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88-531 PS 2003

H.R. 2693, A BILL TO REAUTHORIZE THE MARINE MAMMAL PROTECTION ACT OF 

1972

LEGISLATIVE HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES CONSERVATION, 

WILDLIFE AND OCEANS

OF THE

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

Thursday, July 24, 2003

Serial No. 108-46

Printed for the use of the Committee on Resources

(

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

or 

Committee address: http://resourcescommittee.house.gov 

(II)

COMMITTEE ON RESOURCES 

RICHARD W. POMBO, California, Chairman 

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Ken Calvert, California 

Scott McInnis, Colorado 

Barbara Cubin, Wyoming 

George Radanovich, California 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada, 

Vice Chairman 

Mark E. Souder, Indiana 

Greg Walden, Oregon 

Thomas G. Tancredo, Colorado 

J.D. Hayworth, Arizona 

Tom Osborne, Nebraska 

Jeff Flake, Arizona 

Dennis R. Rehberg, Montana 

Rick Renzi, Arizona 

Tom Cole, Oklahoma 

Stevan Pearce, New Mexico 

Rob Bishop, Utah 

Devin Nunes, California 

Randy Neugebauer, Texas 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Calvin M. Dooley, California 

Donna M. Christensen, Virgin Islands 

Ron Kind, Wisconsin 

Jay Inslee, Washington 

Grace F. Napolitano, California 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Brad Carson, Oklahoma 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

George Miller, California 

Edward J. Markey, Massachusetts 

Rube ́n Hinojosa, Texas 

Ciro D. Rodriguez, Texas 

Joe Baca, California 

Betty McCollum, Minnesota

Steven J. Ding, Chief of Staff 

Lisa Pittman, Chief Counsel 

James H. Zoia, Democrat Staff Director 

Jeffrey P. Petrich, Democrat Chief Counsel 

SUBCOMMITTE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS 

WAYNE T. GILCHREST, Maryland, Chairman 

FRANK PALLONE, JR., New Jersey, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Mark E. Souder, Indiana 

Walter B. Jones, Jr., North Carolina 

Randy Neugebauer, Texas 

Richard W. Pombo, California, ex officio 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Ron Kind, Wisconsin 

Madeleine Z. Bordallo, Guam 

Nick J. Rahall II, West Virginia, ex officio 

(III)

C O N T E N T S 

Page

Hearing held on Thursday, July 24, 2003 ............................................................. 1

Statement of Members: 

Gilchrest, Hon. Wayne T., a Representative in Congress from the State 

of Maryland ................................................................................................... 1

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

Pallone, Hon. Frank, Jr., a Representative in Congress from the State 

of New Jersey ............................................................................................... 3

Prepared statement of ............................................................................... 4

Rahall, Hon. Nick J. II, a Representative in Congress from the State 

of West Virginia, Prepared statement of .................................................... 11

Statement of Witnesses: 

Cottingham, David, Executive Director, Marine Mammal Commission ...... 29

Prepared statement of ............................................................................... 30

Response to questions submitted for the record ..................................... 154

Hayes, Robert G., General Counsel, Coastal Conservation Association ...... 69

Prepared statement of ............................................................................... 71

Johnson, Charlie, Executive Director, Alaska Nanuuq Commission ........... 79

Prepared statement of ............................................................................... 80

Jones, Marshall, Deputy Director, Fish and Wildlife Service, U.S. 

Department of the Interior ........................................................................... 22

Prepared statement of ............................................................................... 24

Response to questions submitted for the record ..................................... 101

Lent, Dr. Rebecca, Deputy Assistant Administrator for Fisheries, 

National Marine Fisheries Service, U.S. Department of Commerce ........ 13

Prepared statement of ............................................................................... 15

Response to questions submitted for the record ..................................... 110

Steuer, Karen, Senior Policy Advisor, National Environmental Trust ........ 72

Prepared statement of ............................................................................... 74

Response to questions submitted for the record ..................................... 128

Tyack, Dr. Peter, Senior Scientist and Walter A. and Hope Noyes Smith 

Chair, Department of Biology, Woods Hole Oceanographic Institution ... 37

Prepared statement of ............................................................................... 39

Response to questions submitted for the record ..................................... 132

Wells, Dr. Randall, Conservation Biologist, Chicago Zoological Society, 

Mote Marine Laboratory .............................................................................. 81

Prepared statement of ............................................................................... 83

Response to questions submitted for the record ..................................... 141

Worcester, Peter F., Ph.D., Research Oceanographer, Scripps Institution 

of Oceanography, University of California at San Diego .......................... 49

Prepared statement of ............................................................................... 51

Response to questions submitted for the record ..................................... 148

Zuanich, Robert, Board Member, United Fishermen of Alaska ................... 88

Prepared statement of ............................................................................... 89

Additional materials supplied: 

Riedel, Monica, Executive Director and CEO, Alaska Native Harbor Seal 

Commission, Statement submitted for the record ...................................... 98

(1)

LEGISLATIVE HEARING ON H.R. 2693, A BILL 

TO REAUTHORIZE THE MARINE MAMMAL 

PROTECTION ACT OF 1972, AND FOR OTHER 

PURPOSES. 

Thursday, July 24, 2003

U.S. House of Representatives 

Subcommittee on Fisheries Conservation, Wildlife and Oceans 

Committee on Resources 

Washington, DC 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

Room 1324, Longworth House Office Building, Hon. Wayne T. 

Gilchrest [Chairman of the Subcommittee] presiding. 

Present: Representatives Gilchrest, Pallone, Abercrombie, and 

Kind. 

Also present: Representative Pombo. 

Mr. GILCHREST. The Subcommittee on Fisheries Conservation, 

Wildlife and Oceans will come to order. We want to thank all of 

you for coming this morning and we really look forward to the testimony of each and every witness for us to try to find some realistic 

consensus on the problems of the issue of marine mammals. 

STATEMENT OF HON. WAYNE T. GILCHREST, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

MARYLAND 

Mr. GILCHREST. Earlier this month I introduced H.R. 2693, with 

Chairman Richard Pombo, to reauthorize the Marine Mammal Protection Act. This bill is similar to H.R. 4781, which the Subcommittee approved last Congress. There were a few provisions 

that were not included in H.R. 4781: changes to the definition of 

harassment and to the incidental take section; language to authorize the disentanglement of marine mammals in the stranding program; and modifications to the time lines in the take reduction 

team process. 

I think we have made good progress in H.R. 2693; however, the 

bill is a starting point, a product to generate discussion. To develop 

the language in the bill, I had meetings with scientists and agency 

staff to better understand our current state of knowledge, to hash 

out various terms proposed for the definition of harassment, and to 

devise a process by which scientific research can move forward in 

a timely manner without unnecessary and significant delays. Most 

2

recently, yesterday in fact, I met with representatives of some environmental groups to discuss their thoughts on the bill’s language. 

What I have found most interesting in this process is how everyone refers back to the National Research Council’s recommended 

definition of harassment. Everyone says their definition is based on 

the NRC definition. I can say that H.R. 2693 used the NRC used 

the NRC definition as a template, but has some modifications. The 

administration’s definition is said to have the intent of the NRC 

definition, but was reworked to be defensible in court and structured to allow for better enforcement. The environmental community also has its own definition, which also modifies the NRC definition. There is common ground in each of these proposals, the 

NRC definition. We just need to word-smith more to get a compatible resolution. 

And going through this process a little bit in the last few days, 

I wish now I had paid much more attention to my seventh grade 

English teacher’s diagramming of what modifies what. 

But I think we can work through this process to ensure that the 

language is appropriate for the Navy, the language is appropriate—and the process—the language is appropriate for research 

scientists, and the process, and the language is appropriate to meet 

all of the constituency problems that there are out there in the 

oceans. 

I think today we are going to look forward to your analysis of the 

definitions of harassment, of incidental take, of the process that 

people have to go through with NMFS in order to get that permit 

to do what they need to do. And our intent here, Mr. Pallone and 

myself, our intent is to ensure that—like somebody told me just 2 

days ago in this, in Congress, a member: So, you want to save a 

whale and kill a soldier. 

We want to make sure that the impression and the reality is that 

the oceans will be better off, the ecosystem will improve, marine 

mammals will be protected, and the military can train its soldiers 

to defend America. But we also want to make sure that a scientist 

that needs to fly an airplane over the North Atlantic to observe 

right whales will not have a more difficult time getting a permit 

to do that than the general understanding that long lines are OK 

for the fishing industry. Now, I don’t want to downgrade long lining for the fishing industry. That is a whole other issue that we 

will deal with in the Magnuson Act. But to do research that is important for the preservation of right whales and marine mammals, 

we have got to work for that process and make it much more legitimate. 

So I look forward to everyone’s testimony today. And I would like 

to yield to the gentleman from New Jersey, Mr. Pallone. 

[The prepared statement of Mr. Gilchrest follows:]

Statement of The Honorable Wayne T. Gilchrest, Chairman,

Subcommittee on Fisheries Conservation, Wildlife and Oceans 

Good morning. Today, we will hear testimony on issues pertaining to the reauthorization of the Marine Mammal Protection Act. 

Earlier this month I introduced H.R. 2693,with Chairman Richard Pombo, to reauthorize the MMPA. This bill is similar to H.R. 4781, which the Subcommittee approved last Congress. There are a few provisions that were not included in 

H.R. 4781: changes to the definition of harassment and to the incidental take 

section; language to authorize the disentanglement of marine mammals in the 

3

stranding program; and modifications to the time-lines in the take reduction team 

process. 

I think we’ve made some good progress in H.R. 2693; however, the bill is a starting point, a product to generate discussion. To develop the language in the bill I 

had meetings with scientists and agency staff to better understand our current state 

of knowledge, to hash out various terms proposed for the definition of harassment, 

and to devise a process by which scientific research can move forward in a timely 

manner without significant delays. Most recently, yesterday in fact, I met with representatives of some environmental groups to get their thoughts on the bill language. 

What I’ve found most interesting in this process is how everyone refers back to 

the National Research Council’s (NRC) recommended definition of harassment. Everyone says their definition is based on the NRC definition. I can say H.R. 2693 

used the NRC definition as a template, but has some modifications. The Administration’s definition is said to have the intent of the NRC definition, but was reworked 

to be defensible in court and structured to allow for better enforcement. The environmental community also has its own definition, which also modifies the NRC definition. There is common ground in each of these proposals, the NRC definition, we 

just need to word-smith some more to get a compatible resolution. 

I look forward to today’s testimony. Each witness brings a slightly different perspective to the table and differing views can lead to productive and lively discussions. 

I know recognize the Ranking Democrat, Mr. Pallone for his opening statement. 

STATEMENT OF HON. FRANK PALLONE, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Mr. Chairman, for holding this hearing 

on your legislation to reauthorize the Marine Mammal Protection 

Act. 

Much has been said recently about the MMPA, both inside and 

outside this Committee. And while reasonable people can agree to 

disagree about policy, there should be no doubt about members of 

this Committee, whether Democrat or Republican, that it is the 

sole jurisdiction of this Committee to reauthorize and amend the 

MMPA. 

And that is why I wanted to commend you, Mr. Chairman, for 

forcefully reinforcing at Tuesday’s meeting of the Conference Committee to the Defense Authorization Bill of the proper authority of 

this Committee regarding the MMPA. I can only hope that the conferees will have been persuaded by arguments to remove all provisions concerning the MMPA from the final conference report. 

And I know this is not on the same subject, but I see the Chairman of the full Committee here. And I just want to say I have witnessed several times over the last few weeks where you have had 

to reinforce the Committee’s jurisdiction. And I appreciate the fact 

that you have been out there doing that as well. I think it is very 

important. 

Even within the Committee, changes to the definition of harassment will continue to be a contentious item of discussion. I do believe, however, that we now have the chance to frame whatever 

changes should be made within the proper context of an overall 

MMPA reauthorization. 

As we consider how best to reauthorize the bill, be assured that 

I will arrive at the table ready to work with you in a true sense 

of comity and cooperation. And it is with this spirit that I look at 

your bill, H.R. 2693, as an honest starting point, but not a conclusion to our work. Also, realize that I will vigorously oppose any 

attempt to weaken or walk away from the fundamental protections 

4

afforded to marine mammals under the act, for animals either in 

the wild or in captivity. 

As much as we should celebrate the fact that the MMPA has prevented the outright extinction of many marine mammals, we 

should not be blind to the compelling reality that many marine 

mammal populations today face growing human threats from ship 

strikes, acoustic impacts, marine debris and other land-based pollutants. And in the end, our success at addressing these threats 

will likely determine whether marine mammals can maintain their 

vital roles in oceanic and coastal environments. 

Thank you again, Mr. Chairman. 

[The prepared statement of Mr. Pallone follows:]

Statement of The Honorable Frank Pallone, a Representative in Congress 

from the State of New Jersey 

Thank you, Mr. Chairman, for holding this hearing on your legislation to reauthorize one of our Nation’s most important statutes protecting the ocean environment, the Marine Mammal Protection Act. 

Much has been said recently about the MMPA, both inside and outside of this 

Committee. And while reasonable people can agree to disagree about policy preferences, there should be no light between members of this Committee, whether they 

are Democrat or Republican, on the fact that it is the sole jurisdiction of this 

Committee to reauthorize the MMPA. 

That is why I commend you, Mr. Chairman, for forcefully re-informing the conference committee to the Defense Authorization bill at yesterday’s conference meeting of the proper authority of this Committee regarding the MMPA. We can only 

hope that the conferees will have been persuaded by your arguments to remove all 

provisions concerning the MMPA from the final conference report. 

Even within this Committee, changes to the definition of ‘‘harassment’’ will continue to be a contentious item of discussion. I do believe, however, that we now have 

the chance to frame whatever changes should be made within the proper context 

of an overall MMPA reauthorization. 

As we roll up our sleeves to sit down and consider how best to reauthorize the 

MMPA, be assured that I will arrive at the table ready to work with you in a true 

sense of comity and cooperation. And it is with this spirit that I look at your bill, 

H.R. 2693, as an honest starting point but not a conclusion to our work. 

Also realize that I will vigorously oppose any attempt to weaken or walk away 

from the fundamental protections afforded to marine mammals under the Act, for 

animals either in the wild or in captivity. 

As much as we should celebrate the fact that the MMPA has prevented the outright extinction of many marine mammals, we should not be blind to the compelling 

reality that many marine mammal populations today face growing human threats 

from ship strikes, acoustic impacts, marine debris and land-based pollutants. 

In the end, our success at addressing these threats will likely determine whether 

marine mammals remain a vibrant part of our ocean and coastal environment. 

Thank you. 

[Information submitted for the record by Mr. Pallone follows:]

Statement submitted for the record on behalf of: Animal Protection 

Institute; Cetacean Society International; Earth Island Institute; International Wildlife Coalition; Society for Animal Protective Legislation; The 

Fund for Animals; The Humane Society of the United States; Whale and 

Dolphin Conservation Society; and World Society for the Protection of 

Animals 

The above signatory groups, together representing approximately 9 million members and constituents, thank the Subcommittee Chairman for the opportunity to 

submit a statement for the record on the reauthorization of the Marine Mammal 

Protection Act (MMPA). We appreciate the opportunity to present these comments 

to the Subcommittee. Our concerns relate to the sport hunting of polar bears and 

the public display of marine mammals. 

5

Sport Hunting of Polar Bears 

The signatory groups oppose the provisions of Section 10 in H.R. 2693. In addition, we request that Congress maintain the prohibition on the sport hunting of 

polar bears in Alaska and repeal Section 104(c)(5) of the MMPA, which allows the 

import of polar bear trophies from Canada. The MMPA prohibition against take is 

universal—the exemptions are for purposes that serve the public good, with the sole 

exception of the import of sport-hunted polar bear trophies from Canada, which is 

for personal use. Section 104(c)(5) was added to the MMPA during the 1994 reauthorization. To allow exemptions for personal use is counter to the spirit of this 

groundbreaking legislation. 

Furthermore, the signatory groups believe commercial sport hunts provide a dangerous incentive to over-exploit this vulnerable and naturally rare species, as was 

historically the case. Sport hunting and its negative impacts on polar bear populations were among the primary reasons the five polar bear nations (Denmark [for 

Greenland], the Russian Federation [then the USSR], Norway, Canada, and the 

U.S.) originally negotiated and signed the 1973 Agreement on the Conservation of 

Polar Bears. 

To date, Canada continues to be the only country that allows the sport hunting 

of polar bears under the 1973 Agreement. In 1994, Congress passed an amendment, 

Section 104(c)(5), which allowed the import into the U.S. of trophies legally taken 

in Canada. Many of the signatory groups actively opposed this amendment during 

the 1994 reauthorization, in part because we believe the hunt in several populations 

of Canadian polar bears was (and continues to be) unsustainable. Allowing the import of trophies would (and now does) provide a strong incentive for Canada to 

maintain or increase already unsustainable quotas because more American hunters 

would seek to purchase subsistence hunt tags from Canadian Inuit villages. 

Validating our concerns, the U.S. Fish and Wildlife Service (FWS) initially approved the M’Clintock Channel polar bear population for imports under Section 

104(c)(5). In early 2001, the agency published an emergency rule reversing that approval because a recent study by the Canadian authorities indicated that there were 

far fewer bears than originally estimated in the M’Clintock population, making the 

quota not only unsustainable, but actually an extirpation risk for the population. 

Some of the population data used to calculate this new population estimate were 

apparently available to the Canadian authorities as early as 1978. In addition, the 

population estimate was always rated as ‘‘poor’’ and even after the results of the 

first two years of a three-year study (1998, 1999, and 2000) showed that there were 

almost certainly far fewer bears in the population than previously estimated, Canada did not change the quota until the study’s final year of results was analyzed. 

(The 1998/1999 hunting season, therefore, removed nearly 10% of the population 

and the unfulfilled quota was for more than 10% of the population.) In short, managers could have and should have foreseen the actual status of the population as 

early as 20 years ago and certainly two years ago. 

The signatory groups have always been critical of the potential for mismanagement under Canada’s management regime. The situation in M’Clintock Channel is 

a classic example of a worst-case scenario under this regime, which, inter alia, relies 

on population estimates that are qualitatively rather than quantitatively characterized. The quota for this population was driving the M’Clintock Channel bear population inexorably toward extirpation for several years before managers detected this 

trend. 

It is impossible to know whether those populations that the FWS has not approved for import but which are still subject to legal hunts under Canadian law are 

experiencing similar negative impacts because of hunting under Canada’s management regime. If they are, this reflects on Canada’s entire management program. As 

for those six populations currently with full FWS approval for import, their status 

is arguably just as questionable, as they are being managed under the same regime. 

Given how long M’Clintock Channel’s dire situation escaped Canada’s notice, and 

given the uncertain quality of some of the population data from the other approved 

populations, there is simply no assurance that any polar bear population in Canada 

is being managed sustainably. 

The signatory groups believe strongly that Section 104(c)(5) should be repealed. 

Polar bears are uniquely unsuited to being sport-hunted. Establishing accurate population estimates and life history parameters upon which commercially-driven hunts 

can be sustainably based is extremely difficult, given their remote and marginal 

habitat. 

Public Display of Marine Mammals 

In 1994, Congress amended the MMPA to eliminate certain aspects of the law’s 

applicability to marine mammals used for public display. These changes weakened 

6

the law without justification, and there is no basis for further changes to the law 

that would result in even less protection for these animals. The relevant provisions 

within the MMPA for public display fall under Sections 101 and 104. H.R. 2693 addresses public display only once, in Section 11, the captive release prohibition. 

The MMPA provides for the public display of marine mammals by special exemption. Because of the continued existence of trade (import/export) in wild-caught and 

captive-born marine mammals between U.S. facilities and foreign facilities, and the 

proliferation of unregulated interactive programs (e.g., swim-with-the-dolphin programs; ‘‘petting’’ pools) in public display facilities worldwide, we believe Congress 

must re-examine some of the provisions of the MMPA, and the implementing regulations relating to the public display exemption. 

Export Permits 

The MMPA should be amended to restore the requirement for a permit to export 

marine mammals for the purpose of public display. The 1994 Amendments removed 

this requirement from the law and currently a 15-day notification to the National 

Marine Fisheries Service (NFMS) or FWS and a determination, through a Letter of 

Comity, that the receiving facility meets standards comparable to those required 

under the Animal Welfare Act (AWA) and the MMPA are the sole requirements. In 

other words, holders of captive marine mammals have the right to transport, sell, 

export, purchase or transfer an interest (e.g., breeding loans) without seeking authorization and without any public oversight. The signatory groups have serious 

concerns regarding the ability of the agencies under such a short notification regime 

and without public input to ensure the well-being of marine mammals leaving this 

country for foreign, and often substandard, facilities not under the jurisdiction of 

U.S. law. 

In the wild, marine mammals are under national jurisdiction in domestic waters, 

while on the high seas they are considered a ‘‘global commons.’’ We believe that 

their status should not change when removed from the wild and kept in captive facilities, and we oppose the private ownership of captive marine mammals. We believe that the public should be treated as stakeholders and should have a key consultative role concerning the destination, distribution, supervision and management 

of these species. We believe that the public often holds critical information that 

should be reviewed and evaluated prior to a transfer. Therefore, we urge Congress 

to reinstate the export permit requirement, which would provide for public notice 

and comment. 

Comity and Comparability Provisions 

The MMPA should confirm the requirement for a letter of comity from a foreign 

facility’s government regarding marine mammal protection laws, and strengthen 

this provision by requiring on-site inspections. The signatory groups are deeply concerned with the proliferation of substandard captive display facilities around the 

world. We are not satisfied that the requirement for a Letter of Comity from the 

receiving nation provides adequate protection for marine mammals being exported 

from the US. Because U.S. agencies must accept these letters on their face, they 

are rendered almost meaningless. National agencies all too frequently provide letters of comity with no substance underlying them. The MMPA permit process, 

which includes public notice and comment, as applied to export would allow a 

greater—and more protective—degree of scrutiny of a receiving facility and the laws 

to which it is subject. For example, certain Japanese facilities participate in ‘‘drive 

fisheries’’ to capture dolphins. This practice does not meet U.S. capture standards 

for humaneness and would not be allowed under the MMPA. Any facility associated 

with this practice should not be allowed to receive marine mammals from the US; 

whether a facility acquires animals from drive fisheries may be information only 

public comment could uncover. 

As part of the comity process and under the 1994 Amendments, foreign facilities 

must demonstrate that they meet standards that are comparable to those under the 

AWA. The U.S. Department of Agriculture’s Animal and Plant Health Inspection 

Service (APHIS) has concluded that facilities may demonstrate this solely through 

providing the agency documentation and certified assurances, rather than through 

on-site inspections. As a result, the determination of comparability is being made 

by the receiving facility itself, through its expressions of comity, and through the 

documentation it chooses to provide to APHIS, which is a clear conflict of interest. 

Therefore, the MMPA should be amended to clarify Section 104(c)(9) that the determination of comparability must be made through first-hand knowledge, i.e., on-site 

inspections, by the relevant U.S. agency. All facilities seeking to acquire marine 

mammals from the U.S. should be pre-inspected by a qualified U.S. official before 

7

animals are exported pursuant to any MMPA authorization, including transfer 

pursuant to an existing permit under section 104(c). 

Marine Mammal Inventory Report 

The MMPA should retain the requirement for captive display facilities to maintain an inventory of marine mammals in their collections, and should broaden the 

information reporting requirements to include necropsy, injury and disease reports 

indicative of marine mammals health status. The U.S. is one of the only countries 

in the world with legislation requiring the maintenance of an inventory of marine 

mammals held in captivity. Without an inventory, the status of captive marine 

mammals can be impossible to determine, as it is the only means for allowing outside scientific review of issues relating to the health and survivorship of captive 

marine mammals. In addition, with the increase in marine mammal interactive programs in the U.S. and elsewhere, there is a need for the disclosure of information 

pertinent to the health and welfare of marine mammals in these programs. Information, including disease transmission and physical injuries sustained by marine 

mammals in interactive programs, must be collected in order for all stakeholders to 

evaluate the safety and value of these programs. 

Educational Programs 

Section 104(c)(2)(A)(i) of the MMPA should be revised to provide for the evaluation of education and conservation programs on a periodic basis. Currently, educational standards within most public display facilities are based on standards established and recommended by the public display community itself. Because the effectiveness and legitimacy of an educational program cannot be determined at its 

inception and by its description on paper, and because the statute requires only a 

‘‘professionally recognized’’ educational or conservation program, there is little to 

protect the precautionary intent of the MMPA. According to information provided 

by NMFS, a permit for the public display of cetaceans or pinnipeds has never been 

denied or revoked on the grounds of insufficient educational value or content. This 

blanket exemption is not monitored or enforced by any independent public institution or regulatory agency. 

We recommend that public display facilities that are granted an exemption permit 

must be motivated to continually improve their educational and conservation programs. There are currently no requirements for updates to educational programs or 

facility plans once a permit is granted. Periodic assessments should be required to 

ensure that facilities do not stray from their original ‘‘educational mission statement’’ in the course of their commercial development or expansion into a public entertainment venue or amusement park, as many have. The MMPA should require 

that the relevant Secretary approve public display education and conservation programs, with periodic review of these programs as they develop and evolve. 

Authority over Captive Marine Mammals 

Authority over captive marine mammals should be transferred from APHIS in the 

Department of Agriculture to the same agencies (NMFS and FWS) with jurisdiction 

over marine mammals in the wild. APHIS, under the AWA, has not demonstrated 

that it can adequately ensure the humane treatment and welfare of marine mammals used for the purpose of public display. For example, after taking more than 

three years from the date of reauthorization to finalize the regulations for the operation of swim-with-the-dolphin programs, APHIS then suspended the regulations’ 

enforcement only six months later, in April 1999. To date, these specialized and proliferating programs are to all intents and purposes unregulated, beyond basic care 

and maintenance standards. 

In addition, in a highly-publicized case in Puerto Rico, APHIS was unable to remedy the inhumane treatment of seven polar bears held in the Mexican-based Suarez 

Brothers Circus, revealing an agency unable to fulfill the objectives of the MMPA. 

It was the FWS that finally rescued these beleaguered animals from their untenable 

situation (six of the seven are now doing well in U.S. zoos after confiscation—one 

unfortunately died), citing violations of the MMPA. APHIS has limited expertise 

among its staff in the biology and handling of marine mammals. Its veterinary inspectors receive some training regarding the specialized needs and requirements for 

these animals, but this training is often inadequate. Facilities are allowed numerous 

opportunities to correct violations, and in some instances, violations are never corrected. The specialized biology, ecology, and captive maintenance requirements of 

marine mammals, specifically recognized by Congress when it passed the MMPA in 

1972, overtax APHIS’ staff. It would be sensible for marine mammal species under 

the jurisdiction of NMFS (and the FWS for polar bears, walruses, manatees and sea 

otters) when wild to continue under the jurisdiction of NMFS/FWS when captive—

8

these wildlife species do not transform into livestock by virtue of entering a tank 

or sea pen. 

Traveling Shows 

The MMPA should be amended to specifically prohibit the use of marine mammals in traveling shows. The signatory groups support the sections in the Administration’s bill that prohibit traveling cetacean shows and would like to see H.R. 2693 

include this provision, but apply it to all marine mammals. Circuses and itinerant 

performances cannot maintain the highly specialized conditions necessary to ensure 

the health and well-being of marine mammals. The high-profile case in Puerto Rico 

involving the Suarez Brothers Circus, as noted above, highlights that traveling 

shows featuring marine mammals inevitably violate the spirit and very often the 

letter of the MMPA, which is designed to conserve species and stocks and ensure 

humane treatment of these animals. 

‘‘Petting’’ Pools 

The MMPA should be amended to prohibit interactive programs involving the 

feeding of captive marine mammals. In the wild, feeding marine mammals is prohibited by regulation, as this activity clearly constitutes harassment. Feeding wild 

marine mammals (or any wild predator) can result in the gross disruption of foraging behavior, malnourished animals, injured animals through vandalism, nuisance behavior in animals that have become habituated to handouts, and other negative impacts. While public feeding of captive marine mammals in so-called ‘‘petting’’ pool exhibits is undoubtedly less disruptive, it still can lead to numerous problems, including obesity, the ingestion of foreign objects (which can lead to injury and 

even death of the animal), altered socialization patterns, and injury to the public 

(e.g., being bitten). However, more to the point, feeding captive marine mammals 

leads to a fundamental disconnect in the purported educational mission of public 

display—the classic ‘‘Do as I say, not as I do’’ syndrome. If feeding marine mammals 

in captivity is allowed, it becomes extremely difficult and confusing for the public 

to recall and follow the prohibition on feeding marine mammals in the wild. The 

signatory groups strongly urge Congress to amend the MMPA to prohibit ‘‘petting’’ 

pools. 

Capture from the Wild 

The MMPA should be amended to prohibit the capture of marine mammals from 

the wild for use in public display facilities. Captive populations of marine mammals 

have been maintained and grown through captive breeding, imports, and the retention of non-releasable stranded animals. The U.S. public display industry frequently 

tells the public that it has not captured any cetaceans from the wild since 1993. 

Given this successful maintenance of captive populations without removing animals 

from the wild, it is entirely unnecessary for any marine mammals to be captured 

in the wild for the purposes of public display. 

Conclusion 

The signatory groups once again thank the Subcommittee Chair for allowing our 

special concerns regarding the sport hunting of polar bears and the public display 

of marine mammals to be submitted for the record on the reauthorization of the 

MMPA. We urge Congress to consider our views on these two issues, as we seek 

to bring all marine mammals once again within the truly protective and precautionary embrace of the MMPA. 

April 24, 1997

U.S. Fish and Wildlife Service 

Office of Management Authority 

4401 N. Fairfax Dr., Room 430

Arlington, VA 22203

TRANSMITTED BY FACSIMILE: 703/358-2281

RE: 62 FR 14437, Notice of Receipt of Applications for Permit

On behalf of the more than 4.5 million members and constituents of The Humane 

Society of the United States (HSUS), I am submitting these comments regarding 27 

applications received by the U.S. Fish and Wildlife Service (the Service) for import 

permits for sport-hunted polar bear trophies from the Northwest Territories, 

Canada. 

For the record, The HSUS strongly objects to the Service’s consideration of these 

permit applications. We believe that the Service’s final rule is in error and that 

9

three of the four statutory requirements cannot be met (i.e., Canada’s program does 

not comply with the International Agreement on the Conservation of Polar Bears; 

Canada’s program is not scientifically sound; and polar bear trophy imports will contribute to the illegal trade in polar bear parts—please see our comments of 

March 6, August 31, and November 6, 1995). We are also aware that Representative Don Young (R-AK) has introduced House Joint Resolution 59 seeking to overturn the Service’s final rule and that a hearing on this matter will be held on 

April 30, 1997. Finally, one or more of several parties may initiate legal action in 

the near future to overturn the Service’s final rule. Therefore, given the current uncertain status of the final rule, we believe it is inappropriate for the Service to consider these permit applications at this time. 

However, if the Service processes these permits regardless of the uncertain status 

of the final rule, my comments are as follows: To my understanding, Baffin Bay and 

the Gulf of Boothia populations have been deferred for approval by the Service. 

Therefore, the permit applications of Robert Kuykendall (Baffin Bay) and Lee Adam 

(Gulf of Boothia) should be denied on their face. In addition, Mr. Adam’s application 

fails to provide the size of the tanned hide, information he must provide to answer 

question #9 on page 2 of the application form (without this information, it is impossible to determine if the male bear killed by Mr. Adam meets the minimum size 

restriction to avoid having to provide documentation that the bear was not part of 

a family group). I also note that Mr. Adam has failed to answer question #6 on page 

2 of the application form, although this information is provided in the attached 

Northwest Territories Wildlife Export Permit #7728. 

After examining the remaining 24 applications (apparently one application was 

returned to the applicant), I find that more than half (14), for one reason or another, 

are incomplete or inaccurate. It may be that these applicants have since provided 

information to the Service that completes their applications, but it concerns me that 

the applications were published in the Federal Register prior to the applicants providing complete and accurate applications to the Service. Also, since the applications 

were distributed to the public in this condition, it leaves the public in the position 

of having incomplete paperwork upon which to base its comments (for example, I 

will not be able to evaluate whether the documentation eventually provided by several applicants [regarding whether a female bear or male bear under six feet was 

part of a family group] is acceptable). 

In alphabetical order:

Horst Baier—Did not answer question #8, page 1

Larry Bennett—Did not complete question #8, page 1 (did not provide license or 

permit number) 

Did not answer question #10, page 1

Did not answer question #9, page 2 (i.e., did not provide size of tanned hide in 

question #3, page 2) 

Jerome Bofferding—Did not indicate a designated port for wildlife in question #6, 

page 1 (although did indicate Designated Port Exception permit number) 

Did not answer question #9, page 2 (i.e., did not provide size of hide in question 

#3, page 2)—the Service’s attached notice to this effect expires on approximately 

May 10

Dan Fox—Did not answer question #8, page 1

Did not answer question #9, page 2 (i.e., did not provide size of tanned hide in 

question #3, page 2) 

John Hoyer—Provided incorrect information in question #7, page 1 (gave Northwest 

Territories hunting licence number, rather than Federal fish and wildlife license 

or permit number) 

Did not complete question #8, page 1 (did not provide license or permit number) 

Did not answer question #9, page 2 (i.e., did not provide documentation that the 

female bear killed was not part of a family group)—the Service’s attached notice 

to this effect expires on approximately May 10

Jerry Imperial—Provided invalid information in question #10, page 1 (date provided 

does not correspond to question) 

Did not answer question #9, page 2 (i.e., did not provide size of tanned hide in 

question #3, page 2) 

Craig Leerberg—Did not answer question #8, page 1

Did not answer question #8, page 2 (the Service’s notice, which expires approximately May 10, incorrectly requested a response to question #9, page 2)—this female bear was hunted before January 1, 1986 (the applicant did not provide the 

month in question #5, although the attached hunting license indicated the hunt 

may have occurred in March 1983) 

Jack Leuenberger—Did not answer question #10, page 1

10

Did not answer question #9, page 2 (i.e., did not provide documentation that the 

female bear killed was not part of a family group)—the Service’s attached notice 

to this effect expires on approximately May 10

Lee Lipscomb—Provided an incorrect answer (‘‘N/A’’) to question #9, page 2 (i.e., did 

not provide documentation that the female bear killed was not part of a family 

group)—the Service’s attached notice to this effect expires on approximately 

May 10

Torry Lofgreen—Did not complete question #8, page 1 (did not provide license or 

permit number) 

Did not answer question #9, page 2 (i.e., did not provide size of hide in question 

#3, page 2) 

Perry Segura—Provided incorrect information in question #7, page 1 (gave Northwest Territories hunting licence number, rather than Federal fish and wildlife 

license or permit number) 

Carl Strawberry—Did not indicate a designated port for wildlife in question #6, 

page 1 (provided invalid information) 

Robert Van Horn—Did not indicate a designated port for wildlife in question #6, 

page 1

Charles Whitlow—Did not answer question #9, page 2 (i.e., did not provide size of 

tanned hide in question #3, page 2) Of the remaining 10 applications, no obvious errors or incomplete information were noted. 

I would like to note that five of the applications that failed to answer question 

#9, page 2 did not have Service notices to that effect attached to them. This appears 

to be an oversight on the Service’s part. Failure of the Service to provide these notices means either that these applications will be processed exceptionally slowly or 

that they will be improperly processed and possibly approved without ever having 

provided this necessary information. 

I would also like to note that of the three applications that provided the requested 

documentation regarding female bears (in response to either questions #8 or #9 on 

page 2), it is literally impossible to evaluate this documentation properly. In each 

case, an official of the Northwest Territories certified that the female bear was 

alone, but whether this certification was based on the certifying official’s (or other 

official’s) direct observation or the word of the applicant or guide is unknown. This 

is a point The HSUS made in its August 31, 1995 comments to the Service on the 

proposed rule; this method of certification is apparently based entirely (and inappropriately) on the honor system. 

Again, The HSUS feels the Service published 16 of these applications in the Federal Register inappropriately, either because they referred to trophies taken from 

deferred populations or because they provided inaccurate, incorrect, or incomplete 

information. We strongly recommend that permit applications not be published in 

the Federal Register until they are complete and accurate, so that only complete 

and accurate applications are provided to the public for comment. 

Once again, The HSUS wishes to express our objection to the processing of these 

permit applications at this time. Under no circumstances should the applications of 

R. Kuykendall and L. Adam be approved. 

Thank you for the opportunity to comment on this matter.

Sincerely,

Naomi A. Rose, Ph.D. 

Marine Mammal Scientist 

Wildlife and Habitat Protection 

May 12, 1997

U.S. Fish and Wildlife Service 

Office of Management Authority 

4401 N. Fairfax Dr., Room 430

Arlington, VA 22203

Attn: Lynn Noonan

TRANSMITTED BY FACSIMILE: 703/358-2281

RE: 62 FR 14437, Notice of Receipt of Applications for Permit 62 FR 17199, Notice 

of Receipt of Applications for Permit

Dear Ms. Noonan:

Thank you for forwarding the supplemental information provided to your office by 

several permit applicants pursuant to 62 FR 14437. Thank you also for the seven 

11

permit applications pursuant to 62 FR 17199. I believe I am one day late with these 

comments (in both cases), but nevertheless I am submitting them for the record. 

My only comment concerning the supplemental information refers to the information provided by Mr. Craig Leerberg, regarding his 1983 female polar bear trophy. 

He originally failed to respond to questions #8 and #9 on page 2 (I mistakenly commented on April 24 that he had only failed to respond to question #8—as your office 

correctly noted, he also failed to respond to question #9). His subsequent submission, a letter to you on his personal stationery, stating that the female bear was 

hunted in March 1983 and was alone and not nursing, is not sufficient to satisfy 

the regulations. 

While his hunting license date-of-issue is arguably sufficient to satisfy the documentation requirements of question #8 (since it was issued on March 1, 1983 and 

expired on June 30, 1983, the bear was not shot in the months of October, November, or December of that year), he has not provided any independent verification 

that the bear was not a part of a family group. His personal statement that the bear 

was alone and not nursing is not sufficient. His statement that ‘‘[whether the bear 

was part of a family group or not] was evidently not an issue with [the Game Department in Inuvik]’’ is completely irrelevant to the current requirements under the 

regulations. Mr. Leerberg must make an effort, as have several others, to acquire 

any records from the Inuvik officials that in some way indicate that this bear was 

alone when shot. He must also get their concurrence that the bear was not nursing; 

his statement alone does not satisfy the regulations. 

For the record, this is a perfect example of why the ‘‘honor system’’ is not adequate to prevent violations of the regulations. I am in no position to judge Mr. 

Leerberg’s veracity regarding the statements in his April 3 letter to you and neither 

are you. It is troublesome enough that certification from Canadian officials may be 

based merely on the word of the hunter and/or the hunt guide; it is certainly unacceptable for the hunter to bypass certification altogether merely because he ‘‘[does] 

not recall’’ an official recording the circumstances of his hunt. 

As for the permit applications pursuant to 62 FR 17199, I have no comments regarding the six applications that were complete. I await receipt of the supplemental 

information to be provided by Mr. David Anaman, regarding certification that the 

female bear he killed was not part of a family group. 

Again, I apologize for the tardiness of these comments and I hope your office will 

still consider them. Thank you for the opportunity to comment on this matter.

Sincerely,

Naomi A. Rose, Ph.D. 

Marine Mammal Scientist 

Wildlife and Habitat Protection 

Mr. GILCHREST. Thank you, Mr. Pallone. 

The Chairman of the full Committee, Mr. Pombo. 

Mr. PALLONE. Mr. Chairman, could I ask that the statement of 

our Ranking Member for the full Committee, Mr. Rahall, be submitted at this time? I ask unanimous consent. 

Mr. GILCHREST. Without objection. 

[The prepared statement of Mr. Rahall follows:]

Statement of The Honorable Nick J. Rahall, II, Ranking Democrat,

Committee on Resources 

Mr. Chairman, long gone are the days of the leviathan portrayed in Melville’s 

Moby Dick, when whole towns were built on the wealth that whale oil could provide. 

Long gone are the days when it was morally justifiable to hunt a species like the 

blue whale to within a blink of extinction. 

Today, humankind’s relationship with the ocean is defined by the sense of wonder 

that whales, dolphins, and other marine mammals inspire and by a conviction to 

protect this natural biodiversity. 

When the Marine Mammal Protection Act (MMPA) was enacted in 1972, it was 

with this vision of protection and precaution. It was to right the ecological wrongs 

wreaked by generations of wanton slaughter driven by our collective greed for the 

products that marine mammals supplied. 

It was to provide a moratorium on the taking of marine mammals, in order to 

maintain and rebuild healthy populations of whales and dolphins, seals and sea 

12

lions, and other marine mammals, except in certain very specific and tightly regulated instances. 

To a noteworthy extent, protection and precaution have paid off. We should celebrate that some marine mammal species have recovered to estimated pre-harvest 

levels. But we should not be lulled into a false sense of complacency, allowing Flipper and Keiko to survive only in animation. 

Many populations, such as North Atlantic right whales and bowhead whales in 

the Arctic, remain endangered. We also cannot ignore that the full breadth and intensity of human activity in the ocean, including shipping, oil and gas exploration, 

and military activity, has a profound effect on marine mammals, even if we do not 

seek to kill them outright. 

Our nation is at a critical crossroads of how we define our relationship to the 

ocean. The report just released by the Pew Commission in June challenges the 

United States to develop a new ocean ethic and to treat the ocean as a public domain that we, as a Congress and as a people, hold in trust for future generations. 

How we re-define our relationship to marine mammals is central to establishing this 

new ethic. 

The reauthorization of the MMPA provides us the immediate opportunity to preserve and uphold an important precedent. Hundreds of years of harvesting the 

ocean have taught us valuable lessons, one being that the ocean is not provided solely for human use, or that marine resources are available in infinite abundance. We 

should cast off and discard permanently the idea of consumptive use of marine 

mammals, except in legitimate circumstances for native subsistence. 

We need an MMPA that embraces the success of precautionary protection and 

links it with our enhanced understanding of the ocean environment and the magnitude of our disruption of ocean ecosystems. 

We can accomplish this by identifying and mitigating a wider range of human activities in the oceans that can harm marine mammals. We should critically evaluate 

activities such as shipping, which contribute to the overall level of noise in the 

ocean and often steer a collision course through pods of endangered whales. 

We need to understand and better control how pollution from land ends up in the 

ocean and accumulates in the tissues of marine mammals. We must fund basic research on marine mammals from sources other than the Navy, to enhance our understanding of marine mammal abundance, biology, and ecology and to apply the 

best available science to our management decisions. 

We need to bolster our support for the Marine Mammal Commission and for programs such as the Stranding and Entanglement Response Network, to ensure that 

emerging threats to marine mammals can be dealt with expeditiously. 

Unfortunately, H.R. 2693, the bill before the Fisheries Conservation, Wildlife, and 

Oceans Subcommittee today, would undercut the MMPA’s broad mandate for protection. It would allow the Secretary alone to grant a general authority for a range of 

unspecified ‘‘activities’’ that could harass, injure, or even kill a marine mammal. It 

would also revise the definition of ‘‘harassment’’ to make it less protective of marine 

mammals in instances that might cause direct injury. 

I am certain that Congress can unite in improving the MMPA. All of America 

loves Flipper and Keiko. Whale watching brings $1 billion to the global economy 

each year, and is worth hundreds of millions of dollars annually in the United 

States. Sea World alone nets $12 million each year. 

Rather than decimating whale stocks as we did in the 1800s to satisfy our greed 

for their oil and fur, we should strive to maintain healthy populations both in the 

wild and in captivity to benefit both the animals themselves and our economy as 

a whole. 

Some critics might argue for the ‘‘sustainable use’’ of marine mammals, a concept 

enshrined for fisheries under the Magnuson-Stevens Fisheries Conservation and 

Management Act. 

But rather than consumptive use at all, I urge a true ‘‘sustainable use’’ of marine 

mammals through whale watching, carefully regulated public display, enhanced 

public education and outreach, and robust scientific inquiry that would best serve 

the long-term interests of both marine mammals and humankind. 

We should not demote majestic and intelligent marine mammals to the status of 

cold-blooded fish. Few fish have been both the stars of TV shows and comrades in 

combat to U.S. soldiers in foreign countries. 

The Marine Mammal Protection Act has always recognized that important fundamental distinction. It will be our challenge to keep that perspective foremost in our 

thoughts as we look to reauthorize and modernize this landmark environmental 

statute. 

Thank you. 

13

Mr. GILCHREST. The witnesses this morning will be Dr. Rebecca 

Lent, Deputy Assistant Administrator for Fisheries, National 

Marine Fisheries Service; Mr. Marshall Jones, Deputy Director, 

U.S. Fish and Wildlife Service—we may have some questions to 

you about Nutria. I am not sure if you are going to deal with that 

issue. [Laughter.] Make sure all the funding goes to where it is 

supposed to go. The intent of Congress seems to disappear once the 

bill leaves the Hill. 

Mr. David Cottingham, Executive Director, Marine Mammal 

Commission, welcome. And Dr. Peter Tyack, Conservation Biologist, Woods Hole Oceanographic Institution in Massachusetts. 

Thank you, sir. And Dr. Peter Worcester—that is just like the 

county in Maryland. Dr. Peter Worcester, Oceanographic 

Researcher, Scripps Institution of Oceanography, University of 

California at San Diego. Welcome. 

We look forward to your testimony. Dr. Lent, you may begin. 

STATEMENT OF DR. REBECCA LENT, DEPUTY ASSISTANT 

ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE 

FISHERIES SERVICE 

Dr. LENT. Thank you, Mr. Chairman, members of he Subcommittee. I want to commend you and your staff for your hard 

work and dedication to the improvement of marine mammal conservation and management, as evidenced in H.R. 2693. My testimony today will focus on H.R. 2693 and the administration’s 

MMPA bill. 

I also want to focus right up front here on an issue that has arisen to the forefront of the reauthorization discussion, and that is scientific research permits. 

NOAA Fisheries issues scientific research permits to scientists 

who want to conduct marine mammal and endangered species research. Because the topic of permits can be quite confusing, I want 

to point out two distinctions. First, there is a difference between 

permits that are for activities directed at marine mammals and incidental take authorizations for activities that may incidentally or 

indirectly affect marine mammals, such as seismic exploration or 

naval training exercises. 

Second of all, there is an important difference between scientific 

research permits that pertain to marine mammals that are not listed as threatened or endangered under the Endangered Species Act, 

or ESA, and those that are under ESA. Permits and general authorizations that deal with non-ESA-listed marine mammals, such 

as bottlenose dolphins, are almost always issued in a timely manner and generally are not controversial. We strongly feel that these 

types of permits do not present problems that need to be addressed 

during reauthorization. 

The challenges we face in recent years with issuing scientific permits are related to endangered marine mammals, such as right 

whales and Stellar sea lions. For ESA-listed species, we have to 

meet our statutory obligations under ESA by doing Section 7 analyses, or biological opinions. In addition, we have to look at the potential impacts of the research under the National Environmental 

Policy Act, or NEPA. In the future, we plan to develop programmatic NEPA and ESA documents which we hope will help 

14

front-load these processes and give us some more streamlined permitting process. But we don’t see any need to make changes on the 

MMPA scientific research permitting process, because it is working 

well. 

Let me turn to the definition of harassment. We are pleased that 

H.R. 2693 recognizes the need to clarify that definition and to 

focus on the impacts that are biologically significant. We have had 

difficulties at NOAA Fisheries in interpreting, implementing, and 

enforcing the current harassment definition, and we are seeking to 

address those problems in our bill. We support many of the 

changes in H.R. 2693, such as deleting the term ‘‘pursuit, torment, 

or annoyance,’’ and the clarification that harassment can be any 

act; and also, addressing activities that are directed at marine 

mammals. 

Regarding the changes that H.R. 2693 would make to Level A 

harassment, we would like to work with you to get clarification on 

the term ‘‘probability to injure.’’ We are concerned that ‘‘probability’’ may imply that a particular outcome is more likely to occur 

than not. This might create too high of a standard for—a threshold 

to get Level A harassment, and make it difficult for us to regulate 

certain acts. 

Again, we support the intent of the bill’s proposed changes to the 

current definition of Level B harassment, but we note that we are 

concerned about ‘‘potential to disturb.’’ 

Regarding incidental— 

Mr. GILCHREST. Dr. Lent, did you say you were OK with Level 

B harassment in H.R. 2693? 

Dr. LENT. We support the intent of the bill’s proposed changes 

to the current definition of Level B harassment. We appreciate the 

fact, Mr. Chairman, that you started off by saying this is a starting 

point and issues for discussion. We look forward to working with 

you on that. 

Incidental takings of marine mammals, we support H.R. 2693’s 

deletion of the terms ‘‘small numbers’’ and ‘‘specified geographic region.’’ It is not going to change the applicant’s requirements to 

show that their activities are having a negligible impact, and it 

won’t change our evaluation of applications based on the biological 

significance of the action. 

Regarding take reduction teams and take reduction plans, we 

support a number of the marine mammal bycatch provisions in 

H.R. 2693, including the expansion of Section 118 requirements to 

allow consideration of all important fishery-related consequences of 

marine mammal bycatch, or sources of marine bycatch. 

We do have concerns about provisions that might limit our authority to monitor bycatch in certain fisheries. We also are concerned about mandatory Federal Government representation on 

take reduction teams, and potentially requiring reconvening take 

reduction teams after the plan development is complete. 

There is more detail in my written testimony, but I want to note 

that we also support—NOAA also supports a number of other provisions in H.R. 2693, including those that deal with prohibiting the 

release of captive marine mammals without prior authorization, 

language to improve marine mammal stranding and entanglement 

response. However, we do have concerns about the Section 14 lanVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
15

guage regarding the general authorization process. And again, we 

would appreciate an opportunity to work with you on this language. 

Additionally, there are some provisions in the administration’s 

bill that were not addressed in H.R. 2693. We want to draw your 

attention to those quickly, including other marine mammal bycatch 

reduction initiatives, improving harvest management agreements, 

enhancing enforcement, dealing with ship strikes of large whales, 

prohibiting traveling cetacean exhibits, and correcting inconsistencies in the export prohibition language. 

In closing, I would like to note that H.R. 2693 takes many important steps toward improving the policies that cover marine 

mammal conservation, and we look forward to working with you. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Lent follows:]

Statement of Dr. Rebecca Lent, Deputy Assistant Administrator for 

Fisheries, National Marine Fisheries Service, National Oceanic and 

Atmospheric Administration, U.S. Department of Commerce 

Mr. Chairman and Members of the Subcommittee, I am Dr. Rebecca Lent, Deputy 

Assistant Administrator for Regulatory Programs at the National Oceanic and Atmospheric Administration (NOAA). Thank you for inviting me to testify before you 

today on H.R. 2693 and other Marine Mammal Protection Act (MMPA) reauthorization issues. Additionally, special thanks to you and your staff for your hard work 

and dedication to the improvement of marine mammal conservation and management policies in the development of H.R. 2693. 

NOAA Fisheries administers the MMPA, the principal Federal legislation that 

guides marine mammal protection and conservation policy in U.S. waters, in conjunction with the U.S. Fish and Wildlife Service (FWS). The MMPA provides NOAA 

with conservation and management responsibility for more than 140 stocks of 

whales, dolphins, porpoises, seals, and sea lions. 

The Administration strongly supports the conservation and management principles embodied in the MMPA and the need to reauthorize this important legislation. As you know, the Department of Commerce and NOAA have worked closely 

over the past three years with the Department of the Interior, Department of Defense, Marine Mammal Commission, and others to develop a sound Administration 

proposal to reauthorize the MMPA. In February 2003, we transmitted this Administration bill to Congress. My testimony today includes NOAA Fisheries’ views on 

H.R. 2693, as well as a description of some elements of the Administration’s MMPA 

reauthorization bill that we hope the Subcommittee will take into further consideration. I would like to begin my testimony today, however, by discussing an emerging 

issue that has recently risen to the forefront of the MMPA reauthorization discussion—that of scientific research permits and the process of issuing those permits. 

Scientific Research Permitting Process 

NOAA Fisheries is a science-based agency. We conduct marine mammal research 

and stock assessments at all of our regional science centers and we help fund and 

support marine mammal research projects conducted by many scientists outside the 

agency. Our Marine Mammal Permits, Conservation and Education Division is part 

of our headquarters Office of Protected Resources. This Division issues scientific research permits to conduct marine mammal and endangered species research by all 

scientists. 

There is a distinction between permits that are for activities directed at marine 

mammals and incidental take authorizations for activities that may indirectly or incidentally affect marine mammals through activities such as seismic exploration or 

naval training exercises. Sections 101 and 104 of the MMPA lay out different authorization processes for activities involving incidental and directed impacts. It is 

logical to handle these processes separately, since the intent and type of impact associated with incidental vs. directed activities is different. Activities that are directed at marine mammals involving scientific research, for instance, by their nature are repetitive. Incidental activities involve indirect, unavoidable impacts on 

marine mammals that often must be looked at on a different scale. We are also 

working to improve the information underlying such permits. For example, we have 

16

held several meetings with stakeholders to ascertain how marine mammal stock assessments can be improved to meet regulatory compliance needs. 

It is also very important to recognize the distinction between scientific research 

permits that pertain to marine mammals that are not listed as threatened or endangered under the Endangered Species Act (ESA) and those permits that address 

ESA-listed species. Permits and General Authorizations that deal with non-ESA-listed marine mammals, such as bottlenose dolphins, are almost always issued in a 

timely manner and are generally not controversial. We feel strongly that these permits present no problems that need to be addressed during reauthorization. 

The challenges that we have had in recent years with issuing scientific research 

permits are related to endangered marine mammals, such as right whales, other 

large whales, and Steller sea lions. For these ESA-listed species, we need to meet 

our statutory obligations under the ESA by conducting ESA Section 7 analyses. In 

addition, the potential impacts of the research are analyzed under the National Environmental Policy Act (NEPA). While we conduct NEPA analyses for non-listed 

species, the analyses and corresponding documents are more complex when the 

species in question is listed under the Endangered Species Act. In order to consider 

the cumulative and synergistic impacts of all the research conducted on these 

species, it might be necessary to prepare an Environmental Assessment or full Environmental Impact Statement. This has presented the agency with significant challenges. 

For example, there has been much criticism of the time it has taken to issue a 

right whale research permit for the New England Aquarium. NOAA Fisheries must 

review research permits involving right whales with particular scrutiny because 

these animals are critically endangered. In addition to the New England Aquarium’s 

proposed research, there have been a number of other right whale research proposals that have been submitted to NOAA Fisheries, some of which contained a 

number of controversial research activities. The Permits Division staff have been 

working closely with NOAA Fisheries marine mammal scientists and with the 

Marine Mammal Commission to determine how best to address these issues. The 

intent is to complete all the necessary analyses under Section 7 and NEPA, so that 

permit decisions can be made in advance of the upcoming fall/winter field season 

in the Atlantic. 

In the interim, NOAA Fisheries has made arrangements to accommodate most of 

the New England Aquarium’s research in U.S. waters under existing scientific research permits such that field opportunities are not lost. In addition, this and other 

research critical to the protection of right whales, including disentanglement efforts 

and aerial surveys needed for the Early Warning System, have been continuing 

under existing permits. 

In addition, on more than one occasion, we have been able to expedite scientific 

research applications for ESA-listed species of marine mammals on very short notice 

when valuable research opportunities would otherwise be lost. For instance, we recently processed an application for a study involving acoustic research on endangered sperm whales within 42 days (including the statutorily mandated 30-day public comment period) of receipt of the complete application, well under the typical 

225-day timeframe allotted for processing this type of permit. 

In summary, we face significant challenges in addressing endangered marine 

mammal research permits because of the sometimes complex and time-consuming 

ESA and NEPA requirements and the importance of the analysis when the research, which sometimes involves direct contact with the animal, is conducted on 

highly endangered animals. We attempt to address these requirements as thoroughly as possible to ensure that we can use information from the analyses as the 

basis for sound decision-making, as well as to prevent legal vulnerabilities that may 

further delay the permitting process. Additionally, addressing these requirements 

enables us to integrate public input into our analyses. In the future, we plan to develop programmatic NEPA and ESA documents that would help front-load these 

processes, and allow a much more streamlined permitting process. However, we see 

no need to make changes in the MMPA scientific research permitting process, because that process works well. 

NOAA Fisheries has been criticized over the time it takes to process requests for 

authorizations to take marine mammals incidental to activities they are undertaking. We believe, however, that we have a good record of working with a varied 

group of interests, including seismic operators conducting oil and gas-related activities, military agencies, state transportation agencies, and others, to authorize incidental taking, when they come to us early in their project planning. The Act establishes various standards that must be met, which require a variety of findings to 

be made. When the marine mammals to be taken are listed under the Endangered 

Species Act, that law applies as well. In each case, we initiate public review and 

17

some level of NEPA analysis. For projects that are likely to take marine mammals, 

we encourage potential applicants to inquire early about our procedures for authorizing incidental takings as they are planning these projects. 

H.R. 2693

Definition of Harassment 

NOAA Fisheries is pleased that the need to clarify the definition of harassment 

has been addressed in H.R. 2693. We have experienced difficulties interpreting, implementing, and enforcing the current harassment definition and have sought to address these problems in the Administration’s reauthorization bill in a similar manner as H.R. 2693. 

The current definition of harassment impedes NOAA’s ability to adequately enforce the MMPA’s take provisions. As the definition is currently written, only those 

acts involving ‘‘pursuit, torment, or annoyance,’’ terms that are undefined in the 

MMPA, can be addressed. Additionally, these terms in the current definition establish a difficult two-tiered standard that the agency must meet before it can prosecute anyone who takes a marine mammal by harassment. First, the agency must 

prove that an individual act was one of ‘‘pursuit, torment, or annoyance.’’ Then, the 

agency must prove that the act has the potential either to injure or disturb a marine 

mammal. We support H.R. 2693’s deletion of the terms ‘‘pursuit, torment, or annoyance’’ in the current definition, eliminating the two-tiered standard. We also support 

the clarification that harassment can be ‘‘any act.’’ The Administration bill proposes 

the same change, and we feel this will aid enforcement of the harassment standard. 

We support H.R. 2693’s inclusion of the second tier of the Level B harassment 

definition similar to the Administration’s reauthorization bill, which makes explicit 

that activities that are directed at individual or groups of marine mammals that are 

likely to disrupt important marine mammal behaviors constitute harassment. Members of the public and commercial operators who intentionally interact with wild 

marine mammals either by boat, in the water, or on land can disturb the natural 

behavior of the animals. They can also do a great disservice to these animals over 

time by habituating them to humans and vessels. In addition, humans who attempt 

to closely approach, chase, swim with, or touch wild marine mammals place themselves at risk, since wild animals are unpredictable and can inflict serious injury 

if threatened or afraid. 

We also conceptually support the proposed changes H.R. 2693 would make to 

Level A and B harassment. The current definition of harassment is broad and lacks 

precision, thereby failing to create a clear threshold for acts that do and do not constitute harassment. As a result, it is difficult for the agency to prioritize its resources to deal with the types of harassment that have the most negative effects 

on marine mammals. With regard to the changes H.R. 2693 would make to Level 

A harassment, we ask for clarification of the intent of the term ‘‘probability to 

injure.’’ Specifically, we are concerned that since ‘‘probability’’ often implies that a 

particular outcome is more likely to occur than not, this standard may create too 

high a threshold for an act to constitute Level A harassment and make it difficult 

for the agency to regulate some acts that may have important negative impacts on 

marine mammals. We support the intent of the bill’s proposed changes to the current definition of Level B harassment. These changes will help NOAA Fisheries and 

the regulated community focus on activities that result in biologically significant, 

harmful effects rather than those activities that result in de minimus impacts on 

marine mammals. Overall, the proposed definition of harassment contained in 

H.R. 2693 is similar in intent to the one in the Administration’s proposal. Both proposed definitions will result in more meaningful protections for marine mammals 

and apply a clearer standard of harassment to the entire regulatory community. 

