U.S. GOVERNMENT PRINTING OFFICE

66–525 CC u WASHINGTON : 2000

HEARING ON THE MARINE MAMMAL PROTECTION

ACT (SECTIONS 118 AND 119)

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES CONSERVATION,

WILDLIFE AND OCEANS

OF THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

APRIL 6, 2000, WASHINGTON, DC.

Serial No. 106–79

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://www.house.gov/resources
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH-HAGE, Idaho

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MARK E. SOUDER, Indiana

GREG WALDEN, Oregon

DON SHERWOOD, Pennsylvania

ROBIN HAYES, North Carolina

MIKE SIMPSON, Idaho

THOMAS G. TANCREDO, Colorado

GEORGE MILLER, California

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́, Puerto

Rico

ROBERT A. UNDERWOOD, Guam

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

CHRIS JOHN, Louisiana

DONNA MC CHRISTENSEN, Virgin Islands

RON KIND, Wisconsin

JAY INSLEE, Washington

GRACE F. NAPOLITANO, California

TOM UDALL, New Mexico

MARK UDALL, Colorado

JOSEPH CROWLEY, New York

RUSH D. HOLT, New Jersey

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director

SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

JIM SAXTON, New Jersey, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

WAYNE T. GILCHREST, Maryland

RICHARD W. POMBO, California

WALTER B. JONES, JR., North Carolina

MARK E. SOUDER, Indiana

ROBIN HAYES, North Carolina

MIKE SIMPSON, Idaho

ENI F.H. FALEOMAVAEGA, American

Samoa

BRUCE F. VENTO, Minnesota

PETER A. DEFAZIO, Oregon

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

FRANK PALLONE, JR., New Jersey

CARLOS A. ROMERO-BARCELO ́, Puerto

Rico

ADAM SMITH, Washington

HARRY BURROUGHS, Staff Director

DAVE WHALEY, Legislative Staff

JEAN FLEMMA, Democratic Legislative Staff
(III)

C O N T E N T S

Page

Hearing held Thursday, April 6, 2000, Section 118 .............................................. 1

Statement of Members:

Faleomavaega, Hon. Eni F. H., a Delegate in Congress from the Territory

of the American Samoa, prepared statement of ......................................... 146

Saxton, Hon. Jim, a Representative in Congress from the State of New

Jersey ............................................................................................................. 1

Prepared statement of ............................................................................... 2

Statement of Witnesses:

Calambokidis, John, Cascadia Research Collective ....................................... 121

Prepared statement of ............................................................................... 123

Foster, Bill, Mid-Atlantic Coastal Gillnet Industry ....................................... 90

Prepared statement of ............................................................................... 92

Reynolds, PH.D., John E., Chairman, Marine Mammal Commission .......... 27

Prepared statement of ............................................................................... 29

Rosenberg, PH.D., Andrew, Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service .............................................................. 8

Prepared statement of ............................................................................... 11

White, Pat, Maine Lobstermen’s Association ................................................. 45

Prepared statement of ............................................................................... 47

Young, Nina, Center for Marine Conservation .............................................. 50

Prepared statement of ............................................................................... 52

Young, Sharon, Humane Society of the United States .................................. 93

Prepared statement of ............................................................................... 95

Hearing held Thursday, April 6, 2000, Section 119 .............................................. 149

Statement of Members:

Faleomavaega, Hon. Eni F. H., a Delegate in Congress from the Territory

of the American Samoa, prepared statement of ......................................... 265

Young, Hon. Don, a Representative in Congress from the State of Alaska;

Chairman, Committee on Resources ........................................................... 149

Prepared statement of ............................................................................... 151

Statement of Witnesses:

Allen, Mr. David B., Regional Director, U.S. Fish and Wildlife Service,

Alaska ............................................................................................................ 157

Prepared statement of ............................................................................... 160

Dalton, Penelope, Assistant Administrator for Fisheries, National Marine

Fisheries Service, National Oceanic and Atmospheric Administration,

U.S. Department of Commerce .................................................................... 165

Prepared statement of ............................................................................... 168

Daniel, Alex, prepared statement of ............................................................... 236

Jack, Ms. Lianna, Executive Director, the Alaska Sea Otter and Steller

Sea Lion Commission ................................................................................... 218

Prepared statement of ............................................................................... 220

Johnson, Mr. Charles, Alaska Nanuuq Commission on MMPA Co-Management ......................................................................................................... 195

Prepared statement of ............................................................................... 197

Osterback, Mr. Alvin D., Aleut Marine Mammal Commission ..................... 213

Prepared statement of ............................................................................... 215
Page

IV

Statement of Witnesses—Continued

Pungowiyi, Mr. Caleb, Chairman, MMPA Reauthorization Committee,

Indigenous People’s Council for Marine Animals, Kotzebue, Alaska ....... 178

Prepared statement of ............................................................................... 182

Riedel, Ms. Monica, Executive Director and CEO, Alaska Native Harbor

Seal Commission ........................................................................................... 204

Prepared statement of ............................................................................... 206

Sparck, Ms. Michelle, pepared statement of .................................................. 243
(1)

HEARING ON: SECTION 118 OF THE MARINE

MAMMAL PROTECTION ACT

House of Representatives,

SUBCOMMITTEE ON FISHERIES CONSERVATION,

WILDLIFE AND OCEANS

COMMITTEE ON RESOURCES,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:15 a.m., in room

1334, Longworth House Office Building, Hon. Jim Saxton (chairman of the subcommittee) presiding.

STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW JERSEY

Mr. SAXTON. The Subcommittee on Fisheries Conservation, Wildlife and Oceans will come to order. Today we are discussing Section

118 of the Mammal Protection Act. The Secretary of Commerce is

required to use take reduction teams when developing Take Reduction Plans. The Plans are supposed to reduce the take of marine

mammals to insignificant levels. To date, five teams have been convened, the Gulf of Maine Harbor Porpoise Team, the Mid-Atlantic

Coastal Gillnet Team, the Atlantic Offshore Cetacean Team, the

Atlantic Large Whale Team, and the Pacific Offshore Cetacean

Team.

Members of the Take Teams are required to be knowledgeable of

fisheries and they have included fishermen, environmental representatives, State fish and game personnel, Regional Council

members, Scientists and NMFS personnel. I am interested in hearing from our witnesses today on the take reduction team process

and whether NMFS implementation of the appropriate Plans have

been successful in reducing the take of marine mammals. I would

now ask unanimous consent that all subcommittee members be

permitted to include their opening statements in the record without

objection.

I would now like to introduce our first panel of witnesses. On

panel one we have Dr. Andrew Rosenberg, Deputy Assistant Administrator for Fisheries, NMFS, and Dr. John E. Reynolds, Chairman of the Marine Mammal Commission. If you gentlemen would

like to take your place and let me remind you that our committee

rules, please limit your opening statements to 5 minutes and your

entire statement will be recorded in the record. Andy Rosenberg,

you may begin as you see fit.

[Prepared statement of Mr. Saxton follows:]
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STATEMENTS OF ANDREW ROSENBERG, PH.D., DEPUTY ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE; JOHN E. REYNOLDS, PH.D.,

CHAIRMAN, MARINE MAMMAL COMMISSION

STATEMENT OF ANDREW ROSENBERG

Mr. ROSENBERG. Thank you very much, Mr. Chairman and members of the subcommittee, and thank you for inviting me to testify

on Section 118 of the Marine Mammal Protection Act on reducing

takes of marine mammals incidental to commercial fisheries. As

you requested, I am here to discuss with you the merits of the marine mammal take reduction process as well as the positive impacts

those take reduction plans and teams have had on marine mammal

conservation and management. My written testimony, which is

more extensive, of course, than my oral remarks, will be submitted

for the record with your permission.

To date, five take reduction teams have been established, as you

noted, Mr. Chairman, focusing on nine fisheries and 22 so-called

strategic stocks of marine mammals, those stocks that we view are

in urgent need of attention. I will go through each of the take reduction team plans in some detail. Again, more detail is in the

written testimony. The Harbor Porpoise Take Reduction Plan combines recommendations developed by the Gulf of Maine and MidAtlantic Take Reduction Teams in order to reduce the take of harbor porpoise in fisheries to below the stock’s PBR level or potential

biological removal level of 483 animals.

And in December 1998, NMFS published a final rule which included some modification, minor modifications, of the team’s recommendations for closures in the Gulf of Maine and the use of

acoustic deterrent devices usually known as pingers to warn the

animals off from the nets. The Mid-Atlantic Harbor Porpoise Take

Reduction Team was formed a year later in 1997 to develop a plan

for reducing incidental take of Harbor Porpoise in Mid-Atlantic

coastal gillnet fisheries.

Although that team did not reach consensus, they did reach

agreement on several key measures which were submitted in a report to NMFS and those measures have been included in the overall take reduction plan that I mentioned was implemented as a

final rule. Those measures are specific to predominant coastal

gillnet fisheries for monkfish and dogfish in the Mid-Atlantic. In

1998, the final rule implementing gear modifications and net caps

for large and small mesh gillnet fisheries and short-term closures

for large mesh gillnet fisheries in the Mid-Atlantic were included

then.

We convened both teams around the beginning of this year to review progress and consider improvements in the Harbor Porpoise

take reduction plan and recommendations included changes to fishing operations, pinger use, observer protocols and information exchange as well as communication with the team. The combined efforts of the Mid-Atlantic and Gulf of Maine Harbor Porpoise take

reduction team recommendations and our implementation of those

recommendations have led to reductions in the Harbor Porpoise bycatch in the Northeast gillnet fishery that is in the Gulf of Maine
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from approximately 1,400 animals taken in 1995 to less than 400

animals in 1998.

However, the total combined Harbor Porpoise bycatch for the entire region, including the Gulf of Maine down through the Mid-Atlantic is still greater than the PBR level because we estimate that

450 animals approximately were taken in the Mid-Atlantic region

1998 so we still have some work to do in both regions to reduce

Harbor Porpoise takes further throughout its range. The Pacific

Offshore Cetacean Take Reduction Plan was prepared by a team

that was formed in February 1996 to address incidental takes of

several whale and dolphin stocks in California and Oregon, thresher shark/swordfish drift gillnet fishery.

The final rule was implemented in October 1997 to address the

bycatch reduction recommendations. We reconvened the team in

1998 and 1999 to examine additional data and see how well the

plan was working. The plan overall has reduced the take of marine

mammals by an order of magnitude from approximately 500 a year

in the early 1990’s to about 50 in 1998. However, we still have concerns about a sperm whale because a sperm whale was caught in

a drift net in this region fairly recently and we are reconvening the

team to consider whether we need to take additional measures.

There will be another meeting of that team in May of 2000.

The Atlantic Large Whale Take Reduction Team was established

in 1996 for developing a plan to reduce incidental take of large

whales in the South Atlantic shark gillnet fishery, the Gulf of

Maine and Mid-Atlantic lobster trap/pot fishery, the Mid-Atlantic

gillnet fishery, and the Gulf of Maine sink gillnet fishery. That

team did not reach a consensus on a recommendation, however, did

report to NMFS and NMFS developed a final plan in implementing

regulations. Based on a range of recommendations and considerable public input the interim final rule was published in 1997 and

a final rule was published in 1999 after additional public comment.

There were several whale species addressed in that plan. Of

greatest concern is the critically endangered Northern right whale.

Currently the potential biological removal level for right whales is

less than one animal per year. However, the stock is at such a low

level and in such critical circumstances of course we don’t want to

take any right whales. We have established an extensive series of

disentanglement programs, education programs, as well as gear

modifications and are still doing additional gear modification research to try to reduce the take of right whales.

We have had some success with disentanglement efforts. However, we have in fact still had some entanglements and have additional work to do. The team reconvened in February of this year

and we will have another meeting in April to try to address those

concerns. Mr. Chairman, I have nearly come to the end of my time.

The last team, however, was the Atlantic Offshore Cetacean Team.

That plan was not implemented as a take reduction plan but was

implemented in the course of fishery management regulations

throughout the Northeast and Mid-Atlantic with regard to offshore

fisheries in that region.

Overall, we found that the take reduction process is very complex

and very controversial but the results have been very positive. This

is a very difficult area both for the agency, the industry and the
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public to work through solutions to complex problems. We feel that

that has been very positive. However, it has required a very significant amount of financial and staff resources and a lot of time for

the teams as well as for the agency to develop workable solutions

to some of these problems.

We feel it has been successful although rather slower than I

think anyone would have wished. For us to expand the take reduction team process, we would have to greatly expand our resources

available to provide information to the teams that is probably the

biggest stumbling block. Finally, we are convening additional

teams as possible including a team for Atlantic bottlenose dolphins

that we intend to convene this fall. We will apply the lessons

learned from the other teams to any new teams we convene, of

course, as well as the teams that are ongoing. Thank you, Mr.

Chairman, and I apologize for going over my time.

[Prepared statement of Mr. Rosenberg follows:]
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Mr. SAXTON. Thank you, Dr. Rosenberg. Dr. Reynolds, please.

STATEMENT OF JOHN E. REYNOLDS

Mr. REYNOLDS. Mr. Chairman, thank you for inviting the Marine

Mammal Commission to provide its views on the effectiveness of

Section 118 of the Marine Mammal Protection Act in reducing mortality and serious injury of marine mammals incidental to commercial fishing operations. To date the National Marine Fisheries Service has, as has been noted, established five take reduction teams,

their establishment, their recommendations, actions to implement

take reduction plans, and problems encountered are discussed in

the detailed statement I have submitted for the record.

Today I will confine my remarks to just some general observations. The Commission believes that the provisions pertaining to

take reduction plans are fundamentally sound. First, Section 118

appropriately places the highest priority on developing plans for

those stocks that are most affected by commercial fisheries and for

those fisheries with the highest frequency of takes.

Second, it establishes biologically based goals for reducing incident mortality and serious injury within specific timeframes. Third,

it involves all stakeholders and applied a cooperative approach to

developing take reduction plans thereby ensuring consideration of

all views and building support for recommended remedial measures. Section 118 set an ambitious schedule for developing and implementing take reduction plans. Had all timing requirements been

strictly adhered to mortality and serious injury of marine mammals

incidental to commercial fisheries would have been reduced to

below each stock’s PBR level by September, 1996, or in the case of

Gulf of Main Harbor Porpoises by April 1997.

By now we would be well on our way to meeting the 0 mortality

rate goal. While there has been substantial progress incidental

mortality and serious injury still exceeds some stock’s PBR level

and take reduction teams have yet to be established for some strategic stocks. There appear to be several reasons that it has taken

longer to achieve the goals of Section 118 than originally anticipated. First, the service has finite resources to directive resolving

marine mammal fishery interaction problems.

Second, the issues are often complex and can affect the livelihood

of many fishermen. For instance, the Atlantic large whale take reduction plan is to devise a way to eliminate essentially all mortality and serious injury of Northern right whales incident to the

fisheries that use more than 3 million lobster traps and make tens

of thousands of gillnet sets within the species range each year. For

Gulf of Maine Harbor Porpoises, the take reduction team has had

to contend with frequently shifting fishery closures implemented to

protect fish stocks as it tries to design effective marine mammal

base closures and gear requirements.

Third, efforts to develop and implement effective plans are sometimes slowed by a need to conduct research and to understand the

nature of the interactions and to design and test take reduction

measures. For bottlenose dolphins research has been aimed at even

more rudimentary questions to resolve uncertainties about stock

structure. Although the service and others involved in the process

have made considerable progress more remains to be done.
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We are particularly concerned about the urgent need to reduce

incidental mortality of Northern right whales further. For this

stock, any mortality may significantly affect prospects for recovery.

We have urged the service to use its emergency rulemaking authority to implement fishery closures to eliminate hazardous fishing

gear from critical habitat areas during those times when right

whales are most likely to be present. There is also a pressing need

to move forward with a take reduction team for bottlenose dolphins.

I note one change to Section 118 that the commission believes is

warranted. Currently the Act requires take reduction plans for all

strategic stocks that interact with categories one or two fisheries.

But some stocks are considered strategic solely because they are

listed under the ESA or depleted under the MMPA, not because of

a significant level of fishery-related mortality or serious injury.

Where there is a very low level of taking incident to fisheries the

stocks would benefit little from take reduction plans.

To ensure wise use of limited agency resources the commission

recommends that the Act be amended to specify that plans need

not be prepared for those strategic stocks for which mortality and

serious injury from fisheries are inconsequential. As we begin to reduce fisheries-related mortality and serious injury to biologically

significant levels, we should not lose sight of other significant

threats to marine mammals. For example, on average one Florida

manatee is hit and killed by a motorboat every four or 5 days.

Similarly, vessel strikes involving right whales present a serious

conservation problem, and we are also becoming increasingly aware

of the potentially significant adverse effects of point and non-point

source pollution which may affect not only marine mammals but

other important components of marine ecosystems so solving the

fisheries questions won’t necessarily protect all marine mammal

stocks. Finally, most research and conservation actions under the

Marine Mammal Protection Act are designed at present to respond

to acute often controversial conservation issues.

I believe we need to consider other approaches that respond not

only to critical current situations but to recognize the need for

broad-based interdisciplinary anticipatory research that will enable

us to address potential conservation problems before they become

serious. I would be pleased to explore these issues with you and to

respond to any questions you may have. Thank you.

[Prepared statement of Mr. Reynolds follows:]
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Mr. SAXTON. Thank you very much. Thank you both. I have one

question which has troubled some people who have been involved

in the process. Take reduction teams assemble themselves and examine biological sciences and other factors that are involved in a

fishery and then make recommendations based upon some significant amount of time and effort and with all good intentions and

submit their recommendations to NMFS, higher up NMFS officials

who apparently were not part of the take reduction teams who

don’t have the ability and take advantage of the opportunity to

change recommendations without having been part of the process.

At least that is what is said to me.

Is that the case and do you think that that part of the changes

and the recommendations serve to encourage take reduction teams

to continue to do serious work? Dr. Rosenberg.

