative skeletal anatomies of different
salmonid species so that prey may be identified in food habit studies using pinniped
153 For additional information, see “Military Readiness and Environmental Exemptions” in
CRS Report RL32183, Defense Cleanup and Environmental Programs: Authorization and
Appropriations for FY2004, by David M. Bearden.
154 For example, FWS uses MTRP (see “Reporting Subsistence Takes”) while NMFS does
not, and NMFS uses “incidental harassment authorization” to permit incidental taking while
FWS does not.
155 Joint regulations relating to marine mammals have only been developed for the transfer
of management authority to states (50 C.F.R. Part 403).
156 National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems, Report to Congress (Feb. 10, 1999), p. 16-
scat and gastrointestinal tract analyses; (4) site-specific seasonal abundance and
distribution of pinnipeds north of Point Conception, California; (5) assessment and
evaluation of potential impacts of pinnipeds on specific fisheries and fishing areas;
(6) socioeconomic studies on impacts of pinnipeds on various commercial and
recreational fisheries; (7) ecosystem research where the impacts of pinniped
predation on non-salmonid resources can be addressed beginning with smaller
systems such as Puget Sound, Washington; and (8) collection of unbiased samples
for food habit studies. Some have suggested that Congress might wish to consider
whether these information needs should become the focus of an MMPA amendment
creating a national integrated research program, possibly under the direction of the
independent Marine Mammal Commission, with specific funding authorized.157
Federal Agency Roles. Some scientists suggest that conflicting federal
agency interests may hamper marine mammal protection and recovery. One example
of an interagency issue where conflicting agency authority may be problematic relates
to understanding and addressing the potential for endocrine disruption in marine158
mammals. Some critics suggest that the MMPA be amended to direct an external
panel (e.g., the Marine Mammal Commission or the National Academy of Sciences)
to carefully review the programs and procedures of federal management agencies for
potential conflicting interests among their management, regulation, permit
administration, scientific research, and funding roles with respect to marine
mammals, and recommend actions that should be taken to address any problems
identified.
Agency Delays in Compliance with MMPA Deadlines. Various
constituencies were frustrated over federal agency delays in implementing provisions
of the 1994 MMPA amendments (see “1994 MMPA Reauthorization” for more
detail). This led to critics within the conservation and animal protection communities
as well as the fishing industry to seek additional means to force NMFS and FWS to
comply with MMPA deadlines.159 These agencies contend, in reply, that the problem
can be traced to limited funds provided by Congress to finance these activities.160 For
more information on funding concerns, see the following section “Appropriation of
Agency Funding.” Others suggest that the pattern of repeated failure to complete
assigned tasks on time should first be addressed through an Office of Management
and Budget or similar study on overall agency administration.
157 Such a program might be authorized as an extension of the Pacific Coast Task Force
provisions in 16 U.S.C. §1389.
158 For background on this issue, see CRS Report RL31267, Environmental Exposure to
Endocrine Disruptors: What Are the Human Health Risks? by Linda-Jo Schierow and
Eugene H. Buck.
159 For example, the Humane Society of the United States was a plaintiff in at least one
lawsuit pertaining to perceived NMFS inaction on take reduction mandates in the 1994
MMPA amendments; the Center for Biological Diversity also has filed suit against NMFS
for failure to convene a take reduction team.
160 On June 29, 1999, Marshall Jones, Acting Deputy Director, U.S. Fish and Wildlife
Service, testified before the House Resources Subcommittee on Fisheries Conservation,
Wildlife, and Oceans that “due to competing budget needs and limited funding, the Service
has been unable to fully implement provisions of certain amendments.”
Appropriation of Agency Funding. An issue that NMFS, FWS, and the
MMC might raise during reauthorization discussions is that, in an era of stable or
slightly declining federal appropriations, federal agency responsibilities and duties
have expanded much faster than their budgets. For example, requirements for stock
assessments of all marine mammal populations, observer monitoring aboard the U.S.
commercial fishing fleet, and administration of an expanding MMPA permit program
place significant demands on federal agency resources. Specifically, implementing
the provisions of the MMPA is a significant undertaking, requiring the coordination
among headquarters and regional offices of NMFS and FWS as well as with the
MMC. NMFS and FWS may claim that they are underfunded and that delays in
implementing the 1994 MMPA amendments were directly tied to budgetary
constraints. In addition, some scientists, environmental interests, and animal
protection advocates assert that Congress’ will to implement the MMPA through the
appropriations process has not kept pace with the desire expressed in the
authorization process, providing insufficient funding for federal management
programs and thereby exposing federal agencies to harsh criticism when they fail to
meet public expectations. Some suggest that Congress might consider amending the
MMPA to increase the authorization of appropriations for marine mammal programs
of NMFS, FWS, and the MMC, increasing the actual funds appropriated under these
authorizations, or including specific instructions about how funds are to be used.