We are concerned about the ‘‘potential to disturb’’ threshold set forth in the second clause of the proposed harassment definition. The agencies that developed the 

Administration’s proposed definition rejected this language as being overly broad, 

inasmuch as it would include even a very remote possibility that disturbance might 

occur. We believe that the standard included in the Administration’s proposal, ‘‘disturbs or is likely to disturb,’’ provides a more appropriate delimitation concerning 

what activities should be covered under this part of the harassment definition. 

Incidental Takings of Marine Mammals 

H.R. 2693 would amend several parts of the current legislative requirements that 

authorize incidental take (Section 101(a)(5) of the MMPA). Incidental takes are 

those that are unintentional and may occur during otherwise lawful activities. 

Under the present scheme, NOAA Fisheries is directed to authorize the takes of 

small numbers of marine mammals if the takings will have no more than a negligible impact on those marine mammal species or stocks, and will not have an 

18

unmitigable adverse impact on subsistence harvests of these species. Through regulation, NOAA Fisheries has defined ‘‘negligible impact’’ as ‘‘an impact resulting from 

the specified activity that cannot be reasonably expected to, and is not reasonably 

likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.’’

H.R. 2693 would delete the ‘‘small numbers’’ standard in Section 101(a)(5) of the 

MMPA and would no longer require that activities authorized under this section be 

limited to a ‘‘specified geographic region.’’ These proposed amendments do not 

change the applicant’s requirement of having to show that their activities are having a negligible impact on the marine mammal species and populations before they 

can be authorized. Nor do they change the requirement for the applicant to demonstrate that their activities will not have an unmitigable adverse impact on the 

availability of such species or stocks for subsistence uses pursuant to the MMPA. 

These analyses are the key elements to maintaining the health of marine mammal 

species and are the premise for incidental take authorizations under the MMPA. Applicants seeking incidental take authorizations for their activities will still have to 

submit sufficient information to provide for compliance with all requirements of the 

ESA, NEPA, and the Administrative Procedure Act (APA), where they apply. 

Thus, to make the requisite negligible impact determination and to comply with 

other environmental laws, NOAA Fisheries would still have to know what activities 

would be taking place, as well as when and where they would occur under the language proposed by H.R. 2693. Incidental take applications are currently evaluated 

based on the biological significance of the effect that their actions would have on 

marine mammals. This will not change under the amendments proposed in 

H.R. 2693. NOAA Fisheries supports these amendments. 

General Authorization Process 

NOAA Fisheries appreciates the attention towards the authorization process for 

activities involving incidental takes in Section 14 of H.R. 2693. Nonetheless, we 

have several questions and concerns about the effect of this section on the incidental 

take authorization process. Specifically, it is not clear what is the intended interplay 

between this section and the bill’s proposed amendments to the harassment definition. In addition, it is not clear what is the intended interplay between this subsection and subsections related to incidental take and harassment authorizations. 

It is also not clear how NOAA Fisheries could make the requisite negligible impact 

determinations and comply with other laws such as NEPA and the APA within the 

timelines provided. We would like to request follow-up discussions with you and 

your staff to better understand the intent behind this section of the bill and its effect on implementation before we provide further comment on these amendments. 

Take Reduction Plans 

The incidental take of marine mammals in the course of fishing operations continues to be a large source of marine mammal mortality and serious injury. The 

1994 amendments to the MMPA outlined an effective approach to monitoring and 

addressing the incidental take of marine mammals by commercial fisheries. NOAA 

Fisheries appreciates the steps that H.R. 2693 takes toward improving the approach to marine mammal bycatch reduction efforts. 

Expansion of Sec. 118 Requirements to Allow Agency to Address All Important 

Sources of Marine Mammal Bycatch 

The Administration bill contains several amendments aimed at better managing 

and monitoring marine mammal bycatch. For example, the Administration bill 

would expand the Section 118 requirements, which outline a program for monitoring, tracking, and reducing marine mammal bycatch in commercial fisheries, to 

non-commercial fisheries that result in frequent or occasional incidental mortality 

and serious injury of marine mammals. Some non-commercial fisheries, including 

recreational fisheries, use gear that is identical to that used by commercial fishermen and deploy it in the same manner. As a result, they can be an important source 

of incidental mortality and serious injury of marine mammals. Nonetheless, the 

MMPA currently only authorizes the agency to place observers and use the take reduction process outlined in Section 118 of the Act to monitor and address marine 

mammal bycatch resulting from commercial fisheries. We are pleased that 

H.R. 2693 contains amendments similar to those proposed in the Administration 

bill that would allow NOAA Fisheries to address all important fishery-related 

sources of marine mammal bycatch and to treat different fishing sectors more 

equitably. 

19

Increased Flexibility to Establish Take Reduction Plans, Prepare Take Reduction 

Plans, Meet Bycatch Reduction Goals 

H.R. 2693 would give NOAA Fisheries increased flexibility in the time allotted to 

convene a Take Reduction Team (TRT) following issuance of final Stock Assessment 

Reports. It would also increase the time within which Take Reduction Plans (TRPs) 

must meet the short-term goal of Section 118—reducing marine mammal mortalities 

and serious injuries in the course of fishing operations to levels below a marine 

mammal stock’s potential biological removal (PBR)—from 6 months to 9 months. 

Additionally, the bill would give TRTs additional time to submit draft TRPs to 

NOAA Fisheries, and the agency more time to prepare and publish proposed and 

final regulations implementing TRPs. We support these amendments. The amended 

deadlines are more achievable than the current statutory deadlines and they would 

not compromise efforts to conserve marine mammal stocks in a substantial way. In 

addition, the proposed statutory deadlines would make it easier for the agency to 

comply with other statutory requirements, such as NEPA and ESA. 

Limited Authority to Monitor Bycatch in Some Fisheries 

We do have a few concerns about the effect of the proposed language in Section 

6 of H.R. 2693. For example, the portions of H.R. 2693 that amend the portion of 

the MMPA dealing with monitoring of incidental takes would limit the agency’s ability to monitor Category III fisheries, those that have a remote likelihood of or no 

known incidental mortality of marine mammals. Several fisheries currently listed 

as Category III have historically taken marine mammals, or are very close to the 

threshold between Category III and Category II. Thus, it is important for NOAA 

Fisheries to have the ability to continue monitoring marine mammal bycatch in 

these fisheries at least on some basis to ensure that takes are kept at low levels. 

Additionally, there may be some unintended effects in other parts of this section 

that could result from different terms describing the types of fisheries in conforming 

amendments to this section. NOAA Fisheries is also concerned with the compressed 

timeline for us to develop new information for any necessary changes to the list of 

fisheries under this section. 

Required Representation on Take Reduction Teams 

H.R. 2693 would require NOAA Fisheries staff with specific responsibilities or expertise to serve as formal members of TRTs. While it is useful to have such expertise available to the TRT, NOAA Fisheries does not feel it is necessary to require 

in the statute such representation on TRTs for a number of reasons. First, the agency already has the authority and flexibility to place representatives of Federal agencies, including NOAA Fisheries, on take reduction teams when necessary. Second, 

TRTs as currently constructed offer a unique opportunity for public stakeholders 

and other entities to advise NOAA Fisheries on ways to address incidental take of 

marine mammals. Third, NOAA General Counsel, and NOAA Fisheries Regional 

Administrator representatives, scientists, and enforcement specialists are already 

actively involved in the take reduction plan development process and routinely attend TRT meetings, offering their expertise as needed. Requiring their membership 

on TRTs could pose potential problems to the viability of the process if personnel 

and resources are limited. Rather than making their membership on TRTs a strict 

legal requirement, we recommend changing H.R. 2693 to simply encourage that 

such staff be present and active in TRT meetings, which is already the case. If the 

Committee does not feel that the current practice has produced the needed level of 

technical expertise available to the TRT, we would be happy to work with you to 

resolve this issue. 

Requirement to Reconvene TRT after Take Reduction Plan Development 

H.R. 2693 would require the Secretary to reconvene the TRT and explain differences between draft and final Take Reduction Plans (TRPs) before publishing any 

TRP that is different from the draft plan proposed by the TRT. NOAA Fisheries believes that it is important to conduct the TRP development process in as open a 

manner as possible, however the proposed language in H.R. 2693 is unnecessarily 

restrictive, as it could require the agency to reconvene the TRT regardless of the 

degree of change between the draft and proposed plans. NOAA Fisheries already 

provides the TRT all the scientific and other information used to develop the final 

regulations implementing a TRP throughout the process. Additionally, we actively 

encourage TRT members to comment on the proposed regulations to implement the 

TRT, and will often hold meetings during the public comment period to alert TRT 

members to the content of the final TRP. 

Since TRTs do not submit their recommendations in regulatory form, some alteration is inevitable during this process. While it is possible that changes may be subVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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stantial, the vast majority of changes made to a TRT’s recommendations have historically been technical in nature, and therefore, relatively minor. Under H.R. 2693, 

NOAA Fisheries would be required to reconvene a TRT even for minor or trivial 

changes to a TRP. Such a requirement could lead to unnecessary delays in finalizing 

and implementing a TRP, and unnecessary expense. NOAA Fisheries recommends 

altering this section to give the agency the flexibility to either reconvene, or otherwise consult with, the TRT regarding changes to the TRP during the public comment period soliciting comments on the proposed TRP. This would allow the agency 

to choose the most suitable type of communication with the TRT based on the nature of changes between draft and proposed TRPs, and would allow us to address 

TRT concerns with potential changes before the proposed TRP becomes final. Alternatively, the Subcommittee may wish to qualify what degree of change would require NOAA Fisheries to reconvene the TRT. 

Pinniped Research 

H.R. 2693 would require NOAA Fisheries to initiate a research program to investigate non-lethal methods to remove or control nuisance pinnipeds. We agree that 

such a research program would be beneficial. NOAA Fisheries issued a Report to 

Congress in 1999 entitled, Impacts of California Sea Lions and Pacific Harbor Seals 

on Salmonids and West Coast Ecosystems. Among other things, that study 

concluded that, ‘‘[T]here is a pressing need for research on the development and 

evaluation of deterrent devices and further exploration of other non-lethal removal 

measures....’’ While we are pleased that certain stocks of marine mammals are 

healthy, we recognize the problems that increasing pinniped populations pose, especially on the West Coast. 

Captive Release Prohibition 

NOAA Fisheries supports H.R. 2693’s amendment clarifying that it is unlawful 

to release any captive marine mammal without prior authorization, with the understanding that it should not involve releases from temporary captivity or holding during permitted research; releases related to strandings; releases or disentanglements 

from fishing gear or line that are covered under other authorities of the MMPA; or 

the temporary release of marine mammals, or the progeny of marine mammals, 

maintained by the Department of Defense for military and research purposes if the 

animals involved are maintained under the authority of 10 U.S.C. § 7524. Within 

the scientific community, the release of marine mammals held in captivity for extended periods of time is regarded as potentially harmful to both the animals released, as well as the wild populations they encounter. Fundamental questions remain as to the ability of long-captive marine mammals to forage successfully, avoid 

predators, and integrate with wild populations. Unauthorized releases pose serious 

risks of disease transmission, inappropriate genetic exchanges, and disruption of 

critical behavioral patterns and social structures in wild populations. NOAA Fisheries supports this proposed statutory change, and notes that the Administration 

bill contains a similar amendment. 

Stranding and Entanglement Response 

NOAA Fisheries scientists must often respond immediately to marine mammal 

stranding and entanglement events to attempt to rescue and rehabilitate animals 

in jeopardy. These events provide the agency with opportunities to save individual 

animals, as well as to conduct close-up research on animal behavior, biology, and 

physiology. The MMPA currently provides for a comprehensive program to address 

stranded marine mammals, but does not specifically give NOAA Fisheries the authority to address marine mammals that have become victims of entanglement in 

fishing gear or other materials. NOAA Fisheries supports amendments contained in 

H.R. 2693 that would add a definition of entanglement to the Act and would require 

NOAA Fisheries to collect information on rescue and rehabilitation of entangled 

marine mammals in addition to stranded animals. We also support amendments to 

expressly enable the Secretary to enter into agreements with individuals to respond 

to entangled marine mammals in addition to stranded marine mammals. The Administration bill includes similar amendments, which will enhance stranding and 

entanglement response efforts. 

Limited Authority to Export Marine Mammal Products 

The 1994 MMPA amendments authorized imports of marine mammal products in 

conjunction with travel outside the United States by a U.S. citizen, or for purposes 

of cultural exchange between Native inhabitants of Russia, Canada, or Greenland 

and Alaska Natives. However, the provision did not accommodate corresponding exports. We support the proposed amendment in Section 4 of H.R. 2693 that would 

clarify that exports, as well as imports, are permissible under the MMPA subject 

21

to certain conditions. We suggest the bill clarify that exports shall be limited to noncommercial purposes in conjunction with travel outside the United States. Additionally, we note and ask the Subcommittee to consider that other sections of the 

MMPA could also be affected by this proposed change including, but not limited to, 

the legal sale of handicrafts sold by Native Alaskans intrastate but not allowed for 

export. The Administration’s proposal contains technical amendments that ensure 

consistency throughout the statute. We stand ready to work with the Subcommittee 

on these and other issues relating to Section 4 of the bill. 

Other MMPA Reauthorization Issues 

NOAA Fisheries encourages the Subcommittee to consider several additional important reauthorization issues contained in the Administration bill. Each of these 

areas is described below. 

Other Marine Mammal Bycatch Reduction Initiatives 

Again, we support amendments in H.R. 2693 that will allow the agency to address marine mammal bycatch from all important fishery sources. We request that 

other bycatch reduction initiatives that are contained in the Administration bill are 

considered, in particular, the following amendments: 1) Section 409, which aims to 

improve information on marine mammal bycatch by directing the agency to explore 

new technologies to provide statistically reliable data on marine mammal bycatch 

levels; 2) Section 516, which directs the Secretary of Commerce to undertake a research and development program to encourage development of fishing gears and 

methods that reduce marine mammal bycatch; and 3) Section 402(f), which requires 

NOAA Fisheries to include technical liaisons with expertise in commercial fishing 

practices as members of take reduction teams (TRTs). 

Harvest Management Agreements 

The 1994 MMPA amendments gave NOAA Fisheries and the FWS authority to 

enter into cooperative agreements with Alaska Native Tribes or Tribally Authorized 

organizations to conserve marine mammals and co-manage subsistence use by Alaska Natives. These amendments provided a great beginning and the program has 

yielded some successes, evidenced by the agreements that we have reached to comanage subsistence harvest of harbor seals, beluga whales, and other marine mammals. Nonetheless, the effectiveness of these agreements at this point relies on voluntary compliance by Alaska Natives, since there is no mechanism under the 

MMPA to enforce any restrictions developed through harvest management agreements for subsistence purposes. Additionally, the other provisions of the Act enable 

effective regulation of subsistence harvest only after designation of a marine mammal stock as depleted. The Administration bill would authorize co-management 

partners to develop a management plan through which cooperative agreements 

could be enforced. Thus, it would enable the parties to effectively manage subsistence harvest prior to a depletion finding, and ensure the greatest conservation benefit to the marine mammal stock. 

Enhancing Enforcement 

While several sections of the MMPA have been updated since the Act was first 

passed in 1972, some areas remain extremely outdated. One such area is the penalties that may be imposed for violations of the MMPA. Currently, individuals who 

violate the MMPA are subject to civil penalties of up to $10,000 and criminal fines 

of up to $20,000. These penalties have remained unchanged since 1972. While these 

levels may be appropriate in some instances, they have proven grossly inadequate 

in others, undermining effective enforcement of the Act. To enhance enforcement of 

the Act, the Administration bill would authorize the Secretary to impose a civil penalty of up to $50,000 for each violation. Fines of up to $100,000 for each criminal 

violation would also be available in suitable cases. 

The Administration bill would also aid enforcement efforts by explicitly stating 

that individuals who interfere with on-board investigations by enforcement agents 

or submit false information are in violation of the MMPA. In addition, the Administration bill would expand enforcement capabilities by directing the Secretary to take 

steps to enter into cooperative enforcement agreements with states. 

Ship Strikes 

Ship strikes continue to be a leading source of mortality of the critically endangered North Atlantic right whale and other large whales. Between 1970 and 2000, 

there were 48 known right whale mortalities, of which 16 were determined to be 

due to ship strikes. This number may be significantly higher, inasmuch as we were 

unable to attribute a cause to 13 other right whale mortalities known to have occurred during this period. The Administration bill would authorize the Secretary to 

22

use the various authorities available under the MMPA to reduce the occurrence of 

ship strikes of whales and to encourage the development of methods to avoid ship 

strikes. 

Traveling Exhibits 

We remain concerned about the risks posed to cetaceans by traveling exhibits. Unlike some marine mammals, such as seals and sea lions, which spend time in both 

aquatic and terrestrial environments, cetaceans must remain buoyant at all times. 

Therefore, their health and survival depends heavily on having a continuously clean 

and safe aquatic environment, conditions that are difficult to maintain when transport is frequent. Because transporting cetaceans is difficult and risky, traveling exhibits would place these animals under enormous stress. The Administration bill 

would reinstate the ban on traveling exhibits for cetaceans, originally instituted in 

the mid-1970s. 

Export Prohibition 

As part of a package of permit-related amendments, the 1994 MMPA amendments 

added a prohibition on exporting marine mammals. However, the language of this 

prohibition has created some difficulties in enforcement and inconsistencies with 

other provisions of the MMPA, especially provisions related to permits. Therefore, 

the Administration bill would revise the export prohibition and make corresponding 

changes to other provisions of the MMPA to clearly identify those instances when 

export, transport, sale, or purchase of a marine mammal or marine mammal product is prohibited or may be authorized. 

Conclusion 

Reauthorization of the MMPA provides an important opportunity to further 

strengthen efforts to conserve and recover marine mammals. H.R. 2693 takes many 

important steps toward improving the policies that govern marine mammal conservation and recovery and I thank you and your staffs again for all your hard work 

and dedication to these important issues. Additionally, my staff and I look forward 

to future coordination with you and interested members of the public to meet the 

challenges that face us in better protecting marine mammals, while balancing 

human needs, throughout the reauthorization process. 

This concludes my testimony. Thank you again for the opportunity to testify before your Subcommittee today. I would be happy to answer any questions you may 

have on H.R. 2693, the Administration’s MMPA reauthorization bill, or any other 

related matters. 

Mr. GILCHREST. Thank you, Dr. Lent. 

Mr. Marshall Jones. 

STATEMENT OF MARSHALL JONES, DEPUTY DIRECTOR,

U.S. FISH AND WILDLIFE SERVICE 

Mr. JONES. Thank you, Mr. Chairman, Mr. Pallone, and Mr. 

Chairman, for giving us this opportunity to testify today on reauthorization of the Marine Mammal Protection Act. 

As you have heard, Mr. Chairman, the administration strongly 

supports reauthorizing the MMPA and we very much appreciate 

your continued leadership in the effort to do this with the introduction of H.R. 2693. Today I would like to comment on some of the 

provisions of H.R. 2693 which are of most importance to us in the 

field and also to say few words about some of the provisions of the 

administration’s reauthorization proposal which are not included in 

H.R. 2693. 

I will start with Section 4 of H.R. 2693, which addresses the limited authority to export marine mammal products. We appreciate 

your initiative to address this. We do have some technical issues 

which we would like to discuss with you and your staff to ensure 

that there is consistency throughout the act. 

Mr. Chairman, the marine mammal act, in my experience, is one 

of the most complicated pieces of legislation that we deal with. And 

23

getting all of the sections to line up just right is kind of like trying 

to line up the lemons on the slot machine sometimes, I think. And 

so we want to make sure that we can get the best possible dialog 

to help make sure that the regulated public and everyone knows 

exactly what is and is not prohibited, what is authorized under the 

permit provisions, and have all that streamlined. 

Mr. GILCHREST. I hope our process is a little more sophisticated 

than the randomness of a slot machine. 

Mr. JONES. Much more sophisticated, Mr. Chairman. 

Secondly, polar bear permits. As we stated in previous testimony, 

in general we are opposed to legislative exemptions to allow importation of sport hunter trophies outside of established regulations. 

In this case, however, we fully agree with the proposed amendment, which would change the date and allow the importation of 

polar bear trophies legally taken in Canada during the period between enactment of the MMPA amendments in 1994 and the adoption of the final Fish and Wildlife Service’s regulations in 1997. We 

understand that we were part of the process which created confusion on the part of hunters who legitimately took trophies in Canada, and we be we should make it possible for those trophies to 

come in. Then we will have a clean break and we can proceed with 

our regular process under our existing regulations for all future 

trophy imports. 

We also support the proposed amendment to Section 104, which 

would remove the requirement to publish two notices in the Federal Register regarding each polar bear permit—trophy permit application. We have never received a single public comment in response to any of the Federal Register’s notices that we publish, either about the receipt of the applications or about the issuance or 

denial of the permits. 

Then, Mr. Chairman, regarding Section 13, as you heard from 

Dr. Lent, the definition of harassment. The administration’s goal is 

to provide a definition that is more enforceable, that would provide 

a greater notice and predictability to the regulated community by 

presenting a clear threshold for what activities do or do not constitute harassment, without compromising the conservation of 

marine mammals. Mr. Chairman, we appreciate your efforts to address these difficulties within the existing definition, but like 

NOAA Fisheries, we do have some questions in our own mind 

about exactly how the semantics of the definitions match up, and 

we would welcome the opportunity to work with you and your staff 

to develop a definition that meets our mutual goals. 

Next, Mr. Chairman, regarding Section 14 on incidental takings 

of marine mammals. Section 14 is consistent with the administration’s Readiness and Range Preservation Initiative, and we support 

ensuring that there is a single standard for incidental take of all 

marine mammals. And we note, Mr. Chairman, your comment that 

that is, indeed, the jurisdiction of this Committee. Both the RRPI 

and H.R. 2693 retain the negligible-impact standard, which we believe is a key to ensuring that authorized take has a minimal effect 

on all of these species. 

Now, Mr. Chairman, very briefly, regarding the administration’s 

bill. The administration’s bill includes a provision for development 

of harvest management agreements with Alaska Native organizaVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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tions. We believe that is a very important provision which will enhance the conservation of marine mammals and help Native organizations take more responsibility for being a partner with us in 

that process. 

We also would call to your attention, Mr. Chairman, the provisions in the administration bill which would improve the collection 

of information about sea otters by requiring the Secretary of Commerce to include sea otters in the list of fisheries published under 

Section 118; and an amendment in Section 110 to reauthorize research grants. 

In closing, Mr. Chairman, we thank you again for having this opportunity. We want in particular to express our appreciation to you 

and to all of those who have worked with us, including, particularly, the Alaska Native community and the effort that they are 

making. And we believe that working together, we can achieve a 

meaningful and constructive reauthorization of the Marine Mammal Protection Act in this session of Congress. 

I would be happy to answer any questions you may have, Mr. 

Chairman. 

[The prepared statement of Mr. Jones follows:]

Statement of Marshall Jones, Deputy Director,

Fish and Wildlife Service, U.S. Department of the Interior 

Mr. Chairman and Members of the Subcommittee, I thank you for the opportunity 

to provide the Department of the Interior’s (Department) views regarding reauthorization of the Marine Mammal Protection Act (MMPA or Act) of 1972 and 

H.R. 2693, the Marine Mammal Protection Act Amendments of 2003. I am Marshall 

Jones, Deputy Director of the U.S. Fish and Wildlife Service (Service). 

The MMPA was the first of the landmark conservation laws enacted in the 1970s; 

it turned thirty years old in 2002. The Act established an ongoing federal responsibility, shared by the Secretaries of the Interior and Commerce, for the management 

and conservation of marine mammals. The Secretary of the Interior, through the 

Service, protects and manages polar bears, sea and marine otters, walruses, three 

species of manatees, and the dugong. 

Mr. Chairman, we commend you for your continued leadership in the effort to reauthorize the MMPA, including the many oversight and legislative hearings you 

have chaired, and your introduction of H.R. 2693. Over the past few years, this 

Subcommittee has held several hearings that have served to frame the issues of importance in reauthorization, and bring forward concepts to address those issues. 

The Administration strongly supports reauthorizing the MMPA. Thirty years of 

implementation have demonstrated the Act’s effectiveness in conserving and replenishing marine mammal populations. In addition to its support of reauthorization, 

the Administration and its partners have identified several areas of the Act that 

will benefit from well-considered changes. To this end, we have crafted a comprehensive set of amendments that represents a real step forward for marine mammal conservation, as well as makes corrections and adjustments to the legislation 

based on our experience in implementing the Act since the last reauthorization in 

1994. These amendments are contained in a legislative proposal to reauthorize the 

MMPA, which was transmitted by the Administration to Congress in February of 

this year. The proposal reflects the diligent and coordinated work of the Department, the National Oceanic and Atmospheric Administration (NOAA) in the Department of Commerce, the Marine Mammal Commission (Commission), our partners in 

the Alaska Native community, and other federal and non-governmental partners. 

We look forward to working with you and members of the Subcommittee during 

this session of Congress in a dedicated effort to reauthorize the MMPA and enact 

amendments that improve our ability to conserve and manage marine mammals. 

My testimony will provide the Department’s comments on H.R. 2693, focusing on 

issues that relate to the Service’s implementation of the MMPA. My testimony will 

also briefly discuss, as the Subcommittee requested, the Minerals Management 

Service’s (MMS) interaction with the MMPA. 

I will first discuss some of the key amendments proposed by the Administration 

that are not included in H.R. 2693. These amendments were developed by the ServVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
25

ices in the context of our experience in implementing the MMPA. We believe these 

amendments will enhance the effectiveness of the MMPA in its stated goals, and 

we urge you to consider adopting them as H.R. 2693 moves through the legislative 

process. 

Amendments proposed by the Administration not included in H.R. 2693

Harvest Management Agreements 

An important component of the Administration’s reauthorization proposal is an 

amendment to expand the authority of section 119 of the MMPA, which relates to 

cooperative agreements with Alaska Natives, to authorize harvest management 

agreements between the Secretary and Alaska Native Tribes or Tribally Authorized 

Organizations. These agreements would be designed to prevent the depletion of 

marine mammal stocks in Alaska and would demonstrate the commitment of the 

federal government to continuing to develop our important partnership with these 

organizations. 

The MMPA prohibits the taking (e.g., harassing, hunting, capturing or killing) of 

all marine mammals. However, the Act provides exceptions to the prohibition. One 

of these exceptions allows take of marine mammals by Alaska Natives for subsistence purposes. Subsistence harvest is not subject to regulation, unless the harvested 

animals are from a population that is depleted, or if the harvest is wasteful. 

Following the dramatic decline of Beluga whales in Cook Inlet due to over-harvest, representatives of the Native community expressed their desire to develop a 

cooperative management structure for regulating harvest of marine mammal stocks. 

In response to the interest of the Native community in developing such a harvest 

management structure, the responsible federal agencies, including the Service, 

NOAA, and the Commission, cooperatively developed a proposed amendment with 

the Alaska Native community. The amendment would allow regulation of subsistence take of non-depleted marine mammal stocks, and would thus provide substantial conservation benefits to marine mammals. 

Under the proposal, harvest management regimes would be initiated and developed using existing governmental authorities of Tribes and Tribally Authorized Organizations. If the responsible federal agency agrees to, and adopts, a harvest management regime, the agency would be authorized to make assistance available to implement and enforce the management provisions. The proposal provides new responsibilities and a meaningful role for the Native community in resource management. 

The proposed amendment requires that harvest management plans be designed 

to maintain a sustainable harvest. Each plan must describe the following: the entities involved in developing the plan; the geographic scope of the plan; enforcement 

authorities; the biological and management basis for harvest restrictions; the duration of the agreement; and the agreement’s review provisions. Entities eligible to 

enter into such agreements are specifically defined as ‘‘Alaska Native Tribes or Tribally Authorized Organizations.’’ The intent of this definition is to specifically identify 

the types of organizations that are qualified, because implementation would rely on 

existing Tribal authorities, rather than creating new federal authorities. 

A harvest management agreement would initially be negotiated between the appropriate federal agency and the eligible entity. Public involvement would then be 

solicited through a notice and review process. The proposed amendment specifically 

identifies the existing authorities for these provisions and makes clear that this approach creates no new sovereign, Tribal authorities. 

We believe that this amendment will create a strong conservation tool to ensure 

the long-term conservation of marine mammal populations in Alaska. The amendment’s cooperative approach will facilitate partnerships to avert management crises 

that can arise under the current system. Without the proposed amendment, additional species may become depleted through excessive subsistence harvest. Activities 

by some individual hunters could continue to create conflict that the community 

would like to address but cannot under current law. We have worked closely with 

Alaska Native representatives on this proposal and strongly endorse its enactment. 

Southern Sea Otter—Fishery Interaction Data 

Southern sea otters are incidentally taken in fishing operations, but the extent 

of this take is not known. Pursuant to Section 118 of the Act, which addresses the 

take of marine mammals incidental to commercial fishing operations, the Department would like to gather information on fishery interactions with southern sea 

otters in California. MMPA reauthorization provides an opportunity to address this 

need by providing for enhanced efforts to assess the impact of commercial fisheries 

on this threatened sea otter population. 

The Administration’s MMPA reauthorization proposal includes an amendment to 

section 118(a)(4) of the Act that would require the Secretary of Commerce to include 

26

information concerning California sea otters in the list of fisheries published under 

section 118. In addition, California sea otters would be included in determinations 

pursuant to section 118(d) of the Act regarding establishment of monitoring programs and placement of on-board observers on fishing vessels to monitor interactions and assess the levels of mortality and serious injuries in the population. 

Presently, section 118 specifically excludes California sea otters from the incidental taking authorization, and nothing in this amendment is intended to change 

that. The proposed language is solely intended to enhance efforts to assess impacts 

that commercial fisheries may be having on this threatened sea otter population in 

order to provide a more informed basis for recovery efforts. 

Research Grants 

The Administration also continues to be interested in the potential for research 

grants as described in Section 110(a) of the MMPA. A proposed amendment to this 

section would reauthorize research grants, and would make clear that grants under 

this provision may be targeted at plant or animal community-level problems (i.e., 

ecosystem problems). 

The Secretaries would be given flexibility to determine which research projects to 

fund. However, the proposed amendment highlights the following ecosystems as 

high priorities for research grants. 

Bering Sea - Chukchi Sea Ecosystem—The Bering and Chukchi Seas have extensive, shallow shelves and, as a result, are some of the most productive areas in the 

world’s oceans. These regions offshore of Alaska are undergoing significant environmental changes, including rapid and extensive sea ice retreat, extreme weather 

events, and diminished benthic productivity. Such dynamics are likely having ecosystem-wide effects. As such, there is a pressing need to monitor the health and stability of these marine ecosystems and to resolve uncertainties concerning the causes 

of population declines of marine mammals, sea birds, and other species. As residents 

of the region largely depend upon marine resources for their livelihood, research on 

subsistence uses of such resources and ways to provide for the continued opportunity for such uses must be an integral part of this effort. 

California Coastal Marine Ecosystem—The southern sea otter, listed as threatened under the Endangered Species Act, has been experiencing an apparent population decline since the mid-1990s. The reasons for the decline, however, remain uncertain. Possible reasons include: introduction of new or unusual diseases; exposure 

to new or higher levels of chemical pollutants; incidental take in new or relocated 

fisheries; and decreases in key prey species due to temporary El Nino effects, longterm climate fluctuation, or otter densities exceeding carrying capacity levels within 

their current range. 

These ecosystems are of great importance to marine mammal populations and 

would benefit from system-wide studies. 

H.R. 2693, the ‘‘Marine Mammal Protection Act Amendments of 2003’’

Again, we commend you Mr. Chairman, for introducing a bill to reauthorize the 

MMPA. My comments on H.R. 2693 are limited to provisions which relate to the 

Department of the Interior, and the Department of Commerce and the Marine Mammal Commission will present the Administration’s views on other provisions. 

Section 5: Miscellaneous Authorizations of Appropriations 

The Service appreciates that Section 5(c) of H.R. 2693 includes specific authorizations for Section 119 of the MMPA. These authorizations are important because 

they make clear that funding may be directed to support Cooperative Agreements 

in Alaska. As we have stated in previous testimony before this Subcommittee, the 

Service recognizes the accomplishments achieved to date through our existing cooperative agreements and hopes to continue participating in these important agreements. 

Section 10: Polar Bear Permits 

As we stated in previous testimony before the Subcommittee on June 13, 2002, 

as a general rule the Department is opposed to legislative exemptions that allow 

importation of sport-hunted trophies outside of established regulations. However, in 

this case, the Department supports the bill’s proposed amendment to extend the 

time-frame for such importations as established in the 1997 amendments. This 

would allow for the importation of polar bear trophies legally taken in Canada during the period between enactment of the 1994 amendments and the issuance of final 

the implementing regulations on February 18, 1997. 

We note with approval, however, that under H.R. 2693, imports of polar bear trophies taken since February 18, 1997, would continue to be allowed only from approved populations. U.S. trophy hunters should only take bears from those popuVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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lations which have been found to be sustainable. The February 18, 1997, final regulations establish clear importation requirements for trophies. Trophies taken after 

that date can only be imported in compliance with those regulations. H.R. 2693 

would not change this fact. 

The Department also supports the proposed amendment to Section 104 which 

would remove the requirement to publish two notices in the Federal Register for 

each permit application to import polar bear trophies. The Administration’s proposal 

contains a similar amendment. The Service has processed on average 90 applications for polar bear permits annually for the past six years and received no comments in response to the Federal Register notices. The proposed amendment would 

streamline the permitting process and reduce the administrative expense of publishing notices. The public would still be given the opportunity to comment on findings to approve new Canadian polar bear populations for import, and would continue to have access, on a semiannual basis, to current information on permits. 

Since H.R. 2693 would no longer require the publication of Federal Register notices for each individual application, the Service notes that there is one other subsection in the current law that requires amendment so that all subsections of the 

MMPA reflect the proposed change. To fully accomplish this change, the phrase, ‘‘expeditiously after the expiration of the applicable 30 day period under subsection 

(d)(2),’’ would need to be deleted from the first sentence of subsection 104(c)(5)(D). 

Section 13: Definition of Harassment 

In revising the definition of harassment, the Administration’s goal is to provide 

a definition that is more enforceable and that would provide greater notice and predictability to the regulated community by presenting a clear threshold for what activities do or do not constitute harassment, without compromising the conservation 

of marine mammals. For Level B, for example, the Administration bill moved from 

including any activity that has the ‘‘potential’’ of disturbing a marine mammal, to 

an activity that is ‘‘likely’’ to disturb. The concern was that arguably many activities 

could have the potential, no matter how remote, of causing a negative response, 

whereas likelihood indicates a level of certainty that the event actually will occur. 

Thus, the regulated public will better be able to gauge when they should apply for 

an incidental take authorization. Also, likelihood is a legal standard that already 

appears elsewhere in the statute (e.g., the standard for issuing an enhancement permit and the section 118(c) commercial fisheries list) and is recognized in common 

law. 

Mr. Chairman, we appreciate your efforts to address the difficulties with the existing harassment definition through MMPA reauthorization. The amendment to revise the definition in H.R. 2693 is similar in concept to the Administration’s proposed amendment. Both versions focus on those activities that would cause disruption of key biological behaviors, whereas some have suggested that the current definition could include activities that cause any negative behavioral reaction, no matter how temporary or how minor. We also agree that the definition should apply to 

‘‘any act’’ rather than the current statutory definition, which is limited to acts of 

‘‘pursuit, torment, or annoyance.’’

However, we are concerned with some of the terms in the proposed definition in 

H.R. 2693. For example, H.R. 2693 uses the term ‘‘probability’’ in Level A harassment and we are concerned that this may create standard that would not apply to 

some activities that may have negative impacts on marine mammals. We are also 

concerned about the ‘‘potential to disturb’’ threshold in the second clause of the proposed harassment definition in H.R. 2693. The Service and the other agencies involved in developing the Administration’s proposed definition considered this language to be overly broad. We believe that the standard included in the Administration proposal, ‘‘disturbs or is likely to disturb,’’ provides a more appropriate standard for what activities would be covered under this part of the harassment definition. We would welcome the opportunity to explore these issues and concepts with 

your staff as you work to craft a definition that meets our mutual goals of providing 

a clear, focused definition that adequately protects marine mammals. 

Section 14: Incidental Takings of Marine Mammals 

H.R. 2693 amends the MMPA’s provisions that authorize incidental takings of 

marine mammals that may occur during otherwise lawful activities. Under the current law, the Secretary may authorize take of small numbers of marine mammals 

in a specified geographic region if the Secretary determines that such take will have 

no more than a negligible impact on the marine mammal species or stocks, and will 

not have an unmitigable adverse impact on subsistence harvest of those species or 

stocks. H.R. 2693 amends this provision by removing the terms ‘‘small numbers’’ 

and ‘‘specified geographic region.’’

28

We note these changes are consistent with the Administration’s Readiness and 

Range Preservation Initiative (RRPI) amendment to the MMPA contained in its proposed National Defense Authorization Act for Fiscal Year 2004. However, the RRPI 

language pertains only to military readiness activities. We support ensuring that 

there is a single standard for all regulated entities. Both the RRPI and H.R. 2693 

retain the negligible impact standard, which is key to ensuring that authorized take 

has a minimal effect on these species. Furthermore, under this amendment, incidental take authorization can still only be granted if the take will not have an 

unmitigable adverse impact on the availability of the marine mammal species or 

stocks for subsistence uses. These standards are important to ensuring that take authorizations do not degrade the ability of the Service to effectively conserve, protect, 

and/or restore marine mammal populations. 

H.R. 2693 also adds a new general take authorization process. This language is 

new to us, and we respectfully request more time to analyze its implications, and 

would like to meet with your staff to discuss the purpose of the amendment. We 

did, in our initial analysis of this general authorization language, identify one concern. The amendment requires the Secretary to issue implementing regulations for 

this general authorization no later than 120 days after enactment. We are concerned 

that this statutory deadline could result in ineffective and ill-conceived regulatory 

language. 

Technical Issues Related to H.R. 2693

Section 4 of H.R. 2693, as proposed, may inadvertently confuse the regulated public by changing one aspect of the MMPA’s import/export provisions, without making 

similar necessary changes elsewhere in the statute. The Administration’s proposal 

contains additional technical corrections that ensure consistency throughout the 

statute. 

An additional provision in the Administration’s proposal that we believe is critical, but that is not included in H.R. 2693, would amend 102(a)(4) of the MMPA. 

This provision makes clear that the Service can prosecute an unlawful transport, 

purchase, sale, or export of a marine mammal or marine mammal product, without 

having to first demonstrate that the original take of the marine mammal was not 

lawful. 

The Minerals Management Service’s Interaction with the MMPA 

As noted above, at the Committee’s request the Department offers the following 

comments on the MMS’s interaction with the MMPA. 

MMS is the Nation’s manager of energy and non-energy mineral resources on the 

Outer Continental Shelf (OCS). MMS has the responsibility to ensure environmentally sound exploration, development, and production activities on the OCS. 

That responsibility is carried out, in part, by managing operations for the continued 

protection of marine mammal species under the MMPA. In its efforts to ensure the 

protections required under the MMPA, MMS analyzes impacts, designs mitigation 

and monitoring guidelines, and defines how activities are to be carried out to minimize the potential for harassment or injury to marine mammals. As noted above, 

the proposed changes to the definition of harassment provide more clarity, which 

facilitates MMS’ efforts and provides a greater level of certainty and predictability 

to the regulated community. MMS also identifies, funds, and participates in research necessary for the protection and enhancement of protected marine mammal 

species and their habitat, and provides the information necessary for NOAA or the 

Service to issue small take authorizations and promulgate regulations. 

While MMS has coordinated with the Service and NOAA for decades on matters 

related to the MMPA and the Endangered Species Act, in the past two years it has 

enhanced its communication and coordination with the Service, NOAA, and with industry. For example, an Interagency Agreement with NOAA to conduct marine 

mammal surveys was modified to bring together an international team of experts 

which included both researchers and industry representatives to develop new field 

methods and a research protocol for controlled exposure experiments on sperm 

whales in the Gulf of Mexico. This renewed focus on improved collaborative efforts 

has improved MMS’s working relationship with the Service and NOAA on MMPA 

issues, and has established a process that works well for the federal agencies as well 

as the regulated public. 

Conclusion 

Mr. Chairman, in closing I would like to again commend you for your leadership 

on reauthorizing the MMPA. We are committed to conserving and managing marine 

mammals by working with our partners in a cooperative fashion. In particular, I 

want to emphasize our commitment to continued collaboration with our partners in 

Alaska to further enhance their role in the conservation and management of marine 

29

mammals. We believe that the changes we have proposed will allow us to be more 

effective in addressing our responsibilities in marine mammal management. We look 

forward to working with you and members of the Committee to enact meaningful 

improvements to the MMPA during this Congress and to demonstrate to the Nation 

our shared commitment to conserving marine mammals. We believe that H.R. 2693 

and the Administration’s proposed amendments provide the Department with a 

solid foundation from which to proceed. 

Mr. Chairman, this concludes my remarks. I am happy to answer any questions 

that you might have. 

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

Mr. Cottingham? 

STATEMENT OF DAVID COTTINGHAM, EXECUTIVE DIRECTOR, 

MARINE MAMMAL COMMISSION 

Mr. COTTINGHAM. Thank you, Mr. Chairman. Mr. Chairman, Mr. 

Pallone. We appreciate the opportunity to be here today to discuss 

this with you. As you mentioned, this statute has, as Mr. Jones 

mentioned, it has—the Marine Mammal Protection Act has become 

complicated over the last 30 years, but it has also accomplished a 

great deal. And I think I would just like to take a few moments 

and talk about some of the things that it has accomplished. 

Of course, the statute passed in 1972 and was signed then, so we 

just celebrated the 30th anniversary. Since that time, numerous 

species of dolphins in the eastern tropical Pacific, the incidental 

catch rate is way, way down. Several gray whales have been 

delisted. And this statute has really been on the forefront of leading the conservation effort, not just for marine mammals but other 

marine species as well. And it has been very forward looking. And 

I think it is—we shouldn’t—we need to take advantage of this opportunity to look back at the last 30 years, and this statute has 

really accomplished a lot in terms of reducing incidental catch, not 

just in the tuna fishery, but other fisheries as well. 

Of course, there are new challenges with anthropogenic sources—

some of the things that are going on with sea otters right now, and 

other sources. So there are still some challenges, and we look forward to addressing those with our counterparts and colleagues in 

the other agencies and in academia. 

In your letter if invitation, you specifically asked us to discuss 

the noise issues and the dialogs we are having. We appreciate Congress’ providing us some funds in this year’s Fiscal Year 2003 appropriation to convene a series of conferences to discuss this anthropogenic sound in the marine environment. And we are in the 

process of doing that right now. We are—we have—we are about 

to hire some professional facilitation groups, and we will probably 

end up chartering a Federal advisory Committee on that to solicit 

the advice of experts in this country and several from around the 

world so that we can address this, identify some of the research 

needs, the top-priority research that was pointed out in the 

National Research Council’s recent report, as well as some of the 

mitigation aspects. And do that. So we will be in touch with your 

staff on that as we progress. 

Now if I could turn to the comments on H.R. 2693. We truly appreciate your leadership on this, both the Chairmen. I am not sure 

what the—is it plural ‘‘Chairmen’’ here, is that the way you say 

30

that? —on this. It is a very good start, and I appreciate you saying 

it was a starting point. 

Very much like Mr. Jones and Dr. Lent have said, we worked 

very hard on the administration bill, and I am sure that some of 

the debates that you are now having amongst yourselves over some 

of the semantics and diagramming sentences, as you mentioned, 

are very similar to some of the debates that went on within the administration as we chose our words. So we welcome the opportunity 

to work with you on a number of those issues. And we think you 

have really come a long way. This is a much better, much more 

comprehensive bill than the last time. 

The—it is almost—as we get into the details of harassment and 

things like this, I just would ask that you work very closely in developing report language, explaining what you mean on these 

things, even with specific examples. Because regardless of what 

final words end up in the statute for definitions like ‘‘harassment,’’ 

we will—if we take yours or the administration’s bill or the NRC’s 

bill, the agencies will end up putting out guidelines or regulations 

on ‘‘potential to disturb’’ or ‘‘biologically significant’’—‘‘biologically 

significant disruption’’ as opposed to ‘‘disruption of natural behavioral patterns.’’ So it is going to be very important for those of us 

in the executive branch to have a clear understanding of what you 

mean as precisely as you can. I think good report language on that 

will be absolutely essential. 

Our written testimony goes into detail in a section-by-section. 

Primarily we agree with the concepts you are trying to do and have 

some little questions on the take reduction plan portions, the captive release requirements, the harassment definition, the exportimport provisions for handicrafts, the waivers, the permits. I would 

like to second what both Mr. Jones and Dr. Lent have raised here 

with regard to the things that were not in the bill—the Alaska Native harvest, the ship strikes, the traveling cetacean exhibits. There 

used to be a prohibition for traveling cetacean exhibits, and we 

thought that should be put back in there. It was part of the administration’s bill as well. 

I see my time has run out, so with that, Mr. Chairman, we appreciate the opportunity to be here today and look forward to working with all of you as we proceed to reauthorize this important legislation. 

Thank you, sir. 

[The prepared statement of Mr. Cottingham follows:]

Statement of David Cottingham, Executive Director,

Marine Mammal Commission 

Thank you for providing the Marine Mammal Commission with the opportunity 

to present its views on H.R. 2693, the Marine Mammal Protection Act Amendments 

of 2003, and to share its thoughts on other issues related to reauthorization of the 

Marine Mammal Protection Act that currently are not addressed in the bill. You 

also requested that the Commission provide you with an update of its progress toward convening an international conference, or series of conferences, to survey 

acoustic threats to marine mammals and develop means of reducing those threats, 

as called for under the Fiscal Year 2003 omnibus appropriations legislation enacted 

earlier this year. 

As noted in your invitation to testify, H.R. 2693 has many similarities to 

H.R. 4781, which was passed out of this Subcommittee during the last session of 

Congress. The current bill also contains several important improvements that respond to concerns expressed by the Commission and others at the 13 June 2002 reVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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authorization hearing. Among these are extension of the proposed amendments to 

section 101(a)(6) of the Act to include export authorizations that would conform with 

all of the import provisions enacted in 1994; provision of specific authorizations for 

cooperative agreements under section 119 of the Act; expansion of the proposal to 

include certain recreation and subsistence fisheries under the incidental taking regime established under section 118 of the Act; amendments to various provisions of 

Title IV of the Act to clarify that they apply to entanglements, as well as strandings; 

and a redefinition of the term harassment. In addition, H.R. 2693 includes proposed 

amendments to section 101(a)(5) of the Act that respond to problems with the existing provisions raised by the Administration earlier this year in the context of the 

Department of Defense’s Readiness and Range Preservation Initiative. 

Although H.R. 2693 includes several of the key elements contained in the Administration bill transmitted to Congress last February, it also omits some of the recommended amendments. Foremost among these is the proposal worked out jointly 

by the Commission, the Fish and Wildlife Service, the National Marine Fisheries 

Service, and representatives of the Alaska Native community to expand the existing 

section 119 authority to enable the parties to enter into enforceable harvest management agreements. It is not clear whether these omissions reflect determinations by 

the Committee that certain issues should not or need not be addressed during the 

reauthorization process, or whether the Committee intends to pursue these other 

issues, but has yet to develop specific language. We encourage the Committee to 

give additional consideration to including all of the Administration’s recommended 

amendments in the legislation. Regardless of whether they represent major substantive changes, such as management of subsistence harvests, or mere technical 

corrections, each is expected to improve or clarify the Act. In this regard, we remain 

available to work with the Committee and its staff and would welcome the opportunity to provide additional explanation of the rationale behind these proposals or 

otherwise respond to any concerns that you may have with respect to any of the 

elements in the Administration’s bill. 

I will begin by discussing the Commission’s observations regarding the provisions 

included in H.R. 2693. 

Section 3—Technical Corrections 

The Commission concurs that the proposed corrections are appropriate and should 

be made. It is unclear, however, why other technical amendments are not also being 

proposed. We believe that other such corrections are in order, such as the deletion 

of section 114 and references thereto made in other sections of the Act, deletion of 

section 120(j), and those corrections set forth in section 520 of the Administration’s 

proposed bill. Also, the change that would be made under section 3(b) of the bill appears to duplicate the amendment set forth in section 6(5)(B) of the bill. Presumably 

one of these provisions should be deleted. 

Section 4—Limited Authority to Export Marine Mammal Products 

As noted in previous Commission testimony, several provisions of the Act were 

not revised in 1994 to reflect the prohibition on exporting marine mammals that 

was added at that time. One of these is section 101(a)(6), which authorizes the import, but not the export, of marine mammal products for purposes of cultural exchange and by U.S. citizens in conjunction with travel abroad. As such, the Commission agrees that an export authorization needs to be added to this section. At the 

previous reauthorization hearing before this Committee, the Commission recommended that the export authorization contained in H.R. 4781 be expanded to include exports of legally possessed marine mammal products by U.S. citizens traveling abroad. We are pleased that the current bill has adopted this recommendation. 

We are concerned, however, with the specific language of that provision. Unlike the 

Administration’s proposal, the provision in H.R. 2693 would allow exports, but 

would not require that the marine mammal item exported by the U.S. citizen be returned to the United States upon completion of the travel. This could result in enforcement problems by creating a significant loophole that would allow for the export and subsequent sale of marine mammal products once they are outside the jurisdiction of the United States. In this regard, we note that, unlike the proposed cultural exchange provision, there is nothing that limits such exports to noncommercial 

purposes. Further, we note that the statutory definition of the term ‘‘marine mammal product’’ includes any item of merchandise that consists of, or is composed of, 

any marine mammal part, and would include items such as tanned, but unworked, 

seal skins; raw walrus ivory; marine mammal bones; and, perhaps, even polar bear 

gallbladders. This would go far beyond what was envisioned under the 1994 amendment pertaining to imports, which, as explained in the House report, was included 

primarily to enable U.S. citizens who obtain marine mammal handicrafts in Alaska 

32

to return home via Canada without encountering problems when they re-enter the 

United States. 

Section 6—Take Reduction Plans 

Although structured somewhat differently than the Administration’s proposal to 

expand the section 118 incidental take regime to include recreational and subsistence fisheries that frequently or occasionally kill or seriously injure marine mammals, this section of H.R. 2693 incorporates most of the substance of that proposal. 

The Commission believes that this proposal is significantly improved over the one 

included in H.R. 4781. This is much more comprehensive. It would include these 

fisheries under the section 118 incidental take authorization and, in so doing, would 

make them subject to the registration, monitoring, reporting, and take reduction requirements applicable to their commercial counterparts. 

There are, however, some differences between the proposed amendments in 

H.R. 2693 and the Administration’s proposal that merit discussion. For example, 

section 404(h)(5) of the Administration bill would add the word ‘‘commercial’’ to section 118(c)(3)(E) to clarify that this provision applies only to category III commercial 

fisheries. By not incorporating such a change to this subparagraph, H.R. 2693 could 

be interpreted as including non-commercial fisheries (other than those listed under 

section 118(c)(1)(A)(i) and (ii)), thereby allowing incidental taking by participants in 

those fisheries, but also requiring those fishermen to report any incidental marine 

mammal mortalities or injuries that may occur. Although we have no objection to 

placing such a requirement on those non-commercial fisheries not included on the 

expanded list of fisheries, this may not have been the intent of the drafters of the 

bill. 

Consistent with the Administration’s proposal, H.R. 2693 would amend subparagraphs (A) and (B) of section 118(d)(4), which pertain to priorities for placing observers on vessels engaged in category I and II fisheries, to apply to both commercial 

and non-commercial fisheries. No similar amendment to subparagraph (C) is included in the bill. Presumably this third-tier criterion should similarly factor in taking from all category I and II fisheries, not just commercial fisheries. 

The proposed expansion of section 118 to include some recreational and subsistence fisheries has ramifications for other provisions of the Act as well. Recommended changes to these other provisions that we believe should be made to conform them to the proposed amendments to section 118 are set forth in section 404 

of the Administration bill. We believe that the Committee should give further consideration to including these conforming amendments as it considers H.R. 2693. For 

example, unless section 101(a)(5)(E) is modified, there would be no mechanism for 

authorizing the incidental taking of marine mammals listed under the Endangered 

Species Act by non-commercial fishermen, even when such taking would have a negligible impact on the species. 

Section 7—Pinniped Research 

The Commission agrees that more needs to be done to develop effective, non-lethal 

methods for deterring pinnipeds from engaging in harmful interactions with fishing 

operations. Presumably this is the focus of the proposed amendment, inasmuch as 

paragraph (2) of the proposed provision would require the Secretary to include representatives of the commercial and recreational fishing industries among those 

tasked with developing the research program. However, by referring more generally 

to ‘‘nuisance pinnipeds,’’ the provision suggests that its intent is broader than just 

fishery interactions. It therefore would be helpful if the Committee, in its report on 

the bill, were to provide additional guidance as to what constitutes ‘‘nuisance 

pinnipeds’’ and the types of problems it expects the program to address. 

Section 8—Marine Mammal Commission 

We appreciate the Committee’s interest in providing the Commission with greater 

flexibility in allocating its resources to meet its responsibilities. However, the appropriation levels that would be authorized under subsection (c) should be made consistent with the levels contained in the President’s Budget. 

As reflected in the Administration bill and past Commission testimony, the limitation on the daily amount that the Commission can spend on experts or consultants 

has effectively precluded us from using such services for some time. We appreciate 

the Committee’s recognition of this problem and welcome the amendment in subsection (b), which will put the Commission on an equal footing with other agencies 

in our ability to make use of such services. 

Section 10—Polar Bear Permits 

As the Commission has noted in previous testimony before the Committee concerning reauthorization of the Marine Mammal Protection Act, there is little purVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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pose served by the notice and comment requirements of section 104 as they pertain 

to the issuance of permits authorizing the importation of polar bear trophies from 

Canada. The only question for the Service to consider at the application stage is 

whether the bear was legally taken from an approved population. As such, the Commission supports the intent of the proposed amendment. We do, however, have two 

drafting suggestions. In proposed paragraph (3), the phrase ‘‘required to be’’ should 

be inserted after the words ‘‘application was’’ to clarify that this provision applies 

whenever a notice should have been published, whether or not publication actually 

occurred. Also, a conforming amendment is needed to the first sentence of section 

104(c)(5)(D) to delete the phrase ‘‘, expeditiously after the expiration of the applicable 30 day period under subsection (d)(2),’’. 

Section 11—Captive Release Prohibition 

This provision is patterned on a proposed amendment contained in an earlier 

version of the Administration bill. Since that time, the Administration has tried to 

tighten-up its proposal to clarify that it applies only to marine mammals maintained 

in captivity at a facility and that it does not apply to temporary releases of marine 

mammals for military and research purposes by the Department of Defense. We 

suggest that the Committee consider including similar limitations in its proposal. 

Section 12—Stranding and Entanglement Response 

This section incorporates most of the provisions pertaining to Title IV of the 

Marine Mammal Protection Act recommended in the Administration bill. As such, 

it is a welcome addition to the House bill as compared to the bill introduced in 2002. 

The one substantive difference is the omission in H.R. 2693 of the amendment proposed in section 511 of the Administration bill. This amendment to section 405 of 

the Act would provide the National Marine Fisheries Service the flexibility to use 

other funds appropriated under the Act, not just those specifically earmarked for addressing unusual mortality events, when needed to respond to such events. We believe that this is a worthwhile amendment and encourage the Committee to give it 

additional consideration. 

Section 13—Definition of Harassment 

The proposed redefinition of the term ‘‘harassment’’ in H.R. 2693 is similar, but 

not identical, to that included in the Administration bill. As such, there are elements with which we agree, but parts that we think may cause problems if enacted. 

For example, for an act to constitute Level A harassment under the introduced bill, 

there must be ‘‘the probability’’ that a marine mammal or marine mammal stock 

will be injured. The inclusion of this threshold suggests that it must be more likely 

than not that an injury will result from the particular action being considered. That 

is, if there is a 25 percent chance that a marine mammal will be injured by exposure 

to a particular stimulus, a one-time exposure would not necessarily be considered 

harassment, even though the risk of injury is substantial. As such, we recommend 

replacing the word ‘‘probability’’ in the Level A harassment definition with a more 

inclusive phrase such as ‘‘significant potential,’’ as used in the Administration’s proposal. 

Like the existing definition of Level B harassment and that recommended by the 

Administration, the proposal in H.R. 2693 contains a list of behaviors that, if disrupted to the extent specified, would constitute harassment. We are concerned, however, that the list of specifically identified behaviors in the House bill does not include sheltering, which is an element of both the existing definition and the Administration’s proposal. For example, the resting behavior of spinner dolphins in Hawaii, in secluded, inshore areas clearly fits within the notion of sheltering. It is not 

as clear that such behavior would be encompassed by the terms ‘‘care of young, 

predator avoidance, or defense,’’ which are the closest associated terms under the 

proposed harassment definition in H.R. 2693. Further in this regard, we note that 

the terms ‘‘care of young,’’ ‘‘predator avoidance,’’ and ‘‘defense’’ included in the proposed definition of Level B harassment are not very precise terms. Absent clarification, their inclusion in the definition may lead to implementation difficulties and, 

perhaps litigation. 

We are also concerned about the ‘‘potential to disturb’’ threshold set forth in the 

second clause of the proposed harassment definition. The agencies that developed 

the Administration’s proposed definition rejected this language as being overly 

broad, inasmuch as it would include even a very remote possibility that disturbance 

might occur. We believe that the standard included in the Administration proposal, 

‘‘disturbs or is likely to disturb,’’ provides a more appropriate delimitation concerning what activities should be covered under this part of the harassment definition. 

34

The Commission is pleased that the Committee has recognized the value of including a directed taking provision in the definition of Level B harassment, as recommended by the Administration. Absent this second prong, it would be much more 

difficult, if not impossible, for the regulatory agencies to bring enforcement cases in 

response to activities that traditionally have been considered harassment. Even in 

a case when a marine mammal had been intentionally pursued, the government, to 

prevail, would need to show not only that the animal was disturbed by the pursuit, 

but that the resulting disruption was somehow ‘‘biologically significant.’’ For example, is the disturbance that results from chasing a dolphin along a beach for a few 

hundred yards with a jet ski biologically significant? Arguably not. Nevertheless, it 

should be considered harassment. 

We are concerned, however, about the inclusion of the phase ‘‘is likely to impact 

the individual’’ in this second part of the Level B harassment definition (clause iii). 

It raises a possible defense in a traditional harassment case that, even though a 

marine mammal was clearly disturbed by the directed activities of the defendant, 

the disturbance somehow did not have any impact on the health or well-being of 

the animal. It may be that the intent of the provision is to include all directed activities that are likely to disrupt one of the listed marine mammal behaviors. If this 

is the case, it should be clarified, either in the statutory language or the accompanying legislative report. 

Section 14—Incidental Takings of Marine Mammals 

The first three parts of the section parallel amendments to section 101(a)(5) of the 

Act proposed by the Administration in the context of the Department of Defense’s 

Readiness and Range Preservation Initiative. They address the so-called ‘‘small 

numbers’’ and ‘‘specified geographical region’’ limitations of those incidental taking 

provisions. Recognizing that any incidental taking authorizations issued under section 101(a)(5) would still require a negligible impact determination, the Commission 

has no objection to these amendments. 