Mr. ROSENBERG. Thank you, Mr. Chairman. First of all, I think

that is not entirely the case although it is true that senior managers within the agency are not members of the take reduction

team. Of course, we have quite a lot of staff who attend the team

and participate in providing information to the team and so senior

policymakers are fully briefed on the team’s discussions and the

issues that arise. Second, in several cases, for example, the large

whale take reduction team, the team did not come to consensus.

And so NMFS still must implement a take reduction plan to

meet the responsibilities under the law so in many cases we have

to make a decision on the actual implementation of the plan even

if we don’t have full consensus on the team. And, third, because the

agency is accountable under the law and certainly in court and in

many of these plans we may have been sued by one or more parties

on various sides we have to determine whether the actual recommendations are in comport with the law and that is not something that generally the team analyzes so we need to evaluate the

plan as submitted or recommendations if they don’t come to full

consensus for its overall comport with the law, which we do.

We only make those changes that we feel are necessary in order

to ensure that we are meeting the legal responsibilities and can defend it in court.

Mr. SAXTON. Dr. Reynolds, could you respond to the same question, please?

Mr. REYNOLDS. Sure. Dr. Rosenberg’s agency is most intimately

involved with the process and I agree with his response. I guess

coming at it from a somewhat different direction, as you indicated,

Mr. Saxton, the process is a slow and painstaking one in which the

various entities that are involved need to build trust and need to

communicate well with one another. And I think to the greatest extent possible it is important that the appropriate players stay in

touch with one another and that the communication be as open as

possible on all the issues.

I think that if outside opinions are being superimposed that I understand as Dr. Rosenberg said that on occasion there are legal

questions and all that come up that simply cause differences but

I think it is important that you build an esprit de corps within the

team and that they be able to move forward as much as possible

as a unit to address some of these really complex problems.
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Mr. SAXTON. Well, obviously there is a need for final take reduction plans to be workable and to have as much thought put into

the development and implementation of them as possible. I guess

my question is do you think that an interaction with higher level

NMFS personnel and perhaps legal counsel from NMFS whether

the process would be better served if those interactions took place

at an earlier time, perhaps during the time the take reduction

team is studying and formulating recommendations. Dr. Rosenberg.

Mr. ROSENBERG. I think that that is a very important point and

something that we have begun to address and probably need to

focus some more attention on. I have attended large whale take reduction team meetings and Harbor Porpoise take reduction team

meetings and we certainly to the extent possible having legal counsel available during the team meetings although that is not possible in every case. But we have heard back from the teams in our

survey of team members that the two things they want more of, I

would have to say, is they all want more information on which to

base their recommendations, and we do the best we can in terms

of providing such information and trying to do a better job of it and

they want more communication with the agency back and forth

preferably as high a level as they can so we will try to work toward

those goals.

Mr. SAXTON. Now you say that an effort is going to be made or

is being made to implement a process where these decisionmakers

would be part of the early on process where possible. Where it is

not possible, is it also an alternative you have looked at to have

some kind of a review on an ongoing basis if it is not possible for

them to actually be part of the meeting and the discussion. At least

it seems to me difficulties which may arise along the way ought to

be pointed out to the team during its deliberations rather than to

wait until their recommendations have been made and then just

arbitrarily change them.

Mr. ROSENBERG. I think we invariably do point out issues of concern during the process and sometimes the teams take those on

board and sometimes they do not. That is their prerogative, of

course. That is why we have both policy staff and scientific staff

attending the team meetings and legal staff when we can. With regard to senior managers attending, the regional administrators

often attend for a portion of the meeting and as I have noted I have

attended some and I believe Ms. Dalton has attended possibly one

of the meetings in the past year.

But again we have heard from the team members. They want to

have more interactive feedback along the way and I think we will

try to build on that in the future and improve that process.

Mr. SAXTON. Dr. Reynolds, do you have anything to add?

Mr. REYNOLDS. Yes. I am sorry. I misunderstood what you were

asking at first. I agree that it would be very useful to bring as

many people into the mix within reason as possible. I think that

to keep things on the floor at the meetings is a very useful exercise.

I would add that one of the constraints on development and maintaining momentum with the take reduction teams that both Dr.

Rosenberg and I mentioned is the lack of available agency resources and so I think that—I think what you are suggesting
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makes all the sense in the world but it will stretch something that

is already in finite supply. I think that needs to be looked at.

Mr. SAXTON. Thank you very much. Mr. Gilchrest.

Mr. GILCHREST. Thank you, Mr. Chairman. I guess following up

on the line of questions from the Chairman and just so it is clear

in my mind, how many take reduction teams are there?

Mr. ROSENBERG. There have been five.

Mr. GILCHREST. There are five take reduction teams. How many

on each team, how many people?

Mr. ROSENBERG. I would have to look it up.

Mr. GILCHREST. Are there five people, ten people?

Mr. ROSENBERG. No, it is quite a bit larger than that.

Mr. GILCHREST. Twenty people?

Mr. ROSENBERG. Between 10 and 20.

Mr. REYNOLDS. 20 to 40.

Mr. GILCHREST. 20 to 40 people. Who are they? Who makes up

these teams?

Mr. ROSENBERG. The teams are drawn from interested members

of industry, sometimes academia conservation groups from the region, usually from the region that is affected by the fishery. Almost

invariably say in the Northeast they will be people within that

area, fairly balanced between conservation organizations and public

interest groups and industry groups directly.

Mr. GILCHREST. And so these five teams represent how many

fisheries?

Mr. ROSENBERG. There are nine fisheries that are included under

the five teams and 22 stocks of marine mammal.

Mr. GILCHREST. And how many fisheries have plans now?

Mr. ROSENBERG. Well, one of the take reduction teams, the Atlantic Offshore Cetacean Team, we didn’t implement a specific take

reduction plan but the elements were addressed in other portions

of fisheries management so you could say in a form all nine fisheries have—actions have been taken to reduce take in all of those

nine fisheries. I believe that is correct. And we will move forward

with additional fisheries as we can.

Mr. GILCHREST. And so there is some implementation in each of

the nine fisheries?

Mr. ROSENBERG. Yes.

Mr. GILCHREST. Where are the nine fisheries?

Mr. ROSENBERG. There is one set of fisheries——

Mr. GILCHREST. Are they all on the East Coast?

Mr. ROSENBERG. No. One is on the Pacific Coast. The Pacific Offshore Cetacean Team addressed the Oregon and California gillnet

fisheries and the rest are on the Atlantic Coast from Maine to Florida but primarily in the Northeast states down through the MidAtlantic.

Mr. GILCHREST. So when the implementation of those plans—

when those plans have been implemented, is there a move to the

Gulf of Mexico, are there any problems with marine mammals in

the Gulf of Mexico?

Mr. ROSENBERG. There are and we are in the process of trying

to convene a team on bottlenose dolphins. It is rather difficult because the information is quite slim. That would include both the

South Atlantic coast as well as the Gulf Coast in that team and
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there are some scientific questions on how the stocks of bottlenose

dolphins relate in different areas.

Mr. GILCHREST. Now when the teams get together and do their

studying and collect data and come up with a consensus I guess at

least for a plan. What is the interaction with the fisheries management council for that particular region with the take reduction

teams? Is there much dialog between the management council?

Mr. ROSENBERG. There is dialog although it is up to each individual council to decide and the team to decide the form of that.

For example, in New England for the Gulf of Maine gillnet fishery

there was a marine mammal committee on the council that specifically asked for reports on both the gillnet fishery for Harbor Porpoise as well as the large whale take reduction plan. There were

regular reports to the council from the take reduction team and at

the point of implementation of the Harbor Porpoise plan there was

substantial discussion over the closures that were being implemented for fish protection in the Gulf of Maine or Northeast areas

that would need it for Harbor Porpoise protection.

Mr. GILCHREST. I would imagine that you would encourage a dialog between the take reduction team and the management council

because I guess inevitably there is going to be an effect on the fish

stock because of the plan.

Mr. ROSENBERG. That is certainly the case and in fact we would

like—we have implemented measures under not only the Marine

Mammal Protection Act itself but also under the Magnuson-Stevens Act measures that serve to protect marine mammals specifically. Harbor Porpoise measures were implemented under Magnuson-Stevens which specifically includes the council process. For

some of the other fisheries the same thing so there is an intimate

relationship. However, it varies a little bit from council to council

depending on their operating desires.

Mr. GILCHREST. I see. Thank you. Dr. Reynolds, let me see if I

can find the question. You made a comment that there has not

been take reduction teams appointed for several fisheries. Is that

Alaska or the Gulf of Mexico or other areas?

Mr. REYNOLDS. I believe what I said was that there are—there

was a need for a take reduction team for some strategic stocks referring to the marine mammals that needed to be looked at and

specifically the one——

Mr. GILCHREST. What would they be and where would——

Mr. REYNOLDS. The one for which I think the most urgent need

exists, and again Dr. Rosenberg referred to this as something that

is moving forward for bottlenose dolphins in the southeastern

United States.

Mr. GILCHREST. I guess my time is up. Thank you, Mr. Chairman.

Mr. SAXTON. Thank you, Mr. Gilchrest.

Mr. POMBO. No questions.

Mr. SAXTON. We have no further questions at this time. I thank

both of you for being with us today. This is an extremely interesting and serious subject and we appreciate very much your

attention——

Mr. GILCHREST. Mr. Chairman, could I just ask one more question since the gentleman from California yielded his time?
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Mr. SAXTON. Sure.

Mr. GILCHREST. Thank you. Dr. Reynolds, you made a comment

about the full range of issues that affect marine mammals from big

steam ship vessels coming from Europe for the right whales, recreational boaters for the manatee, point and non-point source pollution for a number of these species. Is it your feeling—I don’t know

whose area of responsibility this would be. If you look at—since we

are discussing take reduction teams, is it your recommendation

that these teams given the full big picture of marine mammals

should also include these things into their plans?

Mr. REYNOLDS. Not necessarily. If you included all the possible

factors that were affecting certain stocks and brought in all the appropriate stakeholders, you would probably have an unmanageably

large group that would probably not make much progress. What

the intent of my statement was to keep before you the thought that

yes, progress is being made in terms of incidental take of marine

mammals associated with commercial fisheries but incidental to

other human activities marine mammals get taken and some

stocks get taken in far larger numbers.

Even endangered species like manatees and right whales get

taken more by non-commercial fishery-related activities than they

do by the commercial fisheries. And so even though we are making

nice progress perhaps with certain of the stocks and certain of the

issues there is a long way to go still to insure the safety of many

of the stocks and species of marine mammals. I think that with the

boating in Florida, for example, that there is a recovery plan in

place. A new iteration of it is being developed right now but that

recovery plan deals with a gamut of issues.

I think that conceivably for manatees in Florida a process similar

to a take reduction process for boats might be very effective. It is

a very tough question though.

Mr. GILCHREST. Thank you. Dr. Rosenberg.

Mr. ROSENBERG. Thank you, Congressman. I just wanted to add

that some of the other factors affecting marine mammal stocks that

we do have other teams or working groups, for example, to deal

with the ship strike issue on large whales there is a recovery plan

that is—a recovery team that is working toward developing measures to reduce ship strikes. There is a notification system that has

been developed and we have implemented so shipping knows where

the whales are located.

Similarly for other kinds of threats to marine mammals, we do

have other programs. We do not include them in the take reduction

process because we want to focus that on fishing effects according

to Section 118. On pollution we have the marine mammal health

and stranding program in cooperation with National Ocean Service

that tries to at least investigate sources of mortality of animals

that appear that on the beaches, stranded on the beaches and so

on.

Mr. GILCHREST. Thank you. I was just curious about—Dr. Rosenberg, I think it was you that mentioned warning devices. Is that

a loud horn? What are warning devices?

Mr. ROSENBERG. I am sorry. Acoustic deterrent devices that are

used on gillnets. Essentially what they are is a sealed tube that

has a little device that make a click at a certain frequency and
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sound level. It is battery operated and it is attached to the nets

and apparently marine mammals because they locate by sound,

echo locate, they serve as a warning device and have reduced the

take in some fisheries for some kinds of marine mammals successfully because it enables the animals to actually see the net better.

Some people have—the information is a little bit equivocal. Some

people have claimed that other mammals, those same devices seem

to serve as a dinner bell, here is a net with fish in it, come and

get it, and that has had a negative impact but overall the impact

has been very positive on helping marine mammals avoid the fishing gear and we have seen reductions in take.

Mr. GILCHREST. Thank you very much. Thank you, Mr. Chairman.

Mr. SAXTON. The gentlemen, thank you again for being with us.

We appreciate it very much. We will now move on to our second

panel. On panel two we have Pat White of the Maine Lobstermen’s

Association, Nina Young from the Center for Marine Conservation,

Bill Foster of the Mid-Atlantic Coastal Gillnet Industry, Sharon

Young of the Humane Society of the U.S., and John Calambokidis

of the Cascadia Research Collective.

I would just like to point out that we have a 5-minute rule that

we try to go by and your written testimony in its entirety will be

included in the record. Mr. White, you may begin as you find yourself ready.

STATEMENTS OF PAT WHITE, MAINE LOBSTERMEN’S ASSOCIATION; NINA YOUNG, CENTER FOR MARINE CONSERVATION;

BILL FOSTER, MID-ATLANTIC COASTAL GILLNET INDUSTRY;

SHARON YOUNG, HUMANE SOCIETY OF THE UNITED STATES;

JOHN CALAMBOKIDIS, CASCADIA RESEARCH COLLECTIVE

STATEMENT OF PAT WHITE

Mr. WHITE. Good morning, Mr. Chairman, and members of the

subcommittee. I address you today as a member of the Large

Whale Take Reduction Team initiated by the National Marine

Fisheries Service Office of Protected Resources under the authority

of the Marine Mammal Protection Act, Section 118. In addition, I

am Executive Director of The Maine Lobstermen’s Association, as

well as a commercial lobsterman.

I strongly support the concept and intent of the TRT as established in the 1994 reauthorization of the MMPA. In the case of the

Large Whale Take Reduction Team, however, the process has been

flawed and the results ineffective, both in preventing entanglements of large whales in fishing gear and giving the fishing industry the tools, techniques and support necessary to meet the goals

of the take reduction plan.

It is the clear intent of the MMPA that the goal of a TRP is both

to protect the marine mammals and to give fishermen the skills

and technologies needed to continue their chosen professions. This

intent is spelled out in Section 118. To date, this necessary action

and support has not been sufficiently forthcoming from NMFS.

Their inability to effectively implement the key provisions of

MMPA has placed both large whales and the fixed-gear fishing industry of the Atlantic states at an unacceptable risk.
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More specifically, NMFS has repeatedly failed to meet the deadlines for action as mandated in 118. The failure to implement the

measures proposed in the interim final rule has placed the fishing

industry at risk of arbitrary and insupportable court-ordered actions. Funding essential for the effective implementation of the

suite of measures agreed upon and recommended by the TRT has

been either inadequate or entirely absent.

These measures include research and development of alternative

fishing gears, the establishment and operation of a coast-wide network to monitor the movements of large whales and to alert fishermen when they are present on their fishing grounds, the training

of large numbers of volunteer fishermen in the proper methods of

reporting and responding to entanglements and to assist in

disentanglements, the establishment and equipment of a greater

number of specialized entanglement teams, the research by scientists into those aspects of the whale behavior that lead to entanglements, and finally the technology and techniques necessary to

track entangled whales until they can be successfully disentangled.

This lack of essential and meaningful support from NMFS is in

violation of 118 which clearly directs that funding priority be given

to those stocks of marine mammals most at risk. Unfortunately,

the stock of north Atlantic right whale is the most endangered of

all marine mammals and, by law, the development and implementation of an effective TRP should not be compromised by a lack of

funding, especially when one notes that appropriation to NMFS by

Congress for implementation of MMPA was over $34 million for fiscal year 1999.

Also troubling is the apparent inability of NMFS staff assigned

to the Large Whale Take Reduction Team to follow through on requests by the team for specific information, data sets or analyses.

This inevitably leads me to question the standing and credibility of

the TRT process within the agency. It would not be hard to come

to a conclusion, as some observers have, that NMFS is simply going

through the motions to minimally comply with Section 118 of the

MMPA and to place a thin veneer of objectivity over decisions already made within the Office of Protected Resources.

I regret that it has become necessary to deliver this critical and

negative assessment of the Large Whale Take Reduction Team and

NMFS’ failure to act in an effective manner to both protect whales

and support the fishing industry. In closing, I repeat my strong

support for the concept and the intent of Section 118 of the Marine

Mammal Protection Act and urge the committee to take whatever

steps are necessary to ensure that NMFS also gives its full and

open support. I thank you for this opportunity and would be happy

to answer any questions.

[Prepared statement of Mr. White follows:]
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Mr. SAXTON. Thank you very much. Ms. Young.

STATEMENT OF NINA YOUNG

Ms. NINA YOUNG. Mr. Chairman and members of the subcommittee, thank you for the opportunity to appear before you

today to present our views on the take reduction team process

under the Marine Mammal Protection Act. My name is Nina

Young. I am the Director of Marine Wildlife Conservation for the

Center for Marine Conservation. CMC has participated on all five

take reduction teams and in 1993 we also participated in negotiations with the fishing industry to develop the proposal that ultimately became the 1994 amendments to the Act.

The take reduction team process was a direct outgrowth of those

negotiations primarily because the fishing industry and the environmental community firmly believed that they needed a multiparty negotiation process to devise strategies to eliminate the entanglement of marine mammals in commercial fishing gear while

maintaining viable fisheries. Today I will focus my remarks on the

positive points of the take reduction teams and my concerns about

the NMFS implementation of the take reduction plans.

My detailed written testimony, which I have submitted for the

record, reviews each of the take reduction teams. Despite the difficulties in balancing the need to reduce marine mammal kills and

minimize economic impacts to fishermen, I firmly believe that the

take reduction team process works. It has successfully produced

three consensus plans while establishing greater trust and working

relationship among the various interest groups that have participated in the process.