Congressional Outlook
Congress has enacted measures to protect marine mammals, including
specifically the MMPA. While the history of the MMPA’s implementation includes
numerous court challenges to agency interpretation of congressional intent, Congress
generally has been understanding of the difficulties in providing protection for this
specific group of living resources. The issues discussed in this report set before
Congress a varied array of concerns. It is not yet clear which will gain prominence
in any comprehensive reauthorization debate. Recent public sentiment, always a
strong factor in marine mammal issues, has focused on concerns about noise in the
marine environment, enhanced protection for whales, the appropriateness of Makah
whaling, and humane care for captive animals. Specific interests of Native Alaskans,
fishermen, sport hunters, and animal protection groups may call attention to
additional issues. Congressional oversight during the reauthorization process is
likely to identify additional issues. The requirements of the MMPA itself did not
expire when the authorization of appropriations expired at the end of FY1999. With
the delay in enacting a comprehensive reauthorization, Congress has separately
considered provisions to amend the MMPA on a number of selected issues.
During the 106th Congress, the House Resources Subcommittee on Fisheries
Conservation, Wildlife, and Oceans held a general oversight hearing on the Marine
Mammal Protection Act on June 29, 1999. Testimony presented by officials from
NMFS, FWS, APHIS, and the MMC described progress in implementing the 1994
MMPA amendments and outlined possible areas for Committee attention during
reauthorization. The same subcommittee held a second oversight hearing on April
6, 2000, specifically on the implementation of the 1994 amendments related to the
take reduction process, cooperative agreements with Alaska Native organizations,
and co-management of subsistence use of marine mammals by Alaska Native
communities. No other action was taken on MMPA reauthorization in the 106th
Congress.
In the 107th Congress, the House Resources Subcommittee on Fisheries
Conservation, Wildlife, and Oceans held a general oversight hearing on October 11,
2001, on reauthorizing the Marine Mammal Protection Act.161 H.R. 4781 was the
only reauthorization bill that was introduced; the House Resources Subcommittee on
Fisheries Conservation, Wildlife, and Oceans held a hearing on this bill on June 13,
In the 108th Congress, H.R. 2693 and H.R. 3316 would have amended and
reauthorized the MMPA through FY2008. The House Resources Subcommittee on
Fisheries Conservation, Wildlife, and Oceans held a hearing on H.R. 2693 on July
this bill (H.Rept. 108-464). On July 16, 2003, the Senate Commerce Subcommittee
on Oceans, Fisheries, and Coast Guard held a hearing on MMPA reauthorization
issues. On August 19, 2003, the House Resources Subcommittee on Fisheries
Conservation, Wildlife, and Oceans held an oversight field hearing in San Diego,
California, on the increasing frequency of interactions between marine mammals and
humans. H.R. 5104 would have amended the MMPA and authorized appropriations
for the John H. Prescott Marine Mammal Rescue Assistance Grant Program through
FY2009; this measure was reported by the House Committee on Resources on
November 19, 2004 (H.Rept. 108-787).
In the 109th Congress, H.R. 2130 and H.R. 4075 would have extensively
amended the MMPA and authorized appropriations for several programs; the House
Committee on Resources reported H.R. 2130 (amended) on July 21, 2005 (H.Rept.
1224 would have amended the MMPA to encourage development of fishing gear less
likely to take marine mammals, expanded fisheries required to participate in the
MMPA incidental take program to include recreational fisheries, and authorized
appropriations for stock assessments and observer programs; in addition, Title III
(Subtitle C) directed negotiation of international agreements to better protect
cetaceans from commercial fishing gear and authorized a grant program to develop
less harmful fishing gear. Section 206 of H.R. 2939 would have transferred
management of all marine mammals to NOAA. H.R. 3839 would have amended the
MMPA to repeal the long-term goal for reducing to zero the incidental mortality and
serious injury of marine mammals in commercial fishing operations, and to modify
the goal of take reduction plans for reducing such takings. H.R. 6241 would have
amended the MMPA to authorize taking of California sea lions to reduce their
predation on endangered Columbia River salmon.
161 U.S. Congress, House Committee on Resources, Subcommittee on Fisheries
Conservation, Wildlife, and Oceans, Marine Mammal Protection Act, 107th Cong., 1st sess.
(Oct. 11, 2001), Serial No. 107-65, 330 p.
162 U.S. Congress, House Committee on Resources, Subcommittee on Fisheries
Conservation, Wildlife, and Oceans, H.R. 4781, Marine Mammal Protection Actthnd
Amendments of 2002, 107 Cong., 2 sess. (June 13, 2002), Serial No. 107-128, 94 p.
For updated information on legislative activities in the 110th Congress
concerning marine mammals, see CRS Report RL33813, Fishery, Aquaculture, and
Marine Mammal Legislation in the 110th Congress, by Eugene H. Buck.
Oceans Commissions Reports
Two ocean commissions recently released reports relating to marine mammals.
The Pew Oceans Commission report163 was released June 4, 2003, and the U.S.
Commission on Ocean Policy’s preliminary report164 was issued on April 20, 2004.
Marine mammal issues are only one aspect of the comprehensive ocean policy issues
discussed in these reports; the larger context includes governance, education, coastal
development, human health, environmental quality, energy resources, and ocean
science, among others. For background on the reports and the larger context of these
issues, see CRS Report RL33603, Ocean Commissions: Ocean Policy Review and
Outlook, by Harold F. Upton, John R. Justus, and Eugene H. Buck. Table 1
summarizes these two reports’ recommendations relating to marine mammals. CRS
takes no position with respect to either report’s recommendations.