The fourth paragraph of this section introduces a new element to section 

101(a)(5)—a general authorization for certain activities that will have a negligible 

impact on the affected marine mammal stocks. The Commission supports the idea 

of including a general authorization provision for certain types of activities that 

have low-level impacts on marine mammals that do not merit the more rigorous authorization processes established under section 101(a)(5)(A) and (D). We are concerned, however, that the proposed general authorization included in H.R. 2693 is 

overly broad and apparently would include all activities that currently receive authorizations under the existing provision (i.e., those determined to have a negligible 

impact). 

Before we can comment further, additional description of the proposal is needed. 

For example, how would the general authorization relate to the existing authorization provisions? Existing section 101(a)(5)(A), which requires the issuance of regulations, allows for the authorization of all types of incidental taking (including mortalities), provided that a negligible impact finding is made and certain other requirements are met. Section 101(a)(5)(D) provides a streamlined, notice-and-comment 

procedure for takings by harassment. It would follow that a general authorization 

would apply to some further subset of activities, such as those that involve taking 

only by Level B harassment, or those that so clearly meet the negligible impact requirement that a more involved authorization process is not warranted. If this is 

the intention of the provision, we do not think that it is reflected in the language 

of the bill. Even if the provision were limited to takings by Level B harassment, 

we may have concerns about using a truncated authorization procedure, inasmuch 

as the proposed redefinition of that term under section 13 of the bill, would include 

only biologically significant disruptions of marine mammal activities. That is, there 

would no longer be a de minimus aspect to Level B harassment that would warrant 

a general authorization of all such activities. 

We are also concerned with the extent of the information that those seeking coverage under the general authorization would be required to submit. For instance, 

there is no requirement that the ‘‘applicant’’ provide a description of the activities 

that will be conducted. Without such information, it is not clear how the Services 

can determine whether the activities fit within the scope of the general authorization. 

Depending on what activities and levels of taking would be included under the 

general authorization, we also may have concerns about the anticipated public involvement in the authorization process. Currently, all incidental take authorizations 

under section 101(a)(5) are subject to substantial public notice and review requirements. Although the public apparently would have such opportunities at the stage 

where the general authorization and implementing regulations are issued, no simiVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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lar opportunity appears to be provided for determinations as to whether specific activities fit within the scope of the general authorization. This could be a major 

shortcoming of the proposal if negligible impact determinations will be deferred 

until specific activities are reviewed at this later stage. 

* * * * * 

The issues not addressed in H.R. 2693 that we believe merit consideration by the 

Committee as it considers reauthorization of the Marine Mammal Protection Act 

are, by and large, those included in the Administration bill transmitted to Congress 

earlier this year. A brief summary of those provisions follows. 

As previously discussed before this Committee, we and others believe that there 

is a need to expand the existing authority of section 119 of the Act to enable the 

National Marine Fisheries Service and the Fish and Wildlife Service to enter into 

cooperative harvest management agreements with Alaska Native tribes and Native 

organizations authorized by those tribes. The Commission believes that such a provision, if carefully crafted, would help guarantee that conservation measures, when 

necessary, can be implemented before a marine mammal population has been reduced to a point where it is depleted. We note that such a provision, although generally supported by diverse constituencies, has been omitted from the introduced 

bill. We hope that this does not reflect a determination that a harvest management 

amendment does not merit further consideration. 

In addition to the proposal to expand the section 118 incidental taking regime to 

include some non-commercial fisheries, which has been adopted in H.R. 2693, we 

believe that certain other clarifying amendments to this section are in order. Section 

118 currently requires that a take reduction plan be developed for each strategic 

stock that interacts with a category I or II fishery, regardless of the level of such 

interactions or whether the reason the stock is considered to be strategic is largely 

independent of fisheries interactions. The Commission recommends that the Committee consider an amendment to specify that a take reduction plan need not be 

prepared for those strategic stocks for which mortality or serious injury related to 

fisheries is inconsequential. The Commission also believes that further consideration 

should be given to an amendment proposed by the Administration to clarify that it 

constitutes a violation of the Act to participate in any category I or II fishery without having registered under section 118, regardless of whether incidental takes 

occur. A related amendment that also needs to be considered would specify that all 

participants in category I or II fisheries, whether registered or not, are subject to 

the observer requirements of section 118. The Commission also believes that revisions to this section are needed to enable the responsible agencies to obtain reliable 

information on the numbers and types of fishery-related mortalities and injuries involving California sea otters. Previous Commission testimony has noted that available funding has not always been sufficient to place observers within all fisheries 

that need to be monitored or to place them at levels needed to provide statistically 

reliable information. We again call this issue to your attention and recommend that 

you consider possible solutions, including securing contributions from the involved 

fisheries. 

The draft bill has picked up on some, but not all, of the permit-related issues 

highlighted by the Commission and others during previous hearings on Marine 

Mammal Protection Act reauthorization. The Commission continues to be concerned 

about the appropriateness of maintaining certain marine mammals—most noticeably cetaceans—in traveling exhibits, which present special problems for successful 

maintenance. We again encourage the Committee to look at this issue more closely. 

Further, we believe that sections 101(a)(1) and 104 of the Act need to be amended 

to specify that export permits can be issued directly to foreign facilities. 

We also are concerned that the current system for authorizing exports of marine 

mammals to foreign facilities does not work particularly well. We believe, as we recommended in a 3 April 2002 letter commenting on the National Marine Fisheries 

Service’s proposed public display permit regulations, that it would be useful if Congress and the interested parties reviewed the current system to identify whether 

there are better ways to achieve the goal of providing reasonable assurance that 

marine mammals exported from the United States will be well cared for throughout 

the duration of their maintenance in captivity, and that realistically reflect the ability of U.S. agencies to identify and correct deficiencies at foreign facilities, while not 

establishing unnecessary barriers to the exchange of marine mammals among qualified facilities. We hope that this is an undertaking that the Committee will want 

to endorse. 

There is also a need to review the issue of exports in contexts other than permits 

and cultural exchanges. For example, the Act’s waiver provisions under section 103 

36

do not specifically provide for the authorization of exports. Likewise, section 101(b) 

of the Act, which relates to taking by Alaska Natives, authorizes the manufacture 

and sale of traditional handicrafts, but does not specifically authorize exports of 

such items. 

On a related point, we continue to believe that there is a need to revise section 

102(a)(4) of the Act, which, as amended in 1994, reinstituted an once-jettisoned impediment to effective enforcement of the Act. That section requires the government, 

in an enforcement proceeding under the provision, to show not only that the transport, purchase, sale, or export of a marine mammal or marine mammal product was 

unauthorized, but also that the taking underlying such actions was in violation of 

the Act. This problem had previously been recognized and rectified by Congress in 

1981. The Commission urges the Committee to remedy this problem once again. 

The penalties that may be assessed for violations of the Act have not been increased since its original enactment 30 years ago. This being the case, the maximum 

penalties available under the Marine Mammal Protection Act are quite low as compared to other natural resources statutes. We encourage the Committee to review 

the penalties available under sections 105 and 106 and consider increasing them to 

reflect changes in economic circumstances since 1972. The Commission also encourages the Committee to give consideration to amending the forfeiture provisions of 

section 106 to allow the seizure and forfeiture of a vessel’s cargo (i.e., catch) for fishing in violation of section 118. 

Another enforcement-related amendment that the Committee might want to consider concerns how penalties assessed under the Act may be used. A freestanding 

amendment, enacted in 1999 and codified as part of the Marine Mammal Protection 

Act, authorizes the Fish and Wildlife Service to use fines collected under the Act 

for activities directed at the protection and recovery of marine mammals under the 

agency’s jurisdiction. We believe that similar authority for the National Marine 

Fisheries Service would likewise benefit that agency’s ability to carry out its responsibilities under the Act. 

Another provision that merits review by the Committee is section 110, which identifies specific research projects to be carried out by the regulatory agencies. The 

time frames for completing the existing activities set forth in this section have 

elapsed. As such, those provisions that are no longer operative should be deleted. 

In their place, the Committee should consider a more generic directive to the agencies, enabling the agencies to pursue pressing, broad-scale projects. Among the studies that might be worthwhile are an investigation of ecosystem-wide shifts in the 

Bering and Chukchi Seas and an examination of possible changes in the coastal 

California marine ecosystem that may be contributing to the recent declines in the 

California sea otter population. 

As noted above, section 405 of the Act allows appropriations to be placed in the 

Marine Mammal Unusual Mortality Event Fund only if specifically earmarked for 

use with respect to unusual mortality events. Thus, funds generally appropriated to 

the National Marine Fisheries Service for implementing the Marine Mammal Protection Act may not be used for such purposes, even in years when a large number 

of unusual mortality events might occur. The Commission recommends that greater 

flexibility be provided in how unusual mortality responses can be funded. 

Although the Marine Mammal Protection Act establishes explicit procedures to 

address lethal takes and serious injuries due to fisheries, it is important to note that 

there are other ways by which marine mammals are lethally taken or seriously 

injured incidental to human activities. The Committee may wish to consider whether activities such as, for example, boat or ship strikes of whales might be dealt with 

more effectively through a take reduction process or some other mechanism. 

* * * * * 

The Commission appreciates the inclusion in our FY 2003 budget of an appropriation to conduct ‘‘...an international conference, or series of conferences, to share findings, survey acoustic ‘‘threats’’ to marine mammals and develop means of reducing 

those threats while maintaining the oceans as a global highway of international 

commerce.’’ Since the appropriation passed in March, we have been busily working 

on this important project. 

We have met with Senate and House to solicit their advice and to clarify the intent behind the legislative directive. We have also met with a wide range of affected 

interests such as the oil and gas industry, oceanographers from major research institutions, the environmental community, and Federal agencies including the 

National Science Foundation, the Minerals Management Service, the Navy (both its 

operations and research components), the National Marine Fisheries Service, the 

Coast Guard, and the State Department. From these meetings, we developed a good 

37

understanding of potential environmental threats that might be caused by sound in 

the oceans and how to produce a series of reports to address research priorities and 

appropriate mitigation measures. We hope the reports will be useful to Congress, 

federal agencies, and the public. 

We plan to hold a series of policy dialogues in which various interests will participate. We entered into an agreement with the U.S. Institute for Environmental Conflict Resolution (also known as the Udall Center) in Tucson, Arizona, to assist us 

with the dialogues. We are about to select a team of professional facilitators to help 

with the dialogues. We are exploring whether there will be a need to charter the 

group holding the dialogues as a federal advisory committee under the Federal Advisory Committee Act. We will hold the first meeting of the group as soon as possible, probably early in 2004. 

We appreciate the Committee staff’s help in discussing this project as it has 

evolved. We will remain in contact with them as we progress. 

* * * * * 

This concludes my testimony. The Commission appreciates the opportunity to provide testimony to the Committee on H.R. 2693, and to update you on our progress 

in convening the conferences called for under the Commission’s FY 2003 appropriation. I would be pleased to try to answer any questions that you may have. 

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

Dr. Tyack. Welcome. 

STATEMENT OF DR. PETER TYACK, CONSERVATION 

BIOLOGIST, WOODS HOLE OCEANOGRAPHIC INSTITUTION 

Dr. TYACK. Mr. Chair, Mr. Pallone, and Mr. Chair, my name is 

Peter Tyack. I am a biologist at the Woods Hole Oceanographic Institution, and I thank you for the opportunity to provide my views 

on H.R. 2693. 

I was a member of two of the Committees of the National Research Council on marine mammals and ocean noise, and I would 

like to reiterate some of the repeated suggestions of the NRC committees for changes to the Marine Mammal Protection Act. 

When the MMPA was first written, it emphasized takes in commercial fisheries. The NRC committees argue that the incidental 

take authorizations need to be updated for new issues, such as the 

effects of noise. As long as a sharp focus is maintained on the issue 

of negligible impact, I support the deletion in Section 14 of 

H.R. 2693 of the conditions for small numbers and specified geographical region for these incidental take authorizations. 

I also support the definition for Level B harassment in Section 

13 of H.R. 2693, which, to my take, follows the NRC definition 

much more closely than the definition in either H.R. 1588 or 

H.R. 1835. I must point out that I do disagree with H.R. 2693’s retaining the old definition for activities directed at marine mammals. This has the perverse result of holding research designed to 

protect marine mammals to a higher standard than activities that 

do not benefit them. 

As the impacts of pervasive and subtle human influence, such as 

contaminants and noise, have become more important compared to 

whaling and bycatch, our biggest problem involves our ignorance of 

how exposed marine mammals are to these risks and our ignorance 

of the relationship between exposure and adverse impacts. I urge 

Congress to establish a concerted research program to address 

these issues. Without this research, regulators will have to guess 

in the dark about the best balance between protecting marine 

38

mammals and interfering with activities, such as oil exploration 

and naval sonars, that are high national priorities. 

Lack of resources is not the only problem for research to protect 

marine mammals. The current regulatory process itself threatens 

urgently needed research. Let me illustrate with an example from 

the leader in protecting right whales. Scott Kraus has been waiting 

23 months for a renewal of his permit to test whale-safe fishing 

gear while NMFS tries to finish environmental analyses under 

NEPA. While he waits, at least 10 right whales have been tangled 

in fishing gear and six are thought to have died. Fishermen continue to place lethal fishing gear where it can kill whales, but 

Kraus cannot test new ideas for whale-safe gear because the environmental paperwork for his research is not completed even after 

almost 2 years of delay. 

I have also personally experienced the mad world where Federal 

actions block the research needed to protect marine mammals. 

Whale-finding sonars that work like fish-finders have recently been 

developed to harmlessly detect whales. A study I developed to test 

how well they can detect whales at sea was delayed by a lastminute nuisance lawsuit. In the end, the judge ruled that the 

amendment to my permit was invalid because the NMFS permit division had not prepared a new environmental assessment under 

NEPA. 

The failure of NMFS to prevail in recent court challenges suggests the need for programmatic environmental assessments or impact statements for each activity that may be permitted. And I 

would like to second Dr. Lent’s comments on this. I think that I 

am very happy to hear that the Agency is pursuing this tack, because I think it is the only path they can take to resolve this issue. 

However, I would like to point out that it typically takes several months and about $100,000 to produce an environmental assessment, and up to a million dollars and one to 2 years to produce an 

environmental impact statement. The NMFS Office of Protected 

Resources will require a considerable injection of funds and highly 

skilled personnel to oversee the production of the required NEPA 

documents while expediting the flow of scientific permits. 

The time required to obtain a research permit, particularly those 

in important conservation issues with endangered species, has 

swelled from 3 months to 6 months to 23 months and counting. 

These delays can kill critical research. I urge Congress to follow the 

recommendation of the NRC and set deadlines of three to 4 months 

for issuing a permit for scientific research. 

Congress is now evaluating proposals for specific exemptions to 

the MMPA, such as H.R. 1588. Clearly, there are problems with 

the act, but I believe that tailoring exemptions for each special interest is not the right solution. One of the most important NRC 

suggestions was to create a uniform process for all activities, allocating regulatory effort to situations most likely to risk adverse impacts to marine mammals. 

I applaud the House Resources Committee for its efforts to establish a general authorization in Section 14 of H.R. 2693. However, 

I believe that the rapid response critical for the general authorization would not work without prior programmatic analyses under 

NEPA to determine negligible impact, which is critical for this auVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00042 Fmt 6633 Sfmt 6602 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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thorization. Congress should require NMFS to develop a consultation process, determining for each seafaring activity whether 

marine mammals are taken and, if so, what the impact is. NMFS 

should list activities with no takes expected under a de minimis 

standard for harassment takes. Activities that may take marine 

mammals but have negligible impact should obtain a general authorization exactly of the sort proposed in H.R. 2693. I believe that 

other activities can be authorized on a case-by-case basis, given the 

modifications of H.R. 2693 for existing incidental take authorizations. 

I hope that this kind of triage can ease the regulatory burden 

where little impact is expected and much can be gained for marine 

mammal conservation, and can focus the regulatory resources for 

activities with the most adverse effects. 

Thank you very much for your attention. 

[The prepared statement of Dr. Tyack follows:]

Statement of Peter Tyack, Biology Department,

Woods Hole Oceanographic Institution 

Mr. Chair and distinguished members of the Committee, my name is Peter L. 

Tyack. I am a Senior Scientist and Walter A. and Hope Noyes Smith Chair in the 

Biology Department of the Woods Hole Oceanographic Institution in Woods Hole, 

Massachusetts. Thank you for the opportunity to provide my views on H.R. 2693, 

a bill to reauthorize the Marine Mammal Protection Act (MMPA). 

I have been fascinated since I was a child with the social behavior of marine 

mammals and how they use sound to communicate and explore their environment. 

I have spent much of the last 25 years following these animals at sea, listening to 

their sounds and watching their behavior. As I started my career in basic research 

it never occurred to me that chasing my personal interests would ever become central to such an important policy issue. 

In my testimony I address issues concerning section 13 of H.R. 2693 on the definition of harassment takes under the MMPA, especially those for scientific research 

and section 14 on incidental takings of marine mammals, with special reference to 

incidental effects of manmade noise. I would like to start my testimony by congratulating the House Resources Committee for correcting what I consider to be serious 

problems with the definition of harassment in H.R. 1835 and 1588 and for correcting problems with the authorization process for incidental takes. I still have 

some suggestions for improvements in both areas, but I believe that this bill corrects 

problems with the current MMPA and is much better than the changes proposed 

under H.R. 1835 and 1588. 

Introduction 

Three committees of the National Research Council (NRC) of the National Academy of Sciences have reviewed issues concerning low frequency sound and marine 

mammals. Each of these NRC committees has published a report: 

National Research Council (NRC). 1994. Low-Frequency Sound and Marine 

Mammals: Current Knowledge and Research Needs. National Academy Press, 

Washington, D.C. 

National Research Council (NRC). 2000. Marine Mammals and Low-Frequency 

Sound: Progress Since 1994. National Academy Press, Washington, D.C. 

National Research Council (NRC). 2003. Ocean Noise and Marine Mammals. 

National Academy Press, Washington, D.C. 

I was a member of the first two committees and reviewed for the NRC the report 

produced by the third committee. I would like to take this opportunity not only to 

give my personal views, but also to reiterate some of the repeated suggestions of 

the NRC committees for changes to the MMPA. 

Suggested rewording of incidental take authorization for effects of noise. 

When the MMPA was first written, it emphasized takes in commercial fisheries. 

Certainly no one at that time was thinking about whether the regulatory process 

would work for issues such as incidental harassment takes resulting from unintentional exposure to noise. Nor was there much experience with issues under NEPA 

of whether the impacts of entire activities needed to be evaluated together, or 

whether it was better to authorize each time a ‘‘take’’ was possible. 

40

Since the MMPA was passed, many studies have demonstrated that marine mammals respond to ships, dredging, icebreaking and construction, and sound sources 

such as pingers, air guns, and sonars. Most of these sound sources are currently unregulated simply because NMFS chooses not to enforce the prohibition against taking marine mammals by harassment. I doubt that many of these activities could 

find a regulatory procedure under the current wording of the Marine Mammal Protection Act that would allow activities with negligible impact while controlling those 

that might have an adverse impact. As has been pointed out by each of the three 

National Academy reports on this topic, the dominant source of manmade noise in 

the ocean is the propulsion sounds from ships. Yet this has not been regulated by 

NMFS. As the National Academy 2000 report Marine Mammals and Low-frequency 

Sound put it: 

If the current interpretation of the law for level B harassment (detectable 

changes in behavior) were applied to shipping as strenuously as it is 

applied to scientific and naval activities, the result would be crippling regulation of nearly every motorized vessel operating in U.S. waters. (p. 69) 

One response to this conundrum is for each activity to seek special exemptions 

if their activities become targets of regulation. However, the National Academy 1994 

report Low-Frequency Sound and Marine Mammals discouraged that approach: 

‘‘However, it seems unreasonable that an exemption from the ‘‘take’’ prohibitions of the MMPA should be available for some human activities, including some that kill marine mammals, without being available for other 

human activities whose goal may include the acquisition of information of 

potential value for the conservation of marine mammals.’’ (p 38) 

The first two reports of the National Academy of Sciences on Marine Mammals 

and Low Frequency Sound specifically suggest a broader solution to this problem: 

removing the requirements for small numbers of takes, while retaining a criterion 

of negligible impact: 

Reword the incidental take authorization to delete references to ‘‘small’’ 

numbers of marine mammals, provided the effects are negligible. (p. 39) 

Low frequency Sound and Marine Mammals (1994) 

In addition to making the suggested change in the level B harassment 

definition, it would be desirable to remove the phrase ‘‘of small number’’ 

from MMPA section 1371(a)(5)(D)(i). If such a change is not made, it is conceivable under the current MMPA language there would be two tests for 

determining takes by harassment, small numbers first, and if that test 

were met, negligible impact from that take of small numbers. The suggested change would prevent the denial of research permits that might insignificantly harass large numbers of animals and would leave the ‘‘negligible impact’’ test intact. (p. 71) 

Marine Mammals and Low-frequency Sound (2000) 

My understanding of the judge’s preliminary ruling in the legal challenge to operation of the SURTASS LFA sonar, NRDC v Evans, is that the judge ruled against 

the interpretation followed by NMFS that ‘‘small’’ can be interpreted in terms of 

population size, and exactly following the fears of the National Academy panel, 

ruled that the current MMPA language does require both negligible impact and 

small numbers, where the meaning of the word small could not be interpreted in 

terms of size and status of populations. 

The restriction in the MMPA authorizations for incidental takes to ‘‘a specified 

geographical region’’ may also rule out this authorization process for most impacts 

of noise. If ‘‘specified geographical region’’ is taken to mean areas small enough to 

involve the same assemblage of species and oceanographic conditions, then the requirements of the incidental take authorizations may be incompatible with the 

NEPA requirement to consider all cumulative uses of a system. Many kinds of 

sound sources are installed on a large number of vessels, each of which may cross 

the ocean in weeks. Many marine mammals also migrate thousands of miles 

through very different habitats. This makes it difficult to specify a geographical region for a whale that may be in the Caribbean one day, and off New England a few 

weeks later. Different marine mammal populations have boundaries that differ according to the ecology and migratory patterns of the species. This makes it impossible to identify a unique region that is homogeneous for all marine mammals, much 

less other aspects of the marine ecosystem. If the wording specifying a geographical 

region is to be reconciled with the potential numbers and movements of both the 

animals and the noise sources, then the region must be specified in terms of the 

scope of the activity, not homogeneity of the ecosystem. 

The propulsion sounds of ships elevate the ambient noise over the world’s oceans, 

and this global impact is likely to reduce the ability of whales to detect calls at a 

distance. I see no process by which such takes could be authorized under the curVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
41

rent wording of the MMPA. Depth sounders and fish finders have sounds that do 

not carry as far, but they are used by tens of thousands of vessels. These sounds 

have the potential to disturb marine mammals, and therefore may take animals by 

harassment, but did Congress intend to require authorization for each user? How 

far could a vessel go before its takes move out of the ‘‘specified geographical region?’’ 

Oceanographic research, much of which uses motorized vessels and uses sound as 

a tool to explore the ocean, also has a global scope, and may be difficult if not impossible to authorize under the current regulatory procedures. 

I support the changes proposed in H.R. 2693 to remove the conditions of ‘‘small 

numbers’’ and ‘‘specified geographical region’’ in the wording of the incidental take 

provisions of the MMPA. I believe that as long as a sharp focus is maintained on 

the issue of negligible impact, these changes would make the process work for effects of noise on marine mammals, while still protecting marine mammal populations from adverse impacts. Since millions of sound sources such as depth sounders and the propulsion noises of every motorized vessel could cause harassment 

takes under the current definition, I believe that it will be essential for the process 

to authorize general activities, rather than individual vessels or sound sources. This 

is incompatible with restricting the authorization to ‘‘small numbers,’’ if this is 

taken literally to mean just a few individuals, or ‘‘specified geographical region,’’ if 

this is taken to mean small areas. 

Definition of harassment 

The current definition of level B harassment in the MMPA is: 

‘‘has the potential to disturb a marine mammal or marine mammal stock 

in the wild by causing disruption of behavioral patterns, including, but not 

limited to, migration, breathing, nursing, breeding, feeding, or sheltering.’’

The 1994 NRC report on Low Frequency Sound and Marine Mammals succinctly 

reviewed the problem of how harassment has been interpreted under the MMPA: 

Logically, the term harassment would refer to a human action that causes 

an adverse effect on the well-being of an individual animal or (potentially) 

a population of animals. However, ‘‘the term ‘‘harass’’ has been interpreted 

through practice to include any action that results in an observable change 

in the behavior of a marine mammal ‘‘.’’ (Swartz and Hofman, 1991). (p. 27) 

The 1994 NRC report goes on to note that many minor and short-term behavioral 

responses of marine mammals to manmade stimuli are simply part of their normal 

behavioral repertoire. There is clearly a need for some standard of negligible effect, 

below which a change in behavior is not considered harassment. 

The change in the definition of level B harassment proposed by the Administration and in H.R. 1835 is: 

‘‘disturbs or is likely to disturb a marine mammal or marine mammal stock 

in the wild by causing disruption of natural behavior patterns, including, 

but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.’’

As a biologist who has studied the behavior of marine mammals for more than 

25 years, I find this wording confusing, and I do not see how it addresses the problem identified by the NRC. The last phrase added to the definition does add a criterion of significant alteration. However the point of the NRC reports was biological 

significance, a disruption that could have an adverse impact. My dictionary defines 

significant as ‘‘likely to have influence or effect.’’ The addition of the word ‘‘significant’’ in the new definition therefore does not give the same standard as suggested 

by the NRC. As our techniques to study marine mammals have grown in sophistication and sensitivity, it is now possible to demonstrate statistically significant alerting or orienting responses that in my opinion fall well below the negligible impact 

standard. 

I find the addition of the word ‘‘abandoned’’ particularly confusing in the new definition. It certainly makes sense to add a criterion for abandonment of critical habitat, but what does this wording mean for behavior patterns? A sperm whale or elephant seal can dive for an hour or more, but any marine mammal that abandons 

surfacing behavior cannot breathe. If it abandons surfacing for more than a few 

hours, it is certainly dead. If a sperm whale group is sheltering a young calf from 

a killer whale attack, even a momentary abandonment of the behavior could be 

lethal. Calves may be able to survive for days or weeks if their mother abandons 

nursing, and many whales could survive for years without feeding, but what is the 

time period implied by ‘‘abandon.’’ My understanding of ‘‘abandon’’ is that it means 

a permanent change. By this definition, the ‘‘abandonment’’ wording turns level B 

harassment into a lethal take. Far from distinguishing negligible from potentially 

significant effects, it muddies the waters further. 

42

Another problem with the use of the term ‘‘abandon’’ is that I take it to mean 

‘‘giving up’’—a 100% cessation of an activity. Yet since the definition of harassment 

also applies to stocks, this definition is not conservative enough for actions that may 

affect a large portion of a stock. For example, suppose an activity caused a 50% reduction in foraging rates in a majority of the population, or caused animals to be 

50% as effective in finding a mate for breeding. Such reductions would not ‘‘alter’’ 

the form of the behavior, nor would they meet an abandonment criterion, but few 

populations could sustain such changes on a long term basis. 

I support the definition of harassment proposed for section 3(18)(A) (i) and (ii) in 

section 13 of H.R. 2693. The definition in section (ii) closely follows the NRC definition. The primary difference is the replacement of ‘‘meaningful’’ as a modifier for 

disruption with ‘‘biologically significant’’ and deleting the phrase ‘‘biologically significant’’ from the modifier for the kinds of activities. I believe that this follows closely 

the meaning of the definition written by the NRC committee. 

I am however very concerned that the harassment definition proposed for section 

(iii) retains the problematic old harassment definition for activities directed at 

marine mammals, including scientific research directed at marine mammals. While 

there is a process to permit such research, retaining the old definition for activities 

directed at marine mammals will hold scientific research that enhances the survival 

or recovery of species or stocks to a stricter standard than activities that harm 

marine mammals and do not help them. This does not make sense. The only case 

that in my opinion justifies a lower level of regulation involves takes for scientific 

research that enhances the survival or recovery of species or stocks. The proposed 

changes in the definition of harassment for activities directed at marine mammals 

will perversely have the opposite effect. 

NMFS has suggested retaining the old harassment definition for activities directed at marine mammals so that they can more easily prosecute cases against 

businesses such as those that charge tourists to swim with wild dolphins. I believe 

that any of the proposed harassment definitions fit very well these cases where people intentionally pursue marine mammals and annoy them with clear disruption of 

behavioral patterns. It is particularly strange that NMFS suggests retaining the old 

broad definition, when a senior NMFS enforcement attorney stated to the 2002 Annual Meeting of the Marine Mammal Commission ‘‘the potential to disrupt behavioral patterns, at one level, it is a great definition because you go out, you know, 

we can get whatever we want because it is a very broad definition, but when you 

get down to the prosecution level, it is too broad.’’ The real problem with harassment in my opinion is that NMFS has not shown the will to enforce the prohibition 

against harassment and to prosecute cases against growing industries based upon 

harassing marine mammals in the wild. It would be a tragedy for scientific research 

to be excluded from corrections in the definition of harassment as cover for NMFS’ 

unwillingness to enforce the prohibition against harassment. If the definition of harassment causes problems with prosecution against commercial activities directed at 

marine mammals, which I contest, then the solution should be limited to this narrow situation and should be worded so as not to impact research directed at marine 

mammals. 

I would like to take this opportunity to reiterate the suggestion of the National 

Academy of Sciences second report (2000) on Marine Mammals and Low Frequency 

Sound on the definition of level B harassment: 

‘‘NMFS should promulgate uniform regulations based on their potential for 

a biologically significant impact on marine mammals. Thus, level B harassment should be redefined as follows: 

Level B—has the potential to disturb a marine mammal or marine mammal 

stock in the wild by causing meaningful disruption of biologically significant 

activities, including, but not limited to, migration, breeding, care of young, 

predator avoidance or defense, and feeding. 

The Committee suggests limiting the definition to functional categories of 

activity likely to influence survival or reproduction. Thus, the term ‘‘sheltering’’ that is included in the existing definition is both too vague and 

unmeasurable to be considered with these other functional categories.’’ (p 

69) 

This definition was written by scientists. Since ‘‘meaningful disruption’’ is not defined, and since ‘‘biologically significant’’ has a more specific meaning to biologists, 

I have no problem with the minor changes in wording proposed in H.R. 2693 to fit 

legal and legislative requirements. 

The definition of harassment must take into account our lack of knowledge about 

the ways in which behavioral changes may influence marine mammals. For example, prolonged or repeated harassment may lead to physiological changes that do not 

qualify as injury, but that may indicate the potential for adverse effects. Prolonged 

43

changes in behavior that are outside of the normal behavioral repertoire of a species 

may also trigger concern even if the effect on health is not immediately obvious. But 

if the definition of harassment is to be changed, the primary focus should be on biological significance in a way that clarifies the need for a negligible impact standard. 

I do not think that the changes proposed by the Administration, in H.R. 1588 and 

in H.R. 1835 for the definition of harassment succeed in this task, but I support 

the definition of harassment in (18)(A)(ii) of section 13 of H.R. 2963, which closely 

follows that suggested by the National Research Council in any amendments to the 

MMPA. 

Problems with permitting scientific research on marine mammals. 

As a biologist personally concerned with protecting marine life, I believe that double standards in the MMPA have led to a particularly counterproductive situation 

for permitting scientific research designed to protect marine mammals. The permitting process was created to allow an exemption for scientific research from the 

MMPA prohibition on taking marine mammals. The dirty secret of the MMPA is 

that the prohibition on unintentional takes is ignored more often than it is regulated and enforced. For example, ships regularly collide with marine mammals and 

often kill them. So many highly endangered right whales are killed by vessel collision, that population models predict this additional mortality may drive the species 

to extinction. Yet there is no regulation of this risk, nor to my knowledge has any 

ship been prosecuted for striking a whale and killing it. It is ironic that far from 

exempting research from an effective prohibition, NMFS has grown an elaborate 

process for permitting negligible harassment takes by researchers, while ignoring 

widespread and predictable lethal takes caused by activities that do not benefit 

marine mammals. 

As early as 1985, NMFS stated in its Annual Report on the MMPA that ‘‘one of 

the most extensive administrative programs in NMFS is the permit system that authorizes the taking of marine mammals for scientific research and public display.’’ 

I understand that today the NMFS Permit Office has 7 personnel devoted to research permits, but only two devoted to all other authorizations for incidental taking. From my perspective, this is backwards. Scarce regulatory resources should 

only be devoted to minor harassment takes for research after the much more significant takes of activities that do not benefit marine mammals are controlled by regulations that are effectively enforced. 

It has been recognized for over a decade that the regulatory focus on research activities is interfering with research needed to obtain critical information to evaluate 

risk factors for noise exposure in the sea. As the 1994 National Academy report on 

Low-frequency Sound and Marine Mammals put it: 

Scientists who propose to conduct research directed toward marine mammals are aware of the permitting requirements of the MMPA and of the Endangered Species Act (ESA) and the associated regulations. Most of their 

research can be conducted under the scientific permitting process. They 

routinely apply for and obtain such scientific research permits. However, 

the lengthy and unpredictable duration of this process can create serious 

difficulties for research’’. In addition to permit delays, certain types of research that are considered ‘‘invasive’’ or ‘‘controversial’’ either are not allowed under the current permitting process or may require an Environmental Assessment or even an Environmental Impact Statement under the 

National Environmental Protection Act (NEPA). Such a regulatory burden 

actively discourages researchers from pursuing those lines of study. (p 29) 

The committee strongly agrees with the objective of marine mammal conservation, but it believes that the present emphasis on regulation of research is unnecessarily restrictive. Not only is research hampered, but the 

process of training and employing scientists with suitable skills is impeded 

when research projects cannot go forward. Experienced researchers are the 

ultimate source for expanding our knowledge of marine mammals. A policy 

that interferes with the development of this resource appears to be self-defeating. (p 30) 

Things were bad in 1994, but they have recently become much worse. The delays 

for permitting have become much longer, over 21 months in some cases. Ironically, 

the more serious the conservation problem addressed by a research project, the more 

likely the project is to be delayed. In addition, the judge in a recent court case involving my research permit ruled that all acoustic research on marine mammals is 

controversial. This led him to rule that any permit for acoustic research requires 

an accompanying Environmental Assessment or Environmental Impact Statement. 

This decision means that all of the research that can help resolve the marine mammal issues raised by the National Academy reports is subject to much more reguVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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latory burden than before. Unless Congress changes the regulatory process or provides new funds to the NMFS Office of Protected Resources to conduct the analyses 

required under NEPA, the permitting process will not only discourage research, but 

may make it almost impossible to conduct some research that has negligible effects 

and is urgently needed for conservation biology. 

Let me illustrate with an example from the research of Scott Kraus, a biologist 

at the New England Aquarium who has studied North Atlantic right whales for decades under a series of research permits from NMFS. In August of 2001, he applied 

for a new permit, as his old one was set to expire 31 December 2001. In November 

2001, after the end of the public comment period, the Permit Division received a 

letter from a self-styled ‘‘environmental warrior’’ claiming, incorrectly in my belief, 

that the research would harm right whales. In early December 2001, operating 

under his old permit, Kraus started aerial surveys to keep ships from hitting 

whales, and he was told the biological opinion for the new permit was almost done. 

Kraus never received his permit by the time his old one expired, and on 24 January 

2002, NMFS informed him that they would defer decisions on a permit until an Environmental Assessment was conducted following NEPA rules. This was a complete 

surprise for Kraus, who had to cancel a research program designed to develop 

whale-safe lines for fishing gear. During 2002, at least eight right whales entangled 

in fishing gear, and six were thought to have died. It is now July 2003. Kraus had 

to cancel another attempt to repeat the whale-safe fishing line project in 2003, and 

he still has no prediction from the NMFS Permit Division as to when his permit 

will be issued. There may be a new determination of a need under NEPA for an 

Environmental Impact Statement for his permit, not just an Environmental Assessment. 

Let me recap. The survival of right whales in the North Atlantic is threatened 

because so many are killed from entanglement in fishing gear and from vessel collision. Unlike any airline, as a scientist, Kraus needs a permit to fly over right 

whales, in case the whales might hear the plane and somehow be disturbed. Delays 

in permitting endanger his ability to fly surveys designed to warn ships of the presence of whales. The ships that regularly kill whales are subject to no regulation, 

and travel wherever they please at any speed through critical habitats of the most 

endangered whale in U.S. waters. In spite of some fisheries regulations, whales are 

dying in fishing gear at alarming rates. Fishermen can continue to place lethal fishing gear where it can kill whales, but Kraus cannot test new ideas for whale-safe 

fishing gear, because the environmental paperwork for his research is not sufficient, 

even after 23 months of delay. Is there something wrong with this picture? 

I have also personally had experience with the mad world in which Federal actions block the research needed to protect marine mammals from poorly regulated 

impacts of human activities. We cannot protect marine life from intense underwater 

noises until we get better at detecting when a marine mammal or sea turtle is in 

the danger zone. Recently, there have been promising developments for 

whalefinding sonars. These are high frequency sonars that work like fish finders to 

detect echoes from animals close enough to be harmed by unintentional exposure 

to intense sounds. When these whalefinding sonars reached the point in their design 

process where they were ready to be tested at sea, I submitted an application to 

amend my research permit to test how well a whalefinding sonar could detect migrating gray whales. We know how migrating gray whales respond to noise, and I 

expected little if any behavioral response to the whalefinding sonar. The study was 

designed with very sensitive methods to detect whether whales avoided the sound 

source by a hundred meters or so, and I requested permission to ‘‘take’’ the whales 

by harassment. 

The Permit Division of NMFS issued the amendment to my permit in a timely 

fashion, but only after deciding that the amendment did not require a new environmental assessment. The environmental assessment conducted by NMFS for my 

original permit had already covered testing a whalefinding sonar on whales. The 

wording allowing ‘‘takes’’ of gray whales alarmed an animal rights advocate in Australia, who gathered a few small fringe groups in the U.S. to request an injunction 

against the research the day before the study was to begin. The study was delayed 

by a temporary restraining order and the entire field team and one of the research 

vessels in our national oceanographic fleet were tied up for most of the month 

planned for the research. In the end, the judge ruled that the amendment to my 

permit was invalid because the NMFS Permit Division had not prepared a new Environmental Assessment under NEPA not just for my original permit, but for each 

major amendment to the permit. Hundreds of thousands of taxpayer dollars were 

wasted and we are a year behind in developing more effective methods for monitoring marine mammals. 

45

The NMFS Permit Division of the Office of Protected Resources has just nine personnel and is increasingly inundated. In 2001 they advised scientists applying for 

a permit to expect processing times of at least 90 days for most marine mammal 

permits with an additional 135 days for permits affecting endangered species. However, some permits have been subject to greater delays. NMFS currently advises scientists to allow at least 6 months for processing a permit, longer for research involving endangered species. In the cases of my and Kraus’ permits, it appears that last 

minute complaints by a fringe extremist could trigger a ‘‘public controversy’’ condition requiring exhaustive environmental assessments. Given these precedents, I consider that only permits backed by environmental analyses acceptable under NEPA 

are solid enough to protect research from nuisance lawsuits. Due to the increasing 

number of scientific research permits, and the renewed emphasis on NEPA analysis, 

some permit applications may be delayed much beyond 6 months, with dramatic increases in the burden on the Permit Division and on the applicants. I can personally 

attest to the heroic efforts of the staff of the Permit Division to cope with this disastrous situation, but the Division requires additional support and staff to keep the 

permitting process afloat. 

Congress has in the past few years taken strong steps to fund research on urgent 

conservation problems such as declining populations of Steller sea lions, or the 

threat of extinction for the North Atlantic right whale, and I applaud these actions. 

Yet both of these research efforts were delayed by more than a year because of 

delays in the permitting process for scientific research. If Congress wants to support 

critically needed conservation research, it is not enough to fund the science. Congress will also have to authorize significant increases in funding to the Permit Division. 

The time required to obtain a research permit has swelled from 3 months to 6 

months to 21 months and counting. A very important change suggested by the NRC 

would be for Congress to specify a fixed maximum time for NMFS to process permits and authorizations. The 1994 NRC report suggested 10 days for initial processing, 30 days for the public comment period, and 10 days to issue or deny a permit 

for scientific research. The Permit Division used to use a more liberal 30 days for 

initial review, 30 days for the public comment period and a concurrent 45 days for 

review by the Marine Mammal Commission, and 30 days to issue or deny the permit. This totals to 105 days. I urge Congress to follow the recommendation of the 

NRC and set deadlines of 3-4 months for issuing a permit for scientific research. 

The failure of NMFS to prevail in recent challenges to their attempts to exempt 

the permitting process from further environmental review under NEPA suggests the 

need for Environmental Assessments or Environmental Impact Statements for each 

activity that may be permitted or authorized. I cannot imagine that even a newly 

invigorated Permit Office could perform these analyses for every project. The only 

way for the permitting process to proceed in a timely fashion given the requirements 

for environmental analyses under NEPA will be for the Permit Division to conduct 

programmatic environmental analyses for most typical research activities well before applicants request a permit. My understanding is that it typically takes several 

months and $50,000-$100,000 to produce an Environmental Assessment, and 

$500,000-$1,000,000 and 1-2 years to produce an Environmental Impact Statement. 

This additional workload must be met while the ongoing flow of permit applications 

is expedited. If NMFS is to issue timely and legally defensible permits, the permit 

division and other supporting divisions in the Office of Protected Resources will 

need additional program staff, with specialists in many areas such as environmental 

law, NEPA, marine mammal population biology, acoustics, animal health and welfare. Congress will also have to authorize significant increases in funding for the 

Office of Protected Resources to hire contract personnel or to outsource the analyses 

required under NEPA and the ESA. 

In order for research not to be over-regulated compared to activities with adverse 

impacts and no benefit to marine mammals, these kinds of programmatic environmental analyses are urgently needed for setting regulatory priorities not just for research, but for all incidental taking. The suit against my test of a whalefinder sonar 

shows how important it could be to researchers for non-research activities to undergo similar NEPA review. The whalefinding sonar has a frequency range and source 

level similar to many depthsounding and fishfinding sonars. If these other sonars 

had undergone programmatic NEPA analyses, these would have shown that the 

whalefinder would have even less impact because of the way it was operated. 

One suggestion for reducing the regulatory burden on scientific research involves 

including scientific research under the definition of harassment for military readiness. This is not helpful for research on marine mammals, and could create new 

problems for marine mammalogists. The U.S. Office of Naval Research is the primary funding agency for basic marine mammal research in the US. In spite of the 

46

excellent reputation of ONR as a science agency, the location of this agency in the 

Navy has led to controversy about whether the Navy biases the research effort or 

compromises the integrity of the scientists it funds. Fringe groups have even tried 

to drum up support by conjuring up conspiracy theories claiming that critical conservation biology projects are secret Navy projects to target marine mammals. If 

Congress were to change the wording of the MMPA to lump scientific research 

under military activities, this would increase concern about the relationship between the military and marine mammal research, and could accelerate the attacks 

by anti-research animal rights groups. 

I must emphasize that many of the most serious problems with marine mammal 

research permits have not been MMPA problems as much as NEPA problems. 

Changing the definition of harassment will not affect the need for marine mammal 

researchers to obtain permits for their scientific research. Whatever the definition 

of harassment, I would apply for a permit for my research on marine mammals. 

Most scientific journals require permits as a condition of publication. The details of 

the definition of harassment are not the main problem for research permits; the 

problems I face as a scientist involve the significant cost of preparing permit applications, the uncertain delays of the permitting process, and the vulnerability of the 

permits to procedural challenges. As I mentioned above, the Office of Protected Resources will require a considerable injection of funds and highly skilled personnel 

to be able to issue permits in a timely fashion while overseeing the timely production of the NEPA documentation required to back up research permits. 

Special exemptions are not the solution to problems with the MMPA 

During the past several years, there have been efforts to address very real problems with the MMPA. Congress today is attempting to fix demonstrated problems 

with authorization under the MMPA of incidental takes, especially harassment 

takes. One way to deal with this problem is to tailor special exemptions for groups 

that have regulatory problems. From 1972-2002, this process has created a complex 

tangle of different authorizations for taking marine mammals under the MMPA. 

The basic goals of the Act clearly have not been well served by this proliferation 

of different standards for regulating takes for different activities. As the NRC said 

in 1994, ‘‘it is difficult to understand applying different, and less stringent, rules to 

activities that kill marine mammals than to activities that are known to benefit 

them or to have negligible effects on them.’’

I do not think that complicating the Act by creating yet another harassment definition for military readiness is the best answer. I strongly urge Congress to respond 

to the problems highlighted by DOD by trying to fix the underlying flaws in the regulatory procedures of the MMPA for all activities before granting a special exemption that does nothing for marine mammal conservation and leaves many other producers of sound in the sea with no way to meet the regulatory requirements. If Congress restricts this year’s solution to military readiness, next year they will be likely 

to have to respond to similar requests from some other group such as the seismic 

or shipping industries. I believe that it would be much better if Congress rejects the 

special exemption approach, and instead corrects the deficiencies in the MMPA so 

that one or two simple regulatory processes for authorizing incidental takes could 

be applied evenly to all seafaring activities. 

If done correctly, the regulations might be able to include all activities in a 

streamlined regulatory approach that focuses attention on those situations that pose 

the most risk to marine mammal populations. I believe that the provisions of sections 13 and 14 of H.R. 2693 go a long way to addressing the problems that have 

been identified in the MMPA. These provisions are much closer to the recommendations of the NRC than the provisions of H.R. 1588. I applaud the Resources Committee for resisting the drive to add special exemptions to the MMPA for specific 

activities, but instead for considering more general modifications that correct problems for regulating harassment and incidental takes. 

Regulations to protect marine mammals need to be drawn to focus scarce regulatory 

resources on situations where ‘‘takes’’ are most likely to risk adverse impacts to 

marine mammals. 

One of the most important suggestions of the NRC reports on marine mammals 

and ocean noise is to regulate harassment in the same way for all activities, allocating regulatory effort where harassment takes are most likely to risk adverse impacts to marine mammals. Currently we are far from this goal. For commercial fisheries, section 118 of the MMPA allows incidental taking of marine mammals as long 

as there is negligible impact from incidental mortality and serious injury. NMFS interprets this as an exemption for commercial fisheries from the prohibition of harassment. Harassment takes are also ignored for effects of propulsion noise from vesVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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sels, which accounts for more than 90% of the acoustic energy humans put into the 

sea. Many other users of sound in the sea, from the Navy to geophysical contractors 

to academic oceanographers, find themselves in a no-man’s land, where the appropriate regulatory process for incidental harassment takes is obscure. So far the solutions of the regulatory agencies have fared poorly in court. 

In my opinion, the best way to direct NMFS to allocate its regulatory efforts to 

the most significant problems is to require evaluation of the potential impacts of all 

seafaring activities on marine mammals. A consultation process is needed to tier all 

sea-faring activities into categories for potential harassment: activities unlikely to 

take, activities with takes of negligible impact, and activities where the takes might 

have more than negligible impact in some settings. As I discussed in the section on 

scientific research above, this kind of NEPA analysis is required to protect activities 

from nuisance litigation. I believe that in the current climate, even harmless activities are vulnerable to legal challenge unless covered by this kind of NEPA analysis 

and MMPA authorization. The provisions of H.R. 2693 could be improved by adding 

a requirement that all activities that might take marine mammals should consult 

with NMFS, so that all potential takes to be accounted for. 

The provisions of H.R. 2693 are well suited to creating a simple streamlined process for authorizing low impact activities, with increased regulation scaling with increased probability of impact. Each kind of sea-faring activity that might take 

marine mammals by harassment should be required to consult with NMFS to perform an environmental assessment to evaluate the potential for taking, and if there 

are takes, their impact on the population. NMFS should issue rules indicating which 

activities have a remote enough likelihood of takes not to require any regulation. 

A general authorization process is essential for activities that may take marine 

mammals, but that would have negligible impacts. Activities that are not eligible 

for this general authorization would need to go through an incidental take authorization process on a case-by-case basis. For activities that might cause harassment 

takes beyond the range of detection of the vessel, a monitoring program could be 

established to study animals at different ranges from the activity in order to better 

estimate the number of harassment takes. As long as the restrictions on ‘‘small 

numbers’’ and ‘‘specified geographic region’’ are removed from the existing incidental 

take authorizations, as proposed under H.R. 2693, I believe that these existing procedures would work for this kind of case-by-case authorization. 

I applaud the House Resources Committee for its efforts to establish this kind of 

streamlined general authorization process in section 14 of H.R. 2693. My primary 

concern about this proposal is that I doubt the rapid response mandated for the authorization would be possible without prior programmatic analyses under NEPA to 

determine negligible impact. I believe that this general authorization procedure 

would work best after earlier consultation and programmatic environmental review 

of the potential for different kinds of activities to cause adverse impacts. 

I urge Congress to develop a consultation process to require NMFS to tier activities by expected impact with a streamlined process for general authorization of activities with negligible impact and a requirement for regulatory effort to be directed 

to cases with the highest expected adverse impact. The NMFS Office of Protected 

Resources will require a considerable injection of funds and skilled personnel to participate in these broad NEPA analyses. 

Suggested unified procedure for authorizing incidental takes under the MMPA 

The consultation and authorization procedure I have just outlined bears similarities with the incidental take provisions of the MMPA for commercial fisheries. This 

regime for regulating fishery takes that may kill animals has been quite successful 

in highlighting situations where populations are threatened by fishing. NMFS is required to categorize fisheries as to whether they have frequent, occasional, or remote likelihood of causing mortality or serious injury. Each fishing vessel receives 

an authorization for incidental takes subject to conditions. As long as a fisher registers with this authorization process, complies with the conditions, and reports any 

takes, s/he is exempt from the prohibition against taking. Fishers in low impact 

fisheries have a simple and streamlined regulatory process that protects them from 

prosecution in case of an unlikely accident, and regulation ramps up corresponding 

to the threat, up to closing down fisheries that threaten the survival of marine 

mammal populations. 

The 1994 National Academy Report on Low-frequency Sound and Marine Mammals approves of the way this regime sets priorities for regulation: 

The proposed regime is designed to redirect regulation to focus on human 

activities with the largest impact on marine mammal populations, scaling 

the extent of regulation to the risk the activity poses to populations. (p 35) 

48

However, the regime for regulating lethal takes or serious injury under section 

118 of the MMPA has a flaw that may prove fatal to some marine mammal populations, such as right whales, where significant incidental mortality stems from activities other than fishing. The solution to this problem suggested by the NRC 2000 

report is to broaden this regime to include other activities that might kill or seriously injure marine mammals. Obvious examples include vessel collision, underwater explosions, and spills of toxic compounds. The MMPA as currently written 

specifies a process to reduce takes from fisheries whose lethal take exceeds PBR, 

but it is silent as to how to regulate incidental lethal takes from activities other 

than fishing. If there are situations where non-fishery takes may be as significant 

as takes by fisheries, the MMPA must be modified to clarify how to regulate all lethal takes and serious injury, whether from fisheries or other sources. When vessels 

strike and kill whales, for example, this mortality must either be subtracted from 

the PBR or these non-fishing activities must be incorporated into a process for allocating takes. 

Section 118 of the MMPA includes a comprehensive program to monitor takes 

from fisheries, but there is no such program to guarantee that stock assessments 

accurately estimate mortality from non-fishery activities. If mortality caused by 

these non-fishing activities is not included in the PBR regime, then the regime will 

not work properly to protect marine mammal populations. The strict monitoring requirements for fisheries will not protect populations from the effect of non-fishery 

mortality unless these sources of mortality are as well documented as mortality 

from fisheries. 

Keeping the MMPA up to date with the threats to marine mammals of the 21st 

century 

The impacts of pervasive and subtle human influences such as contaminants and 

noise are much more difficult to identify than death by harpoon or injury in nets. 

As these impacts become more important compared to whaling and bycatch, the 

MMPA must be adjusted to deal with these forms of habitat degradation that cannot always be easily or effectively regulated under the prohibition on taking. The 

PBR process limits lethal takes to a number small enough not to threaten the population. It is more difficult to set a limit on harassment takes, since these may vary 

greatly in impact, and since the effect on population growth may be difficult to predict. Exposure to contaminants is even more difficult to treat as a take. Ultimately, 

the significance to the population of any take is the effect on the demography of the 

population, the ability of the population to grow or remain a healthy size. 

I strongly encourage Congress to adopt wording requiring NMFS to account for 

harassment or effects of contaminants conservatively in terms of demographic effects on growth, survival or reproduction of individuals and populations. As I discussed in the section of my testimony on the definition of harassment, the best way 

to do this is to define harassment in terms of biological significance of the take. This 

is currently a challenging scientific problem, but the correct wording should stimulate the appropriate science, while focusing attention on the critical issue of keeping 

marine mammal populations healthy. Ultimately a demographic accounting of harassment takes or other threats would require population modeling that relates the 

dosage of exposure to population parameters. There has been great progress in this 

kind of population modeling in the past decade. However, right now the critical 

analyses could not be performed for harassment takes because we know so little 

about the extent of the exposure or its impact. 

The criteria for harassment takes need to acknowledge our ignorance of the scope 

of exposure to harassing stimuli, and our ignorance of many of the effects harassment may have on individuals and populations. If we wait until the population has 

measurable declines, it is too late. Therefore it is important to include indicators of 

adverse impact in the criteria. These indicators may be physiological, behavioral, or 

ecological, but must be linked to potential to affect demography. 

Before we can estimate the impacts of subtle threats to marine mammals, we 

must understand the extent of exposure, and the relationship between exposure and 

impact. A critical aspect of the PBR regime is that it exempts registered fishers 

from the prohibition on taking as long as they accurately and fully report any takes. 

A similar clause for all vessels that may be involved in harassment would ultimately give scientists data needed to estimate exposures that may cause harassment. A timely reporting requirement might also make it easier to prosecute cases 

of intentional harassment, as failure to report would violate the terms of the authorization. 

Understanding the relationship between exposure to threats and adverse impacts 

caused by the exposures will require a concerted research program. I urge that Congress help streamline the regulatory obstacles to this kind of research, and also to 

49

carefully consider the best way to fund and organize this kind of research effort. 

This must include a mechanism to encourage young scientists to become involved 

in this critical area. 

This kind of program would allow NMFS to identify situations where 

1. A stock was at risk from a particularly high number of takes. 

2. An area or activity caused a high number of takes for a variety of species. 

3. There were particular hot spots of takes. 

4. The cumulative takes pose a risk to the population 

Where the sum of takes, lethal, injury, or harassment, pose a risk to a population, 

this regime should require something like the take reduction plans used to reduce 

the problem of fisheries takes. This kind of regulatory regime would reduce the burden on activities that pose little risk, while focusing attention on species, areas, or 

activities that pose the greatest risk to the most endangered populations. 

Some may be concerned that the regulatory process I sketch out would lead to 

reduced protection. It would certainly streamline the regulatory process and make 

it more predictable for most activities, but I agree with the National Academy 

(2000) report on Marine Mammals and Low-frequency Noise that such a change 

would, if done correctly, increase protection from the status quo. The current MMPA 

has unbalanced criteria for authorization, allowing some fisheries to kill animals 

with no requirement beyond reporting, while having no procedure available to other 

activities to authorize more than a small number of insignificant harassment takes. 

This does not meet the conservation goals of the Act. 

Conclusion 

Mr. Chair, I sincerely appreciate your attention to this difficult and complex issue. 

There are real problems with current implementation of the MMPA in our changing 

environment. I believe that H.R. 2963 goes a long way to fixing these problems, and 

I am convinced that Congress and the responsible federal agencies can make real 

progress to create permitting and authorization processes that are more predictable 

and efficient, while improving the protection for marine mammals from adverse impacts of human activities. 

Thank you, and I look forward to your questions. 

Mr. GILCHREST. Thank you, Dr. Tyack. 

Dr. Worcester? 

STATEMENT OF DR. PETER WORCESTER, OCEANOGRAPHIC 

RESEARCHER, SCRIPPS INSTITUTION OF OCEANOGRAPHY, 

UNIVERSITY OF CALIFORNIA AT SAN DIEGO 

Dr. WORCESTER. Mr. Chairman, distinguished members of the 

Committee, my name is Peter Worcester. I am a research oceanographer at the Scripps Institution of Oceanography of the University 

of California, San Diego. I very much appreciate the opportunity to 

testify before the Committee on my views on the Marine Mammal 

Protection Act reauthorization as it relates to ocean science and the 

use of sound in the sea. 

Any discussion of the use of sound in the sea must start from one 

basic fact: The ocean is largely transparent to sound, but opaque 

to light and radio waves. What does this mean? It means that all 

of the tasks for which we use light and radio waves in the atmosphere must be done using sound in the sea. 

Some examples might help here. We assess fish stocks, measure 

ocean bathymetry, communicate under water, transmit data from 

sub-sea instruments, navigate, profile ocean currents, and measure 

large-scale temperatures and currents. Sound in the sea is not just 

noise. It is used for a wide variety of valuable and important purposes. 

With all of that said, what is the problem? The problem is that 

the current regulatory procedures do not adequately differentiate 

between activities that cause minor changes in marine mammal beVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00053 Fmt 6633 Sfmt 6602 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
50

havior, having no adverse impact, and activities that cause significant disruption of behaviors critical to survival and reproduction. 

Further, as Dr. Tyack noted, the current regulatory procedures are 

complex, fraught with delays, costly in both time and money, and 

uncertain in their outcome. The current regulatory structure makes 

obtaining the necessary authorizations for using sound in the sea 

so arduous that it is having a chilling effect on a wide variety of 

important and valuable uses of sound in the sea as well as on the 

research needed to improve our understanding of the impacts of 

underwater sound on marine life. 

Let me give you an example from a project in which I am involved called the North Pacific Acoustic Laboratory. As one component of this project, we sought the authorizations needed to operate 

a low-frequency sound source off the north shore of Kauai. The 

source had previously been operated for 2 years as part of the 

Acoustic Thermometry of Ocean Climate Project, which included an 

extensive marine mammal research program to determine the effects, if any, on marine mammals. The short summary of that research is that subtle effects were detected—large whales could 

clearly hear the source—but none of the marine mammal experts 

involved with the program felt that the observed effects were biologically significant. 

We started the process of seeking the required authorizations in 

the spring of 1999. We finally completed the process and were able 

to resume transmissions in late January of 2002. It took nearly 3 

years of my life and cost in excess of half a million dollars to get 

the required permits. 

I hope that this is an extreme example. Nonetheless, it is clear 

that it is simply impractical for a single researcher or small research group to undertake such an effort. I personally would be unwilling to devote another 3 years of my life to such an effort. I 

doubt that any funding agency would do so. Research dollars are 

simply too scarce. 

So what is the solution? First, the definition of Level B harassment needs to be modified to focus on the biologically significant 

disruption of behaviors critical to survival and reproduction; that 

is, on adverse impacts rather than simply undetectable changes in 

behavior. 

Second, the provisions of the MMPA that limit requests for an 

incidental taking or harassment authorization to small numbers in 

a specified geographical region need to be removed, while retaining 

the essential provision that the species or stock must be negligibly 

impacted by the authorized activity. 

Third, the MMPA needs to be modified to provide for the 

issuance of general authorizations allowing for the use of oceanographic instrumentation that is in widespread and ongoing use for 

marine research and other valuable purposes; provided, again, that 

any taking by harassment is unintentional and will have a negligible impact on the affected species and stocks. 

Finally, it would be helpful for the definition of research for 

which scientific research permits can be issued to be broadened to 

include all legitimate scientific research activities, rather than 

being limited to research on or directly benefiting marine mamVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
51

mals. Further, scientific research permit procedures should be simplified and streamlined. 