Each take reduction team has its own dynamic but in every case

the facilitators were critical in moving the team from conflicts toward consensus. While there was significant debate about the quality of the population and by catch estimates the teams that were

most successful were those that moved quickly through their concerns about the science and into the analysis and development of

take reduction strategies. The size of the team, having sufficient

time to negotiate, the number of meetings, providing participants

with the ability to express their points of view, adequate scientific

support are all important factors to the team’s success.

To improve the process CMC recommends that there be two additional meetings, one to review the final plan before it is submitted

to NMFS and another during the comment period to provide feedback to NMFS. Still the process produced creative research recommendations and strategies to reduce marine mammal take in

fishing gear. In terms of implementation, NMFS is still struggling

with the deadlines for the implementation, how to translate the

team’s recommendations into regulations, the role of the take reduction teams, coordination between the teams and the fishery

management councils, and its own level of commitment to the process.

NMFS has yet to realize that consensus is hard won and from

the perspective of the individuals that engage in this process the

take reduction teams are critically important to their livelihood and

to the conservation of the species. Therefore, NMFS must view this

process as a priority partnership that includes NMFS and all the
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various stakeholders. The ground rules require that all participants

have the authority to commit their organizations to the consensus.

NMFS must also meet this requirement as well. NMFS representatives must be active participants that are able to legally

evaluate the take reduction strategies and commit NMFS to the

consensus. They must also be able to advise the team as to whether

the consensus strategies will meet the Act’s targets, are easily implemented and enforced and whether the research recommendations are achievable. It undermines the process when team members conclude the negotiations with the false expectations that

their recommendations will be implemented.

CMC recommends that a regional administrator, a representative

from NOAA general counsel, and NMFS enforcement officers be

present during the negotiation when the consensus is being formed.

In further meeting its commitments, NMFS must do the following.

They must implement the take reduction plans within the statutory timeframes, improve coordination between the take reduction

plans and the fishery management plans, provide the necessary resources to achieve much needed observer coverage, improve the

quality of the scientific data, and carry out the plan’s research recommendation.

To accomplish this, NMFS needs to dedicate greater resources to

the plan’s implementation and greater commitment to the process.

Some take reduction teams appear to be successful. However, overall it is premature to assess the effectiveness of these plans since

most have only been implemented for a year. Nevertheless, the participants generally view the take reduction team as a favorable alternative to the adversarial notice and comment rulemaking.

The downfall in the process is NMFS’ implementation. If take reduction teams are truly to be successful, NMFS must heighten its

level of commitment and restore the participants’ faith in this partnership. Thank you for your attention and I will be happy to answer any questions.

[Prepared statement of Ms. Nina Young follows:]
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Mr. SAXTON. Thank you very much. Mr. Foster.

STATEMENT OF WILLIAM FOSTER

Mr. FOSTER. Thank you, Mr. Chairman and members of the committee. The title of coastal gillnet industry is really a category rather than a group. I am here representing and speaking solely for

myself as a person who has participated in a large whale team and

continues to try to be active in the process. My oral comments are

the same as the written comments that I will run through briefly.

In fact, I will go ahead and just jump to the recommendations because I think you have covered it as far as how the teams have

worked.

My recommendations to improve the take reduction team process

would be, No. 1, to calculate the Potential Biological Removal for

a stock using the mean population estimate rather than the minimum population estimate. That is, use the best available scientific

information rather than the worst available scientific information.

The only reason to use a minimum population estimate is to create

a crisis to promote an agenda or generate funding. This introduction of bias into fishery stock assessments is labeled the Precautionary Approach by NMFS.

No. 2, develop plans which assess the cumulative impacts of regulations on both marine mammals and fishermen. Plans and regulations are being layered on top of each other with no concern for

their cumulative impacts. Even though NMFS does not attempt to

comply with the Regulatory Flexibility Act with regards to the cumulative impacts of regulations, the Act does require that those impacts on fishermen to be considered. Common sense requires that

we do the same for marine mammals.

No. 3, NMFS should assign one person solely to each take reduction team. That person should be given both the responsibility and

the authority to negotiate and make decisions for the agency. One

person with one secretary should be able to handle all the work associated with one plan and one take reduction team. There would

be enough biologists freed up by this action to do all the research

that needs to be done. NMFS has some very good people if they

could get out of meetings long enough to do some research.

One other comment I would like to be is the reference toward

strategic stocks. Some of these strategic stocks such as bottlenose

dolphins are there because of the science that is available.

Bottlenose dolphin is strategic stock because of the die off back in

1988, I think it was, supposedly killed approximately 50 percent of

the population but that depends on what the population was and

that population estimate is very flawed and probably would not be

a strategic stock if it were not for that assumed low population

level.

The hardest thing for the fishermen to deal with is that some of

these things are locked in before we get into the take reduction

process. This Potential Biological Removal locks in the number of

animals that we are dealing with and where it is not based on the

best information it makes it very hard to try to cooperate to

achieve a goal that is realistic. The idea that we are trying to get

all marine mammal interactions to essentially a 0 level rather than

treating marine mammals as renewable resources. For some rea-
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son, we put them up on a level where they are not supposed to be

touched and rather being part of the overall ecosystem that we are

a part of.

And those things are locked into the Act apparently and to the

extent that they are locked in, they make it very difficult to be

really effective in trying to go ahead and reduce these interactions.

Thank you.

[Prepared statement of Mr. Foster follows:]
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Mr. SAXTON. Thank you very much. We will now move on to Ms.

Sharon Young.

STATEMENT OF SHARON YOUNG

Ms. SHARON YOUNG. Thank you, Mr. Chairman, members of the

subcommittee. I am Sharon Young and I am a marine mammal

consultant for The Humane Society of the United States. On behalf

of the 7.3 members—million members of the Humane Society, we

are really a lot bigger than seven, I am grateful for the opportunity

to address you and to provide our thoughts on Section 118 and particularly where it has been less than effective in reducing marine

mammal mortality.

I would like to raise a couple of different points. One of them is

that Section 118 does not include any mandate for including recreational fisheries and take reduction plans despite the fact that

many of these fisheries use the same type of gear as commercial

fisheries and are known to kill marine mammals. We believe that

they should be included as part of the take reduction process. Additionally, the mandates of Section 118 are often undermined by

funding shortfalls.

The National Marine Fisheries Service has recently resorted to

taking money away from critical research and take reduction team

implementation line items in order to find base operating expenses.

This is not acceptable. The agency needs to identify and advocate

for its fiscal needs clearly so that Congress can grant funds adequate to carry out the mandates of Section 118. We are particularly

concerned, however, with NMFS’ failure to meet statutory deadlines which is four stakeholder groups to turn to Congress and to

litigation although the amendments were designed to obviate this

need.

As previously mentioned, the deadlines under Section 118 would

have brought fisheries to PBR by October 1996 but because of

delays within the agency no fisheries were actually able to comply

with this mandate. In fact, no take reduction plan had even published by that date. Despite Congress granting an extended date

for compliance for the Gulf of Maine gillnet fishery Harbor Porpoise

were still being killed at a rate over three times their PBR when

the April 1997 deadline came and went without any publication of

take reduction plan.

NMFS has never convened teams for two of the stocks that it

itself identified as priorities. Four of them have been dogged by litigation or threat of litigation as a result of delays and insufficiency

of response and only one has actually met the intent of the law.

On the Atlantic Coast they have been slow to convene teams. Recommendations made by teams are tabled without action unless

there is court oversight. The Atlantic large whale team was convened subsequent to litigation and litigation dogs it to this day

while the very survival of North Atlantic right whales is imperiled.

The Harbor Porpoise team, considered by NMFS to be its highest

priority was convened late and despite submitting consensus recommendations on time no plan was published for over 2 years until

litigation was filed that compelled NMFS to release the plan. Three

years after submitting a consensus plan to the National Marine

Fisheries Service the Atlantic Offshore Team still has had no plan
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published. Most of its recommendations do not exist and the

driftnet fishery that was part of the team was closed without any

attempt to determine whether a take reduction plan might have reduced its interactions.

Four years after the MMPA mandated a time line there is still

no take reduction team for bottlenose dolphins to deplete its stock

with takes in excess of their PBR. Following threats of litigation

by the Humane Society, NMFS now promises to convene a take reduction team this year. There is still no team for stellar sea lions

in Alaska. These delays have cost the lives of hundreds of marine

mammals and it undermines confidence in the take reduction process. The amendments put a system in place and promotes collaborative work by stakeholders. The system can work.

The Pacific Offshore Team is in part an example of this. It met,

reached consensus, had its plan published promptly and its methods have been largely successful. Where the system fails, it is not

a result of the inability of stakeholders to comprehend the problem

and to develop a solution. In most cases teams have reached consensus on the majority of their recommendations and when plans

are implemented they are generally effective. The take reduction

teams have not failed, rather the National Marine Fisheries Service has failed the take reduction teams.

As previously mentioned, funding issues sometimes hamper the

agency’s ability to take timely action and enforce its mandates but

funding alone is not enough to explain the failure of NMFS to

enact plans. An example of this fact is that litigation was necessary

to force publication of a take reduction plan for Harbor Porpoise although the plan had been complete for a year prior to the suit. This

illustrates I think a different problem, the fact that the agency has

a dual mandate. It is charged with promoting fisheries and conserving fish stocks as well as protecting marine mammals and

these goals are often in conflict.

The conflict in mandates which appears greatest on the East

Coast often results in NMFS taking insufficient action to protect

the marine mammals. While the Humane Society urges Congress

to appropriate sufficient funds to allow NMFS to carry out its mandates, we also urge you to more directly monitor and oversee the

agency’s actions. Section 118 of the MMPA was a product of years

of negotiation, compromise and consensus but without congressional and constituent oversight NMFS consistently fails to carry

out recommendations that so many of us have worked so hard to

achieve.

We urge you to watch over the National Marine Fisheries Service

because without your insistence that NMFS obey your laws, we

fear that the agency will continue to have its mandates implemented by the judicial branch of the government, which is an inefficient and dangerous standard operating procedure. We thank you

for seeking constituent input regarding the implementation of

these amendments. We have submitted more detailed written recommendations that outline additional problems with Section 118

and we ask you to take them into consideration as well. Thank you.

[Prepared statement of Ms. Sharon Young follows:]
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Mr. SAXTON. Thank you very much, Ms. Young. Mr.

Calambokidis. Did I do that right?

Mr. CALAMBOKIDIS. That was very good.

Mr. SAXTON. Thank you.

STATEMENT OF JOHN CALAMBOKIDIS

Mr. CALAMBOKIDIS. Thank you for the opportunity to testify before the subcommittee. I have submitted longer written testimony.

My testimony highlights the experience of one of the take reduction

teams, the Offshore Cetacean Take Reduction Team in the Pacific,

and I was the scientific—one of the two scientific representatives

on that committee. Ours was one of the smaller teams that consisted of four representatives from the Offshore Drift Gillnet Fishery, three members of conservation groups. We had two scientists

with independent bodies. One of them myself. And we also had

members of a Pacific State Marine Fishery Commission, the California Department of Fish and Wildlife and National Marine Fisheries Service.

The situation we faced in the Pacific was an offshore drift gillnet

fishery targeting thresher shark and swordfish. There were a number of cetaceans and pinnipeds, seals and sea lions taken in this

fishery and there were six different species that were deemed critical, which means their level, the number of animals killed in the

fishery exceeded what was thought to be able to maintain their

populations at optimal levels.

So when the team convened in 1996 our first priority was to look

at how to reduce those mortalities in the first 6 months and even

though I think the Pacific team was one of the more successful

teams that time line was clearly one that would be difficult to

achieve. The fishery only operated on a seasonal basis. To be able

to meet and put those into effect that rapidly wasn’t possible but

we were able to make a great deal of headway. The team was one

of the smaller of the five take reduction teams and I think that

helped in its success. We have between 12 and 15 members on the

team and very quickly in the first 6 months where we are meeting

on a monthly basis we are able to work and establish some trust

between the different interest groups that were there.

And as a scientist, I was particularly pleased to see this group

working very closely with the scientists and with the data and

making a direct application between the science and how that applied to the animals that were taken, why they were being taken,

and how to reduce them. We were able to come up with recommendations. The four primary recommendations that came out

of the team focused on, first of all, trying to keep the fishery from

growing until the marine mammal problem was solved. This was

something the fishing groups on the panel agreed with so we wanted to make sure that new permits were not being issued for the

fishery.

Secondly, we increased the depth that the net hung in the water

because we found that most of the entanglements were occurring

in the upper part of the net and we thought that could be done to

reduce mortality of marine mammals and not affect the fishing

catch. Third, we instituted an experiment on the effectiveness of

these underwater acoustic devices termed pingers that were re-
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ferred to in the last panel. We needed to test the effectiveness of

those because they had been found to be effective on Harbor Porpoise but the six species that we were dealing with in the Pacific

were a different species and there was no data on whether these

pingers would serve as a warning device for those species.

After that experiment we found it was very effective and we

mandated the use of pingers and we also mandated the skipper

educational workshops that helped to train fishermen in the use of

some of these pingers and other procedures would identify and

make them aware of the problem and also solicit their recommendations in solving the problem. This plan has been every effective. Right now mortalities of total Cetaceans are down to almost a tenth of what they were prior to the plan. The pingers especially have been a very effective component of the plan.

I think the multiple interest groups and stakeholders, the presence of environmental groups and the fishing industries themselves

played a critical role in the success of the plan, not only in devising

these strategies but then once they were devised in implementing

the same set of strategies developed independently by an outside

body would not have been implemented as effectively had they not

been come up with by the groups themselves working together so

that was a key element.

We did have road blocks that we faced. The group did agree that

data would have been much better if there was better date on population size, rates of take, and they wanted to see more of that.

Fishermen struggled with the resources to buy these pingers and

put them in place in the tight time schedule. But in conclusion, I

think it was a very successful process. We continue to meet and

work toward trying to achieve the zero mortality rate goal and the

team continues to meet on that but it has been a very successful

process.

[Prepared statement of Mr. Calambokidis follows:]
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Mr. SAXTON. Thank you very much. You each have quite different perspectives although I hear some common themes running

through most of your testimony. Mr. White, I don’t want to

mischaracterize your testimony but you used the word ineffective

when describing I guess I would say the process that we created

in trying to create these teams, and Ms. Young on the other hand

said it works and cited the fact that there are three take reduction

plans in place.

On the other hand, Mr. Foster, it sounded to me like you were

saying that perhaps the teams go too far and that the process

therefore is harmful I guess to your industry. Ms. Young spoke of

funding shortfalls that that NMFS doesn’t do its part of the job and

Mr. Calambokidis, it sounded like you were talking about a very

successful experience that your team had so you all had some different perspectives.

I guess what I would like to ask you is a follow on to the question that I asked the first panel and that would be with regard to

the role NMFS plays. Obviously, there are probably different perspectives on this as well but in regard to the process and the role

that NMFS plays in it. Could you each take just 1 minute and

characterize your feelings and your beliefs relative to how NMFS

interacts or does not interact properly in and throughout the process that you have observed. Would you start, Mr. White?

Mr. WHITE. Thank you. I would like to clarify one point in that

I was speaking only of the Northeast Large Whale Take Reduction

Team as a specific take reduction team. And I think the group in

itself has been very successful in what it has tried to accomplish.

I think my frustration from that point on comes either financially

or whatever with the enforcement of the implementation of a plan

because I don’t think anything—there has been very little action to

supporting what came out of the plan so we don’t even know if

what came out of the plan before is even working and we are already starting to develop a new plan. I think that is the frustration

level that I have from the fixed gear fishery in the Northeast.

Mr. SAXTON. Thank you. Would you speak to NMFS’ role?

Mr. WHITE. Would I speak for NMFS?

Mr. SAXTON. Would you give us your impression—one of the

key—when Congress wrote the provisions that we are discussing,

it was our intent to create a process to reduce the take of marine

mammals, especially those that are in short supply, so to speak, in

a way that would involve people who are concerned about and involved in one way or another with species. And it has been suggested by some that the process is not working well because NMFS

doesn’t interact with and throughout the process. My question is

would you comment on that and give us your feelings?

Mr. WHITE. Yes, I would like to answer that with two answers,

if I could. I think NMFS’ involvement in the take reduction team

needs to be expanded and I don’t know how that is possible under

their current funding situation. I sense a frustration from the agency in not being able to accommodate the needs that we feel are necessary to get the information to successfully come up with a management plan.

I also on the other half of it am frustrated with what appears

to be a lack of financial support to implementing the regulations
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that have come out of a plan. There was some very good compromises that came out of the last take reduction plan and implemented ′′in the National Marine Fisheries Service Plan′′ but the enforcement on it has been little or none. I think in the State of

Maine we have two enforcement agents for 3,500 miles of coast

line. It just can’t be done.

Mr. SAXTON. Thank you. Nina Young.

Ms. NINA YOUNG. I think there are two things. As you heard, resources is one, but it is important we engage NMFS in the process.

The team often times come up with some level of consensus only

to have the plan fail to be implemented according to the statutory

time lines or changed, in some cases dramatically, as if no discussion even occurred. And I would much rather have instead of ten

NMFS staff sitting around on the periphery and two at the table,

Dr. Rosenberg there at the critical point when we are devising the

consensus.

Usually there are six teams or six meetings during a team and

the first few are ones where people are setting out their positions.

They are developing and reviewing the science. It is really the last

two where you are coming up with that consensus and it is at that

point that I would like somebody from the senior level of management of NMFS to be present to commit the agency to the consensus, somebody from NOAA general counsel to say, yes, we can

turn these into regulations and somebody from enforcement to tell

us whether or not this is going to be a strategy that is easily enforced.