163 The Pew Oceans Commission’s report, America’s Living Oceans: Charting a Course for
Sea Change, was available at [http://www.pewtrusts.com/pdf/env_pew_oceans_final_report.
pdf].
164 The U.S. Commission on Ocean Policy’s preliminary report, Preliminary Report of the
U.S. Commission on Ocean Policy, was available at [http://oceancommission.gov/
documents/prelimreport/welcome.html ].
Table 1: Ocean Commissions Recommendations Relating to
Marine Mammals
IssueU.S. Commission on Ocean PolicyPew Oceans Commission
MarineRecommendation 20 — 1. Congress shouldNo similar recommendation.
Mammalamend the Marine Mammal Protection Act to
Commissionrequire the Marine Mammal Commission,
while remaining independent, to coordinate
with all relevant federal agencies through the
National Ocean Council (NOC). The NOC
should consider whether there is a need for
similar oversight bodies for other marine
animals whose populations are at risk.
AgencyRecommendation 20 — 2. Congress shouldCongress should establish a National Oceanic
jurisdictionamend the Marine Mammal Protection Act toand Atmospheric Agency as an independent
place the protection of all marine mammalsagency outside the Department of Commerce.
within the jurisdiction of the NationalThis agency should include the marine
Oceanic and Atmospheric Administration.mammal programs of the Department of the
Interior to place all ocean wildlife under the
jurisdiction of the oceans agency.
HarassmentRecommendation 20 — 5. Congress shouldNo similar recommendation.
definitionamend the Marine Mammal Protection Act to
revise the definition of harassment to cover
only activities that meaningfully disrupt
behaviors that are significant to the survival
and reproduction of marine mammals.
Research onRecommendation 20 — 7. The NationalNo similar recommendation.
effects ofOceanic and Atmospheric Administration and
humanthe U.S. Department of the Interior should
activitiespromote an expanded research, technology,
and engineering program, coordinated
through the National Ocean Council, to
examine and mitigate the effects of human
activities on marine mammals and
endangered species.
Specifically,Recommendation 20 — 8. Congress shouldNo similar recommendation.
acoustics andincrease support for research into ocean
noiseacoustics and the potential impacts of noise
on marine mammals. This funding should be
distributed across several agencies, including
the National Science Foundation, U.S.
Geological Survey, and Minerals
Management Service, to decrease the reliance
on U.S. Navy research in this area. The
research programs should be well coordinated
across the government and examine a range
of issues relating to noise generated by
scientific, commercial, and operational
activities.
IssueU.S. Commission on Ocean PolicyPew Oceans Commission
and toxicsNo similar recommendation.Sufficient resources should be devoted to
studying the effects of toxic substances in the
marine environment. Needed research
includes the effects of polychlorinated
biphenyls (PCBs) and other toxic substances
on marine mammals — particularly in the
polar regions.
ConservationNo similar recommendation.Core conservation decisions should be made
decision-by NMFS, or a revamped fishery service
makingwithin a new independent oceans agency.
These decisions should originate at the
regional offices with oversight by the national
headquarters office. At a minimum, these
decisions include setting specific protected
species requirements (threatened and
endangered marine mammals, sea turtles,
seabirds, and fish).
Regulation ofNo similar recommendation.Activities that generate significant amounts of
soundpotentially harmful sound should be regulated
consistent with the requirements of federal
law, including the Marine Mammal
Protection Act.
P e r mits:
Streamline anRecommendation 20 — 6. The NationalNo similar recommendation.
interagencyMarine Fisheries Service and the U.S. Fish
processand Wildlife Service should implement
programmatic permitting for activities that
affect marine mammals, wherever possible.
More resource intensive case-by-case
permitting should be reserved for unique
activities or where circumstances indicate a
greater likelihood of harm to marine
mammals. The National Ocean Council
should create an interagency team to
recommend activities appropriate for
programmatic permitting, those that are
inappropriate, and those that are potentially
appropriate pending additional scientific
information. Enforcement efforts should also
be strengthened and the adequacy of penalties
reviewed.
IssueU.S. Commission on Ocean PolicyPew Oceans Commission
Clarify whatRecommendation 20 — 4. Congress shouldNo similar recommendation.
activitiesamend the Marine Mammal Protection Act to
require permitsrequire the National Oceanic and
Atmospheric Administration to more clearly
specify categories of activities that are
allowed without a permit, those that require a
permit, and those that are prohibited.
Attention toRecommendation 19 — 25. The NationalNo similar recommendation.
bycatchOceanic and Atmospheric Administration,
reductionworking with the U.S. Fish and Wildlife
Service and the U.S. Department of State,
should design a National Plan of Action for
the United States that implements, and is
consistent with, the International Plans of
Action adopted by the United Nations Food
and Agriculture Organization and its 1995
Code of Conduct for Responsible Fisheries.
This National Plan should stress the
importance of reducing bycatch of
endangered species and marine mammals.