The revised definition of harassment and the amendments concerning the incidental taking of marine mammals contained in 

H.R. 2693 are largely in accord with the majority of the recommendations given above. I therefore strongly support H.R. 2693. 

I believe it would facilitate the constructive use of sound in the sea, 

focus regulatory efforts on activities that have biologically significant impacts on marine mammals, and make it easier to do the research needed to improve our understanding of the impacts of underwater sound on marine life while continuing to protect marine 

mammals. 

Although the MMPA changes discussed above are important, 

they are not sufficient in and of themselves to address the issues 

now facing the ocean science community with respect to marine 

mammals. The current understanding of the effects of sound in the 

ocean on the behavior and health of marine mammals needs to be 

improved. A robust marine mammal research program is absolutely 

essential to protecting marine mammals and conducting other essential research in our oceans. As you undertake the reauthorization process for MMPA, you should consider the authorization of 

such a program. 

I would like to close by stating that I sincerely appreciate your 

attention to this complex and highly emotional issues. I look forward to your questions. 

[The prepared statement of Dr. Worcester follows:]

Statement of Peter F. Worcester, Ph.D., Research Oceanographer,

Scripps Institution of Oceanography, University of California, San Diego 

Mr. Chairman and distinguished members of the Committee, I am Peter Worcester, a Research Oceanographer at the Scripps Institution of Oceanography of the 

University of California, San Diego. I very much appreciate the opportunity to testify before the Committee on my views on the Marine Mammal Protection Act 

(MMPA) reauthorization as it relates to ocean science. 

Last year I testified before the Subcommittee on H.R. 4781, the Marine Mammal 

Protection Act Amendments of 2002. In my testimony I discussed the impact of the 

MMPA on oceanographic research using acoustic methods and suggested amendments to the act intended both to facilitate the constructive use of sound in the sea 

and to improve regulatory efforts by focusing them on activities that cause biologically significant disruption of marine mammal behaviors critical to survival and 

reproduction, i.e., on adverse impacts. 

Since that time others in the oceanographic community, including Scripps Institution of Oceanography, Woods Hole Oceanographic Institution, Lamont-Doherty 

Earth Observatory of Columbia University, and the Consortium for Oceanographic 

Research and Education (CORE) have expressed concerns similar to mine in testimony to Congress. The recommendations made in their statements closely parallel 

those that I made last year. 

The revised definition of harassment and the amendments concerning the incidental taking of marine mammals contained in H.R. 2693 are largely in accord with 

the recommendations that I and others in the oceanographic community have made, 

as will be discussed in detail below. If enacted, I believe that they will both facilitate 

the constructive use of sound in the sea and improve regulatory efforts by focusing 

them on activities that have biologically significant impacts on marine mammals. 

I therefore strongly support H.R. 2693. 

Sound in the Sea 

Any discussion of the use of sound in the sea must start from one basic fact: 

The ocean is largely transparent to sound, but opaque to light and radio 

waves. 

Light travels only a few hundred meters in the ocean before it is absorbed. Sound 

can travel long distances and with great speed underwater. Marine mammals—

52

whales, dolphins, seals—therefore rely on sound to sense their surroundings, to communicate, and to navigate. Similarly, oceanographers, fishermen, and submariners—in short, all who work in the ocean—rely on sound to sense their surroundings, to communicate, and to navigate. Fishermen, for example, use acoustic 

fish finders to locate schools of fish. Oceanographers use sound in the sea for a wide 

variety of purposes, including assessing fish stocks, measuring ocean bathymetry, 

communicating underwater, transmitting data from subsea instruments to the surface, navigating underwater, profiling ocean currents, and measuring large-scale 

ocean temperature variability. The U.S. Navy uses sound for many of these same 

purposes, as well as to detect and track submarines and to locate mines. 

Sound in the sea is not just noise. It is used for a wide variety of valuable and 

important purposes. 

With all of that said, what is the problem? The problem is that the current regulatory procedures do not adequately differentiate between activities that cause 

minor changes in marine mammal behavior having no adverse impact and activities 

that cause significant disruption of behaviors critical to survival and reproduction. 

Further, the current regulatory procedures under the MMPA are complex and 

fraught with delays, costly in both time and money, and uncertain in their outcome. 

The current regulatory structure makes obtaining the necessary authorizations for 

using sound in the sea so arduous that it is having a chilling effect on a wide variety of important and valuable uses of sound in the sea, as well as on the research 

needed to improve our understanding of the impacts of underwater sound on marine 

life. 

A project in which I am involved, called the North Pacific Acoustic Laboratory, 

provides an example of the current regulatory process. As one component of this 

project we sought the authorizations needed to operate a low-frequency sound source 

off the north shore of Kauai. The source had previously been operated for two years 

as part of the Acoustic Thermometry of Ocean Climate (ATOC) project, which included an extensive marine mammal research program to determine the effects, if 

any, on marine mammals. The short summary of that research is that subtle effects 

were detected. Large whales could clearly hear the source, but none of the marine 

mammal experts involved with the program felt that the observed effects were biologically significant. 

We started the process of seeking the required authorizations in the spring of 

1999. We finally completed the process and were able to resume transmissions in 

late January of 2002 (Fig. 1). It took nearly three years and cost in excess of half 

a million dollars to get the required permits! 

I believe—hope?—that this is an extreme example. Nonetheless, I believe that it 

is clear that the regulatory burden in this case bore little relation to the potential 

environmental impacts of the project. 

Our understanding of the effects of underwater sound on marine mammals and 

the impact of the existing regulatory structure on oceanographic research has been 

discussed in three recent National Research Council reports: 

National Research Council (NRC). 1994. Low-Frequency Sound and 

Marine Mammals: Current Knowledge and Research Needs. National Academy Press, Washington, D.C. 

National Research Council (NRC). 2000. Marine Mammals and LowFrequency Sound: Progress Since 1994. National Academy Press, Washington, D.C. 

National Research Council (NRC). 2003. Ocean Noise and Marine 

Mammals. National Academy Press, Washington, D.C. 

These reports provide an important service in considering how the MMPA could 

be modified ‘‘for facilitating valuable research while maintaining all necessary protection for marine mammals’’ (NRC, 1994). The suggestions made in these reports 

also provide useful guidance on how the MMPA could be modified to facilitate other 

valuable uses of sound in the sea, while maintaining protections for marine mammals. 

Definition of Level B Harassment 

The 1994 amendments to the MMPA included a definition of harassment as ‘‘any 

act of pursuit, torment, or annoyance which: 

Level A—has the potential to injure a marine mammal or marine mammal stock 

in the wild; or 

Level B—has the potential to disturb a marine mammal or marine mammal stock 

in the wild by causing disruption of behavioral patterns, including, but not limited 

to, migration, breathing, nursing, breeding, feeding, or sheltering.’’

Unfortunately this definition of harassment is somewhat ambiguous and has at 

times been interpreted to mean that any detectable change in behavior constitutes 

53

harassment. NRC (1994) notes that as ‘‘researchers develop more sophisticated 

methods for measuring the behavior and physiology of marine mammals in the field 

(e.g., via telemetry), it is likely that detectable reactions, however minor and brief, 

will be documented at lower and lower received levels of human-made sound.’’ NRC 

(2000) concludes that it ‘‘does not make sense to regulate minor changes in behavior 

having no adverse impact; rather, regulations must focus on significant disruption 

of behaviors critical to survival and reproduction.’’ NRC (2000) suggests that Level 

B harassment be redefined as follows: 

‘‘Level B—has the potential to disturb a marine mammal or marine mammal 

stock in the wild by causing meaningful disruption of biologically significant activities, including, but not limited to, migration, breeding, care of young, predator 

avoidance or defense, and feeding.’’

NRC (2003) expands on, rather than replaces, the recommendations contained in 

the previous reports. All three NRC committees are therefore in agreement that the 

definition of Level B harassment should be modified to focus on the biologically significant disruption of behaviors critical to survival and reproduction, i.e., on adverse 

impacts rather than simply on any detectable change in behavior. 

The revised definition of Level B incidental harassment proposed in H.R. 2693 is: 

‘‘... any act that—

(ii) has the potential to disturb a marine mammal or marine mammal stock in 

the wild by causing biologically significant disruption of activities, including, but not 

limited to, migration, breeding, care of young, predator avoidance, defense, or feeding...’’

This definition is fully consistent with that recommended by the NRC. I therefore 

strongly support the proposed change. 

Incidental Takings—‘‘Small Numbers’’

Another key recommendation made in NRC (2000) is to remove the term ‘‘small 

numbers’’ from MMPA provisions that deal with the authorization of incidental 

takings. Under current law, requests for an incidental taking or harassment authorization apply to ‘‘small numbers’’ of marine mammals of a species or stock of which 

the Secretary of Commerce must find will be negligibly impacted by the authorized 

activity. 

Until now, federal managers essentially have interpreted this as a single requirement in the authorization process for incidental takes or harassment of marine 

mammals. However, recent court decisions have called that interpretation into question and if such a change is not made, it is conceivable there would be two distinct 

and separate tests for determining takes—small numbers first, and if that test were 

met, negligible impact from the take of small numbers. The NRC-suggested change 

would prevent the denial of research permits that might insignificantly harass large 

numbers of animals and would leave the ‘‘negligible impact’’ test intact. The goal 

is to focus our efforts to protect marine mammals on avoiding adverse impacts. 

H.R. 2693’s proposed removal of language concerning ‘‘small numbers’’ responds 

to concerns raised by the NRC. I therefore strongly support the proposed change. 

Incidental Takings—‘‘Specified Geographical Region’’

Under current law, requests for an incidental taking or harassment authorization 

apply to marine mammals in a ‘‘specified geographical region.’’ The Secretary of 

Commerce must find marine mammals in a specified geographical region will be 

negligibly impacted by the authorized activity. 

As was the case for ‘‘small numbers,’’ it is conceivable there could be two distinct 

and separate tests for determining takes—specified geographical region first, and if 

that test were met, negligible impact. The suggested change would prevent the denial of research permits that might insignificantly harass animals in more than one 

geographical region and would leave the ‘‘negligible impact’’ test intact. The goal 

once again is focus our efforts to protect marine mammals on avoiding adverse impacts. 

I therefore strongly support H.R. 2693’s proposed removal of ‘‘specified geographical region’’ from the MMPA provisions that deal with the authorization of incidental takings. 

Establishing Timely and Less Burdensome Permitting and Regulatory Guidance 

The complex and lengthy permitting process under the MMPA has become a 

major impediment to conducting ocean research, hindering even the research needed 

to understand better the effect of human-generated sound on marine mammals. This 

problem has been exacerbated in recent months by legal decisions that could require 

extensive analyses under the National Environmental Policy Act (NEPA) for any research that may affect marine mammals, even in situations where there is widespread agreement among federal managers and scientists that the research activity 

54

has no potential to cause harm. As in the example given above, scientists now face 

lengthy delays and significant additional expense that threaten their ability to conduct research. In addition, the situation is placing new burdens on the already 

stretched resources of the National Marine Fisheries Service. The ocean science 

community is urgently in need of a timely and predictable permitting or authorization process that is not unnecessarily burdensome and provides them with assurances that research will proceed in compliance with all applicable laws, when the 

permit is issued. 

One option may be to broaden the relatively streamlined Scientific Research Permit procedure for research on or directly benefiting marine mammals under section 

104 of the MMPA. This procedure is currently available only for marine mammal 

research, and any other scientific research affecting marine mammals falls under 

the Incidental Harassment Authorization (IHA) procedure or the lengthy rule-making procedure leading to a Letter of Authorization (LOA). These procedures are time 

consuming and burdensome at best, and the NRC (1994) has recommended that the 

definition of research for which Scientific Research Permits can be issued be broadened to include a wider range of research activities. 

Although such a change would be an important step toward a more predictable 

process for ocean research, the existing procedure for obtaining scientific research 

permits still is enormously time-consuming and expensive for individual researchers. Today’s experience is that the costs of permitting and associated legal fees can 

become as expensive as the research investment itself, leading inevitably to less 

ocean research and a slowdown in scientific advancement and the benefits that come 

from it. In addition, the chilling effect of this overly-burdensome process is discouraging new researchers from pursuing marine science, potentially weakening our 

human resource capabilities in an area that has great potential for new discoveries 

and large information deficits. I would ask that the Committee look at ways to further simplify and streamline the process and address the concern of the NRC (1994) 

that ‘‘the lengthy and unpredictable duration of this process can create serious difficulties for research.’’

A closely related issue is that oceanographers and other marine operators routinely use underwater sound for a wide variety of important purposes. However, the 

MMPA does not provide guidance to govern its application to instrumentation that 

is in widespread and on-going use, nor does it include a mechanism for allowing for 

such on-going uses other than through exemptions that must be applied for on a 

case-by-case basis. I recommended last year either that the National Marine Fisheries Service clarify its position on the use of a wide variety of routinely used sound 

sources or that the act be modified to provide for the issuance of general authorizations allowing for the use of instrumentation that has the potential for taking by 

harassment in situations in which the taking will be unintentional and will have 

a negligible impact on the affected species and stocks. NMFS should be tasked with 

issuing regulations providing general authorizations for uses of sound that meet appropriate criteria. Such regulations could include provisions excluding critical habitat from the general authorization, if appropriate, for example. 

H.R. 2693’s proposed provision for a general authorization responds to these concerns. I therefore strongly support the proposed change. 

Scientific Research on Marine Mammals and Sound 

While the MMPA changes discussed above are important, they are not sufficient 

in and of themselves to address the issues now facing the ocean science community 

with respect to marine mammals. In its reports, the NRC makes it clear that the 

current understanding of the effects of sound in the ocean on the behavior and 

health of marine mammal needs to be improved. Different sound frequencies and 

intensities have different effects on various species, and those effects change with 

location in the water column and characteristics of the sea floor. It is clear that increasing our scientific understanding would clarify and narrow the need to obtain 

permits and authorizations under the MMPA, as well as making it easier for researchers to include effective mitigation measures in their experimental plans. A robust marine mammal research program is absolutely essential to protecting marine 

mammals and conducting other essential research in our oceans. 

Funding and scientific leadership in this area to date has come from the United 

States Navy. Over the years, the Navy has supported the efforts of pioneers like 

Sam Ridgway and Ken Norris to expand the boundaries of our knowledge about 

these unique animals. Today, the Office of Naval Research maintains a substantial 

research program on underwater sound and marine mammals. 

I believe that an enhanced research program on the effects of underwater sound 

on marine mammals is needed. It is important that this program be independent 

and peer-reviewed. It should be broadly based, with participation from funding 

55

agencies in addition to the Office of Naval Research, including the National Science 

Foundation, the National Oceanic and Atmospheric Administration (NOAA), and the 

Minerals Management Service. Support from private industry and non-governmental organizations for research managed in such a manner should be encouraged. 

The National Oceanographic Partnership Program offers a potential mechanism to 

bring these entities together in a process that provides both needed coordination 

and scientific independence. As you undertake the reauthorization process for the 

MMPA, you should consider authorization of such a program. 

Conclusion 

Mr. Chairman and members of the Committee, I sincerely appreciate your attention to this complex and emotional issue. Both marine mammals and people use 

sound in the sea for a wide variety of important purposes. I believe that the 

H.R. 2693 responds in a meaningful way to the suggestions provided above. If enacted, it will facilitate the constructive use of sound in the sea, focus regulatory efforts on activities that have biologically significant impacts on marine mammals, 

and make it easier to do the research needed to improve our understanding of the 

impacts of underwater sound on marine life, while continuing to protect marine 

mammals. 

Thank you, and I look forward to your questions. 

Mr. GILCHREST. Thank you, Dr. Worcester. 

I yield first to—if he has any questions—to the Chairman of the 

full Committee, Mr. Pombo. 

Mr. POMBO. Well, thank you. I would like to get back to Dr. 

Tyack, if I can. You talked about the problems and delays in getting a research permit, and I would like you to expand on that a 

little bit for me. Why would it take 18 months or 2 years to get 

a permit? 

Dr. TYACK. Yes. I think that not all of these problems are problems with the MMPA. They are problems with Endangered Species 

consultations and with NEPA. One of the things that is causing 

more delays than there were in the past is that court case that I 

was involved with hinged on the question of whether an amendment to my research permit to do something that had already been 

permitted required a full environmental assessment. And the judge 

ruled that, yes, each amendment requires an environmental assessment to back it up. 

Mr. POMBO. So any change in the research you are doing would 

require you to go back and do another environmental assessment? 

Dr. TYACK. Or require NMFS to do the assessment. And they 

simply don’t have the staff. The Office for Protected Resources that 

does permitting is not geared up to be able to do this. These are 

very difficult time-consuming processes under NEPA. And I strongly support the suggestion that Dr. Lent made of trying to get ahead 

of this by doing programmatic environmental assessments. But it 

is going to take a significant effort for them to be able to do that 

and keep the research process going on at the same time. 

And I would also like to second Dr. Lent’s points that there are 

many research permits for non-endangered species that are not involved in the important conservation issues that can move very 

quickly. And there is a general authorization process that seems to 

work quite well for these. The thing that is a problem here is that 

research on endangered species, and particularly those that are 

most involved in tough conservation issues like right whales, are 

the ones that get the most delayed. And they are the ones that I 

think Congress ought to focus on trying to support the most. They 

56

are the most essential for helping resolve the problems that have 

been brought up here. 

Mr. POMBO. What change do we have to make, either in the 

Marine Mammal Protection Act or in the ESA or other laws—because, I mean, we can blame them, but the truth is, we are the 

ones that pass the laws. So, you know, whether we point fingers 

or not, it is our responsibility. 

What changes would you recommend in existing laws to try to 

speed up that process or eliminate the red tape that exists, or the 

bureaucratic delays that exist? 

Dr. TYACK. I think that giving the resources to do the programmatic assessments under NEPA is probably the most important step. I personally feel that actually creating a deadline would 

be very important. This was a recommendation of the National Research Council, to actually create a deadline of three to 4 months, 

something like that, for issuing the permits. The required steps 

that they need to take can easily fit into that time period. And if 

there were an actual deadline that scientists could count on, that 

would be very helpful. Right now, it is a completely open-ended 

process. So when we apply for a permit, we always try to give it 

about 6 months, but we can’t know when we will actually receive 

our permit. And very often it involves frantic phone calls by satellite phone from a research vessel to D.C. to try to get the permit 

faxed to the ship. 

Mr. POMBO. But—I think we need to think this through a little 

bit more, because it is not just a matter of them carrying out the 

environmental assessments and having the people. I think—my 

question is, is all of that absolutely necessary to go through? If you 

are out and you have been permitted to go out and do a research 

project, if there is a minor change in that research, is it really necessary to do another environmental assessment, or is this just a 

full employment act to keep more people doing more things? 

Dr. TYACK. This is why I was suggesting at the end of my testimony about this triage process. I think if NMFS were able to work 

with a clear de minimis kind of standard for harassment and for 

takes under the MMPA, and publish a list of activities that they 

do not estimate cause takes, then that could maybe account for a 

lot of these kinds of issues. That doesn’t occur right now. I also 

think the general authorization process, which has been included 

in H.R. 2693, if that were linked, again, to some kind of up-front 

NEPA kind of analysis showing that certain kinds of activities are 

expected in general to have negligible impacts, would streamline it 

greatly. And if the research permits were limited to other activities, 

I think that may both reduce the burden on scientists and on the 

permitting agencies. But there is a considerable amount of analysis 

up front to be able to get to that point. 

Mr. POMBO. And finally, if we were to look at it on the broad 

sense and take research and the activities that you and your colleagues have, but to look at all of the activities and just come up 

with these broad definitions of activities that would be permitted—

because, you know, obviously we get complaints from industry, we 

get complaints from the researchers, everybody. Wouldn’t it make 

sense just to come up with these broad areas that are considered 

to have a negligible impact and say that if it falls within these 

57

areas, it is OK and you don’t have to go through, you know, a 

multi-year process in order to get a permit. Would that make sense 

to you? 

Dr. TYACK. Absolutely. And that follows the recommendations of 

NRC to try to have a uniform process applying the same standards. 

Right now, I would say the reason there is so much effort—I should 

be corrected by the Federal agencies if I am wrong with the 

numbers—but I think that seven people are involved in authorizing 

scientific research versus two people for everything else. That 

clearly does not balance the amount of impacts caused on these 

animals. And I think that having some process that is streamlined 

for negligible impact and applied uniformly to all activities would 

greatly help this problem. 

Mr. POMBO. Thank you. Thank you, Mr. Chairman. 

Mr. GILCHREST. Thank you, Mr. Pombo. 

Mr. Pallone? 

Mr. PALLONE. Thank you, Mr. Chairman. I guess I am really asking, well, either Dr. Tyack or Worcester or David Cottingham these 

questions about the harassment definition. The proposed change 

the to the definition of Level B harassment in H.R. 2693 would require that an activity cause a biologically significant disruption of 

activities including, not limited to, migration, breeding, care of 

young, predator avoidance, defense, or feeding. In contrast, the definition proposed earlier by the NRC would require that an activity 

cause a disruption to biologically significant activities. 

Now, I know it might not seem like they are not that different, 

but I just wanted to ask if this inversion of the words is important 

and is something that we should be concerned about. 

Dr. TYACK. I would be happy to start on this. I think that the 

critical issue, if this hadn’t been copy-edited carefully, would be 

something like biologically significant disruption of biologically significant activities. 

Mr. PALLONE. OK. 

Dr. TYACK. But since there is a—because the point to be emphasized is that you want to have a standard that focuses on something that could affect growth, reproduction, survival of the animals. That should be the standard. And I think since there is a list 

of the activities, and they are obviously selected to be biologically 

significant, as opposed to random, I think that if there is only going 

to be one use of the modifier, it is probably more important to be 

in front of ‘‘disruption’’ than in front of the activities. So I actually 

support the way H.R. 2693 does this. And I don’t think that that 

is a particularly problematic change of the exact text in the NRC 

language. 

Mr. PALLONE. Does anybody else want to comment on the same 

issue? 

Mr. COTTINGHAM. Let me just add a little bit to that. The other 

part of it is what is in your list. Surfacing was in the administration’s bill. I don’t think surfacing is in—I mean, these are really 

very minor points. The terms and the other things that are listed— 

Mr. GILCHREST. If the gentleman will yield just for a second? 

Mr. COTTINGHAM. Yes, sir. 

Mr. GILCHREST. Instead of ‘‘surfacing,’’ we use the word 

‘‘breathing.’’ 

58

Mr. COTTINGHAM. OK. Sorry. ‘‘Breeding’’ or ‘‘breathing’’? 

Mr. PALLONE. ‘‘Breathing’’. 

Mr. GILCHREST. ‘‘Breathing’’? 

Mr. COTTINGHAM. I don’t think that is in there, sir, but I stand 

to be corrected. 

Mr. PALLONE. ‘‘Breeding.’’ 

Mr. COTTINGHAM. ‘‘Breeding’’ is there, but I don’t believe ‘‘breathing’’ is. But I— 

Mr. GILCHREST. You are right. 

Mr. COTTINGHAM. These are the kind of very detailed comments 

that we want to have the chance to work with the Committee on. 

Mr. PALLONE. But you don’t feel there is a difference between the 

inversion of the words, though? 

Mr. COTTINGHAM. I really think that is almost insignificant. 

Mr. PALLONE. OK. All right, what about the— 

Mr. GILCHREST. Will the gentleman yield—and I will yield you a 

little bit more time. Just on this point, ‘‘disruption’’—we looked at 

this yesterday. And ‘‘significant biological disruption,’’ we had some 

understanding, was not as protective as—this is ‘‘significant 

biological disruption’’ versus ‘‘disruption of biologically significant 

activities.’’ ‘‘Disruption of biologically significant activities,’’ as I understood it, was more oriented toward the cautionary approach, 

based on the emphasis, as opposed to ‘‘significant biological disruption.’’ And, you know, I am beginning this word-smithing, but we 

might as well word-smith now as opposed to, you know, two, 3 

years from now. 

Mr. COTTINGHAM. I actually think you are right, sir, in terms of 

the disruption of those key biological activities, of which I think 

surfacing and breathing would be one. 

Mr. PALLONE. I hope I don’t regret having asked this question. 

Mr. GILCHREST. I will yield you some of my time. 

Mr. PALLONE. No, that is all right. If anyone else wants to answer it, I —yes, go ahead. 

Dr. WORCESTER. Yes, if I might comment on that. Not speaking 

as a lawyer, but to talk about the meaningful disruption of biological important activities, ‘‘meaningful’’ seems to be a slightly ambiguous standard; whereas if the goal is to make sure we focus on biologically significant activities, I would agree with Dr. Tyack that it 

is better to have it modify the term ‘‘disruption.’’ I mean, really, the 

goal here is to get away from worrying about merely detectable 

changes and to focus on biologically significant ones. 

Mr. PALLONE. OK. 

Dr. TYACK. If I could comment just briefly on why this has come 

up after 30 years of the act. I think in the early years of the act, 

our techniques for following behavior were so weak that the assumption was if we could detect any change in behavior, it probably was important. And now we have developed very sensitive 

methods to detect does an animal slow its fluke beat, does it turn 

its head when it hears something. Those quantify as changes, detectable changes in behavior, and in many cases they can be significantly—statistically significantly predictable in terms of response to a particular sound. 

But it seems like that is not the intent of Congress to regulate, 

an animal turning its head when it detects a signal. And, at least 

59

the suggestion of the NRC panels was that the criterion to use was 

‘‘could it’’ potentially affect these biologically significant activities? 

Was it a disruption of feeding that would actually slow the process 

for the animal getting energy. Was it a disruption of mating behavior that might affect reproduction in the population. And that 

seemed to be the criterion to use, rather than ‘‘detectable,’’ which 

the Marine Mammal Commission, in the early 1990’s, suggested 

had been the standard up to that point. 

Mr. ABERCROMBIE. Would the gentleman yield? 

Mr. PALLONE. Oh, sure. 

Mr. ABERCROMBIE. I just want to make sure. Who is speaking? 

Dr. TYACK. My name is Peter Tyack. 

Mr. ABERCROMBIE. I am sorry. I thought it was you, but I 

couldn’t see. I just want to make absolutely sure, then. So you are 

saying that—and I think this is important for what the Chairman 

was moving toward, too, that if we change from ‘‘detectable’’ and 

make the changes that are suggested, this is as a result of experience over the past 30 years, which allows us to have not necessarily a more sophisticated definition, but a definition which gets 

at what we are really aiming for. After all, this is the Marine Mammal Protection Act. And you think this will accomplish what both 

Mr. Pallone and Mr. Pombo are inquiring of you with regard to the 

legislation itself? 

Dr. TYACK. Yes. I think it is very important to remain precautionary, but I think the standard should move beyond ‘‘detectable changes of behavior.’’ 

Mr. ABERCROMBIE. Which is what we are trying to legislate, so 

that we can put this right. 

Dr. TYACK. Exactly. 

Mr. ABERCROMBIE. Thank you. 

Mr. PALLONE. Mr. Chairman, I just want to ask one more question about this harassment definition, then I will move on—or you 

can move on. 

The definition for Level A, ‘‘potential to injure’’ harassment proposed in H.R. 2693, requires that an activity have the probability 

to injure a marine mammal. And I was wondering if it seems that 

this change would require a higher burden of proof for a given activity’s likelihood of causing harm. In other words, does the word 

‘‘probability’’—you know, what is the distinction from ‘‘potential’’? 

Does the word ‘‘probability’’ have a clear and commonly understood 

legal definition? Do you think this change would make the definition less protective of marine mammals? Or do you even understand what I am talking about? [Laughter.] 

Dr. TYACK. Well, as a scientist I prefer to use numbers for quantitative issues like this, but clearly there seems to be a spread between ‘‘potential,’’ which can and has at times been interpreted to 

be the most sensitive animal within a large population, which is 

very protective, but may be very difficult to determine empirically. 

And ‘‘probable,’’ which to me seems like it is more than 50 percent, 

which almost certainly is not protective enough. 

So I would assume that there ought to be a middle ground in 

there, which is a bit of a judgment call, but it seems to me that 

these are bound to extremes of probability that I wouldn’t want to 

use here. I think something like ‘‘beyond a remote possibility’’ 

60

seems reasonable; ‘‘more than half of the animals being disrupted’’ 

seems not precautionary enough. But just ‘‘potential’’ by itself has 

in the past occasionally been interpreted as an exceedingly low 

level of potential for risk, one that is almost impossible to measure. 

Mr. PALLONE. Could I ask Dr. Lent to respond to it? 

Dr. LENT. Yes. Thank you. As I mentioned in my testimony, we 

do have concern that the term ‘‘probability’’ might have some people thinking it would have to be at least 50-50 or more than 50 percent. So, again, we welcome an opportunity to discuss this language. This is where all of our English classes indeed do come in 

handy. 

Mr. PALLONE. OK. Thank you. Thank you, Mr. Chairman. 

Mr. ABERCROMBIE. Do you think Portuguese would help? [Laughter.] 

Mr. GILCHREST. There you go. 

How about ‘‘the potential probability’’? [Laughter.] 

I yield to the gentleman—did you need any more time, Frank? 

Mr. PALLONE. No. 

Mr. GILCHREST. Yield to the gentleman from Hawaii. 

Mr. ABERCROMBIE. No more. Thank you. 

Mr. GILCHREST. No questions? 

So, Dr. Lent, the—and, you know, we are eager to absorb the 

kind of information to create a situation where we have fundamentally sound—at this point, because it will change in 20 years, but 

at this point we have fundamental sound science recommendations 

from the broad community to make it ‘‘significantly potential’’ or 

‘‘potential’’ or ‘‘probable’’ or ‘‘potentially probable’’ or whatever it is. 

So we want to continue to work on those issues. But we are getting 

some type of a consensus here. 

Mr. ABERCROMBIE. Would you yield, Mr. Chairman, on that? 

Mr. GILCHREST. Just let me finish that sentence and I will yield. 

We are getting to a point, I think now, that we are looking at a 

consensus out there in the broader community that the word ‘‘probable’’ may not be the word we want to use because it isn’t protective enough. We had some sense that ‘‘significant potential’’ was 

not protective enough. And we might just go back to not changing 

the Level A definition. I am not sure yet, but that is what we are 

trying to work our way through. 

The gentleman from Hawaii. 

Mr. ABERCROMBIE. Yes, thank you. The reason I didn’t ask a 

question was, as I probably should have mentioned—what I think 

needs to be done—and this testimony verifies if for me, and I will 

just it out there for your consideration—I think we should, the 

word that needs to come is ‘‘likely.’’ 

Mr. GILCHREST. We will test that out. 

Mr. ABERCROMBIE. And I am deadly serious about that. Because 

I have been thinking on this for a long time, particularly in the 

context of the Navy experiments with sound and all this other. And 

I think ‘‘likely’’ is the thing that handles the word—it handles 

‘‘probability,’’ it handles ‘‘potential.’’ And I think we have reached 

a level of sophistication with respect to scientific research in which 

there is—and I think of it in terms of accident. I am not thinking 

about it in terms of cold-hearted people who are out there saying, 

61

you know, we’re just going to go ahead and do this and to hell with 

the animals, or the mammals. 

What I mean by ‘‘likely,’’ is if you—I will draw a rough parallel, 

not necessarily an analogy, that if you are driving an automobile 

at a certain speed and under certain conditions and so on, it is—

you can use the would with some degree of certainty that it is likely an accident will occur, likely that you will go into a spin with 

your car on the ice, likely— 

So if it is likely or unlikely, I think that that is not something 

that is vague. I think it is something that is achievable scientifically in terms of determination, and I think it stands up in terms 

of legal definitions that we need in order to make a solid legislative 

judgment. And I think it can get beyond the propaganda and the 

accusations and the emotions that can color this kind of consideration legislatively. 

Mr. GILCHREST. I thank the gentleman. I am not sure that we 

will ever get free of emotions and propaganda. 

Mr. ABERCROMBIE. That is the reason I think we should—legislatively, I think we should think in terms of the word ‘‘likely’’ and 

ask our scientific friends—our friends who have a scientific background as well as some experience in terms of administration of 

the law to think as to whether or not that might be legislatively 

useful to us. 

Mr. GILCHREST. We will pursue that line of thinking. Thank you 

very much. I think the—part of what we are trying to do is what 

Dr. Tyack and Dr. Worcester made reference to, and that is if the 

gray whale or other marine mammal moves as a result of a ship 

passing, let’s say a Navy ship, we want to get away from the idea 

that that is a process that needs a permit, or that is harassment, 

when that might be normal behavior as the result of a whole range 

of noise in the ocean, not just because that particular ship used 

that particular sonar in that particular place; but to the fact that 

there will be some behavior change that will be damaging to that 

group of marine mammals. And that is the fine-tuning that I think 

we are trying to proceed with here. 

And I think we will definitely work on trying to put into the language of this reauthorization the recommendations that you are 

making here today, including the ones from Fish and Wildlife. We 

will also try to make, as we work through this process and with 

you, a regulatory regime that is befitting a Nation like ours that 

can focus attention on highly sophisticated science that will, in the 

long term, benefit our relationship with marine mammals in the 

oceans. 

I do want to just focus for a minute on a couple of other words 

dealing with this issue of harassment. The administration has used 

the word ‘‘abandoned,’’ as opposed to some of the other terms that 

we have been kicking around here—‘‘disruption of biologically significant activities.’’ and I would like the administration—well, 

maybe Mr. Cottingham and Dr. Lent to explain the difference between the word ‘‘abandoned’’ as opposed to ‘‘disruption of biologically significant activities,’’ if I could put those two in alignment. And then maybe the other members of the panel, Dr. Tyack, 

Dr. Worcester, and maybe Mr. Jones. 

62

Mr. COTTINGHAM. Thank you, Mr. Chairman. My—when the administration was pursuing this tack, they developed this language, 

or we developed this language with the idea that it wasn’t just a 

temporary change. And it was very much like you were just bringing up—if a ship goes by and there is a slight movement or something. So we went with the approach that the change in that behavioral pattern would have to be significant. It would have to be 

more than just a temporary change. 

Mr. GILCHREST. ‘‘Abandon’’ is complete. 

Mr. COTTINGHAM. Well, yes, sir. And we have discussed is it 

abandoned right here, is it abandoned—if the animals move a mile 

and start taking up that activity again, is that considered ‘‘abandoned’’? These are things that we have recently been—you know, 

is it—there’s both a spatial and a temporal part of abandonment. 

Is it a 15-minute, is it an hour, is it a 1-mile, is it a 5-mile? We 

have actually been in discussions like this with our colleagues at 

National Marine Fisheries Service in the Navy and other agencies 

to talk about both the spatial and temporal types of abandonment. 

Mr. GILCHREST. Dr. Lent? 

Dr. LENT. Thank you. I might just add that in our definition, we 

also say—the complete phrase is ‘‘to a point where such behavioral 

patterns are abandoned or significantly altered.’’ So it doesn’t have 

to be completely abandoned to meet that level. 

Mr. GILCHREST. Is there a reason you— All right, I am not going 

to kick a dead whale here. [Laughter.] But we do have some concern even if it is abandoned or— 

Dr. LENT. Or significant. 

Mr. GILCHREST. —or significant. We are trying to work through 

the word ‘‘abandoned.’’ And we know what the administration is 

trying to get at, which is what we are trying to get at with ‘‘disruption of biologically significant activities,’’ so the small turn of the 

head is not considered harassment. 

Mr. COTTINGHAM. Mr. Chairman, if I may— 

Mr. GILCHREST. Yes, sir. 

Mr. COTTINGHAM. One other thought just came in. There may be 

instances where a single instance of a ship going past would have 

a momentary disruption, and that would not be considered, under 

our definition or yours, a biologically significant activity. But numerous, cumulative, repeated, you know, every day, every hour, 

every 15 minutes types of activities, we want to make sure that 

whatever definition we come up with has the potential for assessing the cumulative impacts of that, repeated instances of harassment as well. So I think that is just one more point that could get 

to the ‘‘abandoned’’ or ‘‘significantly altered.’’ Because there are a 

lot of times when one vessel or one activity wouldn’t do something, 

but if they did it every day, it might. 

Mr. GILCHREST. So you are saying that the word ‘‘abandoned,’’ in 

a broader sense from your perspective, would be more protective of 

marine mammals because it focuses in or you can collect data 

which determines the cumulative impact of that activity on marine 

mammals? 

Mr. COTTINGHAM. No, I didn’t mean it particularly like that as 

much as this is all in the context of authorizations or getting permits. And there may be activities that you could do, whether it is 

63

a research permit or an incidental activity, that one researcher 

going in and collecting samples or doing fly overs might not create 

a big problem. But the problem could come if you had 50 researchers who wanted to go on that one beach and collect samples from 

a seal. And there are only so many seals, and so they could go in 

and drive the seals into the water when they landed and went onshore. 

If it only happened once during a summer, it probably wouldn’t 

have any effect at all, and the researcher would be permitted for 

that. But if they, over the course of a summer, researchers or others went ashore to collect samples, pretty those seals or sea lions 

may not haul out on that particular breeding beach. And that 

would be an abandonment of that beach. 

Mr. GILCHREST. We will have to work through that. 

Mr. COTTINGHAM. OK. I hope I didn’t add confusion. 

Mr. GILCHREST. I hope that word ‘‘abandoned,’’ then, doesn’t 

make it more difficult for researchers to pursue their studies. We 

will work with you on that word ‘‘abandoned.’’ 

I want to ask a final question to whoever wants to answer this, 

I guess. If you look at the ocean as a whole and you look at the 

noise in the ocean as a whole, let’s say prior to human activities, 

before there ships, what was the noise in the ocean, the natural 

noise in the ocean? And can you compare the natural noise in the 

ocean to human noise in the ocean—that is commercial shipping, 

recreational boating, seismic activities from marine exploration, to 

the Navy? And if you were to rank that as to what is all this 

noise—and I guess natural noise—I don’t know what natural noise 

is, wave action, volcanoes, lightning strikes, you know, those kinds 

of things, natural noise; and what is—we are looking at—I don’t 

want to say we are looking at nature harassing marine mammals, 

or orcas harassing marine mammals, or whatever, but we have—

you know, the noise in the ocean: Where does most of the noise 

come from, given the fact that marine mammals have evolved with 

that natural noise or there is some resiliency to it? But natural 

noise in the ocean, what is the next noisiest thing in the ocean? Do 

you have that information? 

Dr. WORCESTER. That is a rather complicated question. The most 

recent NRC report was, in fact, in large measure devoted to just 

that issue. There are few simple comments one can make. At low 

frequencies, below a few hundred Hertz, probably the best measure 

we have is by comparing the background ambient noise levels in 

the Northern Hemisphere to those in the Southern Hemisphere. 

And those in the Northern Hemisphere are about 20 dB higher—

there is about 100 times more power in the Northern Hemisphere, 

predominantly due to shipping. So sort of the general background 

noise in the ocean has increased substantially because of mankind’s 

activities. 

At higher frequencies, up around a few kilohertz, wind and wave 

action is typically the dominant source of noise. Rain falling on the 

ocean makes substantial noise, raising the level, really, above background wind-and-wave noise. So— 

Mr. GILCHREST. I am just going to interrupt real quick. I will 

end, because maybe Mr. Chairman and Mr. Pallone have other 

questions to follow up. 

64

I guess what I am looking for is, in a lot of the testimony that 

we read, a lot of the noise, especially human activity noise, has an 

effect on the marine mammals’ ability to use their acoustics; it 

interferes, all of this—whether it is shipping or seismic or sonar or 

whatever, it interferes with that. So I guess maybe this would be 

something Mr. Cottingham is going to pursue as far as anthropogenic sound and what the marine mammals can tolerate. 

So if it is raining, you have big storm out there, that is high frequency, versus heavy shipping lanes, which is low frequency—does 

that have an impact on marine mammals in general? Does it determine, the marine mammal as far as the frequency is concerned, 

what could be biologically disruptive? Those kinds of things. Do we 

have those—is that scientifically discernable now, or is that something that we are not sure of? 

Mr. COTTINGHAM. Mr. Chairman, there are—and Dr. Tyack has 

been on several of these National Research Council panels that he 

mentioned looking into this. And that is exactly the sorts of things 

we will be working with, a group, to not only talk about the background sources of noise as—both the chronic and the acute sounds, 

because what Dr. Worcester was talking about is really a lot of the 

background noise that is there. Some of the most recent problems 

or incidences of problems have come from the much more acute 

that are—they only last a short—you know, an hour or a day or 

a few minutes, as with the sonar-type activities. We will be looking 

at that in talking about research activities and ways to mitigate 

those potential acute sounds as well. 

Mr. GILCHREST. Thank you very much. 

Mr. Pombo? 

Mr. POMBO. Thank you, Mr. Chairman. I have a lot of questions 

that I would like to ask, but I think this is something that over 

the course of time we need to kind of work through a lot of what 

we mean in terms of definition, so that we all understand exactly 

where we are going. 

But there is one question that somewhat perplexes me, and that 

is—under the general idea of the Marine Mammal Protection Act, 

we give a higher level of protection to marine mammals. Should 

there be a different interpretation or a different level of protection 

when we are talking about a population that may be overpopulated 

in a certain area versus one that is endangered or more threatened 

in terms of an overall population? Should there be a different level 

of protection or a different level of what we mean by ‘‘harassment’’ 

or what we mean by all of these protections that we have put in 

in this law? 

In California we have areas where we have overpopulation of certain marine mammals, and there is increasing conflict with human 

activity because of that. And I am just not sure if we should have 

that difference in there or not. 

Dr. Lent? 

Dr. LENT. Thank you, Mr. Chairman. Increasing populations of 

marine mammals is a happy problem, but it is a problem that we 

are very much aware of, particularly from our recreational constituents on the West Coast. I think it is important to note that 

when we make a determination of negligible impact, we certainly 

take into account the number of animals in the population—is it 

65

going to have an impact or not? It is very different for Hawaiian 

monk seals than it would be for pinnipeds off the coast of California. 

So whether or not we need to have different definitions of harassment determining the level of population or depending on the level 

of population, I don’t know if that is necessary given the process 

we go through to say is it or is it not having a significant biological 

impact on the animal. 

I just want to note that we are very aware and working very 

closely with our constituents in the recreational community, in particular on the West Coast, dealing with ways to handle this happy 

problem of too many animals out there. When we have a limited 

number of staff and budget, we have to focus on getting those populations that are in bad shape back up, and hopefully we will have 

enough funding eventually to focus on dealing with too many animals in certain closed areas. Thank you. 

Mr. POMBO. I agree with you that your focus should be on the 

threatened or more problematic species. There is no question that 

that is where your focus should be. 

Somebody recently handed me a news article about—I believe it 

was in La Jolla, in Southern California, where some guys went on 

to the beach and chased—I don’t know if it was sea lions or seals 

or what it was they chased off the beach, and they were all arrested and fined $1,000 for doing it. I have a hard time putting together your description of not having enough money and personnel 

to take care of things. If that is a priority and you can dispatch 

people to take care of somebody doing something like that, I don’t—

I think maybe you have too many people, if that is what you are 

doing. 

Do you follow what I am saying? 

Dr. LENT. Thank you, Mr. Chairman. I understand the case of 

the children’s pool in La Jolla. The folks that were issuing the citations were from the enforcement side of the Agency. They were not 

the scientists who were out working with the populations that are 

in trouble. We try very hard to use outreach and education and 

having docents there on the beach to inform people that this is not 

something that we want to have happen, rather than to have to 

issue citations. One of the persons that had a citation was in fact 

injured by the mammals, so it is not just for the mammals’ protection, but also the folks using the beach. Thank you. 

Mr. POMBO. Well, I am going to yield back, Mr. Chairman, but 

I really do think that we need to pursue this a little bit in terms 

of the differences in areas that may be overpopulated versus areas 

that aren’t, and look at what we mean in terms of harassment of 

those species. I think that is a big part of the conflict that we are 

having, at least on the West Coast, where, you know, people—my 

average constituent goes down there and there are seals all over 

the beach and they are not supposed to use the beach because the 

seals are there. And it is a conflict that I think is unnecessary and 

causes us problems. 

You know, when we talk about some of these highly valuable research projects that are going on and our desire to further that research and to protect those marine mammals, I think my constituents and others look at that very differently than they do a beach 

66

that is full of seals. And I think there should be some rationale in 

that whole thing. 

Thank you, Mr. Chairman. 

Mr. GILCHREST. Thank you, Mr. Pombo. 

Mr. Pallone, any more questions? 

Mr. PALLONE. Thank you, Mr. Chairman. I just wanted to ask a 

couple of questions about the captive animal welfare, either for Rebecca Lent or David Cottingham. In 1994, the changes to the 

Marine Mammal Protection Act gave APHIS the authority for captive marine mammal welfare inspections. And I wondered if APHIS 

has demonstrated the requisite expertise and ability to—oversee 

marine mammals in captivity. And in addition, you know, how 

many inspectors do they deploy to inspect display facilities? Have 

they promulgated specific care standards? Any oversight or reports 

requirements for APHIS? I am just kind of lumping these all together. If either of you would like to respond. 

Mr. COTTINGHAM. Thank you, Mr. Pallone. I don’t have the specific numbers on how many APHIS inspectors there are. Of course, 

this—I believe that APHIS started a negotiated rulemaking process 

and they got part of the way through it and in 1998 or 1999, they 

came up with some of the proposals to implement those. But I 

think some of the most contentious aspects were not finally finished. 

Of course, the Commission was on record urging APHIS throughout some incidences recently with some polar bears, that the situation was such that the APHIS folks were saying that the person 

who was inspecting those facilities had no real training in polar 

bears, they didn’t get there very often. And it really was quite contentious. It has been resolved, and most of the polar bears are now 

in good— 

Mr. PALLONE. Well, let me—maybe what I can do, the more specific questions are about the inspectors and the other things. 

Maybe I can ask you those in writing. 

Mr. COTTINGHAM. Right. 

Mr. PALLONE. But if either of you could just tell in general your 

opinion about whether you think APHIS has demonstrated requisite expertise and ability to do the inspection and to oversee the 

captive marine mammals. I can ask those other questions more 

specific in writing, with your permission. But just in general, if you 

could comment on APHIS’s ability in that regard, either you or Rebecca Lent. 

Mr. COTTINGHAM. My comment would be that the Commission 

has urged on a number of occasions that APHIS take some more 

training with marine mammals, and with vets who were specifically trained in marine mammalogy and dealing with animals that 

are in either public display or research institutions. 

Mr. PALLONE. OK. Dr. Lent? 

Dr. LENT. Thank you. I don’t have anything to add. Thank you. 

Mr. PALLONE. OK, we will just add those—if we could ask those 

other questions in writing. 

But let me just ask about the polar bears. As you know, the traveling exhibit of marine mammals, a number of them gained 

national attention with the Suarez polar bears incident last year. 

I guess one of the polar bears died, in fact. And is there a need to 

67

include not just—now, cetaceans are what? Those are the whales? 

Dolphins and whales. Boy, you are getting me technical here. Is 

there a need to include not just cetaceans but all marine mammals 

in a prohibition on transportation for traveling exhibits? And specifically in regard to those Suarez bears, what is their current legal 

status? And you know, I think you were hinting about them being 

located to appropriate institutions. Do you want to comment on 

what happened in that regard? 

I guess that is Mr. Jones, because you did a very good job in trying to take care of the bears. So I am asking you that question. 

Mr. JONES. All right, thank you, Mr. Pallone. Let me start with 

the specific situation with the Suarez bears first, if I could, and 

then answer the first part of your question. 

As you noted, we first became aware of issues regarding the conditions under which the bears were being kept in 2002—or late 

2001. But we had had even before that a question about the documentation. We initially issued a permit for all these bears to come 

in based on our believe that everything was right with their paperwork. But in March of 2002, we decided that one of the bears, in 

fact, was not the bear that was identified on the documentation we 

were provided. So we seized that bear. That bear is now in the Baltimore Zoo and doing well. 

Mr. PALLONE. —go see him. 

Mr. JONES. In November of 2002, we decided that we would seize 

the remaining six bears because of the fact that the bears had come 

into Puerto Rico, into the United States, under the conditions that 

they would be maintained for public display. And the circus was no 

longer displaying them. There certainly were questions about the 

conditions under which the bears were kept. Those issues were the 

responsibility, first, of APHIS but also of the Commonwealth of 

Puerto Rico. We felt finally that regardless of the other issues, the 

bears simply were not being used in the way that the permit required, and that there were in addition these other issues about 

care of the bears, and we certainly felt a responsibility. 

So we seized those bears. Unfortunately, one of the bears died 

during the transport. The remaining bears, one is at the Point Defiance Zoo in Tacoma, Washington; two are—sorry, two are at Point 

Defiance, two are at the North Carolina Zoo in Asheboro, North 

Carolina, and one went to the Detroit Zoo. 

Now, the—we have litigation ongoing on this issue. The Suarez 

Circus has sued the Government and we have actions taking place, 

and I am not able to comment on the details of the matters that 

are pending in court. But I will say that we believe that the actions 

that we took were completely appropriate in this case. 

Now to your first question. 

Mr. PALLONE. About the prohibition on transport. 

Mr. JONES. It is clear that there is a different level of risk to 

whales, dolphins, porpoises, those species that we are not responsible for in the Fish and Wildlife Service that have to be maintained in water all the time. And so that is the reason that the administration bill focused on these other species. The administration 

does not have a position regarding the inclusion of additional 

species. I will just say personally, Mr. Pallone, that I would not object to a broadening of that prohibition in the law. But for an adVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00071 Fmt 6633 Sfmt 6602 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
68

ministration position, we would probably have to provide you with 

that. 

Mr. PALLONE. All right, thank you very much and thank you for 

all your help in helping the bears. Appreciate it. 

Mr. JONES. And Mr. Pallone and Mr. Chairman, if I could add 

one other thing, because I was remiss in my opening statement not 

to note something else. I am accompanied here by Judy Wilson 

from the Minerals Management Service, who is the endangered 

species coordinator for MMS. And while most of the issues we have 

discussed this morning regarding oceanic species are within the 

purview of the Fish and Wildlife Service, the fact is that MMS is 

involved through its seismic activities and through its regulation of 

oil and gas development offshore. And MMS takes these responsibilities very seriously. 

And while it may not be the place here during this hearing 

today, we are—the Department of Interior would certainly be 

pleased to provide any information to you and your staff that you 

would like to have about MMS and its activities and its interactions with marine mammals. MMS does have an active research 

program, and we work closely with them where we can help to accomplish those things. And we would be pleased to provide you 

with any information you would like to have. 

Mr. GILCHREST. Thank you very much. 

Mr. PALLONE. Thank you. 

Mr. GILCHREST. Thank you, Mr. Pallone. 

Just a final brief question for this panel. I know it is getting late. 

Everybody wants lunch and we have another panel to go through 

and we have to be out of here by 1 o’clock. 

But anyway, Dr. Lent. ‘‘Little 3(i),’’ that is what I am calling it. 

Sounds like an Indian name. The paragraph in Level B harassment 

that starts ‘‘is directed toward a specific individual’’ is still making 

a number of constituencies a little bit uneasy. We understand why 

the Agency wants this language to prosecute those non-permitted 

activities that harass marine mammals. We include the language 

in our bill to address the concerns of the Agency. However, we are 

questioning the need for that paragraph now, since the phrase 

‘‘pursuit, torment, and annoyance’’ has been deleted from the definition. Can’t the Agency prosecute those non-permitted activities 

without this added paragraph? 

If you need time to ponder that. 

Dr. LENT. Yes, I am waiting for that little song to go that gives 

me time to think, right? 

Mr. GILCHREST. OK, Frank and I could sing some Irish songs. 

[Laughter.] 

Dr. LENT. That would be good. 

Mr. GILCHREST. Frank, you are Irish, aren’t you? 

Dr. LENT. Thank you, Mr. Chairman. I think the important thing 

is we really feel that it is important to have something in this bill 

that allows us to go straight to the activities that are directed on 

marine mammals. It is clear, it is something that is in there, in the 

law, so that we can get regulations in place to address things like 

jet skis and swim-with programs, things that clearly for us are 

going to alter the behavior. 

69

So we still think it is necessary. Again, as we mentioned, we look 

forward to talking to you about that definition and making sure 

that is the best way to go. 

Mr. GILCHREST. Thank you. And we will pursue that. 

We are going to have votes around 12:00, five votes. They will 

take a lot of time out of here. 

So, I enjoyed this panel. Hope we can get together again. But 

thank you very much for your testimony. 

The second panel today— Dr. Lent, that might not be a bad idea. 

I know which song you are thinking of. We will bring that in here 

the next time. ‘‘Jeopardy,’’ yes—is that ‘‘Jeopardy’’? I will have a 

little tape recording. 

Our second panel will be Mr. Robert Hayes, General Counsel, 

Coastal Conservation Association; Ms. Karen Steuer, Senior Policy 

Advisor, National Environmental Trust; Mr. Charlie Johnson, Executive Director, Alaska Nanuuq Commission—welcome; Dr. Randall Wells, Conservation Biologist, Sarasota Dolphin Research Program, Mote Marine Lab; Mr. Robert Zuanich, Board Member, 

United Fishermen of Alaska. 

I want to welcome all of you. If there are no seats in the back, 

for the people that are standing, since I don’t think we will have 

any more members, you can sit in the lower dais if you so choose. 

Make it a little bit more comfortable. 

We will start with Mr. Hayes. Folks, thank you for your attendance here this morning. We look forward to your testimony. Mr. 

Hayes. 

STATEMENT OF ROBERT HAYES, GENERAL COUNSEL, 

COASTAL CONSERVATION ASSOCIATION 

Mr. HAYES. Well, I would like to begin by thanking you for pulling together a bill that, from our view—that would be the recreational fishermen’s view—begins to address potential interactions 

between recreational fishermen and marine mammals, but does it 

in a way that might actually apply a little bit of common sense. 

I would like to say that I am here today on behalf of the Coastal 

Conservation Association. But in addition to my remarks today on 

behalf of them, I should point out that I have discussed this testimony with the Recreational Fishing Alliance and with the American Sport Fishing Association, and they share similar views for 

this testimony. 

You know, Congress in 1972 decided that marine mammals were 

going to take a special position in this world. And recreational fishermen certainly support that point of view. Recreational fishing, 

however, has over the last few years, 30 years, grown to a substantial size industry in volume. The National Marine Fisheries Service 

presently estimates that there are 12 to 17 million marine recreational anglers in the United States. We think, actually, that 

number is a little bit low. So that is a substantial involvement in 

the marine environment. 

When we first got involved with this concept of how we 

interacted with marine mammals, frankly it was not through anecdotal evidence that there was actually an involvement; it was 

through a reading of the administration’s bill, which referred to us, 

I think, as non-commercial fishermen. We didn’t know what that 

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was, exactly, but we assumed it was us. I am sure there may be 

others at the table that it referred to in addition, but we assume 

it referred to us. 

And so we appreciate the approach that you have taken in your 

bill. Your bill basically directs this incidental take activity to, really, what the problem is. And the problem, it seems to me, is relatively simple. It is not commercial fishermen or recreational fishermen that are the problem; it is the gear that they use. If you look 

at the activity of fishing, which is essentially what you have done 

in Section 118, and you look at the kinds of activities that the normal, average recreational fisherman is involved in, he has very little interaction with the marine mammal. He is out there with a rod 

and a reel, he has control of it, he has the ability to see what he 

is doing. He knows what that interaction is. So an incidental interaction is, frankly, going to be—not ‘‘remote,’’ but it certainly is infrequent, and it certainly is never intentional. 

However, there are—I actually have a report of these things—

there are reports of recreational fishermen using commercial gear. 

And there is commercial gear which clearly has an interaction with 

marine mammals. Gill nets is my favorite. I found a report from 

the State of North Carolina—I am sorry Mr. Jones isn’t here—but 

there is a report from the State of North Carolina that there are 

over 100,000 trips by recreational fishermen in 2001 with recreational gill nets. Now, I didn’t know what a recreational gill net 

was. I knew what a gill net was, but I had a little trouble figuring 

out what a recreational gill net was. 

But the reason I bring that up is that that apparently is the impetus, or the largest impetus, for the administration’s view that 

non-commercial fishermen ought to be involved in the Marine 

Mammal Protection Act. 

I can point out this—and that is why I like your version of the 

bill: Your bill looks at the problem. The problem is the gear that 

interacts with marine mammals and the significant impact, if there 

is a significant impact, on those marine mammals. If it is the gear 

that interacts, it is the gear we ought to focus on. It is not the activity of recreational fishing. It is the activity of using a destructive 

gear. 

And I will point out one other thing, which I found remarkable 

in this North Carolina study. There are 190 trips in 2001 that are 

still being used by electric shock by recreational fishermen. Now, 

I thought that was banned everywhere, but apparently not in the 

State of North Carolina. And for those folks who are sitting here 

going what in the world is he talking about, it is an old way to 

catch catfish, frankly, is the way they used to do it. You stick an 

electric line down in the water, and over here you have an old 

crank telephone, and you crank the telephone around and it kills 

lots of fish. 

Lord knows, when I was listening to this sound discussion, I was 

thinking, boy, wait till they hear about this. 

But that kind of gear. That kind of gear is clearly destructive. 

It is the thing that we ought to be focusing on. But at the same 

time, I don’t think we ought to be engaging, frankly, the largest 

sector of the recreational community and the vast of majority of it 

that uses rod and reel. And so what we would like to work with 

71

you on your bill, is we would like to work on a provision that essentially makes clear that rod and reel activity by recreational fishermen is a activity that is not going to have very many interactions 

and is not going to get involved, in the normal course of events, 

with a very cumbersome Section 118 process—which I can actually 

assure you, no recreational fisherman I know is going to be able 

to muster the kind of attention that it is going to take to go 

through that process. 

So that is what we would like to work with you on. 

[The prepared statement of Mr. Hayes follows:]

Statement of Robert G. Hayes, General Counsel,

Coastal Conservation Association 

Good morning Mister Chairman: 

My name is Bob Hayes and I am the general counsel for the Coastal Conservation 

Association (‘‘CCA’’). We appreciate being asked to testify about the amendments to 

section 118 of the Marine Mammal Protection Act (‘‘MMPA’’), which as enacted in 

1994 focused entirely on commercial fisheries. 

The Coastal Conservation Association is the leading marine recreational fishing 

group in the United States. Formed by a small group of sport fishermen in Houston 

in 1978, CCA has grown to a fifteen-state operation with over 90,000 members. 

Each of our states operates somewhat independently focusing on issues in the state 

that are important to marine recreational fishermen. However, like so much in 

oceans management, conservation issues encompass a regional and national perspective, therefore, CCA learned long ago that federal and international fisheries 

management were just as important to the local marine recreational fishermen as 

the conservation of the most local fish population. 

CCA pursues conservation policies set by our state and national Boards of Directors. These boards are made up of active volunteers concerned about the health of 

the nation’s marine fisheries. CCA has been active in a number of conservation 

issues in the last twenty years, which include: all of the east and gulf coast net 

bans; gamefish status for redfish, speckled trout, tarpon, striped bass, river shad, 

marlins, spearfish and sailfish; and, the reduction of bycatch through the use of 

closed areas and technology. We have also pushed for the improvement of the management system through the restructuring of state and federal management systems; the elimination of conflicts of interests by decision-makers, and the active involvement of our membership in the management process. 

The interaction of recreational fishermen and marine mammals has not been a 

CCA priority until recently. In the last three years we have been involved in the 

management of Manatees in the Florida. There the interaction of boaters and 

manatees have resulted in a series of regulations issued by the federal government 

and the State of Florida. The most prevailing regulatory concept has been the imposition of slow speed zones. The timing and location of the areas is a good example 

of the violation of a management principle CCA has long endorsed. Management of 

fisheries and fishermen is best done at the lowest possible level of government. 