I think those are three components, those are the people that we

need at the table, not a bunch of staff at lower levels who have to

constantly go back to their seniors to brief them about this. An example that I will provide for you is the Fishery Management Council. There the regional administrator sits through the deliberations

and plays a role. The take reduction teams, for those of us that

participate in them, are just as important as the Fishery Management Council process so they should have the same importance in

the eyes of NMFS as that council process and they should have

that same level of management authority.

Rarely does a regional administrator come to those meetings,

maybe to provide opening remarks but none of them have been

there when the rubber hit the road and the consensus was being

reached. Going back to the resources, we definitely need National

Marine Fisheries Service to ask for more money to implement these

teams. As you will probably recall, Mr. Chairman, when we did

this law back in 1994, we estimated that it was going to cost somewhere around $18 million just to implement Section 118 and all

that NMFS gets in its Federal appropriations is $10 million for the

entire act.

So you can see that there is a tremendous shortfall that doesn’t

allow us to really implement some of the creative strategies that

we come up with in these negotiations with the fishing community.

Mr. SAXTON. I just noted that Dr. Rosenberg was nodding his

head yes when you described the funding shortfall. Mr. Foster.

Mr. FOSTER. I am trying to remember your question but as far

as the role of NMFS the devil is in the details and on the large

whale team we work very hard to get as close to consensus as we
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could. The biggest issue was right whales which affects the Northeast and Southeast regions mostly. We were primarily impacted by

the humpbacks in the Mid-Atlantic. The final regulations that the

team agreed upon, when they came out as final rule that the team

was reconvened, we were given a copy of the final rule. It was

going to publication. The team was asked to comment on it but no

changes were going to be made in it.

So, in other words, there wasn’t any reason to have that meeting

but we were there to comment on it. The final rules that were implemented in the Mid-Atlantic were not what we—they had been

changed enough where it was not what we had come up with. Consequently, there was no real harm done to the fishermen but there

wasn’t any benefit for the whales. It did essentially nothing because of the lack of defining the gear in the way it needed to be

defined. So it got to—there has got to be a way for NMFS to follow

through and get somebody that understands what we are talking

about with gear so that it gets implemented in the way that it was

proposed by the committee.

Mr. SAXTON. Thank you. Ms. Sharon Young.

Ms. SHARON YOUNG. I won’t belabor the issue of funding which

has already been covered but I want to also reiterate a suggestion

that Bill Foster made earlier, which is I think it would be helpful

to have someone in particular charged with following the plan

through from the end of the team meetings all the way through

publication of the final rule so that there is someone you can go

to that is accountable and can address some of the questions that

the team will have on an ongoing basis.

It also is important that the team be consulted if plans are

changed. I think some of the controversy that has arisen about the

large whale plan was because once the team didn’t reach consensus

NMFS developed a plan and rather than seeking input from the

people on the team about the plan it just went out and we ended

up in a very adversarial process. And in the Mid-Atlantic the plan

was changed quite substantially from the way the team focused to

a way that was much more readily administrable by the agency but

the team didn’t understand that a change was going to be made

until the plan was published and it could have—a lot of misunderstanding could have been avoided if the team had been consulted.

And also again I do want to reiterate that I think one of the

other problems with this is that the agency has a conflicted mandate and in trying to conserve fish and trying to conserve marine

mammals the two arms of the National Fisheries Service don’t always talk to one another and it would be helpful also I think to

have some of the people from the fishery management side at the

table as well as the marine mammal protected resources folks,. In

the offshore take reduction team in the Atlantic, I would say probably 25 percent of our time was consumed over squabbles of the

swordfish allocation and it really distracted from our ability to

focus on marine mammals.

And in the case of the gillnet fishery in the Mid-Atlantic they are

already being pretty hard hit by fishery management restrictions.

I think it is very difficult for the agency to then take a take reduction plan that is proposing additional restrictions and impose that

on the fishermen as well. I think sometimes it is easier to have
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someone litigate than to take a really hard-nosed approach to that

kind of thing. And as somebody who has had to speak before the

Fishery Management Council, they don’t always talk about marine

mammals.

Fishery Management Council people on the team will say that

we can’t consider the effect of our plan on Harbor Porpoise. We

can’t. And that I think is something the agency might be able to

help facilitate because if you have those things being melted better

together, I don’t think we would be having the breakdown in implementation and the squabbles over the effect that it is having on the

fisheries.

Mr. SAXTON. Thank you very much. Mr. Calambokidis.

Mr. CALAMBOKIDIS. There were a couple of different aspects to

NMFS’ role in the Pacific Take Reduction Team. On the one hand

we had some of the scientists at the table as advisors and I think

by and large their role was very positive. They were very responsive as best they could to the requests of the take reduction team.

They were operating within certain constraints. The abundance estimates and these PBR calculations of biological removal came

through a separate process.

These stock assessment reports were reviewed by a scientific review group but as best as they could, they could provide information on what generated those and we could provide input back into

these SRG teams on where we thought estimates needed to be

changed or there were problems. Now we had fairly good consistency in terms of the NMFS people at the table negotiating.

Thought I see elements of some of the concerns that have been

raised certainly occurred in the Pacific team.

For example, there was uncertainty when the team met initially

on would NMFS follow through on all these recommendations and

what would NMFS be viewing and there would be questions put to

the NMFS representatives that they couldn’t always answer exactly what would happen after we developed our consensus, would

it be implemented. In all fairness, I have to say there was also a

positive aspect of that unknown, a statement that was not said by

NMFS but that those of us on the team operated under and was

a major incentive to reach consensus was we better find a way to

come up with a good plan that works, otherwise, NMFS will.

And on the one hand it provided pressure that we knew if we

didn’t do our job and reach a plan that worked there was this other

body that would step in and take over so that had both a—kind of

a concern but it also played a positive role in another way.

Mr. SAXTON. Well, thank you all very much. The gentleman from

Maryland from the eastern shore of the Chesapeake. The gentleman from the eastern shore of New Jersey.

Mr. GILCHREST. It sounds like—I am a little confused now about

the process. I almost want to ask Dr. Rosenberg another question.

Is there—and could I ask Dr.—I guess I can. Thank you. Dr.

Rosenberg, you wouldn’t mind—from what I will say John C. has

said and what the other members of the panel have said it seems

at least to some extent to some people for the most part that the

teams have worked fairly effectively, and one person during the

testimony said that, at least my interpretation of it, was that the
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teams need to have NMFS participation which I assumed each

team has one or two people from NMFS on that team.

Is there a very specific protocol for NMFS role on each team for

using scientific data, how that data is analyzed and then a consensus for a plan and then the implementation of that plan? Is

there a clear strategy developed for each one of those teams as far

as NMFS is concerned?

Mr. SAXTON. Dr. Rosenberg, before you answer, would the gentleman suspend, take the chair for a few minutes. Thank you.

Mr. ROSENBERG. Congressman, the answer is yes. There is a

clear set of instructions and those instructions are to the extent

that we possibly can provide information to the team in response

to their requests made them aware of what information we have

available and what information we don’t have available. Everyone

in every fishery management resource management discussion is

always frustrated by a lack of information because everyone would

like to know the perfect answer before they have to make a decision and of course we always have very imperfect information.

So the reason that you have a large number of staff from NMFS

in the room but as you pointed out only one or two on the panel

is twofold, one to provide as much information to the team as possible, and, second, for those people who are working on that problem specifically to learn what the team wants to know about and

also learn from the information that the team has to provide.

Often fishermen or conservation groups have either anecdotal information or hard information that is immediately useful to the scientists as they do their analyses but compiling that information is

very difficult so our primary role is to provide them as much information as we can from both the policy perspective as well as the

scientific perspective and to make sure that they realize what the

limitations of that information are and what the strengths are and

also to make sure that people do not inappropriately combine

sources of information.

If you have a strong peer review stock assessment you should

view that as a very strong piece of information. If you have comments from an individual scientist that is not peer reviewed that

is of a very different quality than a peer reviewed well thought

through team-produced report on a stock assessment. Second, the

team members are there to try to do everything they can to get the

team to come to consensus. They are not there as decisionmakers

and there is a simple reason for that and a number of the analysts

mentioned this.

And that is because when the team makes its recommendation

on a plan if they make a recommendation, and several of the teams

have not been able to come to consensus, including the large whale

team that was referred to. When they come to agreement on a plan

or make their recommendations they do not have in front of them

the documents required for determinations of the national environmental policy act, the Marine Mammal Protection Act, the Endangered Species Act, the Paperwork Reduction Act, the Regulatory

Flexibility Act, and so on, because none of those things can be produced until we have a plan to do the analysis, so we can’t prejudge, yes, this will be OK until we do the—we actually put to-
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gether the documentation and analyze it compared to the respective laws.

The team does not do that. Our staff does it afterwards so our

people need to remind people that those things need to occur and

that certain measures will not be—you know, may or may not work

depending on how that analysis turns out. We try to give them as

much information as we can and some things are clear the same

as in the Fishery Management Council that they won’t work or

they look like they probably will work.

But the Secretary can’t make a determination unless he has the

decision documents in front of us, otherwise, all of these people will

sue us and say you made an inappropriate decision. If you sit at

the table, you know, that is OK, so we try to make sure that they

realize what those limitations are but that is an awkward position

for a team member to be in.

Mr. GILCHREST. Based on your explanation that you just gave, I

think it was Nina Young that said earlier that during the process

those in NMFS that can make a decision are too far from the team

at the time they need that decisionmaking made, did I adequately—and can you see how that might be a problem, Dr. Rosenberg?

Mr. ROSENBERG. I can see how that might be a problem. On the

other hand, technically, legally I cannot give a definitive answer

that, yes, this plan is acceptable or, yes, it is implemented until it

has been analyzed under applicable law and that is not possible at

a team meeting so I used to be——

Mr. GILCHREST. Can the team again reassemble after the analysis by the higher ups is made?

Mr. ROSENBERG. They can and they usually do. In fact, they are

continuing to meet now but I think what people are asking for is

someone like me or when I was a regional administrator, regional

administrator to be at the table to say yeah, that looks good.

Mr. GILCHREST. How difficult is it to have a regional administrator at the table periodically?

Mr. ROSENBERG. Well, they work about 90 hours a week and having them work 100 hours a week would be OK.

Mr. GILCHREST. I am not asking——

Mr. ROSENBERG. That is impossible, sir. I am not being flippant.

Mr. GILCHREST. I don’t want people to work 100 hours a week.

We as members only work about 10 hours a week. We have 4 hours

worth of lunch a day and we have Mercedes Benz with people driving—no, I am just kidding. We are all tired. I am just asking is

it a sufficient enough priority to manage the time of the regional

managers for them, and I don’t know, I am just based on what I

am hearing today, is it a sufficient priority for these teams to implement these plans so that a regional manager can have more involvement in the process.

And I wanted to ask Mr. C. on the end, based on this discussion

can you give us—it sounds like your team was pretty successful.

Did you perceive any problem with not having enough input from

the regional manager in the process?

Mr. CALAMBOKIDIS. Well, I think we had quite a bit of consistency in NMFS role and——
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Mr. GILCHREST. Dr. Rosenberg, you can pull up a chair, if you

want, sir.

Mr. CALAMBOKIDIS. And I think perhaps because the plan was so

clearly successful we didn’t maybe face as much scrutiny or challenge as the plan was reviewed so we may have gotten off a little

easier than some of the take reduction teams that were facing more

difficult challenges and had a harder time coming up with a plan

that was working. In our case the NMFS role worked OK. We had

a regional administrator present at certain meetings but we had a

great deal of consistency in who was there both from regional and

the national office and there was no overruling or challenging of

the role they played by higher ups so it worked smoothly.

Mr. GILCHREST. So you think yours worked smoothly because you

more easily arrived at a consensus from all the participating parties?

Mr. CALAMBOKIDIS. I think that is partly it and I also think that

the consistency of the individuals that were there worked well. We

did not have NMFS really challenge or change our document in

any substantial way.

Mr. ROSENBERG. Mr. Chairman, if I may, I think the—I did not

mean to be flippant about whether it is possible to have a regional

administrator there and I do believe they work about half the

amount of time that Congressmen do but the——

Mr. GILCHREST. That was a good comment.

Mr. ROSENBERG. I would point out that the assistant regional administrator for protected resources as far as I am aware has been

attending every one of the take reduction team meetings in the

Northeast and I suspect almost all the teams have been in the

Northeast and that person is a senior official. I don’t think that

there has actually been an overruling necessarily at a higher level

in the process in any circumstance but it is possible to have regional administrators at the teams.

That doesn’t mean that there aren’t disagreements between what

one staffer might think and what the agency finally decides to do

but an overruling of the information we have given to a team I

don’t believe has occurred. And it is possible——

Mr. GILCHREST. When you say overruling you don’t think there

has been an overruling of any team when the team arrived at a

consensus with the——

Mr. ROSENBERG. I am sorry. An inconsistency between the position of the people who are at the meeting versus the position that

the agency took I don’t believe has occurred of the three teams that

I have had direct involvement with. Other people may have a different view of that but I have been directly involved as a regional

administrator in three of the teams.

Mr. GILCHREST. I see. Ms. Young.

Ms. NINA YOUNG. Thank you. There are some things there in

what Dr. Rosenberg said where I would like to point out some differences based on my experience. I think that scientists are critical

and one of the things I would like to do is commend the National

Marine Fisheries Service scientists. There were scientists that were

involved in the process that had they not been involved we probably would not have reached consensus. And when they were involved in the process, we were able to do models and analyses that
136

allowed us to have a fairly good level of confidence that we were

going to achieve the target of the PBR to reduce the incidental

take.

And it is that confidence, I think is critical—I understand Dr.

Rosenberg’s point that you can’t without having all the analysis

and all the environmental assessments and things that the agency

must do afterward, that you probably will not be able to say with

absolute certainty that yes, this is a plan that is going to go forward. But being a scientist, as he is, what I think we are looking

for is, plus or minus 95 percent confidence in what is going to go

forward as a recommendation from the team is what is likely to be

implemented.

We have a very unfortunate situation in the Atlantic Offshore

Cetacean Take Reduction Team where two fisheries came to the

table and negotiated in good faith. There were a total of three. By

the end of that negotiation one was closed and despite the recommendations that we had developed which National Marine Fisheries Service was there at the table and participated in, those recommendations were essentially totally thrown out the window.

That fishery was closed. And we have one fishery and no take reduction plan essentially for that fishery. What has been

implemented——

Mr. GILCHREST. Which team was that?

Ms. NINA YOUNG. That was the Atlantic Offshore Cetacean Take

Reduction Team. And now the only fishery that remains is the long

line fishery. The Pairtrawl fishery was closed and the drift net fishery was closed. If NMFS’ intent, from the fishery side, was to close

these fisheries from the very beginning they should have just done

it, but instead these people came to the table in good faith and negotiated only to find their fisheries closed later on.

Mr. GILCHREST. So there was a——

Ms. NINA YOUNG. That is what we are trying to avoid.

Mr. GILCHREST. I see. I guess we could spend 2 days here discussing these teams analysis. Could I ask a question with—I would

like to get back to that one but I guess this would take us—the difference of opinions on the data created a determination by NMFS

different from the teams’ consensus. Dr. Rosenberg.

Mr. ROSENBERG. If I may, because I think that this is a really

important illustration on the Atlantic Offshore Cetacean Team.

Your description of what happened is quite right that we did end

up closing the paratrol fishery and the drift gillnet fishery. The recommendation from the team in our analysis essentially would have

used the entire budget we had available for observers as well as

for implementation for that one fishery alone so if we wanted to do

nothing for Harbor Porpoise and for large whale take reduction

team in terms of observers, in terms of other effort and devoted all

to implementing that plan, we could have gone that way.

But we viewed that that fishery was causing so many problems

and in 1998 in one season had 300—I think it was over 300 takes

of marine mammals that the fisheries should not be operating because of its high take of marine mammals and because to implement the take reduction plan was prohibitively expensive so we determined that was not in the best interest of good government to

allow it to continue and spend all our money in that direction. The
137

paratrol fishery was closed for other reasons as well rather early

on and the team knew about that.

There are measures in place for the other fishery but they are

fishery management measures under the highly migratory species

plan and this also came up in several discussions. The same is true

in the Harbor Porpoise plan. While I think it was pointed out that

we did not implement the take reduction plan and it was said until

after we were sued for it almost pieces of that take reduction plan

were implemented but they were implemented as the MagnusonSteven Act provisions by the councils and so what we tried to do

was work the council process and the take reduction process together so that the closures that were put in place were put in place

coherently between the two bodies and therefore we didn’t implement directly the Harbor Porpoise Take Reduction Plan. We implemented it through the council process we believe to the same effect

to modifications thereafter.

Mr. GILCHREST. Let me——

Mr. ROSENBERG. So in many cases—I am sorry, Congressman, in

many cases the agency has had to make a choice about what is an

efficient way to try to achieve the goal that the teams have given

us rather—even if the team has done a good job of developing a

plan to try to solve a problem it may not be feasible for the agency

to implement it in that form and we try to find another way to do

it.

Mr. GILCHREST. So that is the Mid-Atlantic team, take reduction

team?

Mr. ROSENBERG. The Gulf of Maine Harbor Porpoise.

Mr. GILCHREST. Gulf of Maine.

Mr. ROSENBERG. And then the other one was the Atlantic Offshore Cetacean Team where we closed two of the fisheries and implemented other provisions under the highly migratory species

plan.

Mr. GILCHREST. So in other words the team came up within your

judgment a pretty good plan but to implement that plan would

have drawn all your resources from other activities of NMFS?

Mr. ROSENBERG. Other take reduction activities for a fishery that

included less than 20 vessels.

Mr. GILCHREST. So as a result that NMFS didn’t have the resources, if NMFS had the resources then the take reduction team’s

plan would have been followed through with.

Mr. ROSENBERG. It could have been followed through with if

there were not other issues related to that fishery. It is not clear

to me that there weren’t other issues particularly related to turtles

the team did not consider and we may have closed that fishery anyway because of other problems with the drift gillnet fishery. That

is the fishery that we are talking about. It was a very small fishery

and a very high cost and we did not judge it as cost effective to

keep it open given the problems with both turtles and marine

mammals.

Mr. GILCHREST. So the fishery was closed which means there is

no fishing there.

Mr. ROSENBERG. All of those vessels have gone to long lining.

Mr. GILCHREST. Oh, I see.
138

Mr. ROSENBERG. Which with one exception which incidentally of

course has an issue with turtle bycatch as well but these are very

complicated things with lots of interactions. The fishermen continued fishing I think with one exception but they no longer can use

drift gillnet gear as we are not allowing that gear to be used.

Mr. GILCHREST. So you said part of the plan was merged into the

management council to implement. How does that work?

Mr. ROSENBERG. I am sorry. This is not my panel. I apologize.

Mr. GILCHREST. So the management council took some of the recommendations of the take reduction team and merged it into its

plan?

Mr. ROSENBERG. Yes, although it was not quite so clean as that.

That effectively is what happened with Harbor Porpoise or highly

migratory species. There isn’t a management council but there are

advisory panels and some of the—well, there was a discussion of

but I don’t think they implemented some of the large whale take

reduction measures through council action. We raised with the

council and the council considered in committee, you may have

even been on the committee, a number of the measures to protect

Harbor Porpoise including area closures.

What we did not want to have was entirely different and disjunct

area closures that were meeting two different purposes and would

be totally confusing both to our enforcement agents as well as to

fishermen so we tried to pull them together through the council

process and I believe we did that successfully.

Mr. GILCHREST. I will let Nina respond to that and then I will

yield to Mr. Faleomavaega.

Mr. NINA YOUNG. Thank you, Mr. Congressman. I think harkening back to what Dr. Calambokidis has said, what is important

there and one of the reasons why that team was successful is it did

have support at high levels by the NMFS personnel. They implemented that plan solely through the Marine Mammal Protection

Act which was really the intent of Congress. It was also intended

that there be better coordination, not kind of a piecemeal implementation of the plans, some provisions under the Marine Mammal

Protection Act, some under the council.

On the one hand, we don’t want to create an additional burden

on the fishermen by having additional closures and such. As much

as possible, the take reduction teams have tried to merge fishery

management closures with marine mammal closures and restrictions. There needs to be better coordination of the fishery management council actions with the take reduction team actions. But I

still think that we need to adhere to the intent of Congress and

that was to implement these plans under the Marine Mammal Protection Act so that it can be enforced under that Act with all the

sanctions and provisions thereof.

I think in terms of the discussion with the Atlantic Offshore Cetacean Team that fishery already was being observed. The gillnet

fishery had 100 percent observer coverage. It would have been beneficial to know again, at the table, when we were coming up with

what were arguably rather complex strategies to reduce take in

that fishery. It would have been good to know right there at the

table that this was just going to be too expensive, that really what
139

we were looking at was the potential, the most effective way was

to close that fishery down.

That was the feedback that we are lacking, even if it is a back

of the envelop calculation of what it is going to mean to the agency

to implement this, that is important information that we never received, that we need to take into consideration as a team. Unless

we start to have that dialog—unless that dialog starts in the team

and we get that kind of feedback in terms of management and implementation, we are always going to be in this situation where

there is going to be concern, and all the good faith will go out the

window as far as the implementation of the team.

We need much more active participation at a lot of different levels of NMFS. Scientists really did help us a lot but in other cases

I really feel for the fisheries that engaged in that negotiation only

to come out the other end and have the fishery be closed. That

wasn’t the intent of the Act. Thank you.

Mr. GILCHREST. Thank you. Mr. Faleomavaega.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I heard your

statement earlier say that you are a little confused by all this.

Well, I am a little more confused but I shall attempt to raise some

questions if Dr. Rosenberg will not mind if he can take the side

chair again. I have a couple of questions for the National Marine

Fisheries. I am sorry about that. With all the data and constructive

criticism that our panelists have received this morning concerning

the NMFS, would I be correct, Dr. Rosenberg, to say that one of

the reasons why you are unable to do some of the things that have

been alluded to earlier by the members of the panel is because of

budget restrictions? Is that a fact?

Mr. ROSENBERG. Yes, sir, budget and staff restrictions, yes, sir.

Mr. FALEOMAVAEGA. All right. I noticed also that the five teams

that were established under the National Marine Mammal Sanctuary Act, I noticed that out of the five established only one is for

the Pacific. Now we have a very balanced approach to this committee. My good friend, the Chairman, and the gentleman who sits

right next to me are very proactive as far as the Atlantic Ocean

is concerned. I happen to come from the Pacific. And is there some

strong implications here that we don’t have as many problems in

the Pacific as far as protecting the marine mammals? Is that the

reason why we don’t have as many teams as our friends of the Atlantic?

Mr. ROSENBERG. Congressman, I think that the reason that it

has happened that way is twofold. One is that amongst the urgently needed attention where stocks on the Atlantic were immediately interacting with fisheries and in the Pacific a number of the

stocks that were immediately interacting with fisheries were being

dealt with under other mechanisms. For example, in Alaska there

was stellar sea lion work going on through the council as well as

through a recovery team although someone suggested that we

should—and I believe it was suggested here we should form a take

reduction team in that process as well, which is already quite complicated.

For monk seals in the Hawaiian Islands there is an endangered

species issue but it is not a direct fishery interaction issue. And of

course there are some other interactive issues that have been dealt
140

with under other legislation such as tuna-dolphin, so there are a

number of things going on in the Pacific but not so much directly

through the take reduction team process. It is not because we are

less interested of course in Pacific fisheries but we try to choose the

marine mammal fishery interactions that seem ready to move into

a take reduction process and didn’t already have some other kind

of forum where the issues were being discussed.

Mr. FALEOMAVAEGA. We are having a royal battle going on now

between the Department of Commerce and the Department of Interior as to which agency should have the lead on protecting our

coral reefs, and I notice also the involvement of the Department of

Agriculture. When you capture a marine mammal it comes under

the Agriculture Department. This is a very distinct scenario here.

We have three Federal agencies involved and I would like to ask

Dr. Rosenberg is this going on OK between you and National Fisheries in trying to determine whether an animal goes into a certain

thing and all of a sudden you just stop right there and AFIS has

to come in and take over. Is this a pretty good way of running the

provisions of this Act?

Mr. ROSENBERG. I understand your question, Congressman. I

think that you are referring to animals that are held in captivity

and then dealt with other AFIS rules such as the monk seals that

were then transferred to Sea World in Texas. And they have the

expertise on display animals. That has been not so much of a problem. The larger issue is how do we protect the monk seals in place.

There is, as you noted, both Department of Interior interest as well

as Department of Commerce interests and I am sure you can recognize that I have absolutely no opinion on that matter.

However, I would point out that National Marine Fisheries Service, the Department of Commerce has the overall expertise in marine resource science and management and I believe coral reef.

Corals are all marine but with regard to monk seals similarly we

had been working intensively in the northwest Hawaiian Islands to

try to develop measures for protection among seals and will continue to do so. The interaction in the reef ecosystem is a complex

one and certainly needs a lot more work. I don’t think agriculture

is involved in that part, only in the display part.

Mr. FALEOMAVAEGA. If I could ask the members of the panel and

also Dr. Rosenberg, do you see any provision in the current law

that is defective to the extent that we really need to make amendments? Do we need to make any major surgery on any of the provisions to the current law so that it becomes more palatable? We can

work with it in a more practical way.

Are we putting too much on the table as far as the Congress is

concerned —and yet we have so many shortcomings on the ability

of the Administration and the commissions or whatever groups

there are to enforce the provisions of this Act. Are there any provisions here that you would recommend, Dr. Rosenberg, that we

ought to change?

Mr. ROSENBERG. Congressman, I don’t think that there are specific provisions we ought to change but I do believe that we—staff

is probably going to throw something at me if I miss something but

our biggest concern is whether we can effectively carry through the

process with the team, take reduction teams, have sufficient re-
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sources, staff them sufficiently and provide them the information

in a sufficient manner for them to do the work.

I don’t think that is a matter of changing the law although the

deadlines of course are as everyone has noted are problematic for

us and they are statutory.

Mr. FALEOMAVAEGA. Members of the panel.

Mr. WHITE. Just as a followup to what Dr. Rosenberg said, I am

wholly supportive of the process as it is conceived and I think it

is just something we need to build on. I am not an expert at all

on the laws and I can’t see that as I understand them now things

need to be changed other than we need to do what its original intent was and just build on that. I think the process is there and

the process is an excellent one. I am wholly supportive of it but it

is like what I understand an unfunded mandate is. It just needs

to be carried further and improved on.

Mr. FALEOMAVAEGA. Ms. Young.

Ms. NINA YOUNG. Thank you. We totally reviewed the Act and

have given this a lot of thought and we would be happy to provide

you with our recommendations for amendments to the Act. I could

probably encapsulate that by saying for the most part there are

technical changes, things to make the Act run more smoothly, oversights, that once we got involved in the implementation we hadn’t

really thought about. I think that Section 117 and 118 are functioning well.

I understand that there is a problem with the deadlines. We

would probably recommend changes there along the lines of including again higher level participation by NMFS personnel in the take

reduction team process but overall I think those provisions are

functioning as we had hoped even though they aren’t meeting their

deadlines and that potentially with more time we will see them

reach their targets, the zero mortality rate goal, the Potential Biological Removal.

My view is that the time that we spent has been more or less

growing pains in trying to implement this rather complex section

of the law. Overall, in other areas, I think we need additional research into deterrence for pinnipeds to keep them away from fishermen’s gear and catch and we need a much more dedicated effort

in that regard, as Dr. Reynolds said.

We also need to start to think proactively about the health of

marine mammal stocks. In some cases, stocks have recovered. In

other cases, we have concerns about Hawaiian monk seals and

even healthy stocks like California sea lions. We are seeing a much

larger occurrence of cancers, various tumors, diseases, hepatitis,

herpes virus in these animals than ever before and I think we

would really welcome the Congress to look at Title IV, which is the

Marine Mammal Health and Stranding Response Act, and look to

ways to bolster that effort to better assess the health of marine

mammal stocks.

Mr. FALEOMAVAEGA. I am not a scientist, Ms. Young, but I would

think that Dr. Rosenberg is probably aware of the fact that these

diseases in these animals were not on their own. It probably had

a lot to do with human pollution.

Ms. NINA YOUNG. That is correct.
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Mr. FALEOMAVAEGA. And our lack of providing a clean environment for them to live in. Please. I am sorry.

Ms. NINA YOUNG. That is it. Thank you very much.

Mr. FOSTER. I have to admit that I was not involved in drafting

this Act and I am not familiar with it. As fishermen, we should

have been more active when this came along. I have serious concerns about the ability to reach a zero take on the animals and

whether or not that is—it is not just feasible or whether it makes

sense to try that and still try to produce food from the ocean. It

winds up that everything we do every year is a compromise.

Some stocks such as the right whale may go extinct the way it

is going now no matter what we do even if we stopped all fishing.

It looks like the way they are headed right now they may be gone.

Other stocks are going to do quite well no matter how much fishing

we do and to have it across the board that we are trying to get to

zero take the Act may prescribe something that doesn’t make a

whole lot of sense to me as a person who produces seafood.

Mr. FALEOMAVAEGA. Well, as I recall, the problem that we were

having with the dolphins because our method fishing was not only

purse seining, but in other methods of fishing that we were killing

about a half a million dolphins a year. An interesting thing was

that it wasn’t because the Congress in its wisdom that decided to

come out with a ban on doing the method of fishing that we had,

it was because of the outcry of the American people. And it did

such a tremendous effect on the leaders on the Hill that that is

when we came about in passing a law to ban this method of fishing

that killed half a million dolphins a year——because the purse

seining method was utilized.

But now we have changed that again and my good friend here

from New Jersey and I have a—I’m more of a purist when it comes

to this, because now we are killing only about 3,000 dolphins a

year as a result of this mandate. And of course I am a little familiar because Starkist Tuna had a little problem here in the way that

they were advertising, how they were capturing the tuna. My district happens to have the largest tuna canning facility in the world.

I am a little familiar with this issue.

But as you had mentioned, sir, about the fishing industry if there

is anything I want to do it is protect the fishing industry as well.

But at the same time my real sense of serious complaint is that

while we are putting our commercial fishing industry on this high

standard that you are not to capture these mammals, not do this,

what about the other countries in the world and their fishing methods. I will tell you right now they are not in any way near the

standards that we are putting on our fishing industry, and I think

that is a crying shame but that is what we are living with as far

as reality is concerned, and I don’t agree with that.

But I do appreciate your concerns, sir, about the fishing industry

and I will get to that in the next question. I didn’t mean to disrupt

Ms. Young. She might have a strong feeling about what I am saying. I am not an expert on this Act myself but I just wanted to

know if there are obvious problems. I would like to suggest, and

I am sure the Chairman would agree, if you have any specific suggestions on proposed changes or amendments to the current law

that we ought to look at.
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We are open, and one thing I do enjoy is working with my good

friend here, the Chairman we are very sensitive about the needs

of the community. Ms. Young.

Ms. SHARON YOUNG. Thank you. I couldn’t agree with some of

your comments more. As a matter of fact, I think the Act does not

need major surgery and I think we have a lot to be proud of with

it. I think it serves as an example to many other countries. Australia and other countries have adopted similar protective measures because of the example we have set and I think there is a lot

to be proud of.

And I think some of our great concerns are because of that disparity and because of our trade agreements with other countries.

We are often finding ourselves in very difficult positions because of

the trade agreements we have made that may undermine our own

protective agreements and a study that came out about a year ago

by Steven Keller of Yale University indicated that attitudes of the

American people toward marine mammals haven’t changed at all

really. They are just as strongly supportive as ever.

I am perhaps a little bit complacent in thinking we have saved

all the whales but I think their feelings are so deep that they are

easily aroused and I think that the Act’s existence has made a lot

of people feel a lot better about how we are treating those animals

I think most of us care so much about. In my testimony I mentioned some minor possibilities including the inclusion of recreational fisheries which may have similar impacts to commercial

fisheries where the commercial fisheries are called to count and the

recreational fisheries right next door with the same net doesn’t

have to do anything any different necessarily.

And there may need to be some clarifying regarding language

dealing with enforcement because there was apparently some concern by enforcement people about what their authority is to enforce

the provisions. But most specifically I think—and also the Marine

Mammal Commission suggestion about perhaps stakeholder process that might be able to include other interactors such as boats

and so forth is just a clarifying thing but it is not major surgery.

And most specifically the funding issues do have to be addressed.

I think the budgets have to be dramatically increased so where the

MMPA deals with budget line items the biggest change would be

making those numbers go a lot higher if it is possible.

Mr. FALEOMAVAEGA. Please.

Mr. CALAMBOKIDIS. I don’t have specific language and I couldn’t

comment on the language. I can make some of the points that I see

could be improved in the process and I don’t know how they exactly

translate into changes to the Act. Certainly some of the time lines

were difficult for the groups to deal with. One aspect that got briefly alluded to, the zero mortality rate goal, is something the Pacific

team is now dealing with and having clearer definitions of what

that means so that that is an essential element of how the team

can work together to know if it has come up with an adequate plan

right now.

It is somewhat vague and you have some latitude to take in

other economic factors and the fishery and what is practical but it

is important that things be as clearly defined as possible for the

team to work toward consensus. And then the other thing that has
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been alluded to several times is I think aspects of funding and support for things like the assessments. There was a mention earlier

of the use of the minimum population estimates in calculating

these potential biological removals.

And what that does, and I think it is a healthy thing, is it puts

pressure on accurate assessments. The more accurate and less uncertainty in your assessment, the closer that minimum estimate is

to the best estimate and so it does put an important force and need

for accurate assessments. There were other aspects on our team,

things like pinger development. There is little support for testing

better ways.

The pingers were developed and we found co-incidentally they

worked fairly well with other species but few experiments done

what might be a more optimal frequency species by species that

would work more effectively than just right now we are using the

same pinger used for Harbor Porpoise out in the Pacific to try to

alert beat whales and there may be other frequencies that would

work better.

And then there was also mention enforcement is a key issue. Interestingly enough, within the Pacific Take Reduction Team the

strongest voices for better enforcement were from the fishermen

themselves because what they didn’t want to see is those of them

that followed the provisions of the take reduction team played by

the rules to reduce mortality to be undercut by the fact other people could be getting away without following the provision.

So that was something, enforcement across the board they wanted to see and there were very great difficulties in seeing how the

resources could be brought to bear to provide that for something

like an offshore fishery in the Pacific.

Mr. FALEOMAVAEGA. Thank you very much. I really appreciate

your comments. I just started serving as a member of this subcommittee last year. Why our country has to import $7 billion

worth of fish which goes to the pockets of foreign countries, and

why our own country cannot produce domestically enough fish for

our own consumers is beyond me.

With all the technology and the capabilities that come with a

$1.7 trillion budget——and we are having to buy fish from other

countries. It is something that I hope the Chairman will want to

pursue. One of the trends that is happening now in my observation, it is quite obvious that the Atlantic is over fished and now

they are coming over to the Pacific. The nation of Kiribati [ph] has

just accepted about 14 purse seiners from the Spanish fishing

purse sein industry.