Local officials are more responsive to the needs of the public and far informed about 

what works for the impacted resources than officials in the federal government. Despite years of interaction with federal fishery managers, I am still astonished by the 

federal decision makers general lack of practical answers to easy questions. 

I know that the subject of this hearing and my testimony today is not manatees 

but I would ask the Committee to consider the possibility of amending the Act to 

instill the principle we are endorsing. Where a State can manage a resource consistent with all the responsibilities of the MMPA then it ought to be allowed to do 

so, without third party recourse to the federal government. Such a delegation would 

provide greater confidence in the regulations controlling the problem and at the 

same time insure the same level of protection required by the Act itself. 

Congress and the American public made a policy decision in 1972 to protect 

marine mammals in a way that no other non endangered species received protection. As a result of this decision, marine mammals have prospered and in some 

cases have filled ecological niches that have resulted in increased interaction with 

man. Much of that interaction has focused previously on commercial fishing which, 

because of the size and location of its operations, has received the most Congressional attention. The first of course was the tuna porpoise problem. Increasingly 

however there have been minor interactions between marine mammals and other 

commercial fisheries and in some cases with some recreational fisheries. 

72

Section 118 as enacted provides for an extensive process to determine which commercial fisheries interact with marine mammals and a process to determine the appropriate regulatory measures to reduce those interactions. The Chairman’s amendments to section 118 recognize that there may be instances where fisheries other 

than commercial interact with marine mammals. It provides the same process for 

those fisheries for a permitted incidental take as is presently provided for commercial fisheries. The process is still highly bureaucratic and cumbersome. 

There are 12 million saltwater recreational fishermen in the United States. The 

vast majority of them fish with traditional recreational rods and reels. They have 

a very remote, if any, possibility of an injurious interaction with marine mammals. 

Placing them in the section 118 process would subject them to a new regulatory burden, which I doubt very much the average recreational fishermen would find easy 

to participate in. Nor would it be a process that would provide much benefit to the 

marine mammals being protected. A little common sense needs to be applied here. 

Recreational fishing done with rod and reel ought to be an exempt activity under 

the MMPA. Barring that Congress ought to make it very clear that rod and real 

recreational fishing ought to be classified by NOAA Fisheries as a category (1) (A) 

(iii) activity. 

We are aware that there may be recreational activities like gill netting for spot 

in North Carolina which may have a higher incidence interaction with marine mammals. Clearly that kind of activity ought to be included within the section 118 process. It is my understanding that recreational gill netting in North Carolina may involve as many as 100,000 trips a year. Personally I don’t think of it as a recreational 

activity and would ban it entirely. But that is a decision best left to the fine folks 

in North Carolina. To my knowledge this kind of activity only occurs in North Carolina and Alabama. If there is an interaction with marine mammals then the participants ought to be regulated to reduce that interaction. Congress does not however 

need to open the door to including 12,000,000 anglers into the mix. A simple clarification in HR. 2693 would ensure this result. 

Again, I appreciate the opportunity to be here this morning and I would be happy 

to answer any questions the Committee members may have. 

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

Mr. HAYES. Thank you. 

Mr. GILCHREST. We look forward to that. 

Ms. Steuer. 

STATEMENT OF KAREN STEUER, SENIOR POLICY ADVISOR, 

NATIONAL ENVIRONMENTAL TRUST 

Ms. STEUER. Thank you, Mr. Chairman—both Mr. Chairman—

and Mr. Pallone. I am a senior policy advisor to the National Environmental Trust, but I am testifying today on behalf of organizations that are supported by millions of Americans from Maine to 

Hawaii. We appreciate the opportunity to provide you with our 

views on H.R. 2693. 

While we support some of the provisions in the legislation and 

appreciate being able to work with you on it, there are critical 

changes from existing law that we believe would significantly 

weaken current levels of protection for marine mammals. And it is 

those provisions that I want to focus on today. 

We have concerns about some of the bill’s proposed changes for 

take reduction plans. The goal of a take reduction plan, under current law, is to reduce the mortality of marine mammals to sustainable levels within 6 months of its implementation. H.R. 2693’s 

combined changes to the current time lines would delay this objective by approximately a year. And in some areas, that means that 

potentially hundreds of additional marine mammal deaths will 

occur. 

Although NMFS’s record on meeting the exist act’s time lines is 

abysmal, we have to mention that many of the delays have been 

73

caused actually by political intervention in the process. And extending the timeframes, as H.R. 2693 does, will not facilitate better implementation or conservation. 

The intention behind the procedures established in Section 118 

in 1994—and I am helped to write them, so I am guilty—was to 

bring all the stakeholders together, and to bring them together in 

a consensus-building process, with the single goal of reducing 

unsustainable incidental takes. But this approach is only successful 

if stakeholders enter the negotiations in good faith and if they believe that the consensus-building process is their only option. 

Rather than amend the act to modify the deadlines, we would 

really like to urge Members of Congress and State officials to refrain from intervening in the Section 118 process once it is under 

way, and allow it to proceed with its current statutory requirements. Under these circumstances it will work, and actually has 

worked very well on the West Coast. The Pacific Coast team has 

done a great job on take reduction and putting a plan together and 

beginning its implementation. So we know that the process can 

work. 

H.R. 2693 fails to address the greatest remaining threat to the 

most endangered large whale in U.S. waters, the North Atlantic 

right whale, which was already mentioned in earlier testimony 

today. NMFS regulates, or at least tries to regulate fishermen 

whose gear causes approximately half of the human-induced mortalities of this species, through the take reduction team process. 

However, the Agency has to date made no attempts to regulate 

shipping traffic, even though we have solid documentation that 

ship strikes cause the other 50 percent of the mortalities. 

We would therefore urge that the Committee consider including 

language in the bill that creates a ship-strike mortality reduction 

plan, using the take reduction plan model. And we would be happy 

to work with the Committee on language to this effect. 

On to harassment. The bill changes what we believe is the most 

fundamental provision of the MMPA by amending this definition. 

As previously discussed, it shifts the burden for Level A harassment from ‘‘potential to injure’’ to ‘‘probability to injure,’’ which we 

believe is a far more ambiguous and less protective threshold than 

currently exists. H.R. 2693 also changes the existing definition of 

Level B harassment by requiring a biologically significant disruption of activities, but it doesn’t define what biologically significant 

disruption means. Nor is that a commonly used scientific term. 

The bill also adds a proposed third tier of harassment, as we discussed earlier, for activities directed toward specific animals. The 

permitting standard in that tier of harassment is one of ‘‘disrupting 

behavior,’’ which is different from the other standard of Level B 

harassment of a ‘‘biologically significant disruption.’’ So in effect, if 

you adopt this approach, you have created three different standards of harassment, but you haven’t defined any of the terms included in those standards. And we think that is a very dangerous 

way to go. 

We would instead urge the Committee to retain the current definition of Level A, and to amend Level B harassment as follows: 

Any act that disturbs or has the potential to disturb a marine 

mammal or marine mammal stock in the wild by causing disrupVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00077 Fmt 6633 Sfmt 6602 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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tion of biologically significant activities, including, but not limited 

to— and then going on to list the activities. 

And I know you have heard this before, but this definition almost 

exactly mirrors the definition proposed by the National Research 

Council. It replaces your ‘‘biologically significant disruption’’ with 

what we believe is the far more scientifically definable ‘‘biologically 

significant activities.’’ And considering that the NRC has just 

begun plans to undertake a new study entitled, ‘‘Describing biologically significant marine mammal behavior’’—and they are about 

to convene a panel to do so—we believe it would be far wiser to 

use this wording, if indeed it is prudent to amend the definition at 

all at this time when the NRC is undertaking this study. 

Finally, H.R. 2693 proposes to establish a general authorization 

for incidental takes. Unlike other general authorizations in the 

MMPA, whose scope is limited to a particular activity and type of 

take, such as commercial fishing, the current language that you 

propose applies to any activity. It doesn’t restrict the scope of the 

take, it is of unlimited duration, it has no requirement for the applicant to provide information on the type of activity or the number 

of animals impacts, and it has no requirements for reporting. 

As currently written, this is a broad authorization that would effectively create an escape clause that allows user groups to bypass 

the incidental take permitting process entirely. I believe that— 

Mr. GILCHREST. Karen, I am just going to— We have potential 

for votes very soon, and so I am going to have to limit the testimony to as close to 5 minutes as possible. And we will continue to 

talk to you about the words and the placement of the adverbs, adjectives, pronouns, dangling participles. We are going to do all that. 

And that is why we are going through this process. 

So I am really going to have to ask you to just finish up with 

your last sentence so we can move on. 

Ms. STEUER. The last sentence is that we want to work with you 

on trying to make this better, and we will do everything we can 

from here on in to do that. 

[The prepared statement of Ms. Steuer follows:]

Statement of Karen Steuer, Senior Policy Advisor, National Environmental 

Trust, on behalf of the Following Organizations: American Cetacean 

Society; Animal Protection Institute; Cetacean Society International; 

Defenders of Wildlife; Greenpeace; Humane Society of the United States; 

International Marine Mammal Project of Earth Island Institute; International Wildlife Coalition; National Environmental Trust; Natural 

Resources Defense Council; Oceana; Society for Animal Protective Legislation; Seaflow; The Ocean Conservancy; Whale and Dolphin Conservation Society; and World Wildlife Fund 

Mr. Chairman and Members of the Resources Committee: 

My name is Karen Steuer. I am a Senior Policy Advisor to the National Environmental Trust, and I am testifying today on behalf of organizations supported by millions of Americans from Maine to Hawaii. Our groups represent a broad range of 

marine mammal expertise, including experience in field research on cetaceans and 

pinnipeds, working with whale watching operations, rescuing stranded whales and 

dolphins, participating in court-related actions to defend U.S. marine mammal protection laws, serving on take reduction teams, and drafting previous legislative 

changes to the Marine Mammal Protection Act (MMPA.) 

We appreciate the opportunity to provide you with our views on H.R. 2693, and 

have the following comments on the provisions contained in the legislation, and on 

additional provisions we believe should be included in the reauthorization of the 

Act. The following analysis follows the structure of H.R. 2693. 

75

Section 4: Limited export authority. The bill corrects a problem created by the 

1994 amendments to the Act, which allowed a Native of Canada, Greenland, or Russia to import legally obtained marine mammal products into the United States as 

part of personal travel or cultural exchange, but failed to address the export of those 

products at the end of the travel. We support this correction. 

Section 5: Authorization of appropriations. We would strongly urge that the Committee consider increasing the authorization levels in H.R. 2693, which are considerably less than the agencies require to properly fulfill their obligations under the 

MMPA. In previous testimony before this Committee regarding changes to the statute proposed by the Department of Defense, we emphasized that in our view the 

arguments and characterizations raised by DOD did not arise from the language of 

the statute, but instead reflected process problems residing within the wildlife agencies. It would be disingenuous to insist that the agencies correct these problems, 

take on the additional burdens contained in this legislation and recommended elsewhere, and refuse to provide them with the funding necessary to complete those 

tasks. Increasing their obligations without concurrently increasing the authorization 

levels is a recipe for disaster—for the agency, the statute, the stakeholders, and 

marine mammal conservation. 

Section 6: Take reduction plans. 

Non-commercial fisheries: We recognize that some non-commercial fisheries use 

gear similar or identical to commercial fishing gear and, as a result, are taking 

marine mammals at rates potentially equal to or greater than those in commercial 

fisheries. The 1994 amendments to the MMPA added Section 118 to the Act as a 

new bycatch management regime for commercial fisheries. In order for these provisions to be accurately and fairly implemented, they must now be extended to noncommercial fisheries where appropriate. However, we are concerned that the 

amendments proposed in H.R. 2693 are too narrowly focused and do not include all 

the references necessary to bring this subset of non-commercial fisheries under the 

authority of the MMPA’s Section 118. The intention behind the language in 

H.R. 2693 is unclear; if the Committee’s intention is to apply the Act equally to all 

fisheries which incidentally take marine mammals, we would recommend that the 

bill be amended to use the approach contained in sections 403 and 404 of the Administration’s proposal. 

Timelines: The goal of a take reduction plan is to reduce, within six months of 

implementation, the mortality or serious injury of marine mammals accidentally entangled in fishing operations to sustainable levels. H.R. 2693 would (1) delay this 

objective by three months; (2) nearly double the period for review and finalization 

of a take reduction plan; and (3) remove the existing requirement that a take reduction team be convened no later than 30 days following the publication of a stock 

assessment indicating that incidental takes for that stock exceed the Potential Biological Removal. These delays will result in potentially hundreds of additional 

marine mammal deaths, and we strongly oppose these amendments. 

Unfortunately, NMFS’ record on following the existing time frames and procedures for take reduction plans mandated by the Act is abysmal. For example, shortly after the 1994 amendments were enacted, NMFS stated that reduction of harbor 

porpoise bycatch was a priority, given the high levels of mortality and the likelihood 

that an Endangered Species Act listing was imminent. Regardless of their stated intentions, NMFS convened the team far behind the mandated schedule and, although 

the team reached consensus on a take reduction plan, the agency delayed publishing 

the plan for more than 18 months, during which time dozens, if not hundreds, more 

harbor porpoise were needlessly lost to incidental take. 

In another example, NMFS did not convene a take reduction team for large 

whales until forced to do so through a lawsuit, although it was widely recognized 

that one of the species involved, the North Atlantic right whale, was highly endangered and clearly subject to unsustainable incidental takes in fishing gear. In response to the lawsuit, NMFS submitted a plan to the court. Political intervention 

resulted in NMFS substantially weakening the plan to the point at which it merely 

allowed existing fishing practices as bycatch reduction measures. As a result, incidental takes remain at unsustainable levels, and again the agency finds itself in 

court. 

The agency can and should meet the current deadlines mandated by the Act. Extending the timeframes as H.R. 2693 does will resolve none of these problems, nor 

will it facilitate better implementation or conservation. The intention behind the 

procedures established in Section 118 was to bring all stakeholders together to 

reach consensus on methods of reducing unsustainable levels of incidental takes of 

marine mammals within a relatively short time frame. However, this approach can 

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standing that the consensus-building process is the best option, and when the agency meets its statutory mandates. Rather than amend the Act to modify deadlines, 

we urge that Members of Congress and state officials refrain from intervening in 

the take reduction team process, and allow it to proceed with current statutory requirements. Under those circumstances, there is every reason to believe it will work. 

Take reduction team members: We support the amendments in H.R. 2693 that 

would add broader agency representation to take reduction teams, including representatives from the office of NOAA General Counsel, law enforcement, NMFS fisheries scientists, and a representative of the appropriate NMFS Regional Administrator. We believe these changes can serve to provide crucial guidance to the team 

to ensure that the proposed measures can be easily translated into regulatory language, are enforceable, and are not in conflict with other fishery management measures. Adding this additional expertise during the early stages of the take reduction 

plan process should also assist the agency in ensuring more timely review and implementation of proposed take reduction plans. 

Changes to take reduction plans: We support the amendment in H.R. 2693 requiring the Secretary to reconvene take reduction teams to explain differences between the draft plan proposed by the team and the published plan approved by the 

Secretary. 

Support for take reduction efforts: The MMPA currently authorizes the Secretary 

to accept gifts, devises, and bequests to carry out Section 118, and H.R. 2693 clarifies that this authorization extends to observer, research, and education and outreach programs. It is our view that this provision will help to provide NMFS with 

the ability to work cooperatively and effectively with various user groups in the implementation of take reduction plans, and we support its inclusion. 

Right whales and ship strikes: There is currently no provision in H.R. 2693 to address one of the greatest conservation threats to the most endangered large whale 

found in U.S. waters, the North Atlantic right whale. NMFS currently regulates 

fishermen, whose gear causes approximately 50% of the human-induced mortalities 

of this species, through the take reduction team process. However, the agency has 

to date made no attempts to regulate shipping traffic, even though ship strikes have 

been documented to cause just as many right whale deaths. We therefore propose 

including language in the reauthorization that would create a ship strike mortality 

reduction plan, using the take reduction plan model. We would be happy to provide 

the Committee with draft language. 

Section 7: Pinniped research. Pinnipeds have never been the primary cause of the 

decline of a salmonid, nor has it been scientifically demonstrated that they have 

been a primary factor in the delayed recovery of a depressed salmonid species. Nonlethal deterrents hold the most promise to resolve the problems of ‘‘nuisance’’ animals and should be the first line of defense. NMFS has failed, however, to publish 

final guidelines on acceptable non-lethal deterrents. NMFS has also failed to give 

sufficient priority to dedicated research into the development of safe and effective 

non-lethal deterrents. Development of such deterrents will aid in reducing not only 

predation on threatened and endangered salmonid stocks, but also other conflicts 

between pinnipeds and humans. 

We support H.R. 2693’s proposed amendment to provide for research into non-lethal removal and control of nuisance pinnipeds. We recommend, however, that this 

section of the bill be amended to: (1) require the Secretary to develop a research 

plan to guide research on the non-lethal removal and control of nuisance pinnipeds; 

(2) clarify that the development and testing of safe, non-lethal removal, deterrence 

and control methods shall provide for the humane taking of marine mammals by 

harassment; (3) include other organizations and individuals, such as the conservation community, in addition to representatives of commercial and recreational fishing industries, in the development of the research program; (4) require the Secretary 

to make the annual report to Congress available to the public for review and comment; and (5) authorize the Secretary to accept contributions to carry out this section, as in Section 118. 

Section 8: Marine Mammal Commission. We oppose the provision in H.R. 2693 

that states: ‘‘except that no fewer than 11 employees must be employed (by the 

Marine Mammal Commission)—at any time.’’ Removing this lower threshold may 

provide some members of Congress with an incentive to decrease appropriations 

and, in turn, staff capacity on the Marine Mammal Commission. Congress should 

instead rely on the Commission to fulfill the role for which it was originally created: 

to provide crucial expertise and guidance in the oversight and implementation of the 

Act. The Commission should be empowered to expand its authority to promote and 

undertake visionary dialogues and strategic thinking that will advance the purposes 

and policies of the MMPA. 

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We support the provision to change the per diem rate in the Act, which in our 

opinion is too low. Consequently, the current provision precludes the Marine Mammal Commission from securing the services of most experts and consultants. By removing this restriction, the Commission will be brought under the government-wide 

restrictions for the payment of experts and consultants. 

We recommend that the authorization of appropriations proposed for the Marine 

Mammal Commission be increased to a more realistic figure of $3,400,000. 

Section 9: Scrimshaw exemption. We do not oppose this provision, which extends 

the permits for individuals with pre-ESA ivory, to allow them to continue to possess, 

carve, and sell the ivory until 2007. 

Section 10: Polar bear permits. In 1994, Congress provided for the issuance of permits authorizing the importation of trophies of sport-hunted polar bears taken in 

Canada, subject to certain findings and restrictions. The amendments required the 

public to be given notice prior to and after issuance or denial of such permits. 

H.R. 2693 proposes to change this public notification process to a semiannual summary of all such permits issued or denied. We oppose this provision, as it would establish a blanket exemption to the notice and comment requirement and institute 

a dangerous precedent under which permits could be issued or denied without 

much-needed public scrutiny. The public comment process surrounding the issuance 

of a permit to import polar bear parts is needed to provide public oversight to verify 

that a permit is tied to tagging that clearly demonstrates when, and from what 

stock, the polar bear was taken. Rather than removing the public comment process, 

the Fish and Wildlife Service should work to ensure that these provisions are effectively enforced and do not result in the illegal take or a negative change in the status of stocks that are currently depleted. 

Section 11: Captive release prohibition. We support the provision in H.R. 2693 

amending the MMPA to clarify that the Act expressly prohibits any person subject 

to the United States’ jurisdiction from releasing a captive marine mammal unless 

specifically authorized to do so. In the absence of mandatory precautionary measures established as conditions of a captive release permit, potential harm might result, to both the animals released and to wild populations they encounter, in the 

form of disease transmission, inappropriate genetic exchanges, or disruption of critical behavior patterns and social structures in wild populations. Any such permit 

requirement must be subject to the same jurisdictional and public review requirements that apply to other MMPA permits. 

Section 12: Stranding and entanglement response. Each year a growing number 

of marine mammals become entangled in fishing gear and other marine debris. It 

is important that NMFS and FWS have the explicit authority to collect information 

on these entanglements and to grant authorization to selected organizations or individuals to disentangle animals whose lives are threatened. Disentanglement has 

proven to be an effective mitigation measure for humpback whales, northern fur 

seals, California sea lions, and Hawaiian monk seals, and has proven to be significant to the survival of the North Atlantic right whale. These efforts promote the 

conservation and recovery of these species and should continue as a matter of priority. To improve efforts to monitor and respond to entanglement threats to marine 

mammals, we support the proposed amendments to Title IV of the MMPA to include 

entanglement situations and to define the term ‘‘entanglement’’. 

Section 13: Definition of harassment. On May 6 the Resources Committee held a 

hearing on changes proposed to the MMPA by the Department of Defense, among 

them a change to the definition of harassment. During that hearing, many of the 

organizations represented by this testimony expressed grave concerns regarding the 

proposed changes. We noted that in our view any problems with the existing harassment definition are not due to ambiguities in the statutory language, but to fundamental process problems, including: inconsistency in reviews of permit applications, 

conflicts in the process that dovetails the MMPA with the National Environmental 

Policy Act, and a lack of cooperation among federal agencies. If the problem lies in 

process issues that go uncorrected, changing the definition is likely to result only 

in more confusion, more delays in granting permits, and more lawsuits. Nothing will 

be gained, and marine mammal conservation will undoubtedly suffer as a result. 

The current definition of ‘‘harassment’’, added to the Act in 1994, is ‘‘

‘‘The term ‘‘harassment’’ means any act of pursuit, torment, or annoyance which—

(Level A) has the potential to injure a marine mammal or marine mammal 

stock in the wild; or

(Level B) has the potential to disturb a marine mammal or marine mammal 

stock in the wild by causing disruption of behavioral patterns, including, 

but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.’’

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H.R. 2693 would shift the burden for Level A harassment from ‘‘has the potential 

to injure’’ to ‘‘has the probability to injure.’’ We oppose this change, and are of the 

view that the proposed language is far more ambiguous than the existing definition. 

The term ‘‘potential’’ is clear and requires no further evaluation of the probability 

of injury, whereas ‘‘probability’’ is undefined, subjective, and likely to result in confusion among potential permittees. An example of the inherent difficulty with the 

‘‘probability’’ would be the issue of ships entering Boston Harbor, transiting a 

National Marine Sanctuary and habitat for a number of endangered or threatened 

large whales. Evidence shows that ships entering Boston do occasionally strike and 

kill whales: the potential for ship strike is clear, and dictates that preventative 

measures should be mandated to the extent practicable. But the probability of an 

individual ship striking and injuring a whale varies tremendously, depending on 

season, ship speed, number of ships entering the harbor on any given day, and other 

factors. It would be virtually impossible to determine or enforce, resulting in even 

more confusion among stakeholders. 

H.R. 2693 also weakens the existing definition of Level B harassment by requiring a ‘‘biologically significant’’ disruption of activities, including, but not limited to, 

migration, breeding, care of young, predator avoidance, defense, or feeding. The legislation does not define the term ‘‘biologically significant disruption,’’ nor is it a commonly used scientific term...’’ The insertion of this term would add harmful and unnecessary ambiguity to the definition, increasing regulatory uncertainty for regulated entities, and potential risk for protected marine mammals. 

Finally, the bill would add the Administration’s proposed third tier of harassment 

to include activities ‘‘directed toward’’ a specific animal or group of animals and 

‘‘likely to impact’’ those animals by ‘‘disrupting behavior’’. While we recognize the 

intent in using this tier to regulate activities such as dolphin feeding, we would reiterate previously expressed concerns regarding ‘‘directed’’ activities. In our view, this 

definition would also apply to scientific research and whale watching operations. We 

would also note that the permitting standard included in this provision of ‘‘disrupting behavior’’ differs from the standard included in the other section of Level 

B harassment, which requires a ‘‘biologically significant disruption.’’

If the Committee adopts this approach, it has in effect created three different 

standards of ambiguously defined harassment without any clarification as to which 

standards would apply to whom and under what circumstances. If enacted, we have 

little doubt that this definition will result in far more confusion, more lawsuits, and 

less protection for marine mammals, and that we will be debating yet another approach to the definition in the next reauthorization of the MMPA. 

Our organizations urge the Committee to instead retain the current definition of 

Level A harassment, and to amend Level B harassment as follows: 

any act that disturbs or has the potential to disturb a marine mammal or 

marine mammal stock in the wild by causing disruption of biologically significant activities, including, but not limited to, breathing, communication, 

sheltering, migration, breeding, care of young, predator avoidance or defense, and feeding or foraging. 

This definition is similar to that proposed by the National Research Council, and 

has the added advantage of replacing the Committee’s proposed ‘‘biologically significant disruption’’ with the far more easily understood and scientifically definable 

‘‘biologically significant activities.’’ It also clarifies the concern expressed by others 

that the current definition could apply to de minimus activities—with the addition 

of the descriptive term ‘‘biologically significant activities,’’ de minimus activities are 

specifically excluded from consideration. In addition, by defining harassment as 

‘‘any act that’’ there is no need for a separate clause related to directed activities, 

as any act includes both incidental and directed activities. 

Section 14: Incidental takings of marine mammals. H.R. 2693 proposes to eliminate key conservation elements that restrict the scope of incidental take to ‘‘small 

numbers’’ of marine mammals while engaging in a specified activity ‘‘within a specified geographic region.’’ We oppose the removal of these provisions. 

Retention of these limitations is a vital component of the conservation principles 

embodied in the MMPA. Under the current language, regions of operation and numbers of animals impacted are drawn as narrowly as possible to accomplish the proposed activity; environmental review then takes place on that basis. The status of 

marine mammal conservation varies from species to species and from ocean to 

ocean, and requires that activities be considered on a case-by-case basis. Geographic 

regions serve different biological purposes for different species, and actions that 

have little or no impact on one species within a specified region may have grave 

consequences for another. 

Finally H.R. 2693 proposes to establish a general authorization for incidental 

takes. The intent of this provision is unclear. Unlike other general authorizations 

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in the MMPA that limit the scope of the authorization to a particular activity and 

type of take (such as commercial fishing), this authorization applies to any activity; 

does not restrict the scope of the take; is of unlimited duration; has no requirement 

for the applicant to provide information on the type of activity or number of animals 

impacted, proposed monitoring and mitigation measures; and has no requirements 

for reporting. In effect, this broad authorization creates an escape clause that allows 

user groups to bypass the incidental take permitting process entirely, and we believe there is no basis for a general authorization of this scope, which would render 

the MMPA’s conservation goals and mandates virtually meaningless. 

Conclusion. It is our view that many of the most important provisions of the 

MMPA, including the harassment definition and conditions for incidental takes of 

marine mammals, would be significantly weakened by H.R. 2693. We urge the Committee to consider these concerns, and look forward to working cooperatively with 

the Members and staff on these issues in the future. 

Mr. GILCHREST. Thank you very much. 

Ms. STEUER. Thank you. 

Mr. GILCHREST. Mr. Johnson, welcome, sir. 

STATEMENT OF CHARLIE JOHNSON, EXECUTIVE DIRECTOR, 

ALASKA NANUUQ COMMISSION 

Mr. JOHNSON. Thank you, Mr. Chairman. I am the executive director of the Alaska Nanuuq Commission, and I am also representing the Indigenous Peoples Council on Marine Mammals, 

which was formed in 1994 to fight for co-management. 

We have worked very diligently the last 2 years with the U.S. 

Fish and Wildlife, the National Marine Fisheries, and the Marine 

Mammal Commission to come up with a language for the reauthorization of MMPA. This is very different from a few years ago. When 

we first got together, we had somewhat of an adversarial relationship, but we have learned to work together and to trust each other. 

The language that we have worked up with these agencies is 

largely reflected in the administration bill. And I notice in reading 

your bill that it also puts in most of the language that was in the 

administration bill, and we thank you for that. 

The particular points that we were working on were the ability 

for us to manage before depletion and to enforce regulations, that 

is presently absent in the MMPA. And I notice you included those 

in this bill, and we thank you for that. 

One thing that we would like to see, however, in this bill is the 

disclaimer language that is in the administration bill, in that Alaska Natives live in a situation where we have over 200 political 

tribes and we, as Alaska Native Marine Mammal commissions, get 

our authority through these tribes. And for that reason, we would 

like to see disclaimer language in there that says something to the 

effect that nothing in this bill affects the political status or the authorities of the tribes. And that was in the administration bill. We 

would like to see that. 

Also missing from the administration bill, which we see you have 

put back in—and we want to thank you for that—and that is the 

cultural exchange between indigenous peoples of the Arctic. And we 

thank you for doing that. 

We, however, would like to also see in the bill a ban on the use 

of aircraft and a ban on the sale of gall bladders. We feel that that 

is necessary for the protection of marine mammals that we depend 

upon heavily for subsistence. 

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Mr. GILCHREST. Mr. Johnson, the ban on aircraft in—’ 

Mr. JOHNSON. In hunting. That is not necessarily for—we understand that there is a need for aircraft for doing research. 

One other thing that we would like to see, for the Alaska 

Nanuuq perspective, we are working with polar bears, which are 

the U.S. Fish and Wildlife. You know, 95 percent of the polar bears’ 

diet is seals. And ice seals are in NMFS. And we would like to 

work with ice seals, but it is very difficult to get a permit from 

NMFS to even take samples off of harvested animals. The Alaska 

Native Harbor Seal Commission, for example, has been trying to 

get a permit to take samples off of harvested animals for years and 

still has not been able to get a permit. Now, I can go out and shoot 

a seal, I can take it home and eat it, dry it, trade it, whatever, but 

I can’t send a sample to the University of Alaska, for example, to 

have it tested for nutritional values or contaminants without a permit. And to us, it doesn’t make any sense to have a separate agency manage—it makes ecological sense for ice seals, in particular, 

and harbor seals to be under Fish and Wildlife, for there is little 

interaction with fisheries. 

Thank you. 

[The prepared statement of Mr. Johnson follows:]

Statement of Charles Johnson, Alaska Nanuuq Commission, on behalf of 

the Indigenous Peoples Council on Marine Mammals (IPCoMM) 

Mr. Chairman, I am Tomungnique, Executive Director of the Alaska Nanuuq 

Commission, which represents the polar bear villages in Alaska on matters concerning the conservation of nanuuq, the polar bear. I am also representing the Indigenous Peoples Council on Marine Mammals or IPCoMM. 

IPCoMM, the Indigenous Peoples Council on Marine Mammals, was formed in 

1994 to fight for co-management of marine mammals which coastal native people 

of Alaska heavily depend on for subsistence. IPCoMM also serves as a sub-committee of the Alaska Federation of Natives. Our dependence on marine mammals 

is more than for food and the making of handicrafts handicrafts, it is cultural, spiritual and essential to our well being. In 1994 we sometimes had an adversarial relationship with the management agencies. That has changed into a cooperative relationship as we have learned to trust each other. IPCoMM represents most if not all 

of the Alaska Native marine mammal subsistence commissions. 

During the last two plus years IPCoMM has worked diligently with the U.S. Fish 

and Wildlife Service, the National Marine Fisheries Service and the Marine Mammal Commission to develop mutually agreeable language that meets all of our needs 

for the reauthorization of the MMPA. This language is contained in the Administration bill that we strongly support. The key points that we have worked on will allow 

us to work with the agencies to develop regulations that allow management before 

depletion and methods for enforcement of these regulations. Alaska Natives want 

our descendants until at least the seventh generation to enjoy the use of marine 

mammals as we have. The Native community in Alaska has expressed its strong 

support for the harvest management provisions of the Administration’s bill, as reflected in the 2002 AFN Resolution attached to my testimony. 

The language in the Administration bill also recognizes the political reality that 

Alaska Natives live in, but at the same time contains disclaimer language that is 

intended to neither add to, or take away from or change that political situation. We 

have developed efficient state wide organizations for the co-management of marine 

mammals for subsistence purposes. We recognize that single village agreements for 

co-management is unrealistic and have developed on our own these broad representative commissions. 

From the Alaska Nanuuq Commission perspective we would like to see a reorganization of management of those species that Alaska Natives use for subsistence 

purposes. It makes no sense for seals to be in NMFS when polar bears are in Fish 

and Wildlife Service. NMFS has stated that co-management is not one of their priorities because they are constantly dealing with crises’’. Seals, in particular ice seals, 

which make up 90-95% of polar bear diets have little or no interaction with commercial fisheries. We feel it makes ecological sense for management of seals used for 

81

subsistence to be under Fish and Wildlife, where co-management would be efficient. 

At a meeting on July 10, 03, IPCoMM voted to also seek this move of seal management. 

Additionally it has been very difficult to obtain a permit from NMFS to collect 

samples from harvested animals. The Alaska Native Harbor Seal Commission has 

been seeking a permit for several years and is now collecting samples under the 

University of Alaska permit. Obtaining a permit from the U.S. Fish and Wildlife 

Service is as simple as getting a letter. 

Alaska Natives have also developed a trust with the major environmental organizations who support our efforts to conserve our marine resources for future generations. The progress we have made in working with them and the management agencies is reflected in the language regarding harvest management in the Administration bill. 

However the Administration bill took out the provisions allowing Alaska Natives 

to culturally exchange marine mammal products with Native peoples of Canada, 

Greenland and Russia as we have traditionally. Also taken out was the provision 

that allows Alaska Natives and Natives of Canada, Greenland and Russia to take 

in and out of Alaska our traditional clothing made of marine mammal products, We 

urge you to put back in these provisions. 

Also missing is the ban on the use of aircraft while hunting and a ban on the 

sale of ball bladders. We feel that these prohibitions are necessary for the conservation of marine mammals. 

We urge you to consider our efforts while you contemplate reauthorization of 

MMPA. THANK YOU and I will answer any questions. 

Mr. GILCHREST. Thank you very much, Mr. Johnson. You gave us 

a very specific, concise list, and that will be very helpful. 

Dr. Wells? 

STATEMENT OF DR. RANDALL WELLS, CONSERVATION 

BIOLOGIST, CHICAGO ZOOLOGICAL SOCIETY, MOTE MARINE 

LABORATORY 

Dr. WELLS. Thank you, Mr. Chairman, Mr. Pallone. My name is 

Randall Wells. I am a conservation biologist with the Chicago Zoological Society based at Mote Marine Laboratory in Sarasota, Florida, where I also serve as director of Mote’s Center for Marine 

Mammal and Sea Turtle Research. 

I began studying dolphins 2 years before the implementation of 

the Marine Mammal Protection Act and I have seen many of the 

accomplishments of this act since that time. Our understanding of 

the scope of threats to which marine mammals are exposed has 

changed over the years. We need to be able to adjust protection 

measures in response to a changing world. Proposed changes to the 

act make some of these adjustments, expanding the scope of protection beyond that related to directed takes and commercial fisheries. 

I am honored to have been invited to provide testimony in support 

of reauthorization of this important act. 

Much of the basis for my testimony is derived from research on 

bottlenose dolphins in Sarasota Bay, Florida. Thirty years ago, we 

discovered that at least some in-shore dolphins live in resident 

communities. We are now studying four generations of residents, 

including many known since 1970, along with their calves, 

grandcalves, and great-grandcalves. Knowledge of multigenerational residency provides important perspective for understanding exposure to threats and can be key to providing appropriate protection. In-shore dolphins arguably face a larger variety 

and greater intensity of human impacts than many marine mamVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00085 Fmt 6633 Sfmt 6602 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
82

mals because of their proximity to where we live, work, and recreate. 

I am pleased that recreational fisheries with incidental mortality 

and serious injury of marine mammals will now be held accountable for their takes. When recreational fishers are using the same 

gear as commercial fishers in the same waters, comparable mortalities and serious injuries are to be expected. Including recreational 

fisheries in the list, leading to observer coverage, will yield a more 

complete basis for managing stocks and should be more equitable 

for commercial fishers. 

The prohibition on releasing captive marine mammals is also 

needed. We can’t necessarily assume that releasing animals into 

the wild is in the individual’s or the host population’s best interest. 

My experience from my own dolphin-release experiment and from 

serving as an expert witness for NOAA in a case involving a failed 

dolphin release point to the need for requiring scientific research 

permits. 

Increased support for the Marine Mammal Health and Stranding 

Response Program is also needed. This program provides a window 

to serious threats that are less obvious than fishing gear. The first 

indications of marine mammal health problems come from stranded animals. The program brings much-needed coordination to 

stranding response and health research. 

Strandings and health research have demonstrated accumulation 

of pervasive pollutants in marine mammals. PCB concentrations 

greater than those of concern for human health have been documented. In bottlenose dolphins, high PCB concentrations apparently correlate with increased first-born mortality, reduced immune 

system function, and reduce male reproductive hormones. 

Congress should consider funding a research program to quantify 

the impacts from pervasive environmental threats. Looking at 

chemical concentrations in the environment in order to establish 

their effects on marine mammals. Other pervasive threats, such as 

noise, could also be included. Cumulative risks could then be considered along with more direct takes, leading to improved stock assessments. 

The Marine Mammal Health and Stranding Response Program is 

on the front line for detecting emerging toxic chemicals, diseases, 

and pathogen pollution. The authorization for annual funding from 

MMPA funds into the Marine Mammal Unusual Mortality Event 

Fund is essential for emergency responses. I hope you will also consider reauthorizing complementary funding for the John Prescott 

Marine Mammal Rescue Assistance Grant Program, which supports non-emergency stranding response operations and research. 

Together, these funds allow consideration of marine mammals as 

sentinels of ocean and human health. 

Proposed harassment definition changes should reduce human 

interactions, such as touching, feeding, or swimming with wild 

marine mammals. For example, since 1990 we have observed Beggar and his associates, wild dolphins fed by boaters. Law enforcement has been limited because the harassment and feeding prohibitions already in the regulations were considered unenforceable. 

With NOAA Fisheries Protect Wild Dolphins program, we evaluated the effectiveness of education in reducing this problem, and 

83

determined that law enforcement was also needed. The new definition should provide sufficient clarity to support prosecutions. 

The new harassment definition still requires scientists to apply 

for research permits. This is a burdensome but necessary process. 

My own research activities, ranging from observations to hands-on 

sampling of bottlenose dolphins, are considered harassment. While 

developing ten permit applications since 1984, I can’t say that my 

research has ever been delayed by the permitting process. 

Some other harassment issues are particularly vexing with regard to practical regulatory solutions. Boats cause disturbance and 

injuries. About 4 percent of Sarasota Bay dolphins bear propeller 

scars acquired during periods of heavy boat traffic and boat races, 

which attract thousands of spectator boats. During a typical dolphin’s day, powerboats pass within 100 yards every 6 minutes, 

leading to significant changes in dive patterns and acoustic communication. The cumulative effects of repeated disturbance are unknown. 

In conclusion, the proposed changes to the MMPA include significant advances. I hope that this momentum continues for further 

adjusting our management approaches to respond to emerging 

threats to marine mammals. Fishery impacts have not been eliminated, but many mitigation measures have been developed during 

the first 30 years of the MMPA. Similarly, we should begin to look 

for solutions to some of the emerging and potentially equally dangerous pervasive threats to marine mammals and consider a more 

complete set of threats in stock assessments. 

This concludes my testimony. I would be pleased to respond to 

your questions. 

[The prepared statement of Dr. Wells follows:]

Statement of Randall S. Wells, Conservation Biologist, Chicago Zoological 

Society, and Director, Center for Marine Mammal and Sea Turtle 

Research, Mote Marine Laboratory 

Mr. Chairman and distinguished members of the Committee, my name is Randall 

S. Wells. I am a Conservation Biologist with the Chicago Zoological Society, and I 

am based at Mote Marine Laboratory, in Sarasota, Florida, where I serve as Director of Mote’s Center for Marine Mammal and Sea Turtle Research. I began my career of studying dolphins, whales, and manatees in 1970, two years before the implementation of the Marine Mammal Protection Act. I have therefore had opportunity to monitor the many accomplishments of this Act over time. I have also seen 

our understanding of the scope of threats to which marine mammals are exposed 

change during this same period. The ability to adjust marine mammal protection 

measures in response to a changing world is crucial. A number of the proposed 

changes to the Act make these much-needed adjustments. I am truly honored to 

have been invited here today to provide testimony in support of reauthorization of 

this important Act. 

Introduction 

Much of the basis for my statements today is derived from my long-term study 

of bottlenose dolphins in Sarasota Bay, Florida. This ongoing research is conducted 

by a large team of collaborating scientists and students from around the world. In 

the early 1970’s my colleagues and I discovered that, at least in some parts of the 

species’ range, bottlenose dolphins in bays, sounds, and estuaries live in year-round 

resident communities. We are currently monitoring about 140 resident dolphins of 

four generations in Sarasota Bay, including about 30% of those we first identified 

in 1970, as well as their calves, grand-calves, and great-grand-calves. This community is one piece of a mosaic of such communities along the central west coast of 

Florida. Knowledge of the long-term, multi-generational association between dolphins and specific geographic ranges provides important perspective for understanding the exposure of these animals to a variety of threats, and can be key to 

84

providing appropriate protection. Inshore bottlenose dolphins arguably face a larger 

variety and greater intensity of human impacts than many marine mammal stocks 

in United States waters because of their proximity to where we live, work, and 

recreate. 

Marine mammals are complex creatures living in complex ecosystems. It would 

be unreasonable to expect that a given stock of marine mammals is typically exposed to only a single threat from human activities at any given time. Depending 

on where they live, stocks of marine mammals may be faced with a suite of threats 

of human origin, including chemical and noise pollution, habitat degradation or loss, 

fisheries interactions, and harassment. The proposed language continues to expand 

the scope of protection for these animals beyond that related to directed takes and 

incidental takes in commercial fisheries. 

Marine Mammal Bycatch Reduction Initiatives 

The inclusion of recreational fisheries in the lists of fisheries that have frequent 

or occasional incidental mortality and serious injury of marine mammals is an important step forward. As a charter member, and former Chair, of the Atlantic Scientific Review Group, a panel established under the 1994 amendments to the 

Marine Mammal Protection Act to provide guidance to NOAA Fisheries and the U.S. 

Fish and Wildlife Service regarding the scientific basis for management of marine 

mammal stocks in the Atlantic Ocean and Gulf of Mexico, I am well aware of complications imposed by the previous exemption of recreational fisheries from marine 

mammal regulations governing commercial fisheries in the same waters. When recreational fishers are using much the same gear as the commercial fishers, comparable mortalities and serious injuries are to be expected, but identification of the 

specific source of the mortality or injury when examining a carcass or injured animal is often impossible. Evaluation of fishery takes of marine mammals relative to 

Potential Biological Removal typically involves extrapolation from data from observers placed on commercial fishing boats. Observer data from commercial vessels 

alone lead to underestimates of mortality and serious injury because they do not include takes in recreational fisheries. Regulations limited to commercial fisheries 

only deal with a portion of the problem. Inclusion of recreational fisheries in the 

list of fisheries, with associated observer coverage as appropriate, will provide a 

much more complete and accurate basis for managing impacted stocks, and will create a more equitable situation for commercial fishers. While this change to the list 

of fisheries is an important and overdue step, it is only one step toward considering 

all sources of lethal take or serious injury for effective management of marine mammal stocks, as I will discuss later. 

Captive Release Prohibition 

The prohibition on captive release is a welcome addition to the Act. It cannot necessarily be assumed that releasing a captive marine mammal into the wild is in the 

individual’s or host population’s best interests. My experience with this issue includes conducting the first (and one of very few) systematic study of the release of 

captive dolphins back into the wild, with the release of two bottlenose dolphins back 

into their native waters of Tampa Bay in 1990. This release was well-documented 

and successful, and the dolphins have been observed more than 10 years post-release, apparently fully-integrated into local dolphin communities. 

In addition, I served as an expert witness for NOAA Fisheries in its 1999 case 

involving the illegal release of two dolphins into the waters of the Florida Keys. The 

releasers argued that NOAA Fisheries could not require them to operate under the 

conditions of a Scientific Research Permit. The two ex-Navy dolphins were not properly prepared for release, nor did they receive appropriate care at the holding facility. When the releasers learned that the government was planning to confiscate the 

animals because of animal welfare violations, the dolphins were taken offshore and 

released in waters hundreds of miles away from their original capture site, in unfamiliar habitat. The release occurred in front of a foreign film crew that paid for the 

opportunity. The release failed. The dolphins had separated and were found near 

shore, in poor condition, seeking contact with humans. The individuals responsible 

for the release were found guilty by a Federal Administrative Law Judge of violating the MMPA and were ordered to pay $59,500 in civil penalties. 

The release of long-term captive marine mammals into the wild can pose serious 

threats to the release candidates and to the host wild populations. Released dolphins may bring new diseases to wild populations, diseases they have obtained 

while in captivity, but to which the wild populations have had no previous exposure 

and therefore no immunity. Dolphins released outside of their original range may 

affect the genetic structure of the wild populations through interbreeding. Our research has demonstrated significant genetic differences across bottlenose dolphin 

85

habitats, reflecting long-term adaptations to specific suites of ecological influences. 

Released dolphins may also disrupt stable social structures in wild populations, established over many generations. Prior to release of captive animals, safeguards 

must be in place to ensure that: 1) the risks of disease transmission and inappropriate genetic exchange are minimized, 2) adequate preparations have been made 

and optimal conditions are established for the release candidate to survive upon return to the wild, 3) an adequate follow-up monitoring program is in place to track 

the released animal as well as any impacts it may be having on the wild population, 

and 4) contingency plans are in place to recover the released animal should it fail 

to thrive. The limited state of our knowledge in the area of release of long-term captive marine mammals into the wild is such that all releases must be considered experimental, and as such should only be conducted under a Scientific Research Permit. 

Marine Mammal Health and Stranding Response 

Increased support for the activities of the Marine Mammal Health and Stranding 

Response Program should be considered a high priority. This program is crucial for 

providing a window to some of the serious threats to marine mammals that are less 

obvious than fishing gear, but of equal concern for the future of marine mammal 

stocks. As a result of my involvement with marine mammal strandings for more 

than 33 years, and my field research on dolphin health during the last 15 years, 

I fully appreciate the challenges of understanding the role of human activities in 

marine mammal health and reproduction problems. Some of our first indications of 

large scale health problems in marine mammals come from examination of sick or 

dead animals that wash up on shore. From examination of these cases and tissues 

collected from the animals, scientists can begin to understand relationships between 

marine mammal health and human activities. The Marine Mammal Health and 

Stranding Response Program brings a much-needed level of coordination to stranding response, including oversight of: 1) the activities of the people and institutions 

that volunteer to participate in the U.S. Stranding Network, 2) disentanglement of 

marine mammals from lines or gear, 3) rehabilitation and subsequent release of 

stranded marine mammals, 4) identifying and responding to unusual marine mammal mortality events, and 5) developing and engaging in research focused on healthrelated hypotheses resulting from stranding findings. I will provide more detail on 

the last two activities, as these are two of the areas with which I am most familiar 

from recent interactions with the program. 

Large scale, ‘‘unusual’’ marine mammal mortality events were first noted in the 

U.S. in the late 1980s. I learned from serving on subsequent review panels that responses to these events were sometimes delayed or incomplete due to logistical or 

other constraints, limiting the information that could be derived. The Marine Mammal Health and Stranding Response Program came about in part in response to the 

need to improve responses to these events, and it has done much to meet this goal. 

As a charter member of the Working Group on Unusual Mortality Events (constituted under the Marine Mammal Health and Stranding Response Program), I 

have seen the value of advance preparations for responding to unusual stranding 

events. Preparations include having appropriately-trained field personnel on call, 

laboratories identified to process samples expeditiously, a panel of consultants to aid 

in the design of the response and interpretation of the findings, and appropriate financial support. It is critical to be able to mount a systematic response in a timely 

manner in order to ensure the collection of the appropriate sample materials of sufficient quality to offer the greatest chance of accurately determining cause of death. 

Stranded marine mammals have provided us with much insight into the factors 

that can affect their populations. Among the more important findings in recent 

years has been that of the accumulation of high concentrations of environmental 

contaminant residues in the tissues of stranded marine mammals such as dolphins. 

Humans have released more than 10,000 chemicals into the environment. This pollution is pervasive in the marine environment, and many of the chemicals of concern 

are very persistent, remaining active in the environment for years or decades. It has 

been suggested that marine mammals such as dolphins can serve as sentinel species 

for the toxic effects of contaminants on the marine environment, because of their 

position as top predators in the marine food web. However, our understanding of 

the toxic effects of these contaminants on marine mammals is incomplete. The 

harmful health and/or reproductive effects of specific concentrations of some of these 

chemicals on selected terrestrial mammals are known from carefully controlled studies in which the animals are given measured doses of contaminants. Such cause and 

effect relationships are largely undetermined for marine mammals because of ethical considerations and logistical difficulties for conducting dosing studies. 

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In lieu of dosing studies, ecotoxicologists, biologists, and veterinarians working in 

collaboration with the Marine Mammal Health and Stranding Response Program 

are taking a ‘‘weight of evidence’’ approach. Such an approach requires the collection 

of large enough numbers of samples to be able to identify strong correlations between contaminants and health or reproductive effects. Research involving carcasses 

from strandings and field studies of free-ranging populations are beginning to provide some of the requisite information to identify apparent relationships between 

some contaminants and health or reproductive effects. For example, concentrations 

of PCBs and related organochlorine compounds well in excess of what would be of 

concern for humans are being documented in a variety of dolphins, including killer 

whales and bottlenose dolphins. In bottlenose dolphins, high concentrations appear 

to be correlated with high levels of first-born mortality, declines in immune system 

function, and reduced reproductive hormone concentrations in males. 

More research is needed. Consistent significant correlations from a number of parallel tracks of investigation can provide sufficient confidence in findings to warrant 

management action. To address the threats of the new century, Congress should 

consider funding a major research program to identify and quantify the impacts 

from pervasive environmental threats to marine mammals, such as chemical contaminants and noise. This program could be directed to look at the concentrations 

of noise and chemicals of concern in the environment in order to establish the effects 

they have on growth, survival, and reproduction of marine mammals and stocks. 

The ubiquitous nature of chemical pollutants in the marine environment creates 

severe challenges for management. Many of the compounds of current concern have 

already been regulated, but they persist in the environment. Beyond regulation of 

chemicals of documented concern, direct mitigation through removing compounds already in the environment may not be practical. It is important, however, to assess 

the risks to specific stocks posed by chemical pollutants and other pervasive threats, 

so that the cumulative impacts of these and more directed takes can be considered 

in stock assessments. The research program proposed above should provide the 

quantitative basis for improving the resolution of threat evaluations in stock assessments. Responses to threats posed at the population level by pervasive environmental threats may require modification of the concept of the Take Reduction Team. 

The Marine Mammal Health and Stranding Response Program is the front line 

for identifying the occurrence and scale of current and developing situations regarding marine mammal health and many of the pervasive environmental threats. Monitoring of stranded animals and research on wild populations provide the basis for 

detecting emerging toxic chemicals, diseases, and pathogen pollution. The authorization in H.R. 2693 for annual funding from MMPA funds into the Marine Mammal 

Unusual Mortality Event Fund is a very positive step toward ensuring that we can 

optimize our response to acute, large-scale marine mammal health situations. Alternative funding for emergency response is not available from any other sources, and 

grants programs, such as the John H. Prescott Marine Mammal Rescue Assistance 

Grant Program, do not work, and were not designed, for this kind of immediate response. 

The Prescott grant program is very valuable, and its strength lies in maintaining 

and enhancing the capabilities and operations of stranding response programs 

around the country, and to provide research opportunities, to facilitate making important advances in our understanding of marine mammal health issues. I would 

like to take this opportunity to recommend reauthorization of the Prescott program, 

which is due to expire at the end of 2003. Marine mammals are closely tied to the 

health of the oceans, and demonstrate tremendous potential to serve as sentinels 

of ocean and human health. 

Definition of Harassment 

The proposed changes to the definition of harassment are most welcome. The proposed definitions should provide sufficient clarity to facilitate permitting and enforcement actions. The changes to the harassment definitions should be especially 

helpful in controlling burgeoning human interactions with wild marine mammals 

such as touching, feeding, or swimming with them. For example, since 1990 my colleagues and I have been monitoring a dolphin known as ‘‘Beggar’’, aptly named from 

his behavior of popping up with his mouth open alongside slow-moving boats in a 

narrow portion of the Intracoastal Waterway south of Sarasota Bay. Beggar ingests 

a wide variety of non-dolphin-food items that are dropped into his mouth, and bites 

many of the people who reach down to touch him without offering food. There are 

serious concerns about the spread of this behavior, as a number of other dolphins 

that pass through Beggar’s range have begun to beg as well. 

Over the years, law enforcement activity to control interactions with Beggar and 

other dolphins has been minimal due to a shortage of NOAA enforcement agents, 

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other priorities within the agency, and a stated reluctance to commit resources because the harassment and feeding prohibitions already in the regulations were considered unenforceable. Working with the NOAA Fisheries ‘‘Protect Wild Dolphins’’ 

program, we participated in a program of educating the public through brochures, 

posters, signage, town hall meetings, and public service announcements. We also 

conducted a docent program in which people approaching Beggar were provided 

with explanations of the problems associated with feeding wild dolphins. Only about 

1.3% of passing boaters interacted with Beggar in the presence of the docent boat. 

Boaters who interacted with Beggar were interviewed, and 60% acknowledged that 

they knew such activities were illegal. Following cessation of the docent program, 

the numbers of interactions increased by a factor of four. Thus, it appears that the 

educational messages were received, but in the absence of adequate law enforcement 

and the consequences thereof, the problem persists. Similar findings have been 

made by other Chicago Zoological Society scientists working at other sites around 

the world. The new definitions should provide sufficient clarity to support prosecutions for this kind of harassment, but increased support for law enforcement activities along with continuing educational efforts will be necessary to begin to control 

these kinds of situations that are clearly harmful to marine mammals. 

The new definitions of harassment still lead to requirements for scientists to 

apply for permits for their research activities involving marine mammals. This is 

a burdensome process in terms of time required for preparation of applications and 

response to questions, but it is a necessary process for establishing standards for 

impacts of research on the animals. Questions about the over-regulating nature of 

the process are raised when researchers observe members of the general public engaging without legal consequences in the very activities for which the researchers 

had to apply for a permit, or when the process interferes with the timely implementation of research of importance to marine mammal conservation. The latter case 

is often related to research situations requiring NEPA and/or ESA compliance, rather than simply MMPA considerations. Fortunately, most of my research is with animals for which the ESA does not apply and involves activities that have not required the preparation of an Environmental Assessment or Environmental Impact 

Statement under NEPA. In the course of developing more than ten permit applications since 1984, implementation of my research has never been held up due to 

delays from the permitting process. 

There remain many other human-induced threats to marine mammals for which 

practical regulatory solutions are not immediately evident. Noise in the marine environment can interfere with marine mammal communication or feeding, but the 

risks in terms of costs to the animals have not been fully investigated, and practical 

means of controlling the widespread noise produced by vessels have not been identified. Vessel traffic can lead to disturbance responses, and in some cases serious injuries from collisions. For example, about 4% of the bottlenose dolphins in Sarasota 

Bay bear scars from collisions with vessels, all of which have been acquired during 

periods of heavy holiday boat traffic and boat races that attract thousands of spectator boats. Under normal circumstances, these dolphins have powerboats passing 

within 100 yards of them once every six minutes, leading to significant changes in 

dive patterns and acoustic communication. This disturbance occurs during daylight 

hours every day throughout the lives of the animals. It has not been possible to 

evaluate the cumulative effects of these repeated disturbance responses. 

Recreational fishing involving rods, reels, and monofilament line is another widespread activity, also with serious consequences for marine mammals. In Sarasota 

Bay, nearly 5% of the 125 stranding cases for which cause of death could be determined with confidence by the Mote Marine Laboratory Stranding Investigations 

Program involved recreational fishing gear. One young female dolphin was found 

swimming slowly in Sarasota Bay with 1,600 feet of heavy fishing line trailing from 

and cutting through her flukes. If not for rescue actions such as those by our research team removing this line, the toll from this kind of recreational fishing would 

be higher. 

In the new century, we have the opportunity to adjust our management approach 

to respond to different and emerging suites of threats to marine mammals. Fishery 

impacts have not been eliminated, but effective means of mitigating many of the 

problems have been developed during the first 30 years of the MMPA. In much the 

same way we should begin to look for solutions to reduce the potential impacts of 

some of the emerging, widespread, and equally dangerous, pervasive threats to 

marine mammals. Identifying technological or regulatory solutions to some of the 

emerging problems from environmental contaminants, noise, vessel disturbance, oil 

and gas exploration and development, military activities, habitat loss, recreational 

fishing, pathogen pollution, emerging diseases, and other issues may appear highly 

challenging now, but that does not mean that these threats can be ignored. 

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Cumulatively, these threats have the potential to have significant effects on stocks. 

An important and feasible first step would be to educate stakeholders and members 

of the public to be aware of their potential impacts on the animals, and to make 

appropriate changes to their behavior and use of the habitats that form the animals’ 

homes. This approach has been exemplified by the NOAA Fisheries ‘‘Protect Wild 

Dolphins’’ campaign. In addition, every effort should be made to obtain the requisite 

information to evaluate risks such that they may be considered in stock assessments 

along with other forms of ‘‘take’’ for determination of the status of specific stocks. 

Conclusion 

The Marine Mammal Protection Act remains a model around the world for marine 

mammal conservation. The process of this reauthorization exemplifies the flexibility 

of this Act to adjust to changing conditions. The shift over the last 10 years to consider more of the non-fishery-related threats to marine mammals is a very welcome 

and important improvement. 

This concludes my testimony. Thank you very much for the opportunity to appear 

before you today. I would be pleased to respond to your questions. 

Mr. GILCHREST. Thank you very much, Dr. Wells. You have 

broadened our perspective on another dimension of the problem. 

Mr. Zuanich. Did I pronounce that right? 

Mr. ZUANICH. Perfect. 

Mr. GILCHREST. Thank you. 

STATEMENT OF ROBERT ZUANICH, BOARD MEMBER,

UNITED FISHERMEN OF ALASKA 

Mr. ZUANICH. Mr. Chairman, I want to take the opportunity to 

thank you and your Committee for allowing us to provide our views 

on reauthorization of the Marine Mammal Protection Act. 

There is little dispute that the act is necessary to protect marine 

mammals from adverse human activities. However, we believe 

there are a few very real problems that your Committee must address in considering reauthorization legislation. 

First and foremost, the act has the practical effect of elevating 

marine mammals above all others in ocean management by imposing upon commercial fishermen a requirement to reduce their mortality and injury of marine mammals to a level approaching a zero 

mortality. This zero mortality rate goal, or ZMRG, has the practical 

effect of treating all marine mammals as if they were listed as endangered under the Endangered Species Act, even if a population 

is healthy and growing at a significant rate. 

We believe, as a biological management tool, the ZMRG distorts 

the ocean ecosystem by giving marine mammals primacy in the 

ocean without fully considering the needs of other species. And I 

would like to give you a few examples. 

There is ample evidence that sea lions and harbor seals, whose 

populations are now at or exceed historic levels, are preying heavily on endangered Columbia River salmon. In southeast Alaska and 

in California, sea otters are changing the ecosystem by eating large 

numbers of sea urchins and abalone. Again in Alaska, a recent 

University of Alaska study concludes that expanding sea otter populations may soon decimate Glacier Bay crab stocks. And similarly, 

Canada has come out and concluded that mammals are hindering 

the recovery of depressed cod stocks. 

Simply put, the we believe the ZMRG is an unrealistic management tool and must be redefined or eliminated. 