They are going to be fishing for tuna at Kiribati and there are

several other island groups that are going to be doing this because

they are hard up in their own local economies. But what is happening now is that they are coming over to the Pacific to do a lot

of fishing. And I think this issue definitely is going to be a global

one, not just our own interest, but it is going to create demands

on the entire planet if we don’t take up conservation measures as

we are now trying to do. Soon we could face the same problems

that we are now faced with in the Atlantic region. Mr. Chairman,

thank you and thank you again, Dr. Rosenberg, and members of

the panel.
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Mr. SAXTON. Thank you, Mr. Faleomavaega. There are a series

of questions that other members have for the panel but we are not

going to ask you to sit here for another 2 hours through lunch because Mr. Faleomavaega forgot to bring pizza for everybody so——

Mr. FALEOMAVAEGA. Actually, Mr. Chairman, I was going to

bring some raw fish but I didn’t know if they——

Mr. SAXTON. I do want to thank everyone on the panel for their

insight and for their expertise they have given us today. The hearing record will be held open for 30 days for responses from the witnesses and the members, and we will try to reach into this Act and

collaborate with all of you today to make sure that our human response to this human-induced crisis is fixed for succeeding generations.

I do want to thank all of you for your patience, Mr.

Faleomavaega for his patience with my lengthy questions and then

my patience with his lengthy questions and for all your lengthy responses. I want to thank you all very much. We do have other

questions that we will probably get to you and continue to work on

this issue. And I thank all of you for your dedication. The hearing

is adjourned.

[Whereupon, at 12:12 p.m., the subcommittee was adjourned.]

[Prepared statement of Mr. Faleomavaega follows:]
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(149)

HEARING ON: SECTION 119 OF THE MARINE

MAMMAL PROTECTION ACT

House of Representatives,

SUBCOMMITTEE ON FISHERIES CONSERVATION,

WILDLIFE AND OCEANS

COMMITTEE ON RESOURCES,

Washington, DC.

The Subcommittee met pursuant to other business at 2 p.m. in

Room 1334, Longworth House Office Building, Hon. Don Young

[Chairman of the Committee] presiding.

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ALASKA; CHAIRMAN, COMMITTEE ON RESOURCES

Mr. YOUNG. The meeting will come to order. Today’s hearing will

focus on Section 119 of the Marine Mammal Protection Act. Section

119 authorizes the Secretaries of Commerce and Interior to enter

into cooperative Agreements with Alaska Native Organizations to

conserve marine mammals and provide for the co-management of

subsistence use of marine mammals by Alaska Native communities.

The Agreements entered into by the Agencies and the Alaska Native Organizations can include grants to support the collection of

population data, monitoring of harvests, and research activities. It

is important that the users of these resources be active participants

in the research and populations surveys because they have local

and historical knowledge that can be useful to the collection of this

information.

The Secretary of the Interior has co-management Agreements

with the Alaskan Sea Otter and Sea Lion Commission, the Alaskan

Polar Bear Commission, and the Eskimo Walrus Commission. The

Secretary of Commerce has a co-management Agreement with the

Alaska Native Harbor Seal Commission and is currently in negotiations with the Alaska Beluga Whale Committee, the Cook Inlet

Marine Mammal Council, and the Tribal Government of St. Paul.

I would like to have a dialogue today on the processes used to

develop these Agreements, the length of time it has taken to implement them, and the relationships between the Alaska Native Marine Mammal Commissions and Agencies.

I am concerned that the annual renewal of the research portion

of the Agreements and would like to know why the Agreements

were developed this way and if this annual renewal hinders the

long-term goals of the Commissions.
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I want to thank the witnesses for appearing before the Subcommittee, especially those who have traveled so far down to testify today. Especially, as I begin, I would like to thank those, my

constituents, the distinguished Alaskans who traveled so far to give

their valuable insights on the Marine Mammal Protection Act.

[The prepared statement of Mr. Young follows:]
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Mr. YOUNG. We do not have a ranking minority member here,

but that is their problem right now. We will go ahead with the

hearing. And the first witness I would like to call up, I understand

that Penny Dalton is caught in traffic.

Ms. DALTON. She is here.

Mr. YOUNG. Oh. She is here. All right. Good. I mean, you did

that on show. I am surprised there wasn’t a band playing and a

little applause, Penny. But thanks for making it and I am sorry

about the traffic. I was just about to announce you were caught in

traffic.

So we will start with Panel I, and Ms. Dalton will be the Assistant Administrator for Fisheries, National Marine Fisheries Service.

And joining her would be David Allen, Regional Director of Fish

and Wildlife Services. And the two of you—David, would you join

them, please? And, Penny, if you want to, I will let you catch your

breath. I will let David go first or vice versa. Is that all right?

Ms. DALTON. Yeah.

Mr. YOUNG. David, would you mind going ahead and giving your

testimony first and just let her get her breath and have a glass of

water?

Mr. ALLEN. That is fine, Mr. Chairman.

STATEMENT OF MR. DAVID B. ALLEN, REGIONAL DIRECTOR,

U.S. FISH AND WILDLIFE SERVICE, ALASKA

Mr. ALLEN. Mr. Chairman, I appreciate the opportunity today to

testify. I am David Allen, Regional Director for the Fish and Wildlife Service in Alaska. My testimony is on the Service’s implementation of the Marine Mammal Protection Act and in particular, on

Section 119, Cooperative Agreements with Alaska Native Organizations for the conservation of polar bears, sea otters, and Pacific

walrus.

In addition, I will be recommending that the Act’s authority be

expanded to allow Alaska Native Organizations, in cooperation

with the Service, to manage subsistence use of marine mammals

prior to individual stocks becoming depleted.

Mr. Chairman, the Section 119 Amendment, in 1994, has been

a positive addition to the MMPA. Marine mammals are of vital importance to Alaska Natives for both cultural and subsistence purposes and are visible indicators of change in the marine environment. Alaska Natives, as subsistence users, are often first to note

changes in marine mammals that are important to assessing conditions in the marine environment.

Section 119 recognizes these connections and allows their potential benefits to be realized. We currently have three Section 119 cooperative Agreements in place with the Alaska Sea Otter and

Steller Sea Lion Commission, the Alaska Nanuuq Commission, and

the Eskimo Walrus Commission. These Agreements have been in

place since 1997 and provide a contractual framework for accomplishing specific activities for the conservation of marine mammals.

A basic benefit of these Agreements has been improved communication between the Commissions and the Service and among the

Commission members who represent the Alaska Native hunters

and their respective villages.
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To illustrate the value of Section 119, I will share with you three

examples of the success we have had in working with our Alaska

Native partners. My first example is the Cooperative Biological

Sampling Program and mortality surveys of sea otters around a

fish-processing facility in Cordova. This cooperative effort with the

Alaska Sea Otter and Steller Sea Lion Commission is leading to a

change in the facility’s discharge practices and permits from the

EPA to protect sea otters that have been dying from parasite infections caused by eating waste from processed fish.

In another example, the Alaska Nanuuq Commission has been a

full partner with us in developing a draft Agreement between the

United States and the Russian Federation on the conservation and

management of the Alaska-Chukotka Polar Bear population. In addition, we have assisted the Nanuuq Commission in a study to

compile traditional ecological knowledge of polar bears in the

Chukotka region of Russia.

My third example of successful partnership is our work with the

Eskimo Walrus Commission. A recent product of our partnership

with this Commission is the collection of walrus harvest information in Russia. The collaboration began with a bilateral workshop

on harvest monitoring followed by training of Russian harvest monitors in the Village of Gambell on St. Lawrence Island. And, as you

know, that is in the Bering Sea just about 60 miles from Russia.

The newly trained Russian native monitors collected harvest data

in Chukotka that provided vital important information on the Pacific walrus population.

Mr. Chairman, although we have made significant progress in

working with our Alaska Native partners on marine mammal conservation matters, we could do much more if we had expanded authority for co-management Agreements. Currently the MMPA does

not include enforceable provisions for management of subsistence

harvests of marine mammal stocks before they become depleted.

Under existing Section 119 and cooperative Agreements, we can

work with our Native partners to develop management strategies

implemented through local authorities, such as tribal ordinances.

However, this arrangement is strictly voluntary on a village-by-village basis with further limitations related to the scope of jurisdiction and enforcement authority.

Our goal is to expand Section 119 to include enforceable management provisions governing the Native subsistence harvest of marine mammal stocks prior to depletion through co-management

Agreements. We are working with our Alaska Native partners and

the National Marine Fisheries Service to develop such a proposal.

When we reach consensus on the provisions of a co-management

proposal, we will advise the Subcommittee.

Mr. Chairman, in closing, I want to emphasize the Service’s commitment to working with Alaska Native partners in the conservation and management of marine mammals. Ultimately, we believe

it will be more effective to conduct our marine mammal conservation responsibilities through enhanced co-management Agreements

with Alaska Native subsistence users and the appropriate federal

partner. Such Agreements can be structured to ensure our Alaska

Native partners have the first opportunity to address specific management issues and concerns.
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We do envision, however, that the federal government will retain

ultimate authority for enforcement of the MMPA, international

treaty obligations, stock assessments, and permit programs.

Mr. Chairman, that concludes my remarks and I will be happy

to answer any questions. Thank you.

[Prepared statement of Mr. David B. Allen follows:]
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Mr. YOUNG. Thank you, David. That was excellent testimony and

it was right on time. That usually doesn’t happen.

Mr. ALLEN. Thank you.

Mr. YOUNG. Penny, you are up.

STATEMENT OF PENELOPE DALTON, ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES

SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

Ms. DALTON. Okay. Between the tour buses and the roadwork,

getting from Silver Spring down here is quite an adventure. Good

morning, or good afternoon, Mr. Chairman. I am Penny Dalton, Assistant Administrator for NOAA Fisheries. Thank you for inviting

me to testify today on development—

Mr. YOUNG. Penny, is that mike on?

Ms. DALTON. Yeah.

Mr. YOUNG. Okay. Bring it a little closer.

Ms. DALTON. Testify today on development of co-management

Agreements with Alaska Natives under the Marine Mammal Protection Act. Section 119 of the MMPA authorizes the Secretaries of

Commerce and Interior to enter into cooperative Agreements with

Alaska Native Organizations for the co-management of marine

mammals subsistence harvests.

In 1997, NOAA Fisheries, the U.S. Fish and Wildlife Service, the

U.S. Geological Survey, and the Indigenous People’s Council for

Marine Mammals signed an umbrella Agreement. The umbrella

Agreement establishes guiding principles for the negotiation of subsequent Agreements. It calls for stocks to be maintained at levels

that support subsistence harvests and equal participation by Alaska Natives and harvest decisions. Other elements include collection

analysis of population data, adequate enforcement, education activities, and management plans.

Co-management Agreements have been developed under Section

119 for beluga whales, harbor seals, Steller sea lions and northern

fur seals. Prior to enactment of Section 119, an Agreement was

signed with the Alaska Eskimo Whaling Commission for co-management of bowhead whales.

With respect to beluga whales, NOAA Fisheries entered into an

Agreement in December 1999 with the Alaska Beluga Whale Committee to manage the western Alaska populations. The Agreement

covers beluga whales in the Beaufort, Chukchi, and Bering Seas

and promotes scientific research on the species.

A separate Agreement to co-manage this year’s harvest of Cook

Inlet beluga whales recently was negotiated with the Cook Inlet

Marine Mammal Council and is now in the NOAA clearance process. Authorized legislatively, the Agreement specifically provides

for the allocation of one whale to the Native Village of Tyonek. It

is subject to the National Environmental Policy Act and we currently are developing an environmental impact statement. A new

Agreement will be negotiated for harvest in 2001 and beyond based

on the outcome of the proposed depletion determination and the

agency response to a petition to list Cook Inlet belugas as endangered.
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In April 1999, NOAA Fisheries entered into an Agreement with

the Alaska Native Harbor Seal Commission for harbor seal conservation and management throughout Alaska. Under the Agreement, a committee comprised of commission officers and the NOAA

Fisheries staff will develop action plans for harbor seals. The plans

will identify activities to be undertaken by the parties for population monitoring, harvest management, education, and research.

On Steller sea lions and northern fur seals, we currently have a

draft Agreement with the Tribal Government of St. Paul in the

NOAA clearance process. This Agreement provides for co-management of subsistence harvests on St. Paul Island and establishes a

committee similar to those under other Agreements. It calls for cooperation and monitoring, research, disentanglement programs,

maintenance of fur seal rookeries, and education programs.

One significant issue in developing co-management Agreements

is which Alaska Native group should participate. Section 119 and

the accompanying House report suggest that any Native organization or tribal government that represents subsistence users can be

party to an Agreement. However, Administration policy directs that

agency actions be implemented in a manner that is respectful of

tribal sovereignty and allows for input by tribal officials. Consequently, NOAA Fisheries has tried to enter into Section 119

Agreements with tribal governments or organizations that have

tribal authorization.

This preference also stems from the need to develop enforcement

mechanisms for Agreements. All the co-management Agreements

developed so far address enforcement. However, the MMPA currently does not provide authority for federal process to support enforcement and adjudication of violations by Native organizations.

Nor, does NOAA Fisheries have authority to regulate Native marine mammal harvests prior to a depletion finding unless the take

is wasteful. Thus, the preferred enforcement mechanism is for tribal government or council to adopt ordinances that reflect the provisions of the Agreement or management plan and then adjudicate

violations through whatever traditional conflict resolution process

is applicable. However, it may be cumbersome for statewide commissions representing many villages to attempt to gain passage of

such ordinances from all member tribes. In addition, these ordinances would not be applicable to hunters unaffiliated with the

member tribes.

Another concern is the applicability of the Federal Advisory Committee Act to committees established through co-management

Agreements. The Unfunded Mandates Act granted FACA exemptions to meetings with elected tribal government officials or their

designated employees.

We interpret this to provide a FACA exemption to officers of Native marine mammal commissions authorized by tribal resolution.

However, this exemption probably could not be applied to organizations that are not tribally authorized.

NOAA Fisheries has been involved in discussions regarding such

issues with the Indigenous People’s Council for Marine Mammals

and the Fish and Wildlife Service. Discussion participants agree

that strengthening enforcement provisions in Section 119 Agreements, or within their associated management plans, would greatly
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improve conservation. We also agree that it is worthwhile to explore options for regulating marine mammals subsistence harvest

by Alaska Natives prior to depletion, but only through mutually

agreeable arrangements. We currently are working together on the

details of how such an authority could work.

I welcome the opportunity to discuss the resolution of these and

other important marine mammal conservation issues. Thank you.

[Prepared statement of Ms. Penelope Dalton follows:]
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Mr. YOUNG. Thank you. I am going to make this relatively short

because I want to get to my Alaskan witnesses. But, Dave, why are

the research portions of the cooperative Agreements renewed annually? Is it based on annual appropriations? Why is it just one year?

Mr. ALLEN. That is the convention that we have always used for

these types of Agreements. And clearly the intent is to continue it

beyond one year, but we do renew them on annual basis.

Mr. YOUNG. But wouldn’t it be better to make it a two-year or

three-year deal, or would you still prefer to leave them one year?

Mr. ALLEN. I personally wouldn’t have any objection in doing

that. As I understand, but I can certainly check this, I think it is

a contracting convention that governs this. It is not something that

we do by choice.

Mr. YOUNG. Now, we passed this Act in 1994, I believe. And you

have an Agreement with three Commissions now.

Mr. ALLEN. Yes.

Mr. YOUNG. And you reached those Agreements when?

Mr. ALLEN. We received our first appropriation to fund Section

119 Agreements in Fiscal Year ’96—I am sorry, ’97, in the fall of

’96.

Mr. YOUNG. So they reached Agreement in ’95, one year prior to

the Appropriation.

Mr. ALLEN. We concluded an Agreement within a few months

after we received the first appropriations—

Mr. YOUNG. Which three—

Mr. ALLEN. —in early—

Mr. YOUNG. Which three do you have an Agreement with?

Mr. ALLEN. We have an Agreement with the Alaska Nanuuq

Commission, who deal with polar bears; the Eskimo Walrus Commission, and the Alaska Sea Otter and Steller Sea Lion Commission. All three of those commissions.

Mr. YOUNG. Okay. And you had some suggestions on how to improve this. And what were those two suggestions?

Mr. ALLEN. The principal suggestion is that we expand the authorities within Section 119 to allow for harvest management for

subsistence purposes prior to depletion. As you know, presently,

under the Section 101(b), Native Exemption, there is no management regime and there is no federal authority to actually conduct

any kind of a management program until depletion occurs. And, of

course, the concern everyone has is that that is not when we want

to begin management as partners. That is what we want to prevent.

Mr. YOUNG. What you are suggesting now is the only time they

become involved is after the depletion occurs. It would be better to

have them involved prior to the depletion. Is that what you are

saying?

Mr. ALLEN. Yes. And the only time we get involved, that is the

federal government, in terms of any kind of management regime

that has any enforceable provisions, is only when depletion occurs.

So the basic recommendation is to create authorities through comanagement Agreements that would allow for management programs working with the Alaska Native Commissions so that we

could maintain a harvestable surplus for subsistence purposes prior

to depletion.
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Mr. YOUNG. David, are you stationed in Alaska or are you stationed down here?

Mr. ALLEN. I am stationed in Alaska.

Mr. YOUNG. Okay. Penny, how many Agreements do you have?

Ms. DALTON. We have five now. One of them was—or at least

two in the clearance process, two completed, and one that was actually done. The Alaska Eskimo Whaling Commission was done before Section 119 was enacted.

Mr. YOUNG. How many—okay—you say five. You have jurisdiction over five. Right?

Ms. DALTON. Yes. We have five either in place or in the works.

Mr. YOUNG. Okay. How many are in the works?

Ms. DALTON. The one—there are two in the works. For Cook

Inlet Marine Mammal Council and also for the Tribal Government

of St. Paul for sea lions and northern fur seals.

Mr. YOUNG. And what is holding that up?

Ms. DALTON. I think we just recently created—completed the

Agreements and they are still just moving through our clearance

process.

Mr. YOUNG. And how soon do you expect that to be finalized?

Ms. DALTON. And so it sounds like within the next few weeks.

We will get you a definite date for the record.

Mr. YOUNG. Okay. Now, the thing I am curious—and I was here

when we did this—why did we split it up between National Marine

Fisheries Service and Fish and Wildlife?

Ms. DALTON. You mean—I think it is—

Mr. YOUNG. Why do you have beluga whales and bowhead

whales and whatever else it is—

Ms. DALTON. We have the—primarily more ocean-going—the species that spend more of their time in the ocean and Fish and Wildlife Service has the species that spend a significant portion of their

time on land is my understanding of the division.

Mr. YOUNG. But they are all marine mammals.

Ms. DALTON. Yes.

Mr. YOUNG. Okay. And I don’t want to ask either one you this,

but I am going to. Turf-wise, wouldn’t it be better to have all of

them under one program?

Mr. ALLEN. I would love—

Ms. DALTON. While I won’t pretend that there is Agreement between the two departments on every marine issue, I don’t think,

at least in the time that I have been here, that there has been a

big problem on marine mammals with the jurisdictional split because it is pretty clear who has which species.

Mr. YOUNG. Okay. I will leave that go for a while because we are

in the midst of some other witnesses. But, see, I have—and this is

very important to me because I happen to agree with what David

says, and I hope you agree the same way. I think there ought to

be the management probably prior to the depletion occurrence—

Ms. DALTON. Yes.

Mr. YOUNG. —and try to stop that if necessary. I do think,

though, that even though it is a cooperative Agreement, in the form

of an enforcement, I think if they had a better role in enforcement,

it might work. Believe it or not, it does work under the Whaling

Commission.
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I do think that more responsibility that is placed upon the

groups, the better management you have of the species themselves,

especially if I am able to give them a little better say. Because a

lot of times, decisions are made in your agency and even Fish and

Wildlife Agency and even above your pay grade that do it on a

basis of pressure and emotionalism instead of reality.

And I have been one that always said most of laws we have

passed here have been misused because there has been little

science or really information applied to the law. We have interest

groups on both sides, be it commercial fisherman, or be it the environmental group, and there is no way that the information could

really be based upon sound facts of science.

I think that the commissions themselves—I know the Whaling

Commission did this—they actually got science to recount the

whales. And the first time there was only 2,500 bowhead whales

left, and through their science they established the fact there was

over 6,000 and I think there are around 10,000 whales now.

Science is very important in this and the front edge is very important. Prior to—it is always somebody saying, all right, to establish sea lions they are all dead because of, and no science to back

it up. So you have heard me on this before about what areas to

study.

So I just—I hope what I am hearing is correct, that you are

working hard to make these Agreements work. That I hope maybe,

David, that you will look beyond the Fish and Wildlife as far as

other parts of your agency. And there may be better ideas about

how managing other game than marine mammals. Bad thing for

me to say, but keep that in mind.

Mr. ALLEN. With your guidance, Mr. Chairman.

Mr. YOUNG. Yeah. Yeah. If we can get more interest on—and

someone has something to lose or gain by it, there is—better management occurs. So I don’t have any other questions. The gentleman from the great State of Maryland, outstanding Chesapeake

protector, provider of great wisdom, would you like to ask any

questions?

Mr. GILCHREST. I am fine.

Mr. YOUNG. I thank both of you. And I will be communicating

with both of you as far as my interests in this. This is important

to me and I want it to work. And maybe we can expand upon it.

And just remember, those that are on the ground sometimes have

a little better knowledge of what is really occurring out there instead of someone reading something in the Smithsonian Magazine

or from the National Geographic or from a newspaper in San Francisco.

So thank you very much. I appreciate it. And I am sorry you

were so late, Penny, as far as the traffic. And for your information,

we will be submitting some written questions to you so you can

have the opportunity to respond to those as far as the agencies.

The next panel, Caleb Pungowiyi, Chairman of the IPCoMM Reauthorization Committee; Charlie Johnson, Alaska Polar Bear

Commission; Monica Riedel, Alaska Native Harbor Seal Commission, Alvin Osterback, Aleut Marine Mammal Commission, son of

the great Osterback representative that I served with; Lianna

Jack, Alaska Sea Otter and Steller Sea Lion Commission. Thanks
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for coming to the table and appreciate all your long travels and appreciate your being here today. And we will go—Caleb, you will go

first, please.

STATEMENT OF MR. CALEB PUNGOWIYI, CHAIRMAN, MMPA

REAUTHORIZATION COMMITTEE, INDIGENOUS PEOPLE’S

COUNCIL FOR MARINE ANIMALS, KOTZEBUE, ALASKA

Mr. PUNGOWIYI. Thank you, Mr. Chairman. My name is Caleb

Pungowiyi or Loman [ph] is my Native name and I am from—originally from a Village of Savoonga. I am presently the president of

Robert Aqqaluk Newlin, Sr. Memorial Trust in Kotzebue. I want to

thank the Chairman for the invitation to testify before this Committee and I appreciate the opportunity to do so.

I am testifying today as the Chairman of the Reauthorization

Committee of the Indigenous People’s Council for Marine Mammals

and also as a former Executive Director of the Eskimo Walrus

Commission. Mr. Chairman, back in 1994, I testified before this

Committee urging the Congress to amend the Marine Mammal Act

to add Section 119 to involve the Alaska Native many commissions

to enter into co-management Agreements with federal agencies.

And I want to state today that those of us who have entered into

co-management Agreements that those Agreements, in terms of

conservation of marine mammals and also learning more science

about the status of marine mammals has been very successful. And

I think as you will hear from the rest of the—our panel this afternoon that this message is something that the can be echoed with

all the commissions that have entered into co-management Agreements.

Also the fact that in 1994 we had testified that there was a large

communication gap between the agencies and the Native community. But today I think you have heard that there is improved communications. There is cooperation and more efforts to work together in terms of conserving and protecting the species that exist

in Alaska.

IPCoMM is a consortium of 15 Alaska Native Commissions,

tribes and organizations working to conserve and protect the marine mammals and Alaska Native users of those marine mammals

for subsistence and making of handicraft and clothing. Together

these organizations cover most marine mammals populations found

in Alaska and represent those Native villages most dependent upon

marine mammals for their nutrition and culture.

In closing in 1994, as I mentioned earlier, the Section 119 has

resulted in a number of effective partnerships between Fish and

Wildlife Service, National Marine Fisheries Service, and Alaska

Native Organizations. This is not to say that the implementations

came easily. I think that, as you will hear from the commissions,

that there were lengthy negotiations, times when it seemed like

there would never be an Agreement reached between the agencies.

But you also want to applaud that—the efforts that were made

by U.S. Fish and Wildlife Service, especially Dave Allen, as the Regional Director, that the implementations probably came a lot easier and quicker than if it had been another director in his place.

We also negotiated an umbrella Agreement, as mentioned by

Penny Dalton. And this umbrella Agreement was to establish
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guidelines so that when different commissions negotiated the

Agreements with federal agencies that there was a standard set it

place so that these Agreements have some continuity and some

equality in terms of managing the species that are used for subsistence.

As Dave mentioned, in 1997, the Walrus Commission, the Polar

Bear Commission, and the Sea Otter Commission signed Agreements with Fish and Wildlife Service to co-manage those species

that are under the management of Fish and Wildlife Service. The

funding for that came through an appropriation that was earmarked as an add-on to the Fish and Wildlife Service budget to

enter into co-management with these here entities to a tune of

$250,000.

When we agreeing between ourselves divided to—agreed to di- vide this money between the three entities—$70,000 for the Sea

Otter Commission, $80,000 to the Walrus Commission, and $90,000

to the Polar Bear Commission. Mr. Chairman, I must state that

this amount of money barely covers the intended activity that we

agreed to when we signed these Agreements with the U.S. Fish

and Wildlife Service.

The travel alone for our commissions to meet exceeds $25,000 to

$30,000 because of the large area that we cover under the jurisdictions or where the species habit—oh, I can’t think of what to say.

But the coastline, for example, for the Walrus Commission, is three

times the coastline of California. It goes from Bristol Bay all the

way up to Barrow. And we cover—there are about 35 communities

that either directly or indirectly depend upon walrus for their utilization.

And so that is one of the shortcomings that we have seen in implementing these co-managed Agreements that there isn’t enough

adequate funding to cover the activities that are needed to fully implement the intention of the Congress in enacting Section 119.

In negotiations with NMFS or the National Marine Fisheries

Service, did not begin until—in earnest in 1998. And while perhaps

the best model for a cooperative Agreement is the Alaska Eskimo

Whaling Commission, Mr. Chairman, the agency has been slow in

implementing the Section 119 Agreement.

The first one was not signed until April of 1999 and there are

still negotiations going on with other commissions. We believe this

action, or lack of action, is on part of National Marine Fisheries

Service because co-management Agreement, obviously, is not a priority within the agency. And it is reflected by the fact that the

President’s budget has never, and I repeat, never, contained a provision or a request for Section 119 funding.

In closing, I want to highlight some of the activities that the

Walrus Commission has done since I am past Executive Director

for the Walrus Commission. We began as a Commission in 1978

and this was in due to the fact that we felt strong concern when

the State of Alaska had management of walrus, but there was

some conservation issues that needed to be addressed and the fact

that State of Alaska refused to recognize some of the communities

that were legally recognized to hunt walrus.

And the Village of Togiak, as you remember, sued the State of

Alaska and won, but the Native was exemplified by the Congress
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allowed for the taking of walrus for subsistence and anigraft purposes. Since then we—

Mr. YOUNG. How much more time do you have? Go right ahead.

I have to excuse myself and make one phone call and I will be right

back, but he will take the chair. So—

Mr. PUNGOWIYI. Okay. As Dave mentioned earlier, we have a

number of scope awards that we have identified with the Walrus

Commission to work with in the conservation of walrus. One of

them is the discussion of pilot bilateral Agreement with Russia on

the shared population of walrus being in two countries. In 1995

there was a meeting in Chukotka where a protocol was signed to

start negotiating an international treaty on the conservation of

walrus in the two countries.

We have asked that there be no formal negotiations with Russia

until we have seen the implementation of the Polar Bear Agreement between Russia. But we feel that the success or problems

that may be associated with the Polar Bear Agreement will reflect

on how we negotiate the new Agreement that will deal with walrus

population.

But we will—that has not kept us from talking with the Russians. We have started our dialogue in developing our Native-toNative Agreements on the management of walrus between the two

areas. We have started monitoring—harvest monitoring programs

in both counties. The Walrus Commission and the Fish and Wildlife Service has increased funding to implement the tabulated the

harvest—Native harvest has occurred on both sides of the border

so that we have a better idea to the number of walrus that are

being harvested in both countries.

The Walrus Commission also has a biological sampling program

where we collect—we ask the hunters to collect biological samples

so that we have a better understanding of the population indices

on the walrus. We collected teeth, the reproductive tracts, and also

other organs to also look at the contaminants and pollution that

may be building up in the tissues of the polar—walrus.

And these samples are provided by the hunters. We do, at the

end of the season, have a drawing so that those who have given

the samples will be like a lottery where they will either—we give

one rifle, a barrel of gas, and $50 shopping at the nearest shopping

center which usually means a native store. So it is not a whole lot

of money, but it is something that entices the hunters to participate in this sampling program which is very, very important. And

it indicates the age and the sex and the number of animals that

are being taken and also the health status of the walrus population.

And, Mr. Chairman, I do want to say that our—there are some

things I would like to speak and recommendations to may perhaps

make some changes to the Section 119. And that is that I—as I

mentioned earlier, the co-management Agreements have been stymied by a lack of adequate funding. And we would urge the Congress to fully fund the intended appropriations for implementing

the co-management Agreement.

Secondly, we would like to strengthen to authorize the parties to

Section 119 to enforce conservation and regulatory measures

agreed upon and incorporated into Section 119. We agreed that it
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is important to have regulations prior to depletion and that is

something that can be worked in under Section 119 of the Act. And

that the federal agencies should be empowered as negotiated by the

parties through co-management Agreements to provide a backup

role if the parties agree to such a role.

We also believe that Secretaries should try to maximize to the

extent possible to work with affected Alaska Native Organizations

and tribes in implementing regulations that are adopted after the

listing of marine mammals under MMPA or ESA.

We also would ask that the definition of Alaska Native Organizations be amended to require organizations entering into co-management Agreements be either tribal governments or tribally authorized by the government.

Mr. Chairman, I want to thank you for the opportunity and we

have other written testimony that will be given by myself as well

as others. Thank you very much.

[Prepared statement of Mr. Caleb Pungowiyi follows:]
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Mr. YOUNG. Thank you very much. We have a vote in about 15

minutes and we will expedite as far as possible and I will try to

get back, but just keep that in mind. Charlie?

STATEMENT OF MR. CHARLES JOHNSON, ALASKA NANUUQ

COMMISSION ON MMPA CO-MANAGEMENT

Mr. JOHNSON. Thank you, Mr. Chairman. My name is

Tomungnuaq or Charlie Johnson, if you don’t speak Inupiat. I am

the Executive Director of the Alaska Nanuuq Commission and a

member of the National Marine Fisheries Scientific Review Group.

The Alaska Nanuuq Commission is now in its third year of comanagement of polar bear with the U.S. Fish and Wildlife Service

under Section 119. The Commission was organized by the tribal

governments of north and northwest Alaska to represent the villages on matters concerning the conservation and sustainable subsistence use of polar bear.

Our contract calls for the commission to represent the villages

and to assist the Service in developing a bilateral treaty with Russia on the conservation of the shared polar bear population in Alaska and Chukotka. Our contract also helps—also calls for the development of a Native-to-Native Agreement to implement that treaty.

The Alaska Nanuuq Commission also has a contract with the National Park Service Beringia Program to collect information on

polar bear habitat use in Chukotka gathered from the traditional

knowledge of hunters in the villages—coastal villages of Chukotka.

Additionally, the Commission has a small contract with the National Marine Fisheries Service to collect harvest data on ice seals

from the villages of northwest Alaska.

We believe that there are some changes needed to be made to

MMPA. Polar bear hunting has been banned in the former Soviet

Union since 1956. In 1989, the polar bear population that Russia

shares with Alaska in the Bering and Chukchi Seas was reclassified by the former Soviet Union as recovered and notified the U.S.

that it wanted to share in the harvest of polar bears with Alaska

Natives.

A bilateral Agreement between the U.S. and Russia on the conservation and management, which includes the implementation of

the Agreement by a parallel Native-to-Native Agreement, has been

developed.

In order for the Native-to-Native Agreement to be successful,

change to MMPA Section 119 are needed. These are management

before depletion. If Russia is to share in the harvest, it means

numbers and numbers means quotas and quotas means management before depletion. But management before depletion ordered

any time must be accomplished only through co-management with

Alaska Natives.

Secondly, enforceable tribal ordinances. The Commission derives

its authority from the tribal governments which also must accept

the quotas and has authority to enforce the quotas. Federal regulations to enforce these ordinances must also be developed. Thirdly,

additional funding. The fully authorized funding for Section 119

has never been requested by the Secretaries of Interior and Commerce. In fact, the day before yesterday, National Marine Fisheries
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flatly told us that Section 119 is not a priority for National Marine

Fisheries.

If co-management is to become more successful, full funding and

additional funding is needed. In my written testimony I have indicated how these funds would be used by the Alaska Nanuuq Commission. The success of the Agreement with Russia and our Nativeto-Native Agreement, as mentioned by Caleb, is critical in that it

will set the standard for future Agreements of shared species between Alaska and Russia.

Additional help that we can get from Congress in—that is related

but not necessarily part of the MMPA is that Congress can assist

by working with the elected Deputies to the Duma, particularly

from Chukotka and we recommend that you help educate them

about Alaska and how co-management works.

Another issue is research. Research from—of the U.S. Fish and

Wildlife is now split off into the U.S.G.S., which has no co-management mandate. Alaska is—we need—the commissions needs involvement in the setting of resource priorities and the current situation makes it difficult.

My last recommendation is that with the lack of interest in the

Department of Commerce for co-management with Alaska Natives

on marine mammals, consideration should be given by Congress to

transferring management authority of those species that are used

for subsistence to the U.S. Fish and Wildlife. Thank you, Mr.

Chairman.

[Prepared statement of Mr. Charles Johnson follows:]
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Mr. YOUNG. Thank you, Charlie, and I appreciate that Monica.

STATEMENT OF MS. MONICA RIEDEL, EXECUTIVE DIRECTOR

AND CEO, ALASKA NATIVE HARBOR SEAL COMMISSION

Ms. RIEDEL. Thank you, Mr. Chairman. My name is Monica

Riedel or Nalatoa [ph]. I am the Executive Director of the Alaska

Native Harbor Seal Commission located in Cordova, Alaska.

The Harbor Seal Commission was organized by tribal resolutions

in 1995 to develop and implement an MMPA Section 119 Agreement with the National Marine Fisheries Service for harbor seals.

We finalized and signed an Agreement in April of 1999. Our geographic representation spans an area that is equal to the width of

the United States and was—and is within the habitat range of harbor seals.

Harbor seals are vital to our diet and spiritual and cultural wellbeing. Our current programs include a Community-based Biological

Sampling Program, coordination with the Youth Area Watch

Project, and we are in our third year of the Harbor Seal Monitoring, Research and Management Program, which has been fully

funded through NOAA.

We also have entered into two cooperative Agreements with the

Alaska Department of Fish and Games Subsistence Division. One

is for a technical oversight of the Harvest Data Program and another is for Informational Development of a CD-ROM on Alaska

marine mammals.

This past year we collaborated with the University of Alaska,

Fairbanks to expand the scope of the tissue archival project to include Bering Sea communities and we are currently collaborating

with the Alaska Sea Life Center on future projects.

Regarding self-regulation and co-management, Alaska Natives

have thousands of years of historical use of marine mammals and

we have established effective conservation methods. Now, through

co-management, the Harbor Seal Commission have become equal

partners with NMFS in resource management decisions.

Some of the difficulties incurred during the development of the

Agreement were, one, long-distance communications between D.C.

Headquarters and Alaska. Two, remoteness of our villages made it

costly to meet on a regular basis. Three, reaching consensus on

consultation and the enforcement process. Four, us understanding

NMFS’s agency constraints that were often translated by lawyers.