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We believe this ZMRG should be replaced by a standard applied 

by many other environmental protection statutes. That is, that the 

regulated industry—in this case, commercial fishing—should be required to use the best practicable and economically feasible technology to avoid marine mammals. After all, this was the standard 

when the act was first enacted, to apply to the Eastern tropical 

tuna fishery. And it should again be the standard, particularly with 

regard to Alaska’s commercial fisheries. 

If, however, we elect to—or you elect to retain the ZMRG, then 

all ocean users who interact with marine mammals should be subject to the same standard. Testimony presented last week at the 

MMPA hearing before the Senate Commerce Committee stated 

that sport fishing and recreational and commercial vessel activity 

can significantly impact marine mammals. If ZMRG is the right 

policy, then why is it only applicable to small fishermen? 

Finally, we also note that the act requires commercial fishermen 

to place observers upon their vessels when the Fisheries Service so 

demands. Many fishing vessels are small and cannot accommodate 

an observer, which can affect their efficiency and their ability to 

safely operate. For small fishing vessels, all observers should be 

staged on Fisheries Service vessels. If this is not possible, then we 

would ask that the Fisheries Service should be required to indemnify the vessel owner for many third-party claims associated with 

the observer requirement. 

Again, I want to thank the Committee for the opportunity to 

present the views of the United Fishermen of Alaska on this very 

important legislation. 

[The prepared statement of Mr. Zuanich follows:]

Statement of Robert P. Zuanich, on behalf of the

United Fishermen of Alaska 

As you may know, the Alaskan commercial fishing industry has been gravely impacted by lawsuits brought against the National Marine Fisheries Service (‘‘NMFS’’) 

for alleged violations of the Marine Mammal Protection Act (‘‘MMPA’’) and the Endangered Species Act. More such suits loom threateningly on the horizon. 

A central problem that your Subcommittee needs to address in considering legislation reauthorizing the MMPA is that the MMPA creates serious ocean management 

issues by elevating one species above all others in oceans management. We support 

amendments to the MMPA that will allow the Act to achieve its important objectives while also preventing distortions in the ocean ecosystem—- distortions caused 

by the fact that the MMPA calls for the oceans to be managed for the benefit of 

only one species. 

Because of the inherent problems in the management philosophy embedded in the 

MMPA, the following issues must be addressed in any MMPA reauthorization. 

1) Zero Mortality Rate Goal (‘‘ZMRG’’). The Act requires that commercial fishermen reduce the incidental mortality and serious injury of marine mammals to an 

insignificant level approaching a zero mortality and serious injury rate. No one advocates unnecessary incidental injuries and mortalities and every Alaskan commercial fisherman seeks to prevent that. The problem is not with that goal. The problem is with the MMPA’s philosophy that the ocean is to be managed by placing 

marine mammals above all other species and that anything above a zero mortality 

and injury rate is unacceptable. Indeed, a zero mortality policy is the equivalent of 

treating all marine mammals as if they have been listed as endangered under the 

Endangered Species Act, even if the population is healthy and growing at a significant rate. 

As a biological management tool, ZMRG creates distortions in the ecosystem. In 

a terrestrial context, the Forest Service, for many years, managed the National Forest System by identifying the primary species it wished to benefit in each national 

forest and then managing the forest for the benefit of those species. That system 

of giving management priority to a limited number of species is similar to the 

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MMPA which gives marine mammals primacy in the ocean. In contrast to the 

MMPA, the Forest Service generally abandoned this single species policy because 

it adversely affected biodiversity by attempting to manage the environment for the 

benefit of a few species without full consideration of the needs of other species. Similarly, managing the ocean environment for the benefit of one species places other 

species at a disadvantage and threatens biodiversity. Endangered salmon, for example, a food source for certain marine mammals, have been harmed by this policy. 

A technical report titled ‘‘Effects of Marine Mammals on Columbia River Salmon 

Listed Under the Endangered Species Act,’’ prepared under contract for the Department of Energy, concluded that sea lions and harbor seals, whose populations are 

now at or exceed historic levels because of the MMPA, are ‘‘preying heavily’’ on endangered Columbia and Snake River salmon. The report, issued before the last 

MMPA reauthorization, found that ‘‘pinnipeds are taking a disproportionate number’’ of Columbia and Snake River salmon listed under the Endangered Species Act 

and concluded: ‘‘Threatened and endangered salmon must have representation in 

the [MMPA] reauthorization process.’’ They did not, and the problem grows worse. 

In testimony presented to the House Resources Committee in October, 2001, NMFS 

asserted there are ‘‘serious concerns about . . . the impacts of pinnipeds on salmon 

listed under the Endangered Species Act.’’ NMFS also testified that marine mammals may be impairing the recovery of certain endangered and threatened salmon. 

The policy question is whether the MMPA’s requirements for marine mammal protection should have priority over all other management decisions, including the protection and recovery of endangered species. 

In Alaska, scientists for the U.S. Geological Survey studying the Glacier Bay ecosystem have stated that the expanding sea otter population will have a ‘‘very large 

impact on the crab population. We would expect the number of crabs to decline dramatically.’’ A University of Alaska scientist studying sea otters concluded that in 

Glacier Bay ‘‘it’s just a matter of time before the otters put fishermen out of business. . . .’’ That scientist also found that sea otters are changing the ecosystem in 

other ways by eating large numbers of sea urchins, which eat macro algae, which 

means a significant increase in the amount and the density of kelp. 

In California, sea otters eat abalone. But they eat such large quantities of mature 

abalone that the ecosystem is left with significantly reduced quantities and the remaining abalone are small juveniles. 

The Canadian Department of Fisheries and Oceans has concluded that growing 

marine mammal populations in that country are hindering the recovery of depressed 

cod stocks. Indeed, some experts have commented that marine mammals consume 

between three and six times the entire worldwide commercial fisheries catch. 

Our point is that there are consequences for other ocean species that flow from 

the MMPA’s decision to manage the oceans by giving marine mammals the first and 

highest priority. 

We want to emphasize that we do not support or condone actions which lead to 

marine mammal mortality and injury, but ZMRG is an unscientific and an unrealistic management tool. It should be replaced by a concept applied in many other environmental protection statutes—- that the regulated industry should use the best 

practicable and economically feasible technology to avoid and minimize adverse environmental impacts. Indeed, this was the policy of Congress when ZMRG was first 

enacted and applied to the eastern tropical tuna fishery. See H. Rept. 92-707 (1971) 

at 24 and S. Rept. 92-863 (1972) at 6. See also H. Rept. 97-228 (1981) at 17. But 

Congress has allowed NMFS to move away from that standard. Today NMFS defines ZMRG in a way that is intended to return marine mammal populations to 

their pristine levels. 

The ZMRG methodology starts with the minimum marine mammal population estimate. This number is multiplied by 50% of the expected annual net reproduction 

rate. The resulting number is half of what NMFS estimates as the annual net reproduction of the minimum population. That number is then reduced by multiplying 

it by a recovery factor of 0.1 for endangered species, 0.5 for threatened or status 

uncertain species and 1.0 for others. NMFS then reduces the resulting number by 

90%. Any fishery taking fewer than this final number is at ZMRG. This ZMRG formula is designed to return marine mammal populations to the levels that would 

exist in a pristine environment. It places marine mammal populations above all 

others. 

2) End Discrimination. All users of ocean resources should be subject to the same 

standards. If ZMRG is the proper ocean management policy, then every user of 

ocean resources who interacts with marine mammals should be held to that standard. However, as now written, ZMRG applies only to commercial fishermen. Yet, 

recreational boating activities, large and concentrated recreational fisheries, and 

merchant shipping can each have a significant impact on marine mammals. 

91

Recreational boating activities in Florida, for example, have a major impact on 

manatees, but no ZMRG is applied to this activity. Testimony presented at last 

week’s MMPA hearing conducted by the Senate Commerce Committee showed that 

merchant ships collide with marine mammals, often killing them. In fact, the testimony stated that so many endangered right whales are killed by vessel collisions 

that population models predict this additional mortality may drive the species to extinction. If ZMRG is the correct policy, why isn’t it applicable to everyone? 

3) Fisheries Categorization. To achieve ZMRG, the MMPA requires NMFS to categorize commercial fisheries into three groups. Category i fisheries are those with 

a frequent incidental mortality and serious injury of marine mammals. Fisheries 

having only an ‘‘occasional’’ incidental mortality or serious injury of marine mammals are considered category ii fisheries. For any fishery placed into category i or 

ii, NMFS must develop a formal marine mammal take reduction plan whose objective is to achieve ZMRG. Only a category iii fishery, one which has a ‘‘remote likelihood or no known incidental mortality or serious injury’’ of marine mammals, escapes the requirement for a take reduction plan to achieve ZMRG. 

These statutorily created categories again underscore the fact that the MMPA establishes a goal of managing the ocean for marine mammals above all other creatures. The categories do not reflect any realistic set of management priorities based 

on the true impact of an action on marine mammals. Instead, only those fisheries 

with a remote or no interaction with marine mammals escape the ZMRG regulatory 

process. In other words, if you have already achieved ZMRG then no further regulation is applied. And, once again, the take reduction plan process only applies to commercial fishermen—- it does not apply to other ocean users. 

Further exacerbating this problem is the fact that the process by which NMFS 

assigns commercial fisheries to various categories is unscientific and arbitrary. For 

example, the southeast Alaska salmon purse seine fishery is listed as a category ii 

fishery based solely on the fact that several years ago one humpback whale swam 

through a seine net ripping apart the net. Similarly, the Cook Inlet set gillnet salmon fishery was classified by NMFS as a category ii fishery despite vigorous protest 

from the fishermen about the absence of any sighting of marine mammal interactions. When NMFS actually gathered incidental take information based on NMFS 

observer data, NMFS discovered that the fishermen were correct and the fishery belonged in category iii. Categorization of fisheries must be based on sound science, 

not isolated examples and conjecture. 

4) Potential Biological Removal (‘‘PBR’’). A first blush, the concept of PBR appears 

to provide a management concept similar to that contained in the Magnuson-Stevens Fishery Conservation and Management Act where managers determine the allowable biological catch. However, under the Magnuson-Stevens Act, management 

decisions are based on preventing removals from exceeding a biologically safe 

amount. In stark contrast, the PBR concept in the MMPA seeks to continue building 

all marine mammal populations, even healthy stocks, to their optimum sustainable 

population (‘‘OSP’’). NMFS defines OSP as a range between the largest possible population and the maximum possible net reproduction rate. The MMPA’s concept of 

PBR as a management tool is, once again, premised on giving marine mammals the 

primary place in the ecosystem. As noted above, this distorts ocean management to 

the disadvantage of other species and to the disadvantage of persons whose livelihood depends on a balanced ecosystem. 

Compounding these problems is the fact that, far too often, PBR determinations 

and decisions are made based on weak and limited data. This lack of data serves 

only to complicate ocean management issues when all other species are secondary 

and all doubts are resolved in favor of the primary species. 

5) Liability In Any Observer Program. The MMPA requires commercial fishermen 

to accept an observer when NMFS so demands. The problem is that many vessels 

are too small to accommodate another person. Vessel captains are often required to 

reduce crew size, which affects the ability to operate the boat safely, or to add another person. The observer, whose presence on board a small vessel inhibits crew 

movement, thereby impacting safety. For the small vessel fleets, all observers 

should be staged in a NMFS vessel. If that is not possible, the program should indemnify the vessel owner from any third-party claims associated with the requirement to have an observer onboard. 

We look forward to working with the Committee to amend the MMPA so that it 

is a balanced and responsible law that relies on sound science, requires the use of 

the best practicable commercially and economically feasible technology in mitigating 

impacts to marine mammals, treats all ocean users the same, and does not impose 

requirements which jeopardize human safety. 

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Mr. GILCHREST. Thank you very much. We will try to get through 

some of these questions before the vote. 

Ms. Steuer, your approach to the problem of the right whales in 

the Atlantic Ocean, where you say fishermen cause half of the mortality, and there is a regulatory process that is in effect right now; 

ship strikes cause the other 50 percent of the mortality, and there 

is no regulatory regime to deal with that issues. There has been—

it is my understanding, and maybe it would have been better if 

NMFS—I see some NMFS people peppered out through the audience there, so maybe they can answer this question. 

The IMO, with the help of our National Marine Fisheries Service, it was my understanding, developed a process for international 

shipping, when they approach the U.S. coastline, to work with our 

Coast Guard and NOAA—I guess it is a voluntary thing—to avoid 

right whales, or to report right whales. But there was a system put 

into place. And I understand it is a voluntary system. If you are 

aware of that system with the IMO, is there some—is there something we can do with that structure, do more with that structure 

to help with the right whale situation? And there was—or there is 

research going on with Dr. Tyack with those fish-finders being used 

on ships to maybe locate right whales or other marine mammals 

as the ships go through. 

So a quick comment on what IMO is doing, and is that research 

by Dr. Tyack something that you think would be worthwhile pursuing? 

Ms. STEUER. On the research end, all of it is worthwhile pursuing, because we don’t know, frankly, why so many right whales 

get hit by ships. We hate to say it, but maybe they are just so 

dumb they can’t avoid them. 

The IMO system, as I understand it, is an information-gathering 

system only. It does not obligate a vessel owner or a captain to 

move his vessel—slow down, avoid, or do any of the things that are 

necessary to protect right whales. What we don’t have at the moment is an approach that, like the TRT— 

Mr. GILCHREST. I do think, though, that there is some communication between—and I know it is a voluntary thing, but I do 

think there is some communication between the ship captain, the 

pilot, and the Coast Guard, where the Coast Guard can actually 

contact that ship that there’s right whales in the vicinity. 

Ms. STEUER. In the area. Right. But there is no process that 

forces the shipping companies to come to the table, as with fishermen, and say, OK, here is what we can and can’t do, here is what 

we should and shouldn’t do to reduce ship strikes. And that has to 

happen, and it has to happen soon. Because every single loss of a 

right whale is a detriment to the species, that is so much on the 

edge. 

So I think NMFS needs to—and we appreciate that it is a tough 

one with the IMO involved, but Canada just did it. They moved 

traffic, shipping traffic lanes in and out of the Bay of Fundy 

through an IMO process in an attempt to reduce right whale 

strikes. And my view of that is if Canada can do it, we can sure 

do it. 

Mr. GILCHREST. So Canada changed the route upon which ships 

travel to that port? 

93

Ms. STEUER. Yes. They moved their shipping lanes, and I believe 

there are also speed reductions involved. 

And so I know it is a complicated process, but I think that sets 

a model for us that can be done. And one of the researchers involved is actually working in Massachusetts. So we have the model 

set up and we should be looking at it. 

Mr. GILCHREST. Well, thank you very much. 

Mr. Johnson, how was your trip from Alaska? 

Mr. JOHNSON. I was here last week, and I went back home. It 

is a 2-day trip coming here, so it is a long trip. 

Mr. GILCHREST. Are you going to stay a couple of days now? 

Mr. JOHNSON. Well, I am here. Every time I come back, I try to 

make as many visits to as many different offices as possible because it is so long. You know, we complain in Alaska—I deal a lot 

with polar bears in Russia, and they claim the same problems that 

we have. 

Mr. GILCHREST. What, going to Moscow? 

Mr. JOHNSON. They say it is both a good thing and a bad thing 

to be so far away from your capital. [Laughter.] 

Mr. GILCHREST. We hope you are finding it a good thing right 

now. 

Could I ask about—you made a comment about sale of gall bladders and the ban on airplanes, and the permits for seals with Fish 

and Wildlife as opposed to just National Marine Fisheries Service. 

Those are three very specific recommendations. Do you see us— 

And we would like to help with that, and I am just wondering if—

and, you know, we will talk to staff and counsel and all those other 

things. Do you see those three recommendations being specific in 

the language of this reauthorization in the report language? How 

would we actually, from your perspective, implement a ban on gall 

bladders, no airplanes can do any hunting? Is it in this—is the 

Senate dealing with this issue as well? 

Mr. JOHNSON. Yes, the Senate is dealing with the ban on airplanes for polar bear hunting. That is in the treaty that we just 

negotiated with Russia. And the ban on the sale of gall bladders 

has been in, I think, in the past—in the language. Or else it has 

been in regulations. 

As far as the management of species, that was in the original 

1972 act, where it put seals under management of Department of 

Commerce. And we have a good relationship with NMFS. I am not, 

you know, saying that we don’t like NMFS. but the fact of the matter is they have told us that, you know, they are constantly dealing 

with crisis situations and lawsuits, and because of that co-management with Alaska Natives is not a priority. That is their words almost— 

Mr. GILCHREST. I think that is something that we can probably 

change through the regulatory process, or in this bill, the relationship between the permits for what you would like to do with the 

seals, between NMFS and Fish and Wildlife, I think we can deal 

with that in this legislation. The treaty, I guess, with the gall bladders, with Russia is something that we will pursue here and continue to look at. I don’t know if that is something that we could 

actually put in this legislation. But I appreciate you raising it to 

94

us here this morning. And I also think we can work on the airplanes, no hunting from airplanes. 

We may have a second round if we have enough time, but my 

time has expired, so I am going to yield now to Mr. Pallone. 

Mr. PALLONE. Thank you, Mr. Chairman. I wanted to ask Ms. 

Steuer, because I know she was a former staffer to the Merchant 

Marine and Fisheries Committee—I wish we still had the Committee, but such is life. 

Mr. GILCHREST. We are working on it. 

Mr. PALLONE. Are we working? Oh, that is right, you are working 

on it. Oh, well, I hope you succeed. And I will help you, if I can—

I don’t know if what I say matters. 

Mr. GILCHREST. Maybe Karen can come back as a Republican 

staffer this time. [Laughter.] 

Ms. STEUER. For you, Mr. Gilchrest, anything. 

Mr. PALLONE. Anyway, Karen, you were an active participant 

when the new definition of harassment was created, because I 

know you mentioned it before. Would you comment on the original 

intent of providing such a specific definition for this one aspect of 

take? 

Ms. STEUER. What happened in 1994, Mr. Pallone, is that we 

were actually approached by the scientific community with the very 

same complaints that we are hearing this time around. Prior to 

1994, there was no definition. And so we created the two-tiered definition with the intention of having a tier—that is, Level B harassment—that would apply to incidental takes, like those of the scientific community, which were clearly to be of negligible impact. 

And we were relying on NMFS to set up a process to make their 

lives easy. 

Unfortunately, that didn’t happen. And so here we are again. 

And it is one of the reasons why I, at least, would—I don’t think 

that I could give any stronger advice to the Committee on the definition this time than to say that no matter what language you use, 

you define every single term in the statute; or you direct NMFS to 

do a rulemaking within a specified period of time to define the 

terms. Because that is where we were negligent in 1994, and that 

is what needs to happen now. 

And when I testified a few months ago on the DOD bill, I believe, 

I said the same thing; and that is that it is not—that the language 

of the statute alone isn’t going to resolve any of the problems we 

have heard today unless we have a clear process that resolves all 

the process problems that we have seen, that resolves all the conflicts on ambiguous terms, and that sets up the proper standards 

for scientists, fishermen, or anybody else. And so you have to have 

that in combination with whatever language you put in Level A 

and Level B harassment. 

Mr. PALLONE. Well, this is related or, you know, I wanted to ask 

you specifically, though, the language in Section 14, which provides 

a general authorization for incidental take at the discretion of the 

Secretary, you know, would that produce the desired outcome, or 

do you feel it opens an unrestricted loophole for a variety of other 

activities in the ocean that may also cause the incidental taking of 

a marine mammal, such as offshore oil and gas exploration, for 

example? 

95

Ms. STEUER. I think, as it is currently worded, the problem is 

that it is a big loophole. And I am sure that is not the intention 

in the bill. And it seems to me that some of the testimony that we 

heard on the first panel might be very useful in that regard, in 

terms of the agencies setting up, perhaps, the equivalent of a programmatic review process in which certain activities can be determined to be of de minimis impact. Others can be moderate impact, 

or however they want to go through it. But to set up a general authorization that doesn’t more clearly define its intent in terms of 

reference I think would be a mistake. 

Mr. PALLONE. Let me ask about this new World Wildlife Fund 

study that was released in June. This is again for you, Karen. Released in June, conducted by both American and Scottish biologists, 

suggests that accidental capture of bycatch by the fishing industry 

may be the biggest immediate threat to the survival of some 

marine mammals, especially large whales. And it analyzed bycatch 

mortality affecting 125 marine mammal populations over 10 years. 

It estimates that 1,000 whales, dolphins, and porpoises drown 

every day, annually approximately 308,000 marine mammals die 

unintentionally. 

Are there any conclusions that can be drawn about the effectiveness of Section 118, take reduction team process, because of this 

study? Maybe others might want to answer this. I know Mr. Hayes 

talked about the fishing gear, whether specific types of fishing gear 

should be permanently retired due to their associated level of bycatch. 

Ms. STEUER. Yes. I mean, there is no doubt that incidental bycatch in fishing gear is the largest single threat globally, particularly to what we call small cetaceans, small whales and dolphins. 

Absolutely no doubt about it. And at a paper presented to the Scientific Committee of the International Whaling Commission this 

year, the global estimate number is now up to more than 300,000 

whales and dolphins a year, 600,000 pinnipeds a year. The numbers are huge. And certainly type of gear is the bottom line. As Mr. 

Hayes was saying, it is not about the fishermen, it is about the 

gear they use. 

And in that regard, Section 118 has been extremely helpful. Because what Section 118 allows the agencies to do is collect data on 

which gears and how many and when and how and on what mitigation measures work. And in fact, that data was used in the International Whaling Commission discussions this year in terms of how 

do we now get that kind of data out to the rest of the world so that 

they can follow the kinds of practices that we are trying to set up 

with Section 118. 

Mr. PALLONE. Thank you. I don’t know if Mr. Hayes wants to say 

anything. You kind of already addressed it, I guess. 

Mr. HAYES. I think I addressed it. It is a huge problem. 

Mr. PALLONE. OK. Thank you, Mr. Chairman. 

Mr. GILCHREST. Thank you, Mr. Pallone. 

This is—we are working on a series of definition changes and in 

our bill we have, if I could use—I guess it is one-i, two-i, three-i, 

or A, B, and C. But what we have attempted to do is to focus on 

the problem areas of the difference between a minor change in the 

behavior which is not significant, to a significant change that we 

96

really need to focus in on with our limited resources, to help the 

scientists improve their research without dealing with the whole 

disruptive, fragmented, underfunded regulatory process, and to 

find a way to get at some of the harassment of marine mammals 

that we don’t have the ability to do now. And also what you said, 

Ms. Steuer, we can’t do it all with the definition of harassment; 

there has to be some really comprehensive, competent regulatory 

regime. And whether we come up with a rulemaking process, 

whether we define those very specifically now, we want to do that. 

And we are hearing all this, and we are going to do our best to 

accomplish this task, including helping the fishermen catch their 

fish without making a priority within the creation of God’s Earth 

that a porpoise is better than a salmon—or any of that. Balance 

all of this. 

I guess the question I have, though, here is specific to Level 3, 

which are trying to create to get at the—where there is feeding, 

swimming problems, where you want to swim with the dolphins, 

you want to feed the dolphins, you want to drive your jet ski 

around the dolphin. So it is our understanding right now that 

Level C harassment, little three-i, helps get at that particular problem, though there is some feeling that it doesn’t, that it is not a 

good provision to put into the statute. 

So I guess I would ask does the present language, without this 

reauthorization, give the enforcement agencies the ability to stop 

that type of harassment? Is it presently—does it presently exist, or 

do we need to change it? And if Level C that we have in there is 

not adequate, or doesn’t help that, what in fact should we do? 

And Dr. Wells, in your scientific research—and you mentioned—

I think you may have been the one that mentioned feeding and 

swimming—do you see the present language in MMPA as OK to 

enforce that? Apparently you didn’t. Do you see our language as directed toward those activities more helpful? 

Dr. WELLS. Thank you. My background certainly is not in the 

legal profession, so I am not sure I am going to have a lot of valid 

input on this, but it has been my experience to date with my own 

research situation in Florida in dealing with NOAA Fisheries personnel that the current definition doesn’t work. It is not a strong 

enough definition to get the legal counsel and law enforcement 

wings of NOAA to be able to act on a number of these situations 

that you describe. 

In talking with the same NOAA Fisheries staff about the proposed definition, it seems like something that they would feel comfortable would allow them to move forward with prosecutions much 

more effectively. 

Mr. GILCHREST. Ms. Steuer? 

Ms. STEUER. It is not clear to me why language that says ‘‘any 

act,’’ eliminating ‘‘of torment or annoyance,’’ doesn’t allow NOAA 

Fisheries to enforce any act of harassment. 

The concerns that we have about ‘‘directed toward’’ are that it is 

unclarified. I mean, as I read it, and we mentioned this before, at 

the moment, if you are directing an activity toward marine mammals, that includes scientific research. So you now fall under that 

standard, unless something in the statute or in regulation is going 

to clarify that you don’t. 

97

Jet skis doing recreational running around marine mammals 

within an activity that is not directed toward them specifically, it 

doesn’t seem to me that this would necessarily cover that. 

And if what the Agency wants to do is regulate dolphin feeding, 

dolphin swimming, and jet skis, then it seems to me that we ought 

to have the nerve to put into the statute ‘‘an act’’—we would say, 

‘‘dolphin feeding, dolphin swimming, and jet ski activity around’’— 

Mr. GILCHREST. Is a prohibited activity. 

Ms. STEUER. Is prohibited activity or shall be regulated differently. If that is how clear we need to be, then let’s be that clear. 

Mr. GILCHREST. One of the scientists, I am not sure if it was Dr. 

Tyack or—either here or at some other hearing, made a comment 

that if they tried to get a permit to ride around dolphins in a jet 

ski to see if they were being harassed, it would be difficult to get 

that permit. I guess. Although Dr. Wells said he didn’t have any 

trouble getting permits. 

Dr. WELLS. And actually, some of our work did involve looking 

at controlled approaches to dolphins to understand their responses. 

Mr. GILCHREST. I wonder if the—well, we will have to ask some 

of the NMFS people later, who aren’t testifying right now—is it—

in the process of getting a permit for scientific research, whether 

it is Florida, California, Massachusetts, Alaska, or wherever it happens to be, is that—because Dr. Wells says the permitting process 

is fundamentally sound right now—you said it was OK—is that the 

problem of individuals that you work with in those regions, or do 

those individuals help in that process, is it Washington, is it somebody that files a lawsuit? You know, where is that stream, because 

we have heard some specific examples of specific scientists that had 

a very difficult time getting permits. 

Dr. WELLS. I believe one of the differences is that most of my 

work is with bottlenose dolphins. Not being endangered species exempts them from some of the NEPA and ESA considerations that 

these other scientists have had to face. I think my experience is 

consistent with Dr. Tyack’s in terms of dealing strictly with MMPA 

authorizations or permits, in that that process seems to be working 

well. But when you have the additional complications of NEPA and 

ESA considerations, that is when it starts to get difficult. 

Mr. GILCHREST. So you see some streamlining with that process? 

Dr. WELLS. That presumably would help out. 

Mr. GILCHREST. Mr. Pallone, any further questions? 

Mr. PALLONE. I just wanted to ask Mr. Johnson about, you know, 

when you talked about the co-management, and I know that the 

bill has some changes in cooperative agreements. But in terms of 

Native Alaskans having the capabilities to support and train enforcement operations for effective co-management, would you just 

comment on that? I mean, is there sufficient capabilities, or is 

there a greater need for other—you know, if you just mention to 

us about their ability to do the enforcement pursuant to these cooperative agreements. 

Mr. JOHNSON. Yes, what we want is the ability to enforce regulations that we might develop for harvest limitation. For example, 

the villages of Gambell and Savunga on St. Lawrence Island have 

an unenforceable ordinance that they have developed limiting the 

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able. The reason that we want the enforcement language in the bill 

is that legally an Alaska Native tribe can only enforce on its own 

members. So if a member from another tribe comes and hunts in 

that area, he doesn’t have to abide by the same regulations that 

a tribal member can. The language in the bill that we would like 

to see in there, it allows anybody, any Alaska Native that is hunting in an area that has regulations, it forces them to live by the 

same regulations. We do have the capability, in most case, because 

we do have village peace officers in most villages in Alaska. 

Mr. PALLONE. OK thank you. That is all I have, Mr. Chairman. 

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

Prior to adjourning, I ask unanimous consent that the statement 

of Monica Riedel be submitted for the record. Without objection, so 

ordered. I have been meaning to say that for 2 hours. 

[The prepared statement of Monica Riedel follows:]

Statement of Monica Riedel, Executive Director and CEO,

Alaska Native Harbor Seal Commission 

Thank you for the opportunity to present this testimony. My name is Monica 

Riedel and I am testifying in my capacity as the Executive Director and CEO of the 

Alaska Native Harbor Seal Commission (ANHSC). I am also a subsistence user of 

marine mammals, Native artist, and tribal member of the Native Village of Eyak 

located in Prince William Sound, Alaska. 

The ANHSC spans a geographic area almost equal to the width of the United 

States. We encompass approximately eighty remote villages most of which are accessible only by air or water. 

The commission was organized specifically to develop and implement Co-management of harbor seals and to address issues related to the Native subsistence harvest. Co-management is viewed as an effective means of addressing the decline of 

harbor seals in the Gulf of Alaska while providing for a continuation of traditional 

subsistence uses. 

Importance of harbor seals to Alaska Natives 

Alaska Natives have been harvesting marine mammals for centuries. Current 

Harvest data shows that out of an estimated population of 180,000 harbor seals in 

Alaska, approximately 2,500 are taken for subsistence. (Information from NMML 

and the Alaska Department of Fish & Game, Subsistence Division) 

The nutritional value derived from the seal far exceeds any other foods introduced 

to Alaskan villages. The oil is unsaturated, ‘‘and is an excellent source of the longchain omega-3 fatty acids that help prevent coronary heart disease’’ (Professor 

Fereidoon Shahidi of Memorial University, Nammco International Conference and 

Exhibition Nov. 1997). Furthermore, recent studies show that seal oil may contain 

antibiotic properties. Just 3 oz of seal meat provides 95% of a person’s daily requirement of iron.(Alaska Native Health Board) 

Over the past 30 years, congress has consistently recognized the use of marine 

mammals by Alaska Natives as an integral part of our way of life. Marine mammals, including the harbor seal, are a key source of food and clothing for Alaska 

Natives living throughout coastal Alaska. Alaska Natives make a wide variety of 

handicrafts and clothing from the marine mammals they harvest. They barter these 

items through traditional trading networks throughout Alaska. The sale of handicrafts made from marine mammal by-products is a crucial source of income to many 

who live in remote Native villages. Marine mammals also play a prominent role in 

Native stories, art, traditions, and cultural and spiritual activities. 

Background information on ANHSC Programs: 

Community-Based Harbor Seal Management and Biological Sampling 

With support from the Exxon Valdez Oil Spill (EVOS) Trustee Council, the 

ANHSC in collaboration with the Alaska Department of Fish & Game, Subsistence 

Division(ADF&G) has been conducting a biosampling program to collect tissue samples from subsistence-harvested seals. The overall purpose of the program is to combine Native traditional knowledge with western science to address the restoration 

and recovery of the seal population impacted by the 1989-oil spill. Over the past 5 

years, the project has trained and certified over 100 hunters, and subsistence users 

99

in rural Alaskan villages. The project has collected over 500 sample sets for distribution to a wide range of researchers and for the University of Alaska Tissue Archival Project. 

Youth Area Watch 

Through coordination with another EVOS funded program, an additional 400 students have been exposed to the scientific methods of collecting data. During youth 

spirit camps the hunters teach protocols of hunting methods, as well as cultural relationships to the animal, while an ADF&G veterinarian and ANHSC staff train the 

youth in the scientific protocols of data collection. During the year, staff also visits 

elementary and high schools to educate students on Natives and marine mammal 

harvests. 

Harbor Seal, Monitoring, Research and Management Program 

With Congressional appropriations through the National Marine Fisheries Service (NMFS) in the amount of $97,000 for each of the years 1997, 1998, and 1999, and 

150K for the years 2000,2001,2002 and 2003, the ANHSC has conducted a ‘‘Harbor 

Seal Monitoring, Research and Management’’ program. This program, combined 

with the EVOS biosampling project, has supported a full time executive director, 

and a contracted biologist to monitor harbor seal research on a statewide and 

national level. There are five main components to the program: 

1. Admin support for ANHSC and Board of Directors 

2. Cooperative Agreements 

3. Harvest Assessment Oversight 

4. Expansion of Biosampling 

5. ANHSC Outreach and Education 

Self-regulation and Co-management 

The use of marine mammals for thousands of years has made Alaska Natives wise 

stewards of marine mammal populations. We bring unique knowledge and historical 

perspective to resource management. The National Marine Fisheries Service 

(NMFS), the federal agency with jurisdiction for the management of harbor seals, 

recognizes the advantages of direct involvement of subsistence users in managing 

harbor seals. Indigenous inhabitants and NMFS share the common goals of conservation and maintenance of a sustainable subsistence harvest. For that reason, 

the NMFS entered into a Marine Mammal Protection Act, Section 119 Co-management Agreement with the ANHSC. 

Through co-management, hunters and Native Tribal representatives sit as equals 

within the policy-making bodies that make resource management decisions. Co-management provides an effective means of conservation without diminishing the ultimate authority or responsibility of the Secretary of Commerce. 

Development of ANHSC/NMFS Sec. 119 Agreement 

Co-management discussions between the Harbor Seal Commission and the 

National Marine Fisheries Service began in April 1995, shortly after the formation 

of the commission, and NMFS’s proposed listing of the Gulf of Alaska harbor seal 

stock as ‘‘strategic’’. 

In spite of the impediments of long distance communications between NMFS 

headquarters in Washington D.C. and between our remote villages, a Section 119 

Co-management Agreement between the Alaska Native Harbor Seal Commission 

and the National Marine Fisheries Service was finalized and signed in April 1999. 

Proactive management through Sec. 119 Agreements 

It is envisioned that through the Co-management Committee structure established in Article V and Article VII Section B and C in the ‘‘Agreement Between The 

Alaska Native Harbor Seal Commission and The National Marine Fisheries Service, 

the ANHSC and NMFS will consult on issues relating to regulation and enforcement. Article VII Sec. C), States: As concern about any Alaska harbor seal stock 

arises (i.e., prior to listing as strategic or depleted under the MMPA and/or as 

threatened or endangered under the ESA) the Parties agree that the Co-management Committee shall: 

1. Consult and recommend about a possible need to list; 

2. Consult and recommend about management strategies to avoid a possible listing; 

3. After listing, consult and recommend about possible regulations; and 

4. After listing, consult and recommend about possible arrangements for ensuring 

compliance and enforcement. 

Co-management Committee meetings are held on a regular basis. Specifically, we 

are addressing harbor seal stock delineation. The ANHSC has committed to conduct 

100

an independent scientific review of the genetic data used by NMFS to propose new 

stock boundaries. 

How Co-management Agreements have benefited Natives and marine mammals 

Before the ANHSC was formed, hunters occasionally met with agencies to exchange information about harbor seals. Now, the dialogue is much broader. With 

formal and equal representation, scientific consultation, and through the co-management committee, as developed in the NMFS/ANHSC Sec. 119 Agreement, hunters 

and subsistence users contribute their vast traditional knowledge to address research and conservation needs. The ANHSC Board of Directors is made up of hunters and subsistence users. They are directly involved in data analysis of the seal 

population, harvest numbers, as well as data generated from the biosampling program. ANHSC meetings are open to the public and the organization distributes 

newsletters, brochures and biosampling training videos. 

Room for improvement 

As background, it should be noted that the ANHSC recognizes that the most important data for managing any harvested population are regular censuses and monitoring of the size and composition of the harvests. The NMFS and the ADFG are 

well equipped for censusing harbor seals and they have an on-going census program. 

The ANHSC are responsible users and recognize the importance of harvest monitoring. The ANHSC is in the best position to do so because harvests are spread over 

a very wide area (from Ketchikan to the western Aleutian Islands) and throughout 

the year, it is impractical to monitor the harvests from agency offices. The ANHSC 

has representatives throughout the harbor seal’s range in Alaska, and those representatives are knowledgeable about local hunting practices. 

We need to continue to build capacity and find long-term commitments to support 

conservation and local management plans. ANHSC is hard at work collecting data 

on the harbor seals, participating in federal, state and private research, monitoring 

the harvest and other activities. Adequate support would enable the commission to 

assist its villages in developing formal codes and ordinances, databases, and generally support the work of the commission. With the recent increase in funding, 

ANHSC has assumed more responsibility for monitoring the harvest of harbor seals 

formally done by ADF&G Subsistence Division. 

General comments on the MMPA and/or ways the MMPA could be improved: 

1. Section 119 needs to be amended to include language contained in the administration bill that we strongly support. 

2. Full funding for Section 119A for activities such as: 

A. developing infrastructure, management plans 

B. collecting and analyzing population data 

C. harvest monitoring 

D. cross-cultural training and other educational projects 

E. biosamapling and tissue archival projects 

FACA exemption for Section 119 Agreements 

Mr. Chairman and members of the Subcommittee, thank you for the opportunity 

to testify on the 2003 amendments to the Marine Mammal Protection Act. I will be 

glad to answer any questions you may have. 

Mr. GILCHREST. I want to thank all of you for coming this afternoon—well, it is this afternoon now. We will continue to discuss 

these issues with you as we move through the process. We are obviously not going to mark this up before the August recess, but it will 

be done, in our hopes, sometime in the September timeframe to 

reach the House floor for a vote. And we are working with the Senate to hope that there is some concurrent process there as well. So 

that in this session of the 108th Congress we will, hopefully, reauthorize the Marine Mammal Protection Act. And your contribution 

to this effort is vital and greatly appreciated. Thank you very 

much. 

The hearing is adjourned. 

[Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]

The following individuals responded to questions submitted for 

the record. Their responses follow: 

101

• Cottingham, David, Executive Director, Marine Mammal 

Commission • Jones, Marshall, Deputy Director, Fish and Wildlife Service, 

U.S. Department of the Interior • Lent, Dr. Rebecca, Deputy Assistant Administrator for 

Fisheries, National Marine Fisheries Service, U.S. Department 

of Commerce • Steuer, Karen, Senior Policy Advisor, National Environmental 

Trust • Tyack, Dr. Peter, Senior Scientist and Walter A. and Hope 

Noyes Smith Chair, Department of Biology, Woods Hole Oceanographic Institution • Wells, Dr. Randall, Conservation Biologist, Chicago Zoological 

Society, Mote Marine Laboratory • Worcester, Peter F., Ph.D., Research Oceanographer, Scripps 

Institution of Oceanography, University of California at 

San Diego

Response to questions submitted for the record by Marshall Jones, Deputy 

Director, Fish and Wildlife Service, U.S. Department of the Interior 

Questions from Chairman Wayne Gilchrest 

1. Question: The USFWS has been referred to as the agency that supported the changes to level A harassment in the Administration’s bill. The 

level A harassment in the Administration’s bill reads ‘‘injures or has the 

significant potential to injure a marine mammal....’’ Can you explain why 

this specific language was chosen? 

Answer: The changes to Level A harassment proposed by the Administration’s bill 

represent the combined efforts of several agencies having responsibilities under the 

Marine Mammal Protection Act (MMPA). The agencies crafted this language with 

the best interest of the public, marine mammals, and our respective agency missions 

in mind. 

The current definition of harassment, which uses the term ‘‘potential,’’ does not 

provide a clear enough threshold for what activities may constitute harassment. As 

currently defined, Level A harassment is any act of pursuit, torment, or annoyance, 

that has the ‘‘potential to injure,’’ and Level B harassment is any such act that has 

the ‘‘potential to disturb.’’ The term ‘‘potential’’ is too broad and would include any 

activity that could cause a negative response, no matter how remote the possibility. 

It provides little guidance to those who engage in activities that may have an effect 

on marine mammals for determining when their activities may result in prohibited 

harassment that is subject to regulation and, therefore, when it would be advisable 

for them to seek authorization (or modify their activities). Adding the term ‘‘significant’’ provides a modification that attempts to identify the appropriate level of certainty that an activity would result in harassment and could actually cause injury 

to the individual or stock. 

2. Question: What is the status of the Polar Bear Treaty implementing 

legislation being developed by the Department? 

Answer: The Polar Bear Treaty implementing legislation is still under review by 

the Administration. The Senate recently recommended ratification of the treaty (on 

July 31, 2003) by unanimous consent. 

3. Question: The Department has asked for authorities under section 118 

of the MMPA to collect information on fishery interactions with sea otters 

on the west coast. The Department currently has authority to collect information under P.L. 99-625, which required the Department to establish fishing areas and translocate sea otters to a special protection area. Has the 

agency determined whether or not the actions it has taken under P.L. 99-

625 have been a failure? Why doesn’t the Department collect the information it seeks under this Act? 

Answer: There are no provisions within Public Law 99-625 that specifically address collection of information on fisheries interactions. This law authorizes the U.S. 

Fish and Wildlife Service (Service) to develop a translocation plan for southern sea 

otters and provides specific requirements for translocation and management of sea 

otters. Although this legislation clearly identifies an interest in minimizing conflicts 

between sea otters and fisheries, it seeks to reduce these conflicts through moveVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00105 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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ment of sea otters out of a designated management zone. The Administration’s bill 

would clarify an ambiguity in the existing section 118 specific to California sea 

otters, noting that the provision should not be read to limit collection of information 

on southern sea otter/fisheries interactions. This information is important because, 

in recent years, fisheries that are thought to interact with sea otters have been subject to increasingly stringent regulations imposed by the State of California. With 

little or no information on fishery interactions with sea otters, it is difficult to determine means to minimize such interactions or to evaluate the effectiveness of any 

such measures that are adopted. 

It is clear that the primary objectives of the translocation program have not been 

met. Accordingly, the Service is currently reevaluating the program, including the 

possibility of declaring that it has been a failure. In April 2001, the Service released 

a scoping report that contained comments solicited from the public in preparation 

for developing a Supplemental Environmental Impact Statement that will analyze 

the effects of alternatives to the current translocation plan. 

4. Question: Has the Minerals Management Service, through the research 

it conducts or supports, reached any findings that would be considered 

surprising? For instance did a marine mammal act in a way that was not 

expected when a seismic activity or research activity was performed? 

Answer: According to the Minerals Management Service (MMS), while there are 

no final results yet available for discussion, there are several important MMS-funded marine mammal-related studies underway, including Sperm Whale Seismic Studies (SWSS) and studies under the Sperm Whale Acoustic Monitoring Program 

(SWAMP). 

The SWSS is an international collaborative effort, which includes among its participants the National Science Foundation (NSF) and industry representatives, comparing the ‘‘normal behavior’’ of sperm whales to that observed when seismic vessels 

are operating in the study areas. Controlled exposure experiments (CEE’s) are 

planned to measure sperm whale responses to a typical air-gun array. Research vessels and remote sensing devices will also obtain ambient noise measurements and 

physical oceanographic data to allow a detailed habitat characterization; mapping 

of both physical oceanographic features and ambient underwater noise levels will be 

correlated to sightings of sperm whales and other observed cetaceans. In addition, 

methods to profile sperm whale dives using passive acoustic monitoring will be developed. For longer-term analysis of dive times and whale movement, satellite tags 

were tested in Fiscal Year 2001 and are being deployed through Fiscal Year 2004. 

Using these different study methods, whale vocalizations, dive profiles, and surface 

movement will be characterized and then compared to data when seismic boats are 

active in the area or during CEE’s. 

This study is intended to immediately address information necessary for informed 

Section 7 consultations and possible MMPA take authorizations associated with 

seismic survey operations. The study will also provide essential baseline information 

on sperm whale behavior and response to noise needed to conduct more detailed 

studies. 

The SWAMP study focus was on obtaining a detailed characterization of Gulf of 

Mexico sperm whales in terms of sex and age distribution in industry-active areas, 

genetic profiles, habitat use, and seasonal movement patterns. 

As noted above, the information collected during the MMS-funded SWAMP and 

the ongoing SWSS is still preliminary and requires careful analysis before any conclusions can be reached. Once the scientists analyze the data, the work will be submitted for peer-review publication and will be readily available to the public. 

5. Question: In your testimony you stated MMS analyzes impacts, designs 

mitigation and monitoring guidelines, and defines how actions are to be 

carried out to minimize the potential for harassment or injury to marine 

mammals. Is MMS doing this on its own or is it coordinating with the 

NMFS when making these decisions? 

Answer: MMS coordinates protected species issues with the Service and the National Marine Fisheries Service (NOAA Fisheries) on a regular basis through interagency reviews of our NEPA documents and ESA section 7 consultations. This ongoing coordination allows MMS to more effectively analyze alternatives to proposed actions, assess potential impacts of proposed actions, and to design mitigation and 

monitoring alternatives. For example, in addition to ongoing MMS, NOAA Fisheries, 

and industry collaborative research efforts, MMS has been working very closely with 

NOAA Fisheries Headquarters, NOAA Fisheries Southeast Region, and many representatives of the oil and gas industry for the past year and a half on mitigation, 

monitoring, and reporting issues related to seismic surveys and explosive removals 

of offshore structures in the Gulf of Mexico. Through our collaborative efforts we 

hope to have the most effective and reasonable mitigation and monitoring apVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00106 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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proaches to conducting seismic surveys and removing offshore structures with explosives while advancing the intent of the MMPA and the ESA. 

Question from Congressman Jim Saxton 

1. Question: Why has the agency refused to include in recent budgets 

money for the John H. Prescott Marine Mammal Rescue Assistance Grant 

Program—since the law was passed over two years ago? And do you have 

plans to include funds for a Prescott program in the 2005 FWS budget? 

FWS’s jurisdiction covers an endangered species (manatees) and a threatened species (California sea otters). Certainly help with rescue and rehabilitation—and financial support for research benefiting these marine 

mammals—would be in the best interest of these declining species? 

Answer: The Service supports the authority created by the Marine Mammal Rescue Assistance Act of 2000 to provide assistance to eligible marine mammal stranding network participants. Stranding network participants carry out activities—including rescue and rehabilitation of stranded marine mammals and collection of 

data from living and dead stranded marine mammals—that are important to the 

conservation and management of marine mammal species under our jurisdiction. 

Much of the work performed by these organizations cannot be done by the Service, 

which makes their contributions even more important. 

The Service has not requested funding for the Prescott Grants Program due to 

numerous competing priorities. Nonetheless, we have been actively involved in the 

process through our participation in the NOAA Fisheries technical and merit review 

processes. The Service greatly appreciates being given the authority to request appropriations to provide assistance to stranding network participants. 

Questions from Congressman Frank Pallone, Jr. 

Definition of harassment 

1. Question: Over the past year, Congress has been presented with 

several different options to re-define the definition of harassment. A new 

definition is being offered in H.R. 2693. Please compare the definition 

proposed in H.R. 2693 and discuss whether it compares positively or 

negatively to other proposed definitions. 

Answer: In proposing the changes identified in the Administration’s bill, our intent was to provide a definition that would clarify for the regulated public what activities may constitute a violation. The existing definition, which limits harassment 

to ‘‘any act of pursuit, torment, or annoyance,’’ is too restrictive and may allow some 

actions that clearly harm marine mammals to avoid regulation. And, we felt that 

the unmodified form of ‘‘potential’’ was too broad. The modified form of ‘‘significant 

potential’’ provides greater predictability of what activities truly cause Level A harassment. 

The various definitions try to better focus the agencies’ resources on those activities that pose a greater risk to animals, and seek to set a more workable conservation standard as well as clarify for the regulated public what activities would constitute harassment. However, we support the clarity of the definition contained in 

the Administration’s proposal. 

For example, we believe that the use of the word ‘‘probability’’ as a qualifier in 

H.R. 2693 could be read to create a greater-than-fifty percent threshold. Such a numerical threshold would require a strict quantitative assessment, which would be 

difficult to conduct when considering biological behaviors, and that may be impossible to enforce. In addition, we are concerned that a greater than-fifty-percent 

threshold may create a standard that is too high to apply to certain activities that 

may have negative impacts on marine mammals. The term ‘‘significant potential’’ 

provides a clearer standard for the regulated public, as well as enforcement personnel, and a more appropriate standard that ensures all activities that could lead 

to negative impacts on marine mammals would constitute harassment. 

2. Question: How will the proposed change to the definition of harassment affect scientific research and/or military readiness activities? Are 

there specific activities that might fall outside this definition? 

Answer: The scientific research community and the military would be subject to 

the new harassment definition as would any other citizen. These groups would, appropriately, need to receive authorization before conducting activities that could 

injure marine mammals or significantly disrupt important biological functions. We 

would work with both of these groups to provide appropriate authorizations as 

quickly as possible. Although the only activities we would expect to fall outside of 

the proposed definition of harassment are those that do not have a biologically significant impact, we are unable to more definitely identify such activities because we 

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do not have a clear understanding of how the term ‘‘probability’’ in H.R. 2693 would 

be interpreted. 

3. Question: The definition for Level A (potential to injure) harassment 

proposed in H.R. 2693 requires that an activity have ‘‘the probability to 

injure’’ a marine mammal. It seems to me that this change would require 

a higher burden of proof for a given activity’s likelihood of causing harm. 

Do you feel that this change would make the definition of harassment less 

protective of marine mammals? Does the word ‘‘probability’’ have a clear 

and commonly understood legal definition? What is the distinction from 

‘‘potential?’’ Would the addition of a modifier that explains the relative 

probability of injury (such as 20%, 50%, 90%) be helpful in clarifying the intent of the word ‘‘probability?’’

Answer: We believe the term ‘‘probability’’ implies that a mathematical or statistical threshold should be employed or, at the very least, would require evidence that 

a response is more likely to occur than not to occur. The difficulty in using this term 

when referring to animal behavior, i.e., harassed or not harassed, is trying to make 

a numerical measurement of that animal’s reaction that could be compared to some 

baseline level. The same difficulty applies if a modifier is added to the term. We 

are also concerned that this may create a standard that would not apply to some 

activities that may cause significant negative impacts to marine mammals. 

The Service is unaware of the use of ‘‘probability’’ in any other wildlife conservation law. The term ‘‘potential’’ appears in the current definition and we believe that 

the term ‘‘significant potential’’ would be the appropriate term and one that the regulated public would understand. It provides a standard between the current definition, which uses merely ‘‘potential’’ and the proposed definition, which would use the 

term ‘‘probability.’’

Adding a percentage-based modifier, e.g., 20 percent, would make it even more 

difficult to enforce because it would indicate that evidence of that particular level 

must be presented before enforcement could occur. We believe this would result in 

less protection for marine mammals. 

Permitting for Scientific Research 

1. Question: It is clear to me from the testimony that we have heard today 

that the permitting process for scientific research is still problematic for 

many scientists, but I am still not clear on the root cause of the problem. 

• Is the permitting process severely limited by a lack of resources and 

staff? 

Answer: At the pace allowed under current priorities in the context of the President’s Budget, we are making progress in our permits reform efforts to address the 

concerns of scientists. The Service is in the process of reviewing all of its permitting 

activities to determine how well they serve the public and conservation of the resources in question. We have asked the regulated public for input and developed a 

permits strategic vision and action plan (Leaving a Lasting Legacy: Permits as a 

Conservation Tool, a copy of which is enclosed for your reference) to improve permitting services, while still ensuring species conservation. One of our goals is to simplify and streamline the permitting process. For example, we have developed guidelines with NOAA Fisheries to process one joint application and issue a single permit 

in situations where proposed research activities include marine mammal species 

under both agencies’ jurisdiction. 

• Would the development of a classification system identifying specific 

activities and their associated risk to marine mammals be a more useful approach to expedite consideration of different types of activities 

on a more programmatic basis? 

Answer: The Service agrees that the development of a classification system could 

be a useful approach to expedite different types of activities on a more programmatic basis. One of the objectives of the Service’s permits action plan is to 

identify activities by level of risk and to develop consistent policy, guidelines, and 

procedures for processing permit applications based on risk. Another objective is to 

provide clear policies and regulations to the permitted public. To accomplish these 

goals, we are in the process of reviewing which permit regulations and policies need 

to be revised or developed. 

We note that the review of a permit under the MMPA may also entail a review 

under the National Environmental Policy Act and the Endangered Species Act 

(ESA—for southern sea otters and manatees). Under some instances, this may add 

time to application processing. 

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Take Reduction Teams 

1. Question: A new World Wildlife Fund study released in June conducted 

by American and Scottish biologists suggests that accidental capture or 

‘‘bycatch’’ by the fishing industry may be the biggest immediate threat the 

survival of some marine mammals, especially large whales. This study analyzed bycatch mortality affecting 125 marine mammal populations over the 

period of 1990-1999. The study estimates that 1000 whales, dolphins, and 

porpoises drown every day. Annually, approximately 308,000 marine mammals die unintentionally. • In light of this information, what conclusions can be drawn about the 

effectiveness of the Section 118 take reduction team process? • Should specific types of fishing gear be permanently retired due to 

their associated level of bycatch? • Should a robust program be established to dedicate adequate resources 

and technical assistance to promote ‘‘marine mammal safe’’ fishing 

gear? 

Answer: Please see the response to the next question. 

2. Question: H.R. 2693 would extend the deadlines imposed on take reduction teams and the agency for requirements under section 118, the taking of marine mammals incidental to commercial fishing operations. • Have these extensions been requested by the agency? • Have take reduction teams been unable to meet these deadlines in the 

past? 

Answer: The Service supports the reduction of the incidental taking of marine 

mammals in the course of commercial fishing operations, and encourages efforts to 

diminish and ideally eliminate such taking. However, we note that Take Reduction 

Plans and their associated process, which are outlined in Section 118 of the MMPA, 

are under the purview of the Secretary of Commerce. The Service believes this issue 

is more appropriately addressed by our sister agency and, therefore, we defer to the 

NOAA Fisheries to respond to these questions. 

Stock Assessments 

1. Question: Why have stock assessments not been completed for all 

stocks of marine mammals? What is the limiting factor? How adequate are 

existing population estimates? 

Answer: Stock assessments under the MMPA are used as a tool to assess the status of marine mammal populations and to determine acceptable levels of incidental 

take by fisheries. Stock assessments have been completed for all Service-managed 

species, however, with the exception of Alaska species, they are out of date. 

Current stock assessments are available for the following stocks in Alaska: Beaufort Sea Polar Bears; Chukchi/Bering Sea Polar Bears; Pacific Walrus; Southwest 

Alaska Sea Otters, Southcentral Alaska Sea Otters; and Southeast Alaska Sea Otters. Of these stocks, the Southwest Alaska Sea Otter stock is considered strategic 

as it is currently under review for listing under the ESA and therefore, as required 

by the MMPA, this stock assessment will be reviewed on an annual basis. 

Accurate population estimates and effective techniques for tracking population 

trends are critical for management of marine mammals or any other species. Population information (size, demographics) on marine mammal stocks managed by the 

Service in Alaska varies by species. The Pacific Walrus population has not been surveyed since 1990, and that survey was considered incomplete due to logistic and 

technical limitations of aerial surveys inherent to vast, remote and ice-dominated 

environments. The Service hosted a workshop in March 2000 to review survey techniques and identify strategies for obtaining an accurate population assessment. As 

a result of the workshop, the Service is working with partners to develop new survey techniques using remote sensing and satellite tracking. A comprehensive survey 

is tentatively planned for spring 2005. The Beaufort Sea Polar Bear population estimate will be revised upon completion of an ongoing mark-recapture study that is 

being coordinated with the Canadian Wildlife Service. A reliable population estimate for Chukchi/Bering Sea polar bears is not available, although crude estimates 

have been developed based on estimates of numbers of denning females on Wrangel 

Island. Existing population estimates for sea otters in Alaska will be complete and 

current by fall 2003. The southwest stock was surveyed in 2000 and 2001; the majority of the southcentral stock has been surveyed on an annual basis since the 1989 

(following the Exxon Valdez oil spill); and a comprehensive survey of the southeast 

stock will be completed by fall 2003. 

Regarding southern (California) sea otter, population estimates of the species are 

remarkably accurate, in part because of the species’ distribution in nearshore waters, and in part because of the consistency of the survey methodology, which has 

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been in place since 1983. Because the southern sea otter is listed as a threatened 

species, and incidental take of southern sea otters in fisheries is not governed under 

Section 118 of the MMPA, the development of stock assessment reports to determine 

acceptable levels of incidental take of southern sea otters is not given a high priority 

relative to other priorities competing for the limited funds in our budget. Nevertheless, we are currently preparing an updated 2003 stock assessment report for the 

southern sea otter. 

A stock assessment for Washington sea otters was completed in 1995. In 2001, 

our Western Washington Fish and Wildlife Office (WWFWO) contracted with the 

Washington State Department of Fish and Wildlife (WDFW) to prepare a draft stock 

assessment report. The WWFWO is in the process of preparing the draft stock assessment report for review and approval. 

In the state of Washington, the WDFW and U.S. Geological Survey (USGS) began 

regularly surveying the Washington sea otter population in 1987. This population 

has been surveyed every year since, with a combination of aerial and ground surveys. The surveys encompass the currently known distribution of the population, 

with the exception of the few individuals that enter into the Puget Sound. The results of the surveys are not an exact count of the population, but serve as a minimum population estimate and provide trend information. In Washington, it would 

be difficult to obtain a more accurate population estimate because of the inaccessibility of the coastline. 

Regarding the Florida and Antillean manatee, the most recent stock assessment 

was also published in 1995. Our Florida Field Office is currently revising the stock 

assessment to reflect the most recent scientific research concerning the status of 

this species. This includes the determination made as part of our recent MMPA incidental take rule-making process that the Florida manatee is comprised of four separate stocks. However, litigation driven manatee tasks are hindering our ability to 

finalize a draft revised stock assessment report. 

A statistically robust estimate of the manatee population size does not exist. However, we do have an estimate of minimum population size based on annual synoptic 

surveys conducted throughout the manatee’s winter habitat. Although these are 

unadjusted counts, we believe they provide a useful estimate of the minimum population size. The Florida Marine Research Institute and the USGS are currently conducting research into better methods for calculating manatee population size. 

Zero Mortality Rate Goal 

1. Question: Robert Zuanich testified that the marine mammals hold a 

loftier status than all other animals in the ocean. Wasn’t this at least, in 

part, the goal of the protective approach of the MMPA? The ZMRG codifies 

this placement of marine mammals in the ocean by stating that anything 

above a zero rate mortality and injury rate is unacceptable. Although clearly intractable, this principle sets a high bar and a principle for how humans interact with marine mammals. 

• Can you comment on whether the zero mortality rate goal should be retained? What is its relation to the precautionary philosophy of the 

MMPA? 

Answer: The zero mortality rate goal is one of the ways that the intent of the 

MMPA is achieved. In enacting the MMPA, Congress found that certain species and 

population stocks of marine mammals are in danger as a result of human activities, 

and that these species and stocks should not be allowed to diminish below their optimum sustainable population levels. Congress affirmed the international, esthetic, 

recreational, and economic importance of these species and recognized the inadequacy of current knowledge of the ecology and population dynamics of marine 

mammals. 

The taking of marine mammals, incidental to commercial fishing operations, remains one of the most substantial sources of human-caused mortality of marine 

mammals. By setting the goal that commercial fisheries shall reduce incidental mortality and serious injury of marine mammals to insignificant levels approaching 

zero, the ZMRG applies this goal to the management of interactions between marine 

mammals and commercial fishing. The ZMRG, therefore, is important and appropriate to achieving the objective of ensuring the continued existence of marine mammals and the critical role they provide to the marine ecosystem. 

Harvest management agreements with Alaskan Natives 

1. Question: H.R. 2693 does not revise Section 119 of the current law, 

which establishes the authority for marine mammal cooperative agreements in Alaska. The administration’s draft bill would change the cooperative agreements to harvest management agreements. 

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• Can you elaborate on why this change is important? 