And, five, them understanding our system of oral history and conservation practices.

With regard to proactive management through our Section 119

Agreement, first in the Agreement we have established a co-management committee structure made up of three NMFS representatives and three Harbor Seal Commission representatives. Secondly,

NMFS recognizes tribal authority to regulate our own members

and the Harbor Seal Commission recognizes the Secretary of Commerce’s authority to enforce existing provisions of the MMPA.

Thirdly, a consultation process will take place prior to listing stocks

as strategic or depleted under the MMPA or the Endangered Species Act.

Co-management has benefited Natives by the federal agency’s

formal recognition of them as equal partners. The marine mam-
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mals have benefited by having the primary users directly involved

in prioritizing research and management decisions.

Hunters and elders hold traditional knowledge that they transfer

and they transfer their conservation practices to youth and researchers. Communication has vastly improved among the ANHSC

tribes and NMFS, but there is still room for improvement and

growth. With adequate support Harbor Seal Commission is positioned to assume the responsibility of monitoring the harvest formerly done by ADF&G Subsistence Division.

Mr. Chairman, my recommendations for general improvements

to Section 119 are, one, strengthen Section 119 so that agencies can

share enforcement authority with tribally authorized co-management partners. Two, Section 119 Agreements need to be exempt

from the Federal Advisory Committee Act. Three, fully appropriate

the authorized funding for Section 119 for developing infrastructure and tribal management plans, collecting and analyzing population data, harvest monitoring, cross-cultural training, educational

projects, biosampling, and tissue archival projects.

Finally, Mr. Chairman, the NMFS Alaska Region and the Harbor

Seal Commission are committed to the co-management process as

established in our Agreement and we are working hard on longterm solutions to our common goals. Thank you.

[Prepared statement of Ms. Monica Riedel follows:]
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Mr. YOUNG. Thank you, Monica. Alvin.

STATEMENT OF MR. ALVIN D. OSTERBACK, ALEUT MARINE

MAMMAL COMMISSION

Mr. OSTERBACK. Mr. Chairman, and, Members of the Committee,

my name is Alvin D. Osterback. I am an Aleut, a member of the

Qagan Tayagungin Tribe, and Chairman of the Aleut Marine Mammal Commission.

I am here today to speak to you on Section 119 of the Marine

Mammal Protection Act and how we have been able to interact

with government agencies and establish our role as set forth in the

Act.

The first meeting of the Aleut Marine Mammal Commission,

hosted by the Aleutian Pribilof Island Association, took place in

Dutch Harbor on May 27 and 28th of 1997. The Alaska Department of Fish and Game, the Alaska Sea Otter Commission, Rural

Community Action Program, and National Marine Fisheries Service provided the funding and technical support.

At this initial meeting each tribe selected a member and an alternate to represent each community, the formation of the Aleut

Marine Mammal Commission was initiated, and they set direction

to get incorporated and set our starting goals.

The commission did not have the funds available to set up the

commission and having no funding, we used help wherever we

could find it. The Aleutian/Pribilof Island Association assisted the

Marine Mammal Commission to get the legal paperwork completed

and incorporate. The Aleutians East Borough helped with the paperwork and our request for funding. The Qagan Tayagungin Tribe

provided office space and their staff to assist when required. If it

weren’t for the help of these entities, we would still be at square

one.

I talked to the Aleut Marine Mammal Commission Board members once using funds from the Qagan Tayagungin Tribe and just

a month ago using a teleconference call provided free of charge by

the Aleutians East Borough.

Just last week, while in Anchorage, Alaska, attending a fishery

meeting, I had a chance to meet with a representative of the National Marine Fisheries Service and go over the budget with we

had submitted on how to best utilize the funding that is available

for the first year of operation.

At the time of this meeting I requested forward funding so the

Board of the Aleut Marine Mammal Commission would be able to

have a face-to-face meeting and complete some much needed business as we have not had a meeting since our first meeting of May

of 1997. At this time I have not received a reply as to whether this

can be done.

If this is not possible, I am hoping the Aleutians East Borough

will be able to forward fund us and be allowed to pay this funding

back from the monies available to the Aleut Marine Mammal Commission when funding is approved.

As you can see, we have been quite slow in getting on our feet

with this Commission. It is quite hard to do without funds for

startup. But thankfully the people of our area who have access to
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and have available funds could see the importance and need for

this committee to exist and extended a hand to get us this far.

We cover a very large area and range for the Steller sea lion as

well as other Marine Mammals and feel that a good working relationship on co-management will help answer a lot of questions in

our communities to the subsistence use of marine mammals as well

as the commercial fisherman who interacts with marine mammals

while sharing and pursuing the fish resource.

To my knowledge, to date, there has been no interaction between

the National Marine Fisheries Service and the Aleut Tribes of our

area or the Aleut Marine Mammal Commission on the status of

Steller sea lions or other marine mammals in the area.

We are very concerned with the decline in the populations and

feels that we should be consulted as our use and interaction with

the Steller sea lion has been ongoing for thousands of years and

we wish to continue this use, as a subsistence food item and nonharmful co-existing and sharing in the harvest of the ample fishery

resources of the Aleutians area as commercial fisherman.

I would like to thank the Committee and the Chairman for the

opportunity to testify.

[Prepared statement of Mr. Alvin D. Osterback follows:]
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Mr. YOUNG. Thank you, Alvin. And I have noticed that there is

this comment about NMFS and we will be sending them some

questions. And I have been told now that there is going to be expedited process. And as far as the funding goes, we will make sure

that the funding does take place. It does not seem appropriate to

have you to go other places to get funding when we should have

been doing it ourselves. Lianna.

STATEMENT OF MS. LIANNA JACK, EXECUTIVE DIRECTOR,

THE ALASKA SEA OTTER AND STELLER SEA LION COMMISSION

Ms. JACK. Thank you, Mr. Chairman, for this opportunity to testify.

Mr. YOUNG. Move that closer to you or turn it on, please.

Ms. JACK. Okay. My name is Lianna Jack. One of my Yupik

names is Daviuk [ph]. And I am Executive Director for the Alaska

Sea Otter and Steller Sea Lion Commission. Today I would like to

speak of the co-management experiences of our commission.

TASSC was formerly known as the Alaska Sea Otter Commission. In 1998, our Commission added the statewide advocacy of

Steller sea lions. We are going into our 12th year of operation and

represent a total of 51 tribal organizations.

Our goals are to ensure Alaska Native participation in sea otter

and Steller sea lion management and to continue the customary

use of marine mammals by Alaska Natives for Subsistence. We

strongly believe that local participation in management will result

in conservation that prevents a depleted listing due to subsistence

harvest. Based on our goals, we developed regional marine mammal plans with Bureau of Indian Affairs and Administration for

Native American grants.

Since then, we have signed an MOA with the U.S. Fish and

Wildlife Service and entered into our third co-management Agreement. For the past three years, we have received 70,000 per each

Agreement. Our staff, which includes Alaska Native biologists, actively work with the Service on research and management.

We work on biological and harvest monitoring projects from subsistence harvested sea otters. To date, more than 300 samples have

been collected. These samples have provided the basis to conduct

a large-scale genetics study to address sea otter stock concerns.

In the ’97 Agreement, we focused on developing local management plans and initiated one project on using local and traditional

knowledge to document the growth and dispersement of sea otter

in Southeast Alaska. The local management plan developed by

Sitka Tribe of Alaska has served as a model as other communities

begin managing their subsistence resources.

In the ’98 Agreement, we developed a small boat survey protocol

and focused on training local people to conduct these surveys. The

small boat survey protocol provides communities with the ability to

develop their own population trends on the distribution and abundance of sea otters in their area.

In the ’99 Agreement, we are focusing efforts on the decline of

sea otters in the Aleutians. In cooperation with researchers, our efforts will include standardizing the small boat survey protocol so
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that locally conducted surveys can serve to estimate population

trends.

Another area of interest is Port Heiden in the Bristol Bay area

where this winter heavy storms moved the Bering Sea ice pack

south and stranded otters. In response, we focused survey effort on

the sea otter haul-out to assess mortality and extent.

While these projects have been successful and provided valuable

management and biological information, we could do so much more

if the Service would receive the entire appropriation amount within

Section 119 and our funding increased.

Since we have taken up Steller sea lion advocacy, we have communicated with NMFS to negotiate and sign a co-management

Agreement. At our last board meeting in February, NMFS met

with our board to begin in earnest discussion on an Agreement. We

have planned a meeting next month for further discussions.

Co-management activities will hopefully include projects that address sea lion issues and management and include local people to

collect critical biological and ecological information.

We ask that TASSC is granted funding to implement projects we

have discussed with NMFS, which include harvest monitoring,

small boat surveys, and biological sampling.

We are a successful commission in that we accomplish needed

projects to help manage and conserve marine mammal populations.

We are known for our productive record and tough, but meaningful,

relationship with the Service. We hope to be given that opportunity

by receiving continued funding for sea otters and designated funding for sea lions. TASSC shares the concerns that you have heard

today and we are in agreement with the recommendations you

have heard on the Marine Mammal Protection Act.

Thank you again, Chairman, for giving our commission the opportunity to testify.

[Prepared statement of Ms. Lianna Jack follows:]
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Mr. YOUNG. I want to thank the panel. I want to also, while I

am thanking you, you came forth with some recommendations and,

Lianna, you brought that out. And that is important we have these

hearings because I don’t know exactly what to do and I do appreciate the recommendations. I am a little curious. Do you feel that

you are equal partners with the agencies—this is a generic question to anyone who wants to address it—in developing these programs? Charlie?

Mr. JOHNSON. Mr. Chairman, the Alaska Nanuuq Commission, I

think, has been a very equal, particularly in negotiation of the bilateral treaty with Russia. That has given us, I think, a real good

standing with the Fish and Wildlife Service and they have been

very supportive of the conditions that Alaska Nanuuq Commission

wanted in the treaty. So I feel very strongly that we—in this particular case, we are an equal partner.

Mr. YOUNG. Okay. Now, and, Charlie, you are talking about the

treaty, but I am talking about management within the domestic

area. Are you—or do you feel as you are co-equals with the agency?

Mr. JOHNSON. Not at this point because, you know, we are expected to do a whole lot with a very little amount of money. We

can’t be an equal partner with somebody that has millions when

we only have a few thousand.

Mr. YOUNG. Okay. Now, this is for anybody who wants to jump

in here. What happens if there is an Agreement with the commission with all the villagers, which I think, Monica, you mentioned

this? Do you have any enforcement capability?

Ms. RIEDEL. At this time, we only can self-regulate. We don’t—

Mr. YOUNG. Just within your own area.

Ms. RIEDEL. Yes, Mr. Chairman. We don’t have the authority like

the NMFS does with regards to the provisions with Native—take,

particularly wasteful take?

Mr. YOUNG. That is one of the main ones with me.

Ms. RIEDEL. Yeah. That is the main one.

Mr. YOUNG. Now, if that takes place, does the—your case is

NMFS. Right? Or Fish and Wildlife?

Ms. RIEDEL. NMFS.

Mr. YOUNG. Okay. Does NMFS enforce or do they just ignore?

Ms. RIEDEL. Mr. Chairman, with the Agreement, they are now

committed to discuss any of these issues with the Harbor Seal

Commission prior to any action.

Mr. YOUNG. Okay. Now, would you want enforcement authority?

Ms. RIEDEL. I would say it is very important for us to be able

to have that authority to self-regulate, Mr. Chairman.

Mr. YOUNG. Well, I—

Ms. RIEDEL. Yes.

Mr. YOUNG. Personally, I think it would be extremely valuable.

I know—

Ms. RIEDEL. Yes.

Mr. YOUNG. —as hard as it may be, we do have individuals that,

within our own groups, that take—and I call it—want and taking

and wasteful use. And I believe your own kind can be best to supervise that. We—I have seen it on my salmon where people will

bring in 150 salmon and go have a party and they all perish. That
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shouldn’t be allowed, but the only person who is going to enforce

that is actually the State Fish and Game.

And so nobody gets—and it is a bad example to set for anybody

else. And I have always said this is wrong because that takes away

the whole concept of a heritage use of a species. And that is my

own personal opinion. Do the—do you—I notice there is a little

crossover. Do all of you cooperate with one another?

Ms. RIEDEL. Yes, we do, Mr. Chairman.

Mr. YOUNG. Is that agreeable? Everybody agree with that?

Ms. RIEDEL. With exception of the new commission, the Aleut

Commission, who just formed, all of us are, as Caleb mentioned

earlier, members of the Indigenous People’s Council for Marine

Mammals which meets usually a couple of times a year where we

can discuss common issues.

Mr. YOUNG. Okay. Okay. The gentleman from Maryland. Does

anyone like to make a comment on this? I met with most of you

the other day, but we are—we want to rewrite this legislation if we

can do it correctly. I tend to notice that there is a little bit of reluctance of NMFS’ part.

I have one last question and I know my good friend from Fish

and Wildlife is behind you and he might want to comment. Why

shouldn’t—why should you be co-partners? Why can’t you be the

managers of—with supervision from the agencies? And there is a

difference. And I mean, the Fish and Wildlife guy can kick in here.

I mean, I have a little concern because you hit the idea when there

is a lot of money and you don’t have any money—if the money that

they have, if you could get it and manage it with their supervision,

it would seem that it would be—work out a whole lot better than

to have all the manpower and all the money and, Mr. Fish and

Wildlife, you kick in first if you want to and then sit down because

they are all ganging up on you. But go ahead.

Mr. ALLEN. All right. I mean, you have hit the nail on the head,

Mr. Chairman. That is exactly what I think what our goal is here.

What we want by this expanded authority is to have the enforceable provisions in the Act that allows us to back up basically local

enforcement. That just doesn’t exist.

As I mentioned, and we do work right now with local communities to try to develop local ordinances, but, as you know, those

only affect tribal members within that community. So really what

we are trying to strike here is a situation where we would have fair

and equitable rules across the state for all eligible subsistence

users. And working through the commissions, we would expect that

they would take as much as the responsibility as they want in

terms of developing the rules and regulations associated with—

Mr. YOUNG. Well, David, what I am suggesting, and I appreciate

your comment—what I am suggesting here—you don’t see any objection then to contracting with the commissions because you have

access to monies that they can’t access. There is nothing for that

in the budget. If we get the same result, you could be the boss, but

they would do the work, but they also get the money to do the

work.

Mr. ALLEN. Yes. And, in fact, we do some of that right now.

Mr. YOUNG. Okay. Anybody else like to—Alvin?
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Mr. OSTERBACK. Yes, Mr. Chairman. You know, I think in the

past, over the—well, ever since the last reauthorization of the

MMPA, as far as, say, in our area with the Steller sea lions, once

we found out they were becoming an issue—the only way it actually does work is the people that live in the area and interact with

the mammal are the ones that are truly going to be the ones that

save them or not.

So the areas are so large that any type of management, I think,

needs to belong in the hands of the tribal entities in the area or

the commissions. And I think they do a very good job of policing

themselves. And I think if there is interaction or a co-management

Agreement, the scientists can get all of the information they need

during takes, harvests, during the subsistence use. So that portion

is needed.

But on the enforcement side, I think unless the people that are

living in the area and interacting, the areas are so large that unless they can be convinced by their own people that this is something that needs to be done, it wouldn’t happen anyway.

Mr. YOUNG. Well, I agree. And there is also the cultural clash.

I mean, I remember when the Fish and Wildlife made the raid on

the walrus hunters out at Gambell. Right, wrong, or indifferent,

they may have been taking further tests, but the image was big

government attacking the aboriginal people that live in the area.

And that was the image I saw on television. I may be prejudiced,

but I mean, that is what I related to.

If, in fact, that type of thing was taking place and it was illegal,

it seemed to me it could be better taken care of by the commission

itself or someone in that arena. Because, at least, it wouldn’t have

been on NBC or CBS and CNN, you know. And I think there has

been a little better control of what would have happened.

The theme here is management prior to depletion. That is really

what you are asking. We have to change the Act, I believe, to do

that. And you would not be against the idea of contracting out. I

mean, yourselves being the ones that receive the contract to do

what you are doing now because it would give you the money to

do so. Would it not? Yeah, Charlie. And I have got about five minutes and I do apologize.

Mr. JOHNSON. Mr. Chairman, just very briefly. To show how this

would work, we have a voluntary program right now which is an

Agreement between the North Slope Borough and the Inuvialuit

and the Southern Beaufort Sea. That is a voluntary Agreement for

quotas have been set to split the harvest of the polar bears in the

Southern Beaufort Sea. Of the—in the last ten years, the quota has

totaled a cumulative total of 800. Of that, only 680 bears have been

taken, which have been almost equally split between Canada and

the North Slope.

And another important factor with this voluntary Agreement

that has no funding or other jurisdiction from outside of the North

Slope, is that the protection of females. In that particular population, only 25 percent of the female—bears that are taken are females. In western Alaska out of the Chukchi population, it is 40

percent. So that alone shows the capability that we have of managing ourselves with—even without outside support.
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Mr. YOUNG. Okay. One of these days, Charlie, you and I are

going to talk about the polar bear, but we won’t do it today at this

hearing. I want to thank the panel and I do apologize, but we are

going to cut this hearing off because we have approximately 50

minutes of voting and I know someone has to catch an airplane.

And I will—and we will, with your advice and comments—and that

goes for Fish and Wildlife and NMFS also—I would like to see this

thing work and work to a better degree. I think it could be a model

for other management of game across the state as a whole. So it

is something we might consider.

I want to thank the panel and I appreciate you all coming down.

And we will send you some questions by the way. And the record

will be open for 30 days and I do thank you. This Committee is adjourned.

[Prepared statement of Mr. Daniel Alex follows:]
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[Prepared statement of Ms. Michelle Sparck follows:]
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[Prepared statement of Mr. Eni F. H. Faleomavaega follows:]
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[Whereupon, at 3:03, the subcommittee was adjourned.]