Answer: The Administration’s bill adds a section that provides a new framework 

for developing agreements for active management of subsistence harvest including 

development and enforcement of harvest limits. The existing provisions of Section 

119 remain—they would not be changed or affected by the Administration’s proposed amendment. These cooperative agreements, in general, support collection of 

information about subsistence harvest patterns and about the species harvested. 

While these existing agreements have supported increased communication within 

the subsistence community and provided data on harvested species, they are limited 

in scope as they support basic information gathering and exchange, but are not designed to address harvest management because any harvest limits would be voluntary and, therefore, unenforceable. The proposed amendment defines a new type 

of agreement to develop and enforce harvest restrictions prior to depletion, i.e., before a conservation problem develops. Without such an approach, the status quo is 

a completely unrestricted harvest unless a species is depleted under the MMPA, or 

listed under the ESA (which automatically confers depleted status under the 

MMPA), and the managing agency finds subsistence harvest is limiting population 

recovery, followed by a formal rule-making to limit subsistence harvest. 

The Alaska Native community, recognizing the desirability of management prior 

to depletion, initiated the discussions to develop harvest management agreements. 

Their interest was in part a response to the depletion of beluga whales in Cook Inlet 

from over-harvest by subsistence users. Community leaders were frustrated by their 

inability to manage that harvest and wanted to work with the resource management 

agencies to develop a cooperative management capability to prevent the recurrence 

of such situations. Limitations of the current approach (formal rule-making for depleted and listed species) is further demonstrated by Cook Inlet beluga whales, as 

three years later, harvest regulations are still not finalized. 

• Do native Alaskans have sufficient capabilities to support and train 

enforcement operations for effective co-management? 

Answer: Generally, they have the capability to support and train enforcement operations for effective co-management; however, this varies among organizations. 

Agencies would be expected to provide some technical assistance and training to 

build capacity and ensure effective co-management. With appropriate resources, the 

capabilities can be developed as demonstrated by the Alaska Eskimo Whaling Commission, which recently (and effectively) disciplined a boat captain for violating harvest guidelines for bowhead whales. 

• Should future co-management agreements with native Alaskans apply 

to species or stocks that are already designated as strategic or depleted? 

Answer: It would be helpful to have the capability to develop agreements for all 

stocks regardless of status. Under current law, regulations for subsistence harvest 

can only be developed for depleted or listed species if the managing agency can 

make a positive finding that subsistence harvest is detrimental to population recovery. These conditions have only been met for one stock (beluga whales in Cook 

Inlet). For all species, regardless of status, the ability to manage subsistence harvest 

provides an additional useful management tool, whether or not harvest levels are 

related to population status. For example, the Alaska Eskimo Whaling Commission 

and NOAA have an effective agreement for the endangered bowhead whale; this 

agreement is a model for other agreements. 

• Is it likely or desirable for seals, currently under NOAA Fisheries’ jurisdiction, that are used for subsistence to be managed under the U.S. 

Fish and Wildlife Service so that all species that Alaska Natives use for 

subsistence purposes will be under one agency? 

Answer: We assume based on this question that Congress is interested in evaluating the merits of transferring management responsibility of ice seals (beard, 

ringed, ribbon, and spotted seals) and harbor seals from NOAA Fisheries to the 

Service. Congressional action would be necessary to accomplish a change in species 

jurisdiction under terms of the MMPA. Several factors should be considered in evaluating a potential change in management responsibilities for seals from NOAA 

Fisheries to the Service. There are a number of advantages and disadvantages to 

be considered in making such a decision. 

Initially, such a transition would be disruptive to the public, government agencies, 

and other interested parties. NOAA Fisheries has a long history of conducting research on and management of seals and whales in Alaska. For example, NOAA 

Fisheries initiated a harbor seal assessment program in Alaska in the early 1990s, 

and has subsequently reported on the status of this species every three years, as 

required by Congress. Regarding ice seal research and management, Congress apVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00111 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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propriated $250K in FY03. A research plan has been jointly implemented between 

NOAA Fisheries and the Alaska Department of Fish and Game. 

Further, efforts are currently underway to organize an Alaska Native Organization that represents the subsistence users of ice seals. The agency has developed extensive and broad expertise in aspects of management and research related to seals, 

sea lions, and whales and maintaining state of the art research facilities and vessels. NOAA Fisheries also has a significantly larger overall budget for their marine 

mammal activities, including their current seal management responsibilities. In addition, NOAA Fisheries is currently responsible for managing the subsistence harvest of bowhead and beluga whales in Alaska. These harvests occur in many of the 

same villages where ice seals are harvested. Finally, NOAA Fisheries has an organizational structure that closely integrates management at their Alaska Regional Office and research at their Alaska Fisheries Science Center. 

The Service has experience and expertise conducting research on and management of two other ice-dependent species of marine mammals (polar bears and Pacific 

walrus). Given the remote environment and logistic difficulties in conducting marine 

mammal studies, such efficiencies can be quite important in effectively utilizing 

available resources. The Service is well positioned to work with the subsistence community as the agency administers subsistence programs for waterfowl, fish, and 

wildlife on Federal lands as well as walrus, polar bears, and sea otters. The subsistence community is relatively small and integrated—in general the same people harvest all species in their geographic area. Having different agencies managing what 

is a single type of activity in a rural community can be confusing to the residents. 

The Service also maintains an established network throughout rural Alaska for collecting harvest information. For example, harvest of all sea otters, polar bears, and 

Pacific walrus is reported by regulation through the Marking, Tagging and Reporting program administered by the Service. This program could also be used to collect 

harvest information on ice seals and harbor seals. 

We emphasize that, with any change contemplated, it is important that research 

and management functions remain within the same agency for greatest effectiveness. Splitting research and management functions would be confusing to user 

groups and the public at large and lead to inefficiencies and unnecessary complexities in addressing research and management questions. 

Threats to Marine Mammals 

1. Question: There seem to be many emerging threats to marine mammals 

that were not considered 25 years ago, when the original act was written. 

• Do you think it would be helpful for the Marine Mammal Commission 

to report on the magnitude of emerging and existing threats to marine 

mammals? 

• Is it practical to believe that we can address these threats, and if so, 

what threats should be priorities for action? 

• This might include identifying data gaps, coming up with research 

plans and evaluating the health of marine mammal stocks in the wild 

as relates to other environmental parameters. 

• Would such an undertaking be within the scope and purview of the 

MMC? 

• Has the MMC ever investigated the growing incidence of ship strikes? 

Would the MMC support a mandate to convene a panel to recommend 

steps to reduce ship strikes and report to Congress in 2 years? 

• Should there be a similar directed program on ocean noise that would 

be mandated under the MMC or another program such as the National 

Oceanographic Partnership Program? 

Answer: We agree that marine mammals face new threats that were either not 

existent or not as persistent when the MMPA was first enacted to protect these 

species over 30 years ago. An evaluation of threats and potential management 

issues could be a useful tool for the managing agencies and interested public. 

Identifying and determining the magnitude of existing and emerging threats to 

marine mammals is imperative to our abilities to provide protection to and conservation of these species. However, we must first identify the various threats and 

their potential impacts before we can set priorities or evaluate whether or not they 

can be addressed. Furthermore, understanding changes that are inevitable is useful 

for developing strategies to avert change, to mitigate the impacts of change, and to 

adapt to changes. 

A comprehensive overview and planning effort to identify and evaluate emerging 

threats would benefit from the involvement of all parties with appropriate expertise. 

The Service believes that the Marine Mammal Commission (MMC) may be uniquely 

suited to facilitating efforts to identify data gaps and research needs for examining 

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these increasing threats, and to developing strategies to address these issues. Fully 

identifying issues and their implications for marine mammal health and survival 

requires involvement of the resource management agencies that have the 

Congressionally-delegated responsibility under the MMPA for conserving and managing marine mammals. The Service believes other interested parties, including 

academia and other agencies with expertise on potential threats to marine mammals, should also be included in this process. Through involvement of all those with 

expertise and interest in the welfare of marine mammals, a compilation and evaluation of potential threats and proposed actions could be developed and would be a 

useful tool for protection of marine mammals. 

Captive Animal Welfare 

1. Question: The 1994 changes to the Marine Mammal Protection Act gave 

APHIS the authority for captive marine mammal welfare inspections. • Has APHIS demonstrated requisite expertise and ability to inspect and 

oversee marine mammals in captivity? 

Answer: While there may be limitations associated with using minimum requirements under the Animal Welfare Act (AWA), the Service believes that the Animal 

and Plant Health Inspection Service (APHIS) has veterinarians with the expertise 

necessary to oversee marine mammals held in captivity. In addition, APHIS has always been responsive to our consultation requests. The Service works closely with 

APHIS to ensure that all marine mammal facilities are being maintained in compliance with the requirements of the Animal Welfare Act (AWA). Further, the Service 

meets with APHIS, MMC, NOAA Fisheries, and Department of State representatives on a monthly basis to ensure broad-spectrum oversight of captive-held marine 

mammals. 

• How many inspectors does APHIS deploy to inspect display facilities? 

Answer: The Service contacted APHIS in order to provide an accurate response 

to this question. APHIS provided the following reply: 

APHIS has 100 field inspector positions, and will add several more in the 

coming fiscal year. APHIS has additional staff, including nine supervisory 

Animal Care Specialists, at its Regional offices and headquarters. 

• To your knowledge, has APHIS promulgated marine mammal-specific 

care standards for captive marine mammals? And have such standards 

been provided to the public? 

Answer: The Service contacted APHIS in order to provide an accurate response 

to this question. APHIS provided the following reply: 

APHIS first proposed marine mammal specific regulations and standards 

under the AWA in 1978. Theses standards were finalized in 1979. All regulations and standards promulgated under the AWA follow all Administrative Procedures Act requirements, including providing a public comment period and publishing the final rules in the Federal Register. All AWA regulations and standards are found in Title 9, Code of Federal Regulations, 

Chapter 1, Subchapter A. 

The AWA marine mammal regulations were amended from 1983-84. In 1993, 

APHIS published an advanced notice of proposed rulemaking to revise and amend 

the marine mammal standards through a process called negotiated rulemaking. All 

major stakeholders in the marine mammal industry were represented in this process, including animal welfare groups, the veterinary profession, the Navy, industry 

groups, independent marine mammal experts, NOAA Fisheries, the Service, and the 

MMC, although the agencies participated as non-voting members. The negotiated 

rulemaking process was undertaken under the Federal Advisory Committee Act, 

and the public was welcome to observe all meetings. The proposed rule for 13 of 

the 18 sections of the regulations was published in February 1999 and the final rule 

was published in January 2001. The sections not included in the negotiated rulemaking will be handled under more traditional rulemaking procedures. 

Subsequent to the 1994 MMPA amendments, APHIS published a proposed rule 

for swim-with-the-dolphin programs in January 1995. A final rule was published in 

September 1998. Changes in the types of programs being offered and other issues 

raised led APHIS to suspend enforcement of the SWTD rule until the issues could 

be reviewed. All facilities remained regulated under the general marine mammal 

standards of the AWA. 

In May 2002, APHIS published an advanced notice of proposed rulemaking requesting public input and information in anticipation of publishing a proposed rule 

to cover the marine mammal sections not covered in the negotiated rulemaking and 

amendments to the SWTD section of the standards. APHIS has received 365 comments on the ANPR and is currently drafting the proposed rule docket. This docket 

is anticipated to be published for public comment in 2004. 

110

The rulemaking process is open to the public and APHIS makes the documents 

available on our Animal Care web page. Once a rule is final, the new regulations 

and standards are included in the CFR and on the Animal Care web page. In addition, all licensees and registrants are notified of all final rules. 

• Is there any oversight or reporting requirements for APHIS in the discharge of this responsibility? Should APHIS be required to report annually to Congress? 

Answer: The Service contacted APHIS in order to provide an accurate response 

to this question. APHIS provided the following reply: 

For over 30 years, APHIS submitted an annual report to Congress as required by the Animal Welfare Act (7 U.S.C. 2155). Once released by Congress, the report was posted on our website. However, the AWA annual report is no longer required to be sent to Congress as result of criteria established under P.L. 104-66. Accordingly, APHIS is exploring different formats 

that will allow enforcement statistics and supporting materials to be posted 

to our website in a more timely fashion, ensuring that all of our stakeholders have immediate access to this important information. 

2. Question: The public display community has complained that NOAA 

Fisheries deliberately misinterpreted the intent of Congress in 1994 in its 

promulgation of regulations regarding permits allowing the transport and 

exchange of captive marine mammals. 

• Is this complaint valid? 

• If not, what aspect of the proposed regulations should be revised? 

Answer: The Service is not aware of the particular complaint referred to in this 

question, and we defer to NOAA Fisheries for a response. With regard to the proposed regulation, the Service provided comments to NOAA Fisheries on the proposal 

relating to permits for the capture or import marine mammals, as well as the transport, transfer, and export of marine mammals. The Service will continue to consult 

with NOAA Fisheries as they draft their final regulations. 

Captive Release Prohibition 

1. Question: H.R. 2693 includes a prohibition on releasing captive marine 

mammals into the wild. 

• Considering the very limited space available to care for stranded 

marine mammals, could such a change create a situation where animals are held in captivity permanently regardless of their health and 

survival? 

Answer: The prohibition on the release of captive marine mammals included in 

H.R. 2693 would not affect stranded marine mammals being held for rehabilitation 

purposes under section 109(h) of the MMPA. Section 109(h) requires steps to be 

taken to return stranded marine mammals to their natural habitats whenever feasible, i.e., when health, behavior, and survivorship issues have been addressed. Only 

stranded marine mammals that are determined to be non-releasable are placed in 

permanent captivity. The new provision in H.R. 2693 would ensure that marine 

mammals, other than those undergoing rehabilitation, could be released only under 

a permit for scientific research or enhancement of recovery. This would protect the 

captive and wild animals that might be negatively impacted by a well-intentioned, 

but poorly conceived, release. 

• Would this provision affect NOAA Fisheries’ release of the five pilot 

whales that were stranded on April 18, 2003? 

Answer: This question refers to animals under the jurisdiction of NOAA Fisheries, 

therefore, we defer to our sister Agency for a response. 

• Does this provision require a U.S. citizen to apply for a NOAA Fisheries 

permit to release a marine mammal in other countries’ EEZ (would this 

apply to Keiko’s release in Norway)? 

Answer: This question also refers to an action under the jurisdiction of NOAA 

Fisheries, and we similarly defer to them for a response. 

Response to questions submitted for the record by Dr. Rebecca Lent, 

Deputy Assistant Administrator for Fisheries, National Marine Fisheries 

Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce 

Questions Submitted by Chairman Wayne Gilchrest 

1. Question: Concerns have been raised that NMFS has not done enough 

to address ship strikes of marine mammals. Can you tell us what the AgenVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00114 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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cy has done to reduce ship strikes? Does the agency have any jurisdiction 

over vessel traffic? 

Answer: NOAA Fisheries has a program to reduce ship strikes that has been ongoing over the last decade and has been expanded in recent years as ship strikes 

continue. To date, the agency has focused most of its efforts to reduce ship-marine 

mammal interactions on the North Atlantic right whale, due to its critically endangered status, its particular vulnerability to ship strikes, and Congressional and public interest. Efforts to address ship strikes of right whales are believed to provide 

ancillary benefits to other marine mammals and to serve as a template to address 

the issue more broadly with other marine mammals. Ongoing activities include aerial surveys to notify mariners of right whale sighting locations; operation of the 

northeast U.S. and southeast U.S. mandatory ship reporting systems to provide information to mariners entering right whale habitat; working with the U.S. Coast 

Guard (USCG) to issue periodic notices to mariners regarding ship strikes; support 

of Recovery Plan Implementation Teams that provide recommendations to NOAA 

Fisheries on recovery activities; support of shipping industry liaisons; and Endangered Species Act (ESA) Section 7 consultations. In addition, the agency funds research to investigate technological devices that may aid in reducing the likelihood 

of ship strikes. Since such advances may cause adverse biological effects, any approved ship strike reduction technology must also meet legal and biological criteria 

to ensure that it does not adversely affect an endangered species and can be permitted for use. 

The agency recognizes that this is a complex problem that requires additional, 

more pro-active measures. In late 2001, NOAA Fisheries formed a working group 

to address the issue of ship strikes. This process culminated in the agency’s development of a Ship Strike Reduction Strategy, approved by NOAA in May 2003. The 

Strategy is a multi-year blueprint of specific steps to be taken to reduce or eliminate 

the threat of ship strikes that incorporates regional differences in oceanography, 

commercial ship traffic patterns, and navigational concerns. Since interagency collaboration is key to the Strategy’s success, NOAA Fisheries sent out letters to agency counterparts in August 2003 to establish an Interagency Working Group on the 

Reduction of Ship Strikes to Right Whales to aid in the Strategy’s implementation 

and enforcement. The purpose of this Working Group is to review and provide comments on the Strategy, provide clearance on two proposed international measures, 

assist NOAA in identifying means to ensure the implementation of a robust Strategy, and establish a timeline. 

NOAA Fisheries expects to publicly announce the Strategy following the initial establishment of the Interagency Working Group. The Working Group is expected to 

meet for 6-8 months. Initial steps have been made toward NEPA analysis, and economic impacts are being evaluated for potential regulation. Further, a ship strike 

outreach and education plan has been developed as an integral part of the NOAA 

Ship Strike Reduction Strategy; at present, the Northeast and Southeast Right 

Whale Recovery Plan Implementation Teams are helping NOAA Fisheries begin to 

implement this plan. 

In response to the second part of the above question, NOAA Fisheries has responsibilities for right whales under the ESA and the Marine Mammal Protection Act 

(MMPA); however, the USCG is the agency with primary responsibility for the regulation of ship traffic under the Ports and Waterways Safety Act (PWSA). While it 

may be possible for NOAA to implement some measures of the Strategy through the 

ESA and MMPA, the PWSA provides more explicit statutory authority for measures 

contained within the Strategy that deal with ship traffic. NOAA will work closely 

with partners, such as the USCG, to carry out the goals of the Strategy to the fullest extent. 

2. Question: It was reported at the hearing that Canada has altered its 

shipping traffic into the Bay of Fundy and incorporated speed reductions 

in certain areas to help reduce ship strikes of right whales. It was mentioned that this was done using the International Maritime Organization 

(IMO) process. Are you familiar with the actions taken by Canada? Did 

they institute these actions using national legislation or was is done solely 

through the IMO? Could the U.S. take similar actions? Would it require legislation? 

Answer: NOAA Fisheries is aware of Canada’s actions to change its shipping 

lanes to help reduce ship strikes of right whales. The changes approved by the IMO 

came about through a four-year collaborative process involving Transport Canada, 

industry, and research and conservation organizations. Canada’s federal government 

Habitat Stewardship Program also provided support for initial research and consultation projects that contributed to the lane change proposal. Lane changes have 

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required amendments to navigational charts, vessel traffic control procedures, and 

distribution and notification procedures. 

NOAA Fisheries was regularly consulted for advice during the development of this 

proposal. Through the agency’s efforts, the United States Government was an active 

supporter of the Canadian proposal at IMO and helped Canada lobby to get the proposal approved by the Subcommittee on Safety of Navigation. 

Although we are uncertain whether legislation is actually necessary under Canadian law to implement the change, action is undoubtedly required by Canada since 

IMO is not a supranational body. IMO only approves and adopts vessel traffic measures and it is up to the proposing government (in this case Canada) to implement 

the change. It should be noted that in the case of the Canadian proposal to amend 

the Bay of Fundy Traffic Separation Scheme that the action to be taken was in 

some ways much clearer than the action that should be taken to address the circumstances the United States faces off its coast. Years of research in the Bay of 

Fundy demonstrated that the traffic separation scheme ran directly through the 

highest abundance of whales and the risk could be reduced by moving the traffic 

toward the coast, where there was still sufficiently deep water for navigation to take 

place. 

Measures contained within the NOAA Fisheries Ship Strike Reduction Strategy 

seek to reduce the overlap of ships and whales to reduce the likelihood of ship 

strikes, in part through routing changes. NOAA Fisheries has developed its Strategy 

as a multi-faceted package, elements of which may require IMO approval for effective implementation. In addition, all of these elements will require actions within 

the U.S. NOAA Fisheries is beginning the interagency process to determine how the 

Strategy will be most effectively implemented and whether the actions will require 

additional legislation. 

3. Question: The paragraph in level B harassment that starts ‘‘is directed 

toward a specific individual,’’ is still making a number of permitted constituency groups uneasy. We understand why the agency wants this language, to prosecute those non-permitted activities that harass marine 

mammals. We included the language in H.R. 2693 to address the concerns 

of the agency. However, we are questioning the need for the paragraph. 

Since the phrase ‘‘pursuit, torment, and annoyance’’ has been deleted from 

the definition leaving the standard as ‘‘any act—can’t the agency prosecute 

these non-permitted activities without this added paragraph?’’

Answer: Deleting the terms ‘‘pursuit, torment, or annoyance’’ from the definition 

of harassment is key to improving the harassment standard’s enforceability. While 

deleting these terms would help, through the Administration bill’s proposed Section 

3(18)(B)(ii), NOAA Fisheries and the U.S. Fish and Wildlife Service seek different 

language for regulating harassment incidental to a particular activity and harassment that is directed at individuals or groups of marine mammals in the wild. Specifically, this language is intended to make explicit that activities such as closely 

approaching, swimming with, or touching marine mammals that may not overtly 

lead to significant alteration of the marine mammal’s natural behavioral pattern at 

the time, but that are likely to cause disruption of natural behavioral patterns that 

are associated with cumulative, long-term harm to marine mammals, constitute harassment. As such, in an enforcement proceeding for harassment described in the Administration bill’s proposed Section 3(18)(B)(ii), the agencies would not need to show 

that disruption of a behavior was significant. In addition to enhancing enforcement 

of the harassment standard, this paragraph will help agencies better educate members of the public about avoiding marine mammal harassment when recreating in 

waters used by the animals. 

We would like to emphasize that this language will not adversely affect the scientific research community since there is already a process in place under Section 

104 of the MMPA and its implementing regulations regarding General Authorizations for bona fide scientific research on marine mammals that results in no more 

than Level B harassment. This provides the scientific research community with a 

streamlined process to conduct such research. 

4. Question: The current definition of harassment has made it difficult for 

the agency to prosecute certain activities that harass marine mammals. 

Can you tell us what activities the agency has been able to enforce under 

the current definition? 

Answer: NOAA Fisheries has been successful in prosecuting violations involving 

observable actual injury of marine mammals, such as a recent case involving the 

shooting of a sea lion with a bow and arrow. In addition, the agency has successfully 

prosecuted violations involving feeding or attempting to feed marine mammals in 

the wild. The current definition of harassment has been an impediment to prosecuVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00116 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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tions for activities such as swimming with, touching or petting marine mammals in 

the wild. 

5. Question: How do you suggest that we protect, to the greatest extent 

possible, marine mammals from injury in Level A harassment within a statutory and regulatory framework? 

Answer: Given that marine mammals may be injured incidental to the conduct 

of otherwise lawful activities (other than commercial fishing), such as commercial 

shipping, oil and gas exploration and development, harbor construction, and military activities, the MMPA requires that taking incidental to such activities be authorized only if it is determined that the taking will have a negligible impact on 

the affected populations. Further, any such authorization is to be structured to ensure that the taking is reduced to the lowest level practicable. In that regard, the 

incidental take authorization process would be improved by removal of the term 

‘‘small numbers’’ because the negligible impact standard, coupled with the requirement that taking be reduced to the lowest level practicable, should be sufficient to 

protect marine mammals without the small numbers provision. 

In addition, the current statutory framework should be supported by enforcement, 

educational outreach, and research to develop more effective mitigation and safe alternatives to current operating practices. Fiscal resources for these activities have 

been constrained in the past and the agency hopes to prioritize funds toward increased research, outreach, and education efforts in the future. 

6. Question: What are some of the factors Congress should consider when 

crafting a final harassment definition? 

Answer: We encourage Congress to consider the same factors the Administration 

considered when developing amendments to the harassment definition: 1) enhancing 

enforceability of the harassment standard; 2) clarifying the threshold for what activities do and do not constitute harassment by narrowing the breadth of the current definition to those acts that have biologically significant, harmful effects on 

marine mammals, rather than those that have de minimis effects; and 3) making 

explicit that activities directed at marine mammals in the wild that are likely to 

disturb the animals are considered harassment and should be avoided since this can 

result in harm to the animals, as well as the people who conduct these activities. 

7. Question: How do we incorporate the level of current scientific knowledge about how marine mammals may be injured and at the same time protect animals from injuries we have not yet been able to measure? 

Answer: Marine mammals may be injured by a variety of human activities, including shipping traffic, fishing, pollution, scientific research, and noise. While we 

have information on the degree and types of injuries that result from some activities, such as ship strikes and fishing gear, we are still collecting information on the 

types of injuries that result from others, such as noise and pollution. The important 

thing is to use what we do know about the impacts of some activities, combined with 

examination of those areas where uncertainty exists, to ensure that impacts of 

human activities on marine mammals are negligible where possible. In addition, the 

agency identifies and prioritizes research to better investigate those activities where 

there is a combination of uncertainty and concern about their impact on marine 

mammal stocks. 

8. Question: How should scientific research activities with potential impacts on marine mammals be treated by the incidental permit process in 

statute if the activity is designed to test the level of harassment that the 

activity causes in certain marine mammal species? 

Answer: Thus far, scientific research designed to test the level of harassment 

caused by a specific activity, such as use of airguns in seismic exploration, has involved direct takes of marine mammals through attachment of tags or close approaches to document changes in behavior. Such activities are authorized under permits issued pursuant to Section 104 of the MMPA (and Section 10 of the ESA where 

threatened or endangered species are involved). It is appropriate to continue to authorize takes for research activities directed at marine mammals under this section 

of the MMPA because of the distinction the MMPA makes between permits for acts 

that intentionally result in harassment versus authorizations for those activities 

that incidentally result in harassment. The distinction is very clear: If the activity 

does not involve scientific research on marine mammals, the researcher should 

apply for an incidental take authorization under Section 101(a)(5) of the MMPA. If 

the activity involves scientific research on marine mammals, then the researcher 

should obtain a scientific research permit under Section104 of the Act. Both processes work well and NOAA Fisheries is not proposing changes to these processes 

at the current time. 

9. Question: What is the difference between ‘‘probability’’ and ‘‘potential’’ 

in describing the level of concern that would generate a need for an 

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incidental take permit under Level A harassment (injury) for a particular 

activity? 

Answer: Because these terms are not currently included in (in the case of ‘‘probability’’) or defined in (in the case of ‘‘potential’’) the MMPA, we look to the ordinary 

meaning of the terms as they appear in the dictionary. Webster’s New International 

Dictionary, 2nd ed., unabridged, provides that the term ‘‘potential’’ means ‘‘that 

which is possible.’’ Thus ‘‘potential to’’ implies a greater than 0% chance of causing 

a particular outcome. ‘‘Probability’’ is that ‘‘quality or state of being probable,’’ which 

implies having more evidence for than against (greater than 50% chance) the occurrence of a particular outcome. When applied to Level A harassment, the phrase 

‘‘potential to injure’’ would mean any activity that could possibly cause injury would 

be considered harassment under the MMPA. The phrase ‘‘probability to injure’’ 

would mean any activity that is likely to or has greater than a 50% chance of causing injury would be considered harassment. 

While the threshold for Level A harassment using the term ‘‘potential’’ is likely 

too low, the threshold using the term ‘‘probability’’ is too high and could result in 

a difficult burden of proof for NOAA Fisheries and U.S. Fish and Wildlife Service 

to demonstrate a certain probability of injury before the agencies could take action 

to address activities injurious to marine mammals. The agencies looked at a range 

of options in the development of the Administration bill to clarify that the appropriate threshold for an act to constitute Level A harassment was somewhere in between ‘‘probability to injure’’ and ‘‘potential to injure.’’ Ultimately, the Administration decided that ‘‘significant potential to injure’’ achieved the appropriate balance 

to allow the agencies to address harassment involving injury. 

10. Question: How should the broader impacts or potential impacts of 

sound (for example ship propellers) that may disturb or disrupt natural behaviors of marine mammals, be treated in statute? 

Answer: There is a long list of the ‘‘potential’’ impacts of noise on marine mammals, although there is little scientific information corroborating actual impacts. We 

have a poor understanding of what the actual noise levels resulting from human activities are in most of the ocean, much less how they relate to pre-industrial levels. 

For instance, while propeller hum is highly likely to mask whale communication 

calls, it is unknown over what range and period of time this occurs. We have little 

data on how shipping causes masking of acoustic signals for marine mammals. And, 

we currently have no mechanism to gauge the cumulative impacts of human noise 

pollution on populations of animals. Given all these uncertainties, it is difficult to 

recommend specific statutory language addressing noise impacts. Rather, at this 

time what is needed is a greater emphasis on efforts to understand the nature and 

extent of noise impacts and sufficient flexibility in the MMPA to address ocean noise 

in a practical but cautious manner as we obtain more information on the nature of 

the noise impacts. 

Question 11: How should the range of currently non-permitted activities 

that may be directed at marine mammals (i.e. feeding or swim with dolphin 

activities, or jet ski harassment) be treated by the statutory or regulatory 

process? 

Answer: As NOAA Fisheries provided in an Advance Notice of Proposed Rulemaking on the subject, at 67 FR 4379,4380 (January 30, 2002): 

Interacting with wild marine mammals should not be attempted, and viewing 

marine mammals must be conducted in a manner that does not harass the animals. 

NOAA Fisheries cannot support, condone, approve or authorize activities that involve closely approaching, interacting or attempting to interact with whales, dolphins, porpoises, seals or sea lions in the wild. This includes attempting to swim 

with, pet, touch or elicit a reaction from the animals. NOAA Fisheries believes that 

such interactions constitute ‘‘harassment’’ as defined in the MMPA since they involve acts of pursuit, torment or annoyance that have the potential to injure or disrupt the behavioral patterns of wild marine mammals. 

We encourage Members of Congress to consider amendments to the harassment 

definition contained in the Administration MMPA reauthorization bill to address 

this issue. That language would consider as a second tier of Level B harassment, 

‘‘any act which is directed toward a specific individual, group, or stock of marine 

mammals in the wild that is likely to disturb the individual, group, or stock of 

marine mammals by disrupting behavior, including, but not limited to, migration, 

surfacing, nursing, breeding, feeding, or sheltering.’’ If this amendment were adopted, NOAA Fisheries would clarify its intent and application in regulations to provide 

further guidance to the public. 

12. Question: In the definition of Level B harassment, does it make sense 

to qualify the activity (migration, breeding) or the effect (biologically significant disruption of behaviors) in Level B harassment? Why or why not? 

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Answer: The Administration bill in proposed Section 3(18)(B)(i) would qualify the 

effect in Level B harassment by providing that the act ‘‘disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption 

of natural behavioral patterns...to a point where such behavioral patterns are abandoned or significantly altered.’’ [Emphasis added.] One reason that this was proposed was to clarify that Level B harassment under this subparagraph means those 

acts that have biologically significant, harmful effects on marine mammals rather 

than those that have de minimis effects. 

13. Question: Which is the more scientifically used term ‘‘biologically significant activity’’ or ‘‘biologically significant disruption?’’ Should either of 

these terms be defined in H.R. 2693? 

Answer: There is much published information on what activities would commonly 

be considered ‘‘biologically significant’’ in terms of what is necessary for an individual animal to maintain homeostasis or for a population to be maintained (e.g., 

sheltering, feeding, or breeding). Therefore, it would not be necessary to define ‘‘biologically significant activity’’ in H.R. 2693. ‘‘Biologically significant disruption’’ is 

much more subjective, especially given scientific uncertainty, and could, therefore, 

be more difficult to implement. It would be useful for Congress to provide guidance 

to the agency on the intent of this phrase. 

14. Question: Is it possible to define ‘‘harassment’’ and still provide the 

agency flexibility to modify its regulations to respond to new scientific information? 

Answer: Yes. For example, the Administration’s proposed definition of harassment 

still links the level of disturbance, in the case of Level B harassment, to natural 

behavioral patterns such as migration, breeding, nursing, and others, such that 

when scientific information becomes available better demonstrating the impact of a 

particular disturbance on one of these activities, NOAA Fisheries could revise its 

regulations regarding the threshold for harassment accordingly. 

15. Question: Which would you describe, feeding or foraging, as more biologically significant in terms of behaviors of marine mammals that should 

be listed in the definition of harassment? 

Answer: Most ecologists and marine mammal scientists would consider these two 

terms generally synonymous. However, while foraging includes the search, pursuit, 

capture, handling and consumption of food items, feeding is generally viewed as actual consumption. In terms of biological significance, the entire process of foraging 

is important. Either could be used to represent a biologically significant marine 

mammal behavior. Any list of biologically significant behaviors in the harassment 

definition, should not be stated in such a way that it would be viewed as exhaustive. 

Rather, it should be clear the list of behaviors is merely illustrative, but not exclusive. 

16. Question: The Administration’s definition uses ‘‘surfacing’’ instead of 

‘‘breathing’’ which is in the current definition of harassment. Why was this 

change made? 

Answer: ‘‘Surfacing’’ is a broader term that captures a variety of important natural behavioral patterns, such as resting and avoidance of impacts at depths, in addition to breathing. As such, its use is preferable to ‘‘breathing’’ in the harassment 

definition. 

17. Question: Does the agency interpret and/or implement Level A harassment for an activity interacting with marine mammals as an imminent 

death of the animal or as a recoverable injury? 

Answer: In the context of incidental takes of marine mammals, MMPA Section 

101(a)(5)(D) sets forth a streamlined process for issuing one-year authorizations for 

incidental taking by harassment only. The definition of Level A harassment refers 

to those activities that have the potential to injure a marine mammal; therefore 

those activities may qualify for the authorization process under Section 101(a)(5)(D). 

However, for activities that will result in taking by more than just harassment, take 

authorizations are governed by the less streamlined process under Section 

101(a)(5)(A). Therefore, if an activity is likely to result in take by mortality, including through injury that is likely to result in mortality, NOAA Fisheries will treat 

such a take authorization request under the requirements of Section 101(a)(5)(A). 

18. Question: What activities could injure an animal, but not cause a 

mortality? 

Answer: Virtually any activity that occurs in the ocean, or causes a change in 

ocean micro-climates could kill or injure marine mammals; however, some are more 

likely to result in death or injury than others. Research activities can occur that 

cause injury but are not likely to result in mortality if the animal is otherwise in 

good health. For example, remote biopsy sampling a right whale causes a puncture 

wound (an injury), but it is highly unlikely that the small wound would result in 

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death. Other activities, such as disturbance that interferes with important behaviors 

like breeding or feeding may not directly cause mortality, but can have chronic or 

cumulative sub-lethal effects that reduce an individual’s fitness (e.g., compromise its 

immune system, prevent it from breeding successfully). Commercial activities not directed at marine mammals, such as commercial/recreational fishing, may also incidentally injure an animal but not cause mortality. However, authorizations for these 

activities may include measures to mitigate potentially lethal effects. NOAA Fisheries has received reports about marine mammals that have been entangled and 

injured (e.g., cuts, bruises) in fishing nets but that ultimately are released or able 

to escape due to human intervention or gear modifications that aid escapement of 

entangled animals. In fact, large whales are often identified by scars from fishing 

gear in which they became entangled, but from which they ultimately escaped. Recreational activities directed at marine mammals (e.g., closely approaching by jet ski, 

swimming with wild marine mammals) can also result in both short and long term 

injury to an animal but are not likely to result in death. 

19. Question: How much research is funded by the Agency to determine 

the effects of human caused sound in the ocean on marine mammals? 

Answer: NOAA Fisheries supports a scientific program related to acoustics and the effects of noise on marine animals (mammals and turtles) at a level of $200,000 

per year (for each of the last three fiscal years). 

20. Question: Concerns have been raised regarding the scientific basis 

used by the agency to list fisheries as category I (frequent), II (occasional) 

or III (remote) under section 118 of the Act. What information does the 

agency use when making these determinations? 

Answer: The current fishery classification system was developed by NOAA Fisheries scientists and is rooted in the relationship between allowable mortality and 

serious injury and the amount of time it takes a particular marine mammal stock 

to recover to its optimum sustainable population (OSP) level. The classification system is based on a two-tiered, stock-specific approach that first addresses the total 

impacts of all fisheries on each marine mammal stock and then addresses the impacts of individual fisheries on each stock. Tier 1 considers the additive fishery mortality and serious injury for a particular stock, while Tier 2 considers fishery-specific 

mortality for a particular stock. This approach is based on the rate, in numbers of 

animals per year, of serious injuries and mortalities due to commercial fishing relative to a stock’s potential biological removal (PBR) level. 

Under the Tier 1 analysis, if the total annual mortality and serious injury across 

all fisheries that interact with a stock is less than or equal to 10 percent of the PBR 

level of such a stock, then all fisheries interacting with this stock would be placed 

in Category III. Otherwise, these fisheries are subject to the next tier to determine 

their classification. Under the Tier 2 analysis, those fisheries in which annual mortality and serious injury of a stock in a given fishery is greater than or equal to 

50 percent of the stock’s PBR level are placed in Category I, while those fisheries 

in which annual mortality and serious injury is greater than 1 percent and less than 

50 percent of the stock’s PBR level are placed in Category II. Individual fisheries 

in which annual mortality and serious injury is less than or equal to 1 percent of 

the PBR level would be placed in Category III. 

The threshold between Tier 1 and Tier 2 was set at 10 percent of the PBR level 

based on recommendations that arose from a PBR Workshop held in La Jolla, California, in June 1994. The Workshop Report indicated that if the total annual incidental serious injury and mortality level for a particular stock did not exceed 10 

percent of the PBR level, the amount of time necessary for that population to 

achieve the OSP level would only increase by 10 percent. Thus, 10 percent of the 

PBR level for a particular stock was equated to ‘‘biological insignificance.’’ This approach ensures that fisheries are categorized based on their impacts on stocks and 

allows NMFS to focus resources on those fisheries that have more than a negligible 

impact on marine mammals. 

The agency uses observer program data, where available, to place fisheries into 

one of the three categories. Observer programs collect information on the incidental 

mortality and serious injury of marine mammals, in addition to other information. 

While the agency uses observer data to place a fishery into Category I, NOAA Fisheries regulations provide that other factors, such as fishing techniques, gear used, 

methods used to deter marine mammals, target species, seasons and areas fished, 

qualitative data from logbooks or fisher reports, stranding data, and the species and 

distribution of marine mammals in the area, where appropriate, may be evaluated 

to determine whether fisheries should be placed in Category II. 

21. Question: Why did the Administration use the term ‘‘non-commercial’’ 

in its amendments to section 118? What types of fishing was this language 

trying to capture? 

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Answer: The Administration bill does not contain the term ‘‘non-commercial’’ fishery, but specifically would apply the Section 118 provisions to ‘‘listed fisheries,’’ defined as a fishery included on the list of fisheries published under Section 118(c). 

In effect, this would enable NOAA Fisheries to address any source of fishery-related 

incidental mortality or serious injury of marine mammals occurring on a frequent 

or occasional basis. The sectional analysis describing the Administration bill refers 

to expanding Section 118 provisions to ‘‘non-commercial fisheries.’’ NOAA Fisheries 

uses this term to include those recreational, personal use, or other fisheries that result in frequent or occasional incidental mortality or serious injury of marine mammals. The reason for these amendments is to allow NOAA Fisheries to equally address all fishing gear that is found to have frequent or occasional incidental mortality or serious injury of marine mammals and not limit the focus to commercial 

fisheries when other fisheries may be using the same gear in a similar manner. 

22. Question: There have been a number of instances where research activities or other activities using sonar were enjoined by the courts. The reason these activities were stopped wasn’t because of MMPA issues, but lack 

of compliance with the National Environmental Policy Act or the Administrative Procedure Act requirements. What actions has the agency taken to 

address these issues? 

Answer: All applications for scientific research permits under the MMPA must 

comply not only with the requirements of Section 104(c)(3) of the Act, but with 

NEPA, and any other applicable laws (e.g., ESA). Environmental Assessments and 

Environmental Impact Statements are being prepared for any proposed research on 

marine mammals that would result in adverse effects on an endangered species, 

could result in cumulative adverse impacts on the human environment, or for which 

the impacts are uncertain. To ‘‘front-load’’ the scientific research permit process, the 

agency is conducting programmatic NEPA analyses on various scientific research 

programs including acoustics. Additionally, NOAA Fisheries recently hired national 

and regional NEPA coordinators to help train staff and provide expertise throughout 

this and other NEPA processes. 

Other activities that seek authorization under Section 101(a)(5) often have a 

NEPA analysis conducted on the activity or authorization by a different Federal 

agency (for activities authorized, funded, or carried out by a Federal agency), and 

NOAA Fisheries continues to assist other Federal agencies in conducting these 

NEPA analyses. 

23. Question: Questions regarding the use of observer data have been 

raised by a number of groups. Can observers collecting fishery data also 

collect marine mammal data and vice versa or are they restricted to collecting only one type of data? If so, why? 

Answer: In most cases, observers collect information on all catch and bycatch 

(finfish, marine mammals, sea birds, sea turtles, and other species). NOAA Fisheries created its National Observer Program specifically to coordinate existing statutory requirements for monitoring fisheries and to ensure that observer programs are 

collecting data to fulfill all these requirements. More specifically, all observers are 

trained in the identification of marine mammals and other species and collect data 

on a range of conservation and management issues, including species composition 

of the catch; weights of fish caught; and bycatch of finfish, marine mammals, sea 

turtles, and other protected species. Observers fill out and submit forms to NOAA 

Fisheries that report on all of the above information. 

Nonetheless, different data collection protocols are applied in terms of sampling 

designs for observer coverage in order to account for the differences in the nature 

and occurrence of marine mammal/other protected species bycatch versus finfish bycatch. Given the nature of marine mammal and other protected species bycatch, 

sampling methods for observer programs primarily devoted to monitoring marine 

mammal bycatch may vary from those primarily devoted to monitoring finfish bycatch. For example, because protected species bycatch events tend to be rarer than 

finfish bycatch events, marine mammal observer programs may require increased 

coverage and allocation of observers to vessels operating in distinct locations in 

order to obtain an accurate depiction of the occurrence of marine mammal bycatch. 

NOAA Fisheries allocates observers to fisheries to monitor incidental mortality and 

serious injury of marine mammals as well as to fulfill other statutory obligations 

as resources allow. 

24. Question: How long does it take the agency to disseminate the data 

collected by the observers? Is there a backlog on reviewing and using this 

data? 

Answer: Availability of data varies from program to program, but in general the 

data are subject to a quality control review that takes a maximum of 60-90 days 

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before it is made available to NOAA Fisheries scientists and managers, as appropriate. 

Processing observer program data is labor-intensive. Situations in which there are 

delays in analyzing and processing data are usually due to human resource constraints, specifically, insufficient analytical support. Where this has been a problem, 

NOAA Fisheries has requested additional FTEs both for better oversight and for analytical support. 

25. Question: There have been comments about the cumulative effects of 

activities on marine mammals. What is our current state of knowledge regarding cumulative effects? Do we currently have the ability to determine 

how different activities cumulatively affect marine mammals? Is it possible 

for any marine mammal affected by different activities to have time to recover from the first effect prior to the second effect happening? 

Answer: We generally do not know the cumulative effects of many different activities on marine mammals. However, monitoring programs that are part of authorizations to take marine mammals incidental to various activities and behavioral observations have provided data upon which some estimates may be based. For example, 

tagging and monitoring animals over the long-term following a human interaction 

allows NOAA Fisheries to evaluate the impacts of various activities and to estimate 

whether and how soon after a certain activity marine mammals resume their normal activities (such as pinnipeds hauling out on a beach after a disturbance has displaced one or more animals). 

Marine mammals affected by different activities can recover from some of the effects. For example, if an activity disturbed seals or sea lions from a haulout site, 

they generally return to the area after a relatively short time. On the other hand, 

if a marine mammal were injured incidental to a human activity, recovery, if it occurs, may be prolonged. There is insufficient information to predict how many disturbances (or how often they would have to occur) are required to cause a marine 

mammal to avoid a specific area due to the disturbances. Therefore, such cumulative effects must be based on what data are available and on assumptions. NOAA 

Fisheries is working with its partners, including the Marine Mammal Commission, 

to investigate the cumulative impacts of some human activities, such as noise. 

26. Question: How can we manage for cumulative effects when we may 

not have scientific knowledge on how activities actually affect marine 

mammals? If we were to manage based on what we thought were the impacts, wouldn’t that create havoc with the different industries and scientists that may have interactions with marine mammals? 

Answer: The Findings section of the MMPA sets a high standard for marine mammal protection, stating, ‘‘Marine mammals have proven themselves to be resources 

of great international significance, esthetic and recreational as well as economic, 

and it is the sense of the Congress that they should be protected and encouraged 

to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be 

to maintain the health and stability of the marine ecosystem.’’

While the Act does not provide specific guidance with respect to addressing cumulative impacts, it is clear in its intent that resource management policies should ensure marine mammal protection to the greatest extent feasible. Thus, NOAA Fisheries attempts to manage for cumulative effects first by using what we know in the 

most effective manner and making assumptions based upon what we do know to fill 

in gaps in scientific knowledge. In addition, we design research and monitoring 

measures for activities to fill in gaps in scientific knowledge. By utilizing tools like 

mitigation measures on authorizations, the agency strives to ensure that research 

and other human activities can continue, while ensuring to the greatest extent possible that the conservation of marine mammals is not compromised. 

Questions Submitted by The Honorable Frank Pallone, Jr. 

Definition of harassment: 

1. Question: Over the past year, Congress has been presented with several different options to re-define the definition of harassment. A new definition is being offered in H.R. 2693. • Please compare the definition proposed in H.R. 2693 and discuss 

whether it compares positively or negatively to other proposed definitions. 

Answer: NOAA Fisheries is pleased that H.R. 2693 has sought to address the enforceability and clarity of the current harassment definition by proposing amendments to the definition. In particular, we support H.R. 2693’s deletion of the words 

‘‘pursuit, torment, or annoyance’’ since this phrase adds an additional hurdle the 

agency must meet before it can address acts involving injury or disturbance, making 

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it more difficult for the agency to address cases of harassment. The Administration’s 

amendments to the harassment definition would make this same change. 

We also support H.R. 2693’s inclusion of a second tier for Level B harassment, 

which makes explicit that activities that are directed at individuals or groups of 

marine mammals, such as swimming with, closely approaching, touching or feeding 

these animals in the wild, that are likely to disrupt marine mammal behavior constitute harassment. While the language in the Administration bill differs slightly 

from that in H.R. 2693, the effect of this section in both bills would be similar. 

We support the intent of the bill’s proposed changes to the current definition of 

Level B harassment. These changes under the first tier of Level B harassment will 

clarify that Level B harassment means those acts that are likely to result in biologically significant, harmful effects rather than those activities that result in de 

minimis impacts on marine mammals. Overall, the proposed definition of harassment contained in H.R. 2693 is similar in intent to the one in the Administration 

proposal. Both proposed definitions will result in more meaningful protections for 

marine mammals and apply a clearer standard of harassment to the entire regulatory community. Nonetheless, we are concerned that H.R. 2693’s proposal to retain the language, ‘‘potential to disturb,’’ would perpetuate the overly broad standard of Level B harassment, inasmuch as it would include even a very remote possibility that disturbance might occur. We believe that the standard included in the 

Administration proposal, ‘‘disturbs or is likely to disturb,’’ provides a more appropriate delimitation concerning what activities should be covered under this part of 

the harassment definition. We also note that the Administration bill does not include ‘‘care of young’’ or ‘‘predator avoidance in the list of behaviors in Level B harassment. 

With regard to changes H.R. 2693 would make to Level A harassment, we are 

concerned about the use of the word ‘‘probability’’ in the phrase ‘‘probability to 

injure.’’ Specifically, since the word ‘‘probability’’ implies that a particular outcome 

is more likely to occur than not (i.e., with greater than a 50% likelihood), we are 

concerned that this standard may create too high a threshold for an act to constitute 

harassment. The Administration bill clarifies that Level A harassment is an act 

with the ‘‘significant potential to injure.’’ This term clarifies that the threshold for 

Level A harassment is higher than the current threshold, which implies that an act 

having any remote possibility to cause injury could constitute harassment, and 

lower than the threshold in H.R. 2693, which could exclude some important injuryrelated impacts on marine mammals. 

2. Question: How will the proposed change to the definition of harassment affect scientific research and/or military readiness activities? • Are there specific activities that might fall outside this definition? 

Answer: The proposed amendments in H.R. 2693 and the Administration’s bill 

will likely make the process easier for the scientific research community. Because 

the proposed amendments would raise the threshold for acts directed at marine 

mammals involving Level A harassment (injury), which are permitted under Section 

104 of the MMPA, more scientific research applications will likely fall under Level 

B harassment. Scientific research involving Level B harassment would continue to 

be covered by the General Authorization process, a more streamlined process than 

the scientific research permit process under Section 104. Nonetheless, these amendments would still enable the agency to keep track of the effects of scientific research 

on marine mammals. 

The amendments will likely clarify for the regulated community, including the Department of Defense, when their acts constitute harassment and when they do not. 

They will clarify that Level B harassment means those acts that are likely to have 

biologically significant, harmful effects on marine mammals rather than those that 

have de minimus effects. 

By amending the definition of harassment, activities that potentially could have 

very minor incidental behavioral effects on marine mammals (e.g., kayakers and scientists using low intensity sonars and other instruments to map the surface of the 

sea floor or water current characteristics) should fall outside the definition, depending on circumstances such as duration of the activity and location of its occurrence. 

3. Question: The definition for Level A (potential to injure) harassment 

proposed in H.R. 2693 requires that an activity have ‘‘the probability to 

injure’’ a marine mammal. It seems to me that this change would require 

a higher burden of proof for a given activity’s likelihood of causing harm. 

Do you feel that this change would make the definition of harassment less protective of marine mammals? Does the word ‘‘probability’’ have a clear and commonly 

understood legal definition? What is the distinction from ‘‘potential?’’ Would the addition of a modifier that explains the relative probability of injury (such as 20%, 

50%, 90%) be helpful in clarifying the intent of the word ‘‘probability?’’

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Answer: This language could result in less protection for marine mammals. The 

word ‘‘probability’’ implies that a particular outcome has a greater chance of happening than not (i.e., greater than 50% likelihood of occurring), which may result 

in too high a threshold for an activity involving injury to constitute harassment. 

‘‘Probability’’ is not a term that is currently in the MMPA. Therefore, there is no 

useful legal reference for that term as it relates to the MMPA. In addition, the term 

‘‘potential’’ is only used in the harassment definition of the MMPA, and it is not 

defined in the MMPA. Therefore, there is no clear definition of that term in the 

MMPA, and there is no ability to compare how it is used elsewhere in a similar context. 

Thus, a court would likely look to the ordinary meaning of the word as it appears 

in the dictionary. Webster’s New International Dictionary, 2nd ed., unabridged, offers two definitions of ‘‘probability’’ that are relevant to its application in the harassment definition: 1) The quality or state of being probable (probable means having 

more evidence for than against; supported by evidence strong enough to establish 

presumption, but not proof, of its truth); reasonable ground for presuming; true, 

real, or likely to occur, likelihood; and 2) That which is or appears probable. 

Since ‘‘probability’’ means that a particular outcome has a greater chance of happening than not, in this case it would mean that those acts that have a greater than 

50% of causing injury to marine mammals would constitute Level A harassment. 

Webster’s defines ‘‘potential’’ as ‘‘that which is possible.’’ Thus, it includes everything that’s probable/likely (i.e., more evidence for than against) plus things that are 

not probable/likely. The only thing excluded from ‘‘potential’’ is that which is not 

possible at all. The phrase, ‘‘potential to injure,’’ in the harassment definition implies that any act that has greater than a 0% chance of causing injury could constitute Level A harassment. 

While the threshold for Level A harassment using the term ‘‘potential’’ is likely 

too low, the threshold using the term ‘‘probability’’ is likely too high to protect 

marine mammals from injury. The agencies looked at a range of options in developing the Administration bill to clarify that the appropriate threshold for an act to 

constitute Level A harassment was somewhere in between ‘‘probability to injure’’ 

and ‘‘potential to injure.’’ Ultimately, the Administration decided that ‘‘significant 

potential to injure’’ achieved the appropriate balance to allow the agencies to address acts involving injury. 

Adding a fixed percentage to the definition to qualify the word ‘‘probability’’ may 

result in an inflexible burden on the agency given the difficulties in determining 

with what degree of likelihood an act will cause injury. For instance, if Level A harassment only applied when an act had a greater than 30% chance of causing injury, 

the agency would be forced to prove that an act had more than a 30% chance of 

causing injury before it could address the action. This would be difficult given the 

level of uncertainty that currently exists regarding the impacts of various human 

activities, especially those activities for which research has been limited. 

Permitting for Scientific Research: 

1. Question: Has the permitting process for targeted scientific research 

on marine mammals and oceanographic research that falls into the incidental take (Level B) category been sufficiently streamlined as a result of 

the 1994 amendments? What additional changes, either legislative or regulatory, are necessary? Are there still problems with the permitting process 

for targeted research on marine mammals that falls into the Level A (probability to injure) category? 

Answer: On the first question, yes, the General Authorization for Scientific Research has worked well. Authorizations (Letters of Confirmation) have been issued, 

on average (1999-2002), within 33 days of the time a letter of intent is considered 

complete. 

NOAA Fisheries does not feel that legislative or regulatory changes for targeted 

scientific research on marine mammals are necessary at this time. As stated in our 

oral testimony for the July 24, 2003 MMPA hearing, our challenges in scientific research permitting are fundamentally linked to NEPA and ESA and our fiscal and 

human resource constraints, and not to limitations inherent in the MMPA. 

There is not a problem with the MMPA or the regulatory process regarding scientific research permits involving Level A harassment. Most applications for permits under the MMPA are processed within 90 days. This period includes a mandatory 30-day public comment period. Some delays in processing applications for permits have occurred; however, this has usually been for those applications also involving endangered or threatened species—for which an ESA permit is also 

required—and for which substantial NEPA analyses were necessary due to the complex or controversial nature of the research. 

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2. Question: How do overlapping requirements under the Endangered 

Species Act and NEPA interact with permitting requirements under the 

MMPA? What could be done to further streamline the process or coordinate 

timetables when a proposed project involves a threatened or endangered 

species? Would moving the NEPA requirement earlier in the permitting 

process help to expedite the final awarding of a permit? Why or why not? 

Would conducting programmatic NEPA reviews in various categories of 

frequent permit applications be helpful in eliminating individual NEPA requirements on each application? 

Answer: There are separate requirements under the three Acts, but NOAA Fisheries has streamlined the permit process by issuing joint MMPA/ESA permits and 

by conducting simultaneous environmental analyses under ESA and NEPA. 

Moving the NEPA requirement earlier in the permitting process would not help 

expedite the process. Under existing regulations, the NEPA requirement is already 

at the front end of the process, even before publication of the Notice of Receipt of 

the application in the Federal Register, in part to meet the MMPA requirement to 

make a permit decision within 30 days of the close of the public comment period. 

However, no matter where it goes in the process, it can be time and resource consuming because of the often complex nature of the analyses required, especially for 

endangered or threatened species. 

Conducting programmatic NEPA reviews would help NOAA Fisheries streamline 

the NEPA process. The agency is proceeding with development of programmatic 

NEPA documents that will help front-load and streamline the process. For example, 

we are currently working on contracting out a programmatic NEPA analysis to investigate the effects of scientific research involving active acoustics. We have identified the need for a number of such programmatic documents, which will take several 

years to complete. 

3. Question: It is clear to me from the testimony that we have heard today 

that the permitting process for scientific research is still problematic for 

many scientists, but I am still not clear on the root cause of the problem. 

• Is the permitting process severely limited by a lack of resources and 

staff? 

• Would the development of a classification system identifying specific 

activities and their associated risk to marine mammals be a more useful approach to expedite consideration of different types of activities 

on a more programmatic basis? 

Answer: Yes. Resource and staff limitations can delay the timing of permit 

issuance, particularly given the current level of applications for research on endangered and threatened species and the NEPA and ESA Section 7 analyses that are 

required for those permits. In addition, because there is not a permit application 

cycle (unlike the typical grant process), applications are received throughout the 

year, which makes planning for and completing the necessary NEPA and ESA analyses problematic. 

There is currently such a classification system in place. Activities that have the 

potential to disturb but not injure a marine mammal or marine mammal stock in 

the wild (Level B harassment) are covered by the General Authorization, an expedited process for researchers to obtain an authorization for research activities. Alternatively, researchers can obtain a scientific research permit for those activities that 

have the potential to injure a marine mammal or marine mammal stock in the wild 

(Level A harassment). In addition, we have begun to conduct programmatic NEPA 

and ESA analyses for certain categories of actions. Therefore, future permit applications involving only those activities would have a reduced processing time, as the 

NEPA and ESA analyses would already be essentially completed or would require 

only streamlined supplemental analyses. 

A more specific classification system detailing activities could be difficult especially since the risk and impact associated with many human activities is unknown. 

The system currently in place is preferable because since it is based on impacts on 

the marine mammal—either injury or disturbance—it is flexible enough to adapt to 

changes in scientific information. For instance, as more information becomes available on the nature of a given activity and its impacts, then more is known about 

where that activity fits on the scale of injury, disturbance, and negligible impact. 

Take Reduction Teams: 

1. Question: A new World Wildlife Fund study released in June conducted 

by American and Scottish biologists suggests that accidental capture or 

‘‘bycatch’’ by the fishing industry may be the biggest immediate threat the 

survival of some marine mammals, especially large whales. This study analyzed bycatch mortality affecting 125 marine mammal populations over the 

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period of 1990-1999. The study estimates that 1000 whales, dolphins, and 

porpoises drown every day. Annually, approximately 308,000 marine mammals die unintentionally. 

• In light of this information, what conclusions can be drawn about the 

effectiveness of the Section 118 take reduction team process? 

• Should specific types of fishing gear be permanently retired due to 

their associated level of bycatch? 

• Should a robust program be established to dedicate adequate resources 

and technical assistance to promote ‘‘marine mammal safe’’ fishing 

gear? 

Answer: The WWF study calculates an annual level of marine mammal bycatch 

occurring on a global basis, not a national basis. Most countries are not bound by 

the same statutory requirements as the U.S. to reduce marine mammal bycatch to 

biologically and socially acceptable levels. Interestingly, the study found that bycatch of cetaceans declined significantly during the period 1995-1999, as compared 

to 1990-1994. Inasmuch as fishing effort did not decrease during this period, the authors conclude that these reductions are likely attributable to the take reduction 

measures adopted pursuant to the 1994 MMPA amendments. 

MMPA Section 118 provides a sound framework in which to address marine mammal bycatch concerns. While mortality and serious injury of marine mammals incidental to fishing continues to be a problematic source of marine mammal mortality 

nationwide, NOAA Fisheries has achieved many bycatch reduction successes as a 

result of the take reduction team (TRT) and take reduction plan (TRP) development 

process outlined in Section 118 of the MMPA. Namely, the Pacific Offshore Cetacean 

Take Reduction Plan (POCTRP) has successfully reduced bycatch of beaked whales, 

pilot whales, pygmy sperm whales, sperm whales, and humpback whales in the 

swordfish/shark drift gillnet fishery off California and Oregon. The POCTRP has 

achieved the MMPA’s short-term goal of reducing incidental takes below the potential biological removal (PBR) level for all species covered under the Plan and has 

further reduced takes of some marine mammal stocks to below 10% of the PBR level 

(which is the level that NOAA Fisheries currently uses in its Stock Assessment Reports to determine whether the total fishery-related mortality and serious injury 

level for the stock can be considered to be insignificant and approaching a zero mortality and serious injury rate). Additionally, take reduction plans (TRPs) in the Gulf 

of Maine and Mid-Atlantic have successfully reduced bycatch of harbor porpoise to 

levels below the stock’s PBR. NOAA has also experienced management challenges 

related to preventing entanglement of large whales in the Atlantic in certain gear 

types. We are currently working closely with the ALWTRP to develop viable alternatives to address these challenges and feel that Section 118 provides an effective 

framework in which to meet these challenges. 

NOAA Fisheries plans to implement a final TRP for Western North Atlantic coastal bottlenose dolphins in early 2004. Modeling efforts show that the anticipated 

management measures will reduce incidental serious injury and mortality of 

bottlenose dolphins to levels below the stock’s PBR. Over the next several years, 

NOAA Fisheries plans to convene TRTs to address bycatch of common dolphins and 

pilot whales in Atlantic longline and trawl fisheries. Thus, the agency has plans to 

address the instances in which incidental mortality and serious injury of marine 

mammals exceed PBR for a particular stock. 

While Section 118 has provided a sound framework in which to address these 

issues in a stakeholder-inclusive process, there are still improvements that can be 

made in the program itself. We encourage Members of Congress to consider amendments to Section 118 proposed in the Administration bill that would include noncommercial fisheries that have frequent or occasional incidental serious injury or 

mortality of marine mammals in the TRT and TRP development process, as well as 

other amendments aimed at providing monitoring alternatives and gear innovation 

initiatives. 

The requirements under Section 118 of the MMPA provide an adequate framework to address a variety of management challenges related to marine mammal 

interactions with fishing gear. The TRT and TRP development processes have allowed NOAA Fisheries to reduce marine mammal bycatch in gillnets, traps, and 

pots. The agency has plans to address marine mammal bycatch in pound nets, haul 

seines, longlines, and trawl gear via future TRTs and TRP development. The challenge is finding the right combination of management measures, and enforcement 

and monitoring capability, to achieve success. Section 118 provides adequate flexibility for the agency to consider a broad range of management measures, including 

closed areas, gear modifications, gear restrictions, and acoustic deterrent requirements, to meet the bycatch reduction goals of the Act. NOAA Fisheries is also workVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00126 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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ing to reduce overcapitalization in U.S. fisheries, which should help eliminate excess 

fishing capacity, and thus gear, in some areas. 

A program dedicated to researching and developing gear that reduces interactions 

with marine mammals would be helpful and would aid the agency in fulfilling the 

complex task of promoting fishing on the one hand, as a requirement under the 

Magnuson-Stevens Fishery Conservation and Management Act, and reducing the 

mortality and serious injury of marine mammals incidental to fishing gear on the 

other, pursuant to the MMPA. In fact, NOAA Fisheries’ Pascagoula Lab has a dedicated gear research program that looks at modifying gear to reduce various types 

of bycatch. 

The Administration MMPA reauthorization bill currently contains amendments 

(see Section 516) that would direct the Secretary of Commerce to establish a fishing 

gear research and development program aimed at evaluating and developing new 

gear technologies to reduce mortality and serious injury of marine mammals incidental to fishing. These amendments also authorize the Secretary of Commerce to 

establish a fishing gear buyback program through the take reduction plan development process, to work with other countries to foster gear technology transfer initiatives aimed at reducing marine mammal bycatch, and to establish a gear research 

mini grant program to promote the evaluation and development of fishing gear innovations. 

2. Question: H.R. 2693 would extend the deadlines imposed on take reduction teams and the agency for requirements under section 118, the taking of marine mammals incidental to commercial fishing operations. 

• Have these extensions been requested by the agency? 

• Have take reduction teams been unable to meet these deadlines in the 

past? 

Answer: NOAA Fisheries did not request these deadlines, and these extensions 

are not included in the Administration bill. However, the amended deadlines proposed in H.R. 2693 are more achievable than the current statutory deadlines in Section 118 and we do not expect that they would substantially compromise marine 

mammal protections. 

While the agency has done its best to meet Section 118 deadlines in the past, it 

is often challenging to meet them given the various steps required throughout the 

TRP development process including, completing and analyzing stock abundance and 

mortality data, recruiting TRT members, holding TRT meetings, allowing the TRT 

time to submit a draft plan, developing proposed regulations, holding a public comment period, and finalizing regulations. Additionally, the agency must comply with 

NEPA and ESA requirements, among other requirements that apply to regulatory 

actions, and must work with the fishery management councils and state fisheries 

agencies to ensure that all the regulations coincide to meet a variety of statutory 

mandates. Another complicating factor is that this process is conducted in an environment in which data continually change and new data needs emerge. 

Stock Assessments: 

1. Question: Why have stock assessments not been completed for all 

stocks of marine mammals? What is the limiting factor? How adequate are 

existing population estimates? 

Answer: Stock assessments have been completed for all population stocks of 

marine mammals that occur regularly in the EEZ of the United States; however, 

they have not been completed for the marine mammals that inhabit the EEZ of U.S. 

Territories in the Caribbean Sea or Pacific Ocean. Highest priorities have been assigned to the collection of assessment information to sustain the regime to govern 

interactions between marine mammals and commercial fishing operations and on 

those stocks where immediate threats are substantial and immediate. Thus, for 

some stocks (e.g., Right whales in the Western North Atlantic, Gulf of Maine harbor 

porpoise, Cook Inlet beluga whales, and Hawaiian monk seals), assessment information is relatively accurate, precise, and frequent. For other stocks (e.g., ice seals, 

which include ringed, spotted, bearded, and ribbon seals; all cetaceans in the EEZ 

around the Hawaiian Islands; and beaked whales, which are widely distributed and 

behave in such a way that assessment is difficult (dive deep and often; occur singly 

or in very small groups)), assessment information is incomplete. 

Staff, available platforms (e.g., survey vessels), and funding limit our ability to 

assess marine mammal stocks. In some cases, technology to detect marine mammals 

that are not readily visible at the surface is not available. NOAA Fisheries continues to explore ways to improve its assessment technologies. The agency’s FY 04 

budget request consisted of $14,200 K for marine mammal stock assessments. 

In many cases, existing population estimates are sufficient to address fundamental questions, such as whether or not human caused mortality exceeds sustainVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00127 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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able limits (i.e., Potential Biological Removal levels). In other cases (e.g, short and 

long-finned pilot whales in the Atlantic Ocean), abundance estimates are not high 

enough to rule out human-caused mortality as a threat to the population; however, 

many of the affected marine mammal populations that would fit this situation are 

widely distributed in an ocean basin, and comprehensive abundance estimates 

would be exceedingly expensive. 

Currently, NOAA Fisheries has a limited understanding of the relative impacts 

of ecosystem processes other than direct-human caused mortality on stock abundance and status. We are currently engaged in a Stock Assessment Improvement 

Plan that will help the agency investigate a broad range of factors, including natural ecosystem processes, affecting stock abundance. 

Zero Mortality Rate Goal: 

1. Question: Robert Zuanich testified that the marine mammals hold a 

loftier status than all other animals in the ocean. Wasn’t this at least, in 

part, the goal of the protective approach of the MMPA? Can you comment 

on whether the zero mortality rate goal should be retained? What is its relation to the precautionary philosophy of the MMPA? 

Answer: MMPA Section 2, the Findings and Declaration of Policy section, expresses the importance of marine mammals and goals for their protection relative 

to optimum sustainable population and the carrying capacity of their habitat. In addition, specific sections of the MMPA reflect these goals. 

For example, the zero mortality rate goal (ZMRG) of the MMPA provides that 

commercial fisheries shall reduce the incidental mortality and serious injury of 

marine mammals to insignificant levels approaching a zero mortality and serious injury rate within seven years of enactment of Section 118 of the statute. This requirement demonstrates the highly protected status of marine mammals and sets 

a high standard for management policies designed to protect marine mammals. 

The ZMRG has been a concept within the MMPA since its enactment in 1972. In 

1994, the MMPA was amended to specify a specific date (April 30, 2001) by which 

the ZMRG would be achieved. Congress may want to examine the role of the specific 

date by which the ZMRG was to have been achieved and evaluate whether or not 

a specific date is helpful. 

Reasonable evidence will be necessary to support any determination that a fishery 

has achieved ZMRG. Such evidence will be difficult and expensive to attain since 

as mortality becomes lower, the statistical precision of mortality estimates will decrease for a given level of effort (e.g., observer coverage). To detect the continued 

reduction in mortality and serious injury rates as incidental mortality becomes a 

small part of each stock’s Potential Biological Removal level will be difficult and will 

require substantial resources. 

Harvest management agreements with Alaskan natives: 

1. Question: H.R. 2693 does not revise Section 119 of the current law, 

which establishes the authority for marine mammal cooperative agreements in Alaska. The administration’s draft bill would change the cooperative agreements to harvest management agreements. 

• Can you elaborate on why this change is important? Do native Alaskans have sufficient capabilities to support and train enforcement operations for effective co-management? Should future co-management 

agreements with native Alaskans apply to species or stocks that are already designated as strategic or depleted? Is it likely or desirable for 

seals, currently under NOAA Fisheries’ jurisdiction, that are used for 

subsistence to be managed under the U.S. Fish and Wildlife Service so 

that all species that Alaska Natives use for subsistence purposes will be 

under one agency? 

Answer: The Administration’s proposed amendments to this section are important 

because subsistence harvest of marine mammals by Alaska Natives is not currently 

subject to regulation unless a marine mammal stock is designated as depleted. Additionally, there is no provision for enforcing harvest restrictions that may be established in cooperative agreements other than through voluntary compliance. The 

amendments contained in Section 201 of the Administration bill would allow for 

joint regulation of subsistence harvests prior to a depletion finding. This would provide a mechanism for Alaska Natives and NOAA Fisheries to prevent stock depletion before it becomes a more difficult and costly problem. 

Alaska Native local governments have the ability to develop and train staff for 

enforcement operations; however, such co-management operations are not always realized due to a variety of factors. Native governments address such issues reasonably where resources are available, such as for the enforcement of whaling ordiVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00128 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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nances by the Alaska Eskimo Whaling Commission, which has local government 

support. 

Proposed section 119A would allow the Federal government to work with Alaska 

Natives, through co-management agreements, to effectively regulate subsistence 

harvest of stocks whether or not the stock is depleted. This would provide an additional process to regulate subsistence harvest of depleted stocks. The proposed section is not meant to replace existing provisions for depleted stocks; rather, it is 

meant to supplement regulatory authority through the co-management process. 

We do not feel it is necessary or wise to transfer authority for management of 

seals to the U.S. Fish and Wildlife Service. NOAA Fisheries houses the majority of 

the technical expertise and institutional infrastructure for addressing seals. The 

management of seals could be compromised if such a transfer were to occur at this 

time. 

Threats to Marine Mammals: 

1. Question: Commercial fishermen rightly criticize Federal regulators 

for going after them and not global shipping lines to reduce marine mammal mortality. 

• What is the administration doing to engage the International Maritime 

Organization to reduce ship strikes in the U.S. EEZ and across the 

world’s oceans? 

Answer: NOAA Fisheries has a program to reduce ship strikes that has been ongoing over the last decade and has been expanded in recent years as ship strikes 

continue. The agency has focused most of its efforts to reduce ship - marine mammal interactions to date on the North Atlantic right whale, due to its critically endangered status, its particular vulnerability to ship strikes, and Congressional and 

public interest. Efforts to address ship strikes of right whales are believed to provide 

ancillary benefits to other marine mammals and to serve as a template to address 

the issue more broadly with other marine mammals. 

Recognizing that ship strikes account for more right whale mortalities than entanglements in fishing gear or any other human-related activity, NOAA Fisheries 

formed an internal working group in late 2001 and began a proactive approach to 

address the issue of ship strikes. This process culminated in the development of a 

Ship Strike Reduction Strategy, a proposed multi-year blueprint of the specific steps 

that could be taken to reduce or eliminate the threat of ship strikes. Measures proposed in the Strategy would reduce the overlap of ships and whales to reduce the 

likelihood of ship strikes. This approach allows for consideration of regional differences in oceanography, commercial ship traffic patterns, and navigational concerns. Since interagency collaboration is key to the Strategy’s success, NOAA Fisheries recently established an Interagency Working Group on the Reduction of Ship 

Strikes to Right Whales to aid in the Strategy’s implementation and enforcement. 

The purpose of this Working Group is to review and provide comments on the Strategy, provide clearance on two proposed international measures, assist NOAA in 

identifying means to ensure the implementation of a robust Strategy, and establish 

a timeline. Actions needed to execute the overall project include rulemaking, various 

analyses, and international action. 

NOAA Fisheries plans to seek approval from the International Maritime Organization (IMO) for implementation of any of the proposed measures within the Strategy that would require international action. The IMO is already engaged in the 

right whale-ship strike issue through the recent actions of Canada to change its 

shipping lanes to help reduce ship strikes of right whales. After a four-year collaborative process involving Transport Canada, the federal Habitat Stewardship Program, industry, and conservation/research organizations, the IMO approved the proposal to alter shipping lanes in the Bay of Fundy in 2002. 

Similar changes are sought for right whale protection under the NOAA Fisheries 

Ship Strike Strategy. The Strategy proposes measures that would apply to the entire eastern seaboard, and thus are significantly more complex than those facing 

Canada in the localized area of the Bay of Fundy. Recognizing that interagency collaboration is key for the success of the Strategy, NOAA Fisheries is currently engaged in the interagency process to begin implementation of the Strategy. After an 

interagency task force has been formed to address this issue, NOAA Fisheries anticipates engagement with the IMO to address the Ship Strike Strategy. 

2. Question: There seem to be many emerging threats to marine mammals 

that were not considered 25 years ago, when the original act was written. 

• Do you think it would be helpful for the Marine Mammal Commission 

to report on the magnitude of emerging and existing threats to marine 

mammals? Is it practical to believe that we can address these threats, 

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and if so, what threats should be priorities for action? Would such an 

undertaking be within the scope and purview of the MMC? 

Answer: The Marine Mammal Commission currently reports on emerging and existing threats to marine mammals and on the agencies’ (U.S. FWS and NOAA Fisheries) efforts to address these threats. During the first week in August 2003, the 

Commission convened a workshop of scientists and some managers to discuss future 

research and scientific needs for marine mammals and the ecosystems upon which 

they depend. Presumably, the report of this workshop will characterize research and 

information needs within the context of existing and emerging threats. Therefore, 

a special report may not be necessary; however, if such a report is necessary, the 

Marine Mammal Commission has the responsibility and the capability to compile 

one. This undertaking would be within the scope of the Marine Mammal Commission’s 

responsibilities under the MMPA, and they have already performed it to a certain 

extent in their annual reports to Congress and in specialized reports that the Commission produces. 

At least some aspects of such an undertaking could also be within the purview 

of the three regional Scientific Review Groups established under section 117(d) of 

the MMPA. 

3. Question: Has the MMC ever investigated the growing incidence of 

ship strikes? MMC-directed, Would the MMC support a mandate to convene 

a panel to recommend steps to reduce ship strikes and report to Congress 

in 2 years? 

Answer: NOAA Fisheries defers to MMC for the response to this question. 

4. Question: Should there be a similar directed program on ocean noise 

that would be mandated under the MMC or another program such as the 

National Oceanographic Partnership Program? 

Answer: It would be useful for the Marine Mammal Commission (MMC) or the 

National Oceanographic Partnership Program (NOPP) to convene panels of experts 

to further explore the issue of ocean noise and the MMC or NOPP could make recommendations related to the protection and conservation of marine mammals. However, neither the MMC nor the NOPP is the appropriate entity to run a program 

or to assign national priorities for the study or management of ocean noise because 

neither has management responsibility for marine resources. NOAA has responsibility for the evaluation and management of ocean noise in terms of its effects on 

living marine resources, such as marine mammals, as well as other natural marine 

resources, such as benthic habitats. The agency already runs a program on ocean 

noise and sets priorities based on its mandates under the MMPA, ESA, and other 

statutes. In addition, NOAA coordinates on a regular basis with the USFWS, Minerals Management Service, Department of Defense, MMC, and NOPP. 

5. Question: Two programs currently exist to respond quickly to threats 

to marine mammals. These include the Prescott Marine Mammal Rescue 

Assistance Grant Program and the Marine Mammal Health and Stranding 

Response Program, both authorized under Title IV of the MMPA. 

• I have heard that these programs need increased funding. Would you 

agree? 

• Would it be helpful for NOAA Fisheries if the administration of Prescott grants were transferred to an outside group, such as the National 

Fish and Wildlife Foundation? Would this be a cost-effective way to free 

up biologists to do other important work? 

Answer: As mentioned, there are two emergency response funds available under 

the Marine Mammal Health and Stranding Response Program: the Marine Mammal 

Unusual Mortality Event Fund (called the Contingency Fund), which provides funds 

for the responses to designated unusual mortality events, and the emergency response funds under the Prescott grant program. The Contingency Fund was initially 

authorized for $500,000 in 1993 and was intended to be able to solicit additional 

funding from outside sources or donations. In 1999, NOAA Fisheries started setting 

aside $125,000 per year for this fund from operational funds, and these funds were 

transferred to the National Fish and Wildlife Foundation (NFWF). The current administrative costs for the fund are 3% per year and no solicitations for outside funding have been made. NOAA Fisheries staff provide all the coordination, review the 

reimbursement applications, monitor the response, and maintain current financial 

records for all potential recipients. During that time we have responded to several 

marine mammal die-offs and spent $216,389 on reimbursements to the network. 

The current balance in the account is $266,311 and there are four die-offs for which 

requests for reimbursement have not been received. There have been some problems 

in the reimbursements for die-off investigations. In the 1999-2000 die-off of gray 

whales along the west coast, the Contingency fund was restricted from reimbursing 

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for the significant carcass disposal costs, and therefore many animals could not be 

necropsied. This significantly hampered the investigation. In addition, small stranding network organizations often cannot pay for costs upfront without overwhelming 

the financial status of the organization. 

The network would be able to respond to the mortality events more efficiently if 

there were more flexibility in how the money could be spent and if some costs could 

be paid in real time rather than as a reimbursement. For the Prescott emergency fund, NOAA Fisheries has made available $600,000 

out of funds appropriated for this assistance program and three emergency grant 

applications have been received, totaling $230,000. 

At this time there would be no benefit to recipients in moving the whole program 

to NFWF and such a move would not necessarily free up biologists to do other important work. Currently NOAA Fisheries biologists are involved in the development 

of the request for proposals, which includes developing funding priorities, the review 

process (merit review), and monitoring of the facilities and organizations. Regardless 

of the grants administration process, NOAA Fisheries staff must oversee the network, coordinate activities of the network and work in partnership with the network 

and other scientists to implement the Marine Mammal Health and Stranding Response Program. NOAA Fisheries biologists will continue to be needed to set priorities, review applications, and coordinate the Prescott funded work with other portions of the stranding program. There is a real benefit to having all aspects of the 

program described in Title IV coordinated by NOAA Fisheries staff into an integrated program. If the grants administration were transferred to NFWF, it would 

still have to involve NOAA Fisheries’ biologists in the development of the solicitation and the review of applications. In addition, NFWF administrative fees are higher than what is currently allowed in the legislation. 

In the future, with NOAA’s streamlining of the grants administration process and 

Prescott program’s solicitation of proposals earlier in the year, we anticipate an improvement in the time it takes to get funds to recipients. 

Captive Animal Welfare: 

1. Question: The 1994 changes to the Marine Mammal Protection Act gave 

APHIS the authority for captive marine mammal welfare inspections. 

• Has APHIS demonstrated requisite expertise and ability to inspect and 

oversee marine mammals in captivity? 

• How many inspectors does APHIS deploy to inspect display facilities? 

• To your knowledge, has APHIS promulgated marine mammal-specific 

care standards for captive marine mammals? And have such standards 

been provided to the public? 

• Is there any oversight or reporting requirements for APHIS in the discharge of this responsibility? Should APHIS be required to report annually to Congress? 

Answer: NOAA Fisheries does not have authority to participate in or review 

APHIS’ inspections or oversight of marine mammals in captivity. Therefore, NOAA 

Fisheries has no basis to determine whether APHIS has demonstrated the requisite 

expertise and ability in these areas. 

NOAA Fisheries does not know how many inspectors APHIS deploys to inspect 

facilities, and defers the response to this question to APHIS or the MMC. 

Marine mammals are specifically addressed in 9 CFR Part 3, Subpart E, specifications for the Humane Handling, Care, Treatment, and Transportation of Marine 

Mammals, which was promulgated under the Animal Welfare Act (AWA). APHIS 

conducted negotiated rulemaking with stakeholders to revise these regulations and 

published a final rule with resulting revisions at 66 FR 239, January 3, 2001. 

APHIS is considering amendments to the regulations at 9 CFR Part 3, Subpart E 

to address the items that were not previously agreed to during the negotiated rulemaking process as well as standards for marine mammals used in interactive programs (i.e., ‘‘swim-with-dolphin’’ programs) see APHIS’ advance notice of proposed 

rulemaking at 67 FR 37731, May 20, 2002. NOAA Fisheries respectfully suggests 

that requests for details regarding these rulemaking processes should be addressed 

to APHIS. 

NOAA Fisheries is currently unaware of any reporting requirements for APHIS 

related to the MMPA or AWA. NOAA Fisheries defers to APHIS and the MMC to 

respond to this question. 

2. Question: The public display community has complained that NOAA 

Fisheries deliberately misinterpreted the intent of Congress in 1994 in its 

promulgation of regulations regarding permits allowing the transport and 

exchange of captive marine mammals. 

• Is this complaint valid? 

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• If not, what aspect of the proposed regulations should be revised? 

Answer: The complaint is not valid. The proposed rule does not require permits 

for transport/transfer (including exports) of legally held captive marine mammals in 

U.S. facilities. The rights of legal holders of captive marine mammals are currently 

described in the MMPA and the proposed rule only provides a process through 

which holders can exercise their rights by meeting the requirements of the MMPA. 

Recently, holders of exported marine mammals that were loaned or leased to foreign 

facilities experienced problems in reasserting custody of the animals so that they 

could be returned to the U.S. or found that the foreign facility no longer met standards comparable to the MMPA or Animal Welfare Act. NOAA Fisheries’ current policy is the best mechanism currently available for allowing the U.S. government to 

request the appropriate foreign agency to intercede on behalf of the U.S. and the 

holder to insure that these standards are met. The export procedures in the proposed rule were intended to codify this policy and address these kinds of situations 

for the benefit of the marine mammals and their U.S. holders. Permits are still required for capture from the wild and first-time imports into the U.S. consistent with 

the MMPA. 

There are some needed clarifications that were identified during review of the 

public comments received on the proposed rule. In particular, these include specifying the need and purpose of inspections (for inventory verifications only), and 

clarifying or re-proposing the export provisions of the proposed rule. 

Captive release prohibition: 

1. Question: H.R. 2693 includes a prohibition on releasing captive marine 

mammals into the wild. 

• Considering the very limited space available to care for stranded 

marine mammals, could such a change create a situation where animals are held in captivity permanently regardless of their health and 

survival? 

• Would this provision affect NOAA Fisheries’ release of the five pilot 

whales that were stranded on April 18, 2003? 

• Does this provision require a U.S. citizen to apply for a NOAA Fisheries 

permit to release a marine mammal in other countries’ EEZ (would this 

apply to Keiko’s release in Norway)? 

Answer: This provision would not affect the release of pilot whales in question. 

The prohibition on releasing captive marine mammals back to the wild without a 

scientific research permit is specifically directed at animals held at public display 

or scientific research facilities, including those born at the facilities or long-term 

captive animals. It does not include stranded animals or those in rehabilitation because it provides an exception for animals maintained in captivity under MMPA 

Section 109(h). 

We recognize the limited resources and facilities available to respond to and care 

for stranded marine mammals. The release of rehabilitated stranded marine mammals is still governed by the provisions of section 109(h) of the MMPA and the implementing regulations. The primary goal of any rescue and rehabilitation program 

authorized under the MMPA is to return stranded animals back to their natural 

habitat as long as their health allows it. Otherwise, animals are euthanized or 

placed permanently in captivity. However, these latter options are only exercised 

when the animal’s health and chances of survival are compromised by releasing it 

back to the wild. 

This provision would require a permit for release of a marine mammal by a U.S. 

citizen on the high seas, but not inside the country’s territorial sea. The Administration is currently examining the issue regarding whether the MMPA applies in other 

countries’ EEZs. However, Keiko was being held captive in Iceland when he was released. NOAA Fisheries worked with the Government of Iceland to encourage them 

to adopt protocols for Keiko’s release similar to those involved in issuing NOAA 

Fisheries permits. 

Response to questions from The Honorable Frank Pallone, Jr., submitted 

for the record by Karen Steuer, National Environmental Trust 

Definition of harassment: 

1. Over the past year, Congress has been presented with several different 

options to re-define the definition of harassment. A new definition is being 

offered in H.R. 2693. 

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• Please compare the definition proposed in H.R. 2693 and discuss 

whether it compares positively or negatively to other proposed definitions. 

On May 6 the Resources Committee held a hearing on changes proposed to the 

MMPA by the Department of Defense, among them a change to the definition of 

harassment. During that hearing, I noted that any problems with the existing harassment definition are not due to ambiguities in the statutory language, but to fundamental process problems, including: inconsistency in reviews of permit applications, conflicts in the process that dovetails the MMPA with the National Environmental Policy Act, and a lack of cooperation among federal agencies. If the problem 

lies in process issues that go uncorrected, changing the definition is likely to result 

only in more confusion, more delays in granting permits, and more lawsuits. Nothing will be gained, and marine mammal conservation will undoubtedly suffer as a 

result. Any definition—whether the language is that proposed by DOD, the Administration, or in H.R. 2693—should take this into consideration. 

All the definition proposed to date use ambiguous language that is unlikely to correct current perceived problems. Such terms as ‘‘significantly altered’’ and ‘‘abandoned,’’ (Administration proposal) or ‘‘biologically significant disruption’’ (H.R. 2693) 

will result in even more confusion and even more legal action, since their meaning 

varies from species to species and from behavior to behavior. 

Like all the other definitions proposed to date, the definition proposed by 

H.R. 2693 considerably weakens the existing standard, and creates confusion as to 

application to various activities. By applying one standard to Level A and two different standards to Level B, the bill creates three different standards, all of which 

are ambiguously defined without any clarification as to which standards would 

apply to whom and under what circumstances. 

Regarding Level B harassment, H.R. 2693 first requires a ‘‘biologically significant’’ disruption of activities, including, but not limited to, migration, breeding, care 

of young, predator avoidance, defense, or feeding. The legislation does not define the 

term ‘‘biologically significant disruption,’’ nor is it a commonly used scientific term. 

.’’ The insertion of this term would add harmful and unnecessary ambiguity to the 

definition, increasing regulatory uncertainty for regulated entities, and potential 

risk for protected marine mammals. 

The bill would then add the Administration’s proposed third tier of harassment 

to include activities ‘‘directed toward’’ a specific animal or group of animals and 

‘‘likely to impact’’ those animals by ‘‘disrupting behavior’’. While I recognize the intent in using this tier to regulate activities such as dolphin feeding, as currently 

written this definition could also apply to scientific research and whale watching operations. To make matters more confusing, the permitting standard included in this 

provision of ‘‘disrupting behavior’’ differs from the standard included in the other 

section of Level B harassment, which requires a ‘‘biologically significant disruption.’’

2. How will the proposed change to the definition of harassment affect 

scientific research and/or military readiness activities? 

Please see the response above regarding some of the implications for scientific research by use of the term ‘‘directed activities.’’

Regarding scientific research, it is important to recognize that there are some 

types of research that are likely to be harmful to marine mammals. Geologic surveys, for example, use air gun arrays which blast very loud sounds into the ocean 

bed. Under these circumstances, a general authorization for research, as has been 

proposed by some in the research community, would be unwise unless accompanied 

by very specific standards and clarifications as to which research activities would 

be covered. 

It should also be noted that many of the difficulties encountered by research permit applicants are not due to the language of the MMPA, but to requirements under 

the ESA and NEPA. Testimony presented before the Committee on Resources on 

July 24 clarified this critical point: research on highly endangered species is subject 

to more scrutiny than that on other marine mammals—as it should be. 

Regarding military readiness, I see no reason why the military should be held to 

a lower standard than any other American. DOD has never been denied a permit 

or incidental take authorization by NMFS. In Congressional testimony the Navy has 

frequently referred to fictitious situations that have no bearing on the actual language or the agency’s interpretation of the law. The often-used scenario in which 

a naval vessel is prevented from leaving the harbor because a sea lion on the neighboring beach will turn its head to watch the boat simply bears no resemblance to 

the type of activity that NMFS actually regulates. Typical of these activities are 

missile firings, which cause pinnipeds hauled out on nearby rocks and beaches to 

stampede, killing their pups; and ship-shock tests, which involve detonations of 

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thousands of pounds of high explosives. NMFS has never required a permit of an 

activity that merely caused a sea lion to turn its head. 

Changing the current permitting process by instituting programmatic reviews of 

military activities could be extremely helpful. Planned activities could be reviewed 

by region and timing as to possible impacts on marine mammals, and mitigated appropriately. This approach would not require any legislative changes. • Are there specific activities that might fall outside this definition? 

Given the lack of clarification as to the new terms proposed for both Level A and 

Level B, I think it is quite likely that some activities could fall outside this definition. For example, where does shipping traffic fit? Oil and gas exploration? Until 

the terms are defined, it is impossible to determine whether some previously regulated activities might go unregulated. 

3. The definition for Level A (potential to injure) harassment proposed in 

H.R. 2693 requires that an activity have ‘‘the probability to injure’’ a 

marine mammal. It seems to me that this change would require a higher 

burden of proof for a given activity’s likelihood of causing harm. • Do you feel that this change would make the definition of harassment 

less protective of marine mammals? • Does the word ‘‘probability’’ have a clear and commonly understood 

legal definition? What is the distinction from ‘‘potential?’’

I agree that this change would require a far higher burden of proof than that 

which currently exists. The term ‘‘potential’’ is clear and requires no further evaluation of the probability of injury, whereas ‘‘probability’’ is undefined, subjective, and 

likely to result in confusion among potential permittees. An example of the inherent 

difficulty with the ‘‘probability’’ would be the issue of ships entering Boston Harbor, 

transiting a National Marine Sanctuary and habitat for a number of endangered or 

threatened large whales. Evidence shows that ships entering Boston do occasionally 

strike and kill whales: the potential for ship strike is clear, and dictates that preventative measures should be mandated to the extent practicable. But the probability of an individual ship striking and injuring a whale varies tremendously, depending on season, ship speed, number of ships entering the harbor on any given 

day, and other factors. It would be virtually impossible to determine or enforce, resulting in even more confusion among stakeholders. 

It is critical to recognize that all of these terms are subjective. At the Subcommittee hearing on July 24, Congressman Abercrombie expressed his view that 

the insertion of the term ‘‘likely’’ would clarify the proposed definition, as in ‘‘likely 

to injure’’. Yet ‘‘likely’’ can easily be construed to be the same standard as ‘‘probably’’, creating similar confusion to that noted in the previous paragraph. 

• Would the addition of a modifier that explains the relative probability 

of an injury (such as 20%, 50%, 90%) be helpful in clarifying the intent 

of the word ‘‘probability?’’

Marine mammal biology and habitat use would make the use of such a calculation 

impractical in broad legislative terms. For example: a vessel entering the shipping 

lanes in the Great South Channel (off Rhode Island) in late fall or early spring has 

a very high ‘‘probability’’ of encountering and possibly striking feeding right whales. 

However, in most years the probability lessens at other times of the year when right 

whales either move south to breed or north to feed, although the potential still exists. This scenario is further complicated when variations in the North Atlantic due 

to weather patterns result in changes in plankton production, which also result in 

changes in right whale behavior patterns. 

It might be more practical to consider incorporating the use of relative probability 

modifiers in developing regulations to apply to various activities that affect marine 

mammal behavior. 

Threats to Marine Mammals: 

1. There seem to be many emerging threats to marine mammals that were 

not considered 25 years ago, when the original act was written. 

• Do you think it would be helpful for the Marine Mammal Commission 

to report on the magnitude of emerging and existing threats to marine 

mammals? 

Yes, such a report could be useful in determining future direction for legislative 

and regulatory action, and particularly for deciding priorities for appropriations. 

However, it may be more efficient in terms of time and effort to have the MMC work 

on this report in consultation with the Scientific Committee of the International 

Whaling Commission (IWC). Every year the IWC Scientific Committee brings together many of the best marine mammal scientists in the world to discuss research 

needs, results of previous research, and recommendations for future efforts on the 

most important issues affecting cetaceans on a global scale. The Committee and its 

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various subcommittees and working groups address, inter alia, climate change, habitat protection, whale watching, bycatch, and competition with fisheries. The report 

and recommendations of the Scientific Committee are then taken into account by 

the 39 member nations of the IWC when making policy decisions. 

The current chair of the Scientific Committee is Dr. Douglas DeMaster from 

NMFS’ Seattle lab, and he could certainly provide the MMC with advice on current 

global trends in cetacean threats and research. 

• Is it practical to believe that we can address all these threats, and if 

so, what threats should be priorities for action? 

It is not practical for the U.S. to believe that it can address all these threats unilaterally, since most have impacts on migratory marine mammals and require international cooperation. Certainly the most immediate priority for action should be 

international bycatch, or incidental take, of marine mammals in commercial fishing 

operations—now recognized as the single largest threat to the survival of many 

marine mammal populations, and particularly of small whales and dolphins. The 

most recent estimate of global incidental takes, as reported to the IWC Scientific 

Committee at its 2003 meeting, is that as many as 750,000 marine mammals are 

killed annually in fishing operations. 

This might include identifying data gaps, coming up with research plans 

and evaluating the health of marine mammal stocks in the wild as relates 

to other environmental parameters. 

• Would such an undertaking be within the scope and purview of the 

MMC? 

As noted above, I would recommend that this effort be undertaken in consultation 

with the IWC Scientific Committee. 

• Has the MMC ever investigated the growing incidence of ship strikes? 

Would the MMC support a mandate to convene a panel to recommend 

steps to reduce ship strikes and report to Congress in 2 years? 

It is my understanding that NMFS has undertaken an internal review of the 

needed steps as part of the North Atlantic Right Whale Recovery Plan; the draft 

of that plan has not yet been made public for review. Given that the Right Whale 

Recovery Team has been discussing this issue and recommended actions for years, 

I would not recommend convening another panel to produce yet another report. 

NMFS should be mandated to undertake immediate actions to reduce ships strikes 

based on the work and recommendations made to date. 

• Should there be a similar directed program on ocean noise that would 

be mandated under the MMC or another program such as the National 

Oceanographic Partnership Program? 

The National Research Council has already convened panels and produced reports 

on ocean noise and its effects on marine mammals. I would recommend that prior 

to mandating another program, the recommendations within those reports be taken 

into account. 

Captive release prohibition: 

H.R. 2693 includes a prohibition on releasing captive marine mammals 

into the wild. 

• Considering the very limited space available to care for stranded 

marine mammals, could such a change create a situation where animals are held in captivity permanently regardless of their health and 

survival? 

This is unlikely. Limited space dictates that animals should be released as soon 

as practicable, and current law and regulations require that the holder of a marine 

mammal apply for a permit to keep it indefinitely. The prohibition on release would 

change none of the requirements. 

• Would this provision affect the NOAA Fisheries’ release of the five pilot 

whales that were stranded on April 18, 2003? 

I am unfamiliar with the circumstances, and do not know if the release prohibition would have affected these animals. 

• Does this provision require a U.S. citizen to apply for a NOAA Fisheries 

permit to release a marine mammal in other countries’ EEZ (would this 

apply to Keiko’s release in Norway?) 

It is my understanding that, as currently written, the phrase ‘‘any person subject 

to the jurisdiction of the United States’’ would apply to all U.S. citizens regardless 

of the location of the release. However, the bill should clarify the language to ensure 

that any such permit requirement is subject to the same jurisdictional and public 

review requirements that apply to other MMPA permits. 

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Response to questions submitted for the record by Peter L. Tyack, Biology 

Department, Woods Hole Oceanographic Institution. 

Questions from Chairman Wayne Gilchrest 

1. The Marine Mammal Protection Coalition, a group of environmental 

groups, has proposed adding the word ‘‘foraging’’ to the definition of level 

B harassment. Is it necessary to include this term when ‘‘feeding’’ is already included? Is this term easily defined for all marine mammals? Which 

would you describe—feeding or foraging—as more biologically significant 

in terms of behaviors of marine mammals that should be listed in the definition of harassment? 

My dictionary defines ‘‘forage’’ as ‘‘a search for food or provisions’’. ‘‘Feed’’ is defined as ‘‘to eat’’ or more generally ‘‘to provide something necessary for the growth, 

development, or existence of.’’ It can be very difficult to define when a marine mammal is searching for food as opposed to travel for other purposes. By contrast, the 

act of eating is obvious. Therefore, I believe that the act of feeding is more easily 

defined for all marine mammals than ‘‘foraging.’’

While searching for food is part of the foraging process, the more critical issue 

for biological significance seems to me to be did the animal get the food it needed 

for growth and development. Therefore, while adding ‘‘foraging’’ is a broader and 

perhaps more protective definition, the ‘‘feeding’’ definition is closer to the intention 

of focusing on the biologically significant aspects of the activity as opposed to all 

parts of the process. 

2. The Marine Mammal Protection Coalition also includes ‘‘communication’’ in their definition. Can you give an assessment on the inclusion of 

this behavior? Did the NRC discuss this behavior when determining behavior to be included in the NRC recommended definition? 

This question parallels the last one. Communication can play an important role 

in feeding, in care of young, predator defense, or mating. Most of my own research 

focuses on communication, and I believe it to be a fascinating and important subject. 

However, it is not en end in itself from an evolutionary perspective. The NRC committees discussed communication extensively, but I do not remember whether they 

specifically discussed whether communication in general be included in the list. I 

think not, because the NRC list is selected by contrast to highlight behavioral categories that are inherently essential for growth, survival, and reproduction. 

I hope an example might help highlight the critical issues. When humpback 

whales are exposed to the sounds of LFA sonar, their songs become longer and more 

redundant. This may represent a mechanism to compensate for increased noise, 

much as we speak differently on a walkie talkie than in person. Similarly, shipping 

noise increases the ambient noise, and whales may compensate by increasing the 

loudness of their vocalizations, much as we speak more loudly in a cocktail party 

or on the subway. I think that the critical issue for regulation is not whether the 

details of the communication signal changed, but rather whether the communicative 

exchange was disrupted. If the effective range of a mating signal is reduced from 

100 mi to 1 mi in the presence of shipping noise, and if this means that males and 

females cannot get together for mating, that is a serious problem for the population. 

On the other hand, if animals show statistically significant changes in their signals 

in the presence of noise, but these changes are what allows animals to compensate 

for the noise, then this may not automatically qualify as harassment. 

3. The NRC definition of harassment did not include ‘‘sheltering’’. Since 

you were involved with the NRC panel that recommended the proposed 

definition, can you explain why ‘‘sheltering’’ was not included? 

The NRC National Academy of Sciences second report (2000) on Marine Mammals 

and Low Frequency Sound specifically addressed this question: 

The Committee suggests limiting the definition to functional categories of 

activity likely to influence survival or reproduction. Thus, the term ‘‘sheltering’’ that is included in the existing definition is both too vague and 

unmeasurable to be considered with these other functional categories.’’ 

(p. 69) 

4. The NRC definition of harassment did not include ‘‘surfacing’’, which 

is contained in the Administration’s definition. The current MMPA definition contains ‘‘breathing’’. Was there a reason why the NRC did not include 

either of these behaviors? 

Many earlier studies of ‘‘harassment’’ counted blows or timed surfacing of marine 

mammals, testing for statistical significance of differences in control vs disturbed 

settings. This is the classic example where studies need to change to focus on biological significance vs statistical significance. Surfacing and breathing were chosen 

because they were easy to measure, not because the studies could evaluate the funcVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00136 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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tional significance of disruption. Clearly breathing at the surface is a critical behavior. However, any acute effects caused by a disturbance preventing an animal from 

surfacing to breathe should be viewed in terms of injury or lethal take, not just disruption of behavior. I would have to strain to find an example where disruption of 

breathing would have a biologically significant behavioral effect with no physiological injury. On the other hand, animals may modify their surfacing behavior to 

adapt to changing circumstances in ways that may not pose any risk of harm. 

5. The Marine Mammal Commission had some concerns with certain 

words contained in the level B definition of harassment in H.R. 2693, specifically ‘‘care of young, predator avoidance, defense’’ saying that these 

terms are not very precise and without clarification could lead to implementation difficulties and possibly lawsuits. Why did the NRC recommend 

these biological activities and can they be defined? 

The NRC selected these activities precisely because they identify some of the critical behavioral functions that if disrupted would prevent animals from meeting critical goals. The distinguished panel of biologists on the NRC panel challenged the 

term ‘‘sheltering’’ precisely because it was ‘‘too vague and unmeasurable to be considered with these other functional categories.’’ It can be more difficult to give an 

operational description of a functional category than a purely descriptive one, but 

the NRC panel carefully and intentionally made the list a functional one to highlight that this list was closely tied to the concept of biological significance. The 

House committee will simply have to decide whether they consider an expert panel 

of outside experts selected by the National Academy of Sciences to be more or less 

competent than the Marine Mammal Commission in making decisions about scientific precision. 

6. The current definition of level B harassment has ‘‘nursing’’ as a listed 

behavior. However, the NRC recommended ‘‘care of young’’. Why was this 

change recommended? What other activities fall under ‘‘care of young’’ that 

may not be covered under ‘‘nursing’’? 

I consider ‘‘nursing’’ to be imprecise and ambiguous. It could be taken to be restricted to suckling the young, or might more broadly be interpreted as providing 

care to the young in general. The NRC panel chose to be more precise in making 

the definition a broader more functional one. For example, newborn whales cannot 

swim as well as the mother. They often position themselves to take advantage of 

the slipstream of the mother. If a mother’s swimming behavior were disrupted and 

the calf could not keep up with her, then this would be likely more threatening than 

a brief hiatus of suckling. 

7. What are some of the factors Congress should consider when crafting 

a final harassment definition? 

The goal of the definition should be to include any non-lethal effect that might 

pose adverse impacts to marine mammals, while clarifying the exclusion of minor 

effects with negligible impact. The definition must also decide and define what level 

of probability for the effect would trigger regulation. I personally believe that few 

of the problems identified with the definition will be resolved simply by redefinition. 

This definition falls under the prohibition on taking whales, a prohibition that is 

ignored for most takes by most human activities. Problems of cumulative effects of 

lots of ‘‘takes’’ simply cannot be regulated effectively using a prohibition. Congress 

should consider other regulatory mechanisms for dealing with this kind of habitat 

degradation, much as we deal with the effects of small levels of chemical contaminants with humans. We use criminal penalties to deal with poisoning, but regulatory solutions to deal with chronic effects of everyday exposure that might pose 

long term risks. 

8. How do we incorporate the level of current scientific knowledge about 

how marine mammals may be injured and at the same time protect animals 

from injuries we have not yet been able to measure? 

At its most basic, this is a question about the appropriate balance between being 

precautionary and practical. It cannot be answered in black and white. If injury is 

defined as a detrimental physiological change, we can never prove absence of injury. 

Nor can we prohibit all seagoing activities on the basis of an unknown potential to 

injure. 

However this is an academic question, far removed from the urgent needs of conserving whales today. Right now, we know that some populations such as right 

whales of the NW Atlantic are threatened with extinction because they are killed 

by vessel collision. We know exactly how these animals are killed by ships, and we 

know that this level of mortality is likely to make the difference between survival 

and extinction of the right whale. At its most basic, we know that keeping lethal 

ships away from whales can solve the problem, albeit at great cost. Yet NMFS has 

done nothing to regulate shipping to reduce, much less eliminate the risk. 

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In terms of effects of noise, we are at the opposite end of this spectrum. Scientists 

can measure subtle, fully recoverable changes in hearing after noise exposure. We 

humans have these temporary shifts in our ability to hear (TTS) every time we go 

on a loud subway or plane, or go to a rock concert. These subtle changes clearly 

identify levels of sound that could, after repeated exposure, cause more permanent 

injury. As we humans age, these exposures couple with the natural aging process 

so that our hearing sensitivity decreases with age. Yet there has been heated debate 

about whether these painless reversible changes constitute injury itself for marine 

mammals. This kind of sophistry will not protect real marine mammals in the real 

world. The NRC report specifically recommends the following de minimis standard 

for level A acoustic harassment: ‘‘any sound that produces a TTS of 10 dB or less 

in exposure episodes that are separated by non-exposure intervals that are ample 

to allow full recovery (at least 24 hours) does not constitute a major risk to the auditory system of a marine mammal.’’ (NRC 2000; p 68) This is designed as a highly 

conservative scientific standard that is safe in the face of most reasonable uncertainty. 

9. In the definition of Level B harassment, does it make sense to qualify 

the activity (i.e. biologically significant activities, including, but not limited 

to, migration, breeding..) or the effect (biologically significant disruption of 

behaviors) in Level B harassment? Why or why not? 

The NRC qualified both the disruption and the activity: ‘‘meaningful disruption 

of biologically significant activities.’’ I think that the main reason they did not suggest ‘‘biologically significant disruption of biologically significant activities’’ is the 

copy editing motive of not being so repetitive. If one had to choose either the effect 

or the activity, I believe that it makes more sense to qualify the effect, especially 

if the list of activities is chosen to emphasize functional categories selected for their 

inherent biological significance. If the disruption is biologically significant, then 

clearly the activity that was disrupted must also be. On the other hand, it is certainly possible to have trivial disruptions of biologically significant activities. 

10. Which is the more scientifically used term—‘‘biologically significant 

activity’’ or ‘‘biologically significant disruption’’? Should either of these 

terms be defined in H.R. 2693? 

The phrase ‘‘biological significance’’ has been developed by scientists dealing with 

environmental issues, similar to the concept of ‘‘adverse impact’’, or ‘‘injury’’ and 

‘‘disease,’’ in medical science. The main reference book on Marine Mammals and 

Noise has an entire chapter on ‘‘significance of responses and noise impacts.’’ This 

chapter uses the concept of biological significance for the actual disruption response 

rather than for the activity. I personally agree with this usage: if one must choose 

whether to apply ‘‘biological significance’’ to disruption or activity, the best choice 

is to qualify the effect ‘‘biologically significant disruption.’’

It would be extremely useful for the MMPA to define its usage of ‘‘biological significance.’’ In my opinion, the same definition could be applied to both the disruption and the activity. 

Questions from The Honorable Frank Pallone, Jr. 

Definition of harassment: 

1. Over the past year, Congress has been presented with several different 

options to re-define the definition of harassment. A new definition is being 

offered in H.R. 2693. 

• Please compare the definition proposed in H.R. 2693 and discuss 

whether it compares positively or negatively to other proposed definitions. 

The current definition of level B harassment in the MMPA is: 

‘‘has the potential to disturb a marine mammal or marine mammal stock 

in the wild by causing disruption of behavioral patterns, including, but not 

limited to, migration, breathing, nursing, breeding, feeding, or sheltering.’’

The 1994 NRC report on Low Frequency Sound and Marine Mammals succinctly 

reviewed the problem of how harassment has been interpreted under the MMPA: 

Logically, the term harassment would refer to a human action that causes 

an adverse effect on the well-being of an individual animal or (potentially) 

a population of animals. However, ‘‘the term ‘‘harass’’ has been interpreted 

through practice to include any action that results in an observable change 

in the behavior of a marine mammal ‘‘.’’ (Swartz and Hofman, 1991). (p. 27) 

The 1994 NRC report goes on to note that many minor and short-term behavioral 

responses of marine mammals to manmade stimuli are simply part of their normal 

behavioral repertoire. There is clearly a need for some standard of negligible effect, 

below which a change in behavior is not considered harassment. 

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The change in the definition of level B harassment proposed by the Administration and in H.R. 1835 is: 

‘‘disturbs or is likely to disturb a marine mammal or marine mammal stock 

in the wild by causing disruption of natural behavior patterns, including, 

but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.’’

As a biologist who has studied the behavior of marine mammals for more than 

25 years, I find this wording confusing, and I do not see how it addresses the problem identified by the NRC. The last phrase added to the definition does add a criterion of significant alteration. However the point of the NRC reports was biological 

significance, a disruption that could have an adverse impact. My dictionary defines 

significant as ‘‘likely to have influence or effect.’’ The addition of the word ‘‘significant’’ in the new definition therefore does not give the same standard as suggested 

by the NRC. As our techniques to study marine mammals have grown in sophistication and sensitivity, it is now possible to demonstrate statistically significant alerting or orienting responses that in my opinion fall well below the negligible impact 

standard. 

I find the addition of the word ‘‘abandoned’’ particularly confusing in the new definition. It certainly makes sense to add a criterion for abandonment of critical habitat, but what does this wording mean for behavior patterns? A sperm whale or elephant seal can dive for an hour or more, but any marine mammal that abandons 

surfacing behavior cannot breathe. If it abandons surfacing for more than a few 

hours, it is certainly dead. If a sperm whale group is sheltering a young calf from 

a killer whale attack, even a momentary abandonment of the behavior could be lethal. Calves may be able to survive for days or weeks if their mother abandons nursing, and many whales could survive for years without feeding, but what is the time 

period implied by ‘‘abandon.’’ My understanding of ‘‘abandon’’ is that it means a permanent change. By this definition, the ‘‘abandonment’’ wording turns level B harassment into a lethal take. Far from distinguishing negligible from potentially significant effects, it muddies the waters further. 

Another problem with the use of the term ‘‘abandon’’ is that I take it to mean 

‘‘giving up’’—a 100% cessation of an activity. Yet since the definition of harassment 

also applies to stocks, this definition is not conservative enough for actions that may 

affect a large portion of a stock. For example, suppose an activity caused a 50% reduction in foraging rates in a majority of the population, or caused animals to be 

50% as effective in finding a mate for breeding. Such reductions would not ‘‘alter’’ 

the form of the behavior, nor would they meet an abandonment criterion, but few 

populations could sustain such changes on a long term basis. 

I support the definition of harassment proposed for section 3(18)(A) (i) and (ii) in 

section 13 of H.R. 2693. The definition in section (ii) closely follows the NRC definition. The primary difference is the replacement of ‘‘meaningful’’ as a modifier for 

disruption with ‘‘biologically significant’’ and deleting the phrase ‘‘biologically significant’’ from the modifier for the kinds of activities. I believe that this follows closely 

the meaning of the definition written by the NRC committee. 

I am, however, very concerned that the harassment definition proposed for section 

(iii) retains the problematic old harassment definition for activities directed at 

marine mammals, including scientific research directed at marine mammals. While 

there is a process to permit such research, retaining the old definition for activities 

directed at marine mammals will hold scientific research that enhances the survival 

or recovery of species or stocks to a stricter standard than activities that harm 

marine mammals and do not help them. This does not make sense. The only case 

that in my opinion justifies a lower level of regulation involves takes for scientific 

research that enhances the survival or recovery of species or stocks. The proposed 

changes in the definition of harassment for activities directed at marine mammals 

will perversely have the opposite effect. 

NMFS has suggested retaining the old harassment definition for activities directed at marine mammals so that they can more easily prosecute cases against 

businesses such as those that charge tourists to swim with wild dolphins. I believe 

that any of the proposed harassment definitions fit very well these cases where people intentionally pursue marine mammals and annoy them with clear disruption of 

behavioral patterns. It is particularly strange that NMFS suggests retaining the old 

broad definition, when a senior NMFS enforcement attorney stated to the 2002 Annual Meeting of the Marine Mammal Commission ‘‘the potential to disrupt behavioral patterns, at one level, it is a great definition because you go out, you know, 

we can get whatever we want because it is a very broad definition, but when you 

get down to the prosecution level, it is too broad.’’

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The real problem with harassment in my opinion is that NMFS has not shown 

the will to enforce the prohibition against harassment and to prosecute cases 

against growing industries based upon harassing marine mammals in the wild. It 

would be a tragedy for scientific research to be excluded from corrections in the definition of harassment as cover for NMFS’ unwillingness to enforce the prohibition 

against harassment. If the definition of harassment causes problems with prosecution against commercial activities directed at marine mammals, which I contest, 

then the solution should be limited to this narrow situation and should be worded 

so as not to impact research directed at marine mammals. If the problem for NMFS 

is prosecuting cases where commercial enterprises are feeding wild marine mammals or taking customers to swim with them, I suggest that the solution is a ban 

on these activities. Such a ban would serve the interests of protecting the public as 

well as the animals. 

I would like to take this opportunity to reiterate the suggestion of the National 

Academy of Sciences second report (2000) on Marine Mammals and Low Frequency 

Sound on the definition of level B harassment: 

‘‘NMFS should promulgate uniform regulations based on their potential for 

a biologically significant impact on marine mammals. Thus, level B harassment should be redefined as follows: 

Level B—has the potential to disturb a marine mammal or marine mammal stock in the wild by causing meaningful disruption of biologically significant activities, including, but not limited to, migration, breeding, care 

of young, predator avoidance or defense, and feeding. 

The Committee suggests limiting the definition to functional categories of 

activity likely to influence survival or reproduction. Thus, the term ‘‘sheltering’’ that is included in the existing definition is both too vague and 

unmeasurable to be considered with these other functional categories.’’ 

(p. 69) 

This definition was written by scientists. Since ‘‘meaningful disruption’’ is not defined, and since ‘‘biologically significant’’ has a more specific meaning to biologists, 

I have no problem with the minor changes in wording proposed in H.R. 2693 to fit 

legal and legislative requirements. It would be helpful to define ‘‘biological significance’’ in this amendment of the MMPA. 

The definition of harassment must take into account our lack of knowledge about 

the ways in which behavioral changes may influence marine mammals. For example, prolonged or repeated harassment may lead to physiological changes that do not 

qualify as injury, but that may indicate the potential for adverse effects. Prolonged 

changes in behavior that are outside of the normal behavioral repertoire of a species 

may also trigger concern even if the effect on health is not immediately obvious. But 

if the definition of harassment is to be changed, the primary focus should be on biological significance in a way that clarifies the need for a negligible impact standard. 

I do not think that the changes proposed by the Administration, in H.R. 1588 and 

in H.R. 1835 for the definition of harassment succeed in this task, but I support 

the definition of harassment in (18)(A)(ii) of section 13 of H.R. 2963, which closely 

follows that suggested by the National Research Council in any amendments to the 

MMPA. 

2. How will the proposed change to the definition of harassment affect 

scientific research and/or military readiness activities? 

Since the new definition retains the old version for activities directed at marine 

mammals, I do not think it will improve the situation for marine mammal research. 

Both military training and other forms of scientific research that may incidentally 

take marine mammals will have improvements in the definition and in the language 

for authorizing incidental takes. I believe that the modifications in the authorization 

language are much more important than the changes in the definition. 

• Are there specific activities that might fall outside this definition? 

The activities that apply for scientific research permits are directed at marine 

mammals. Therefore the proposed change in the definition of harassment retains 

the problematic old harassment definition for activities directed at marine mammals, including scientific research directed at marine mammals. While there is a 

process to permit such research, retaining the old definition for activities directed 

at marine mammals will hold scientific research that enhances the survival or recovery of species or stocks to a stricter standard than activities that harm marine 

mammals and do not help them. This is perverse. The only case that in my opinion 

justifies a lower level of regulation involves takes for scientific research that enhances the survival or recovery of species or stocks. The proposed changes in the 

definition of harassment for activities directed at marine mammals will have the opposite effect. 

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If NMFS supports this ‘‘directed’’ language to facilitate prosecution against swim 

programs with wild marine mammals etc, then I suggest the inclusion of a prohibition on swimming with or feeding wild marine mammals. This is important to protect both wild animals and also humans. 

3. The definition for Level A (potential to injure) harassment proposed in 

H.R. 2693 requires that an activity have ‘‘the probability to injure’’ a 

marine mammal. It seems to me that this change would require a higher 

burden of proof for a given activity’s likelihood of causing harm. 

• Do you feel that this change would make the definition of harassment 

less protective of marine mammals? 

One could view the suggested initial phrases in the definitions of level A or B harassment as lying on a continuum of probability: 

Potential (>0) more than a remote possibility (>1) significant potential (??) probable, likely (>50%) 

The term ‘‘potential’’ has been interpreted as such a vanishingly small probability 

that I think it is open to abuse. However, this does not mean that one must swing 

all the way to ‘‘probable’’ or ‘‘likely’’ both of which I take to mean >50% chance of 

occurring. 

• Does the word ‘‘probability’’ have a clear and commonly understood 

legal definition? What is the distinction from ‘‘potential?′′

I am not a lawyer, so I cannot answer this personally. However, I can offer this 

advice. The noise issue is very similar to effects of toxic compounds on humans. I 

suggest that the Committee staff research the case law and legislative language for 

toxicology to suggest an appropriate language for the intended level of probability. 

• Would the addition of a modifier that explains the relative probability 

of injury (such as 20%, 50%, 90%) be helpful in clarifying the intent of 

the word ‘‘probability?′′

Absolutely. As a quantitative scientist, I can only look with wonder at all the misunderstandings when words are used to describe numbers. If Congress intends a 

specific level of probability, the only way to prevent misinterpretation is to state the 

number. 

4. The proposed change to the definition of Level B harassment would require that an activity cause a ‘‘biologically significant disruption’’ of activities including, but not limited to, migration, breeding, care of young, predator avoidance, defense, or feeding. In contrast, the definition proposed 

earlier by the NRC would require that an activity cause a ‘‘disruption to 

biologically significant’’ activities. 

• Is this inversion of words important? Why? 

I do not think this is a critical difference. The NRC said ‘‘meaningful disruption 

to biologically significant activities.’’ I think the main reason the NRC did not say 

‘‘biologically significant disruption to biologically significant activities’’ was copy editing. 

5. It seems to me that it would be easier to define a disruption to a biologically significant activity than it would be to determine what constitutes 

a biologically significant disruption to that activity. 

• If this is true, would the proposed change in the definition make it less 

protective of marine mammals? 

The NRC definition qualified both the disruption and the activity. Removing either qualification would make the definition broader and therefore, in principle, 

more protective. However, the point of the NRC definition was to focus regulation 

on ‘‘takes’’ that might pose an adverse impact. There are many minor changes in 

biologically significant activities that would not meet this standard. The main point 

of NRC was that the conservation goals of the act would be better met if uniform 

regulation would target takes with the highest risk of adverse impact. Applying the 

biological significance qualifier to the disruption would achieve this goal better than 

applying it to the activity. 

6. How would the change in the definition of Level B (potential to injure) 

harassment affect scientific permitting? 

Level B involves behavioral harassment not injury, which is level A. If this question refers to potential to injure, then I think that the change from ‘‘potential to 

injure’’ to ‘‘probability to injure’’ would likely reduce the number of activities requiring a permit. My understanding of ‘‘probability to injure’’ means more than a 50:50 

chance of injuring, while ‘‘potential to injure’’ means even a remote chance to injure. 

On the other hand, I doubt any marine mammal scientist conducting research that 

might injure a marine mammal would split hairs and not apply for a permit based 

on the difference between ‘‘potential’’ and ‘‘probability.’’ If an animal is injured in 

the course of the research, the permit would be very important. 

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If the question refers to behavioral disruption, the change in the definition would 

have next to no benefit for scientific permitting. All research on marine mammals 

that is permitted is directed at them. The H.R. 2693 definition retains the problematic definition for directed activities, so retains a higher standard for research directed at protecting marine mammals than activities that incidentally harm them 

with no benefit. This is perverse. 

7. Are there activities, such as ’sheltering’ or ’resting’, that are missing 

from the list of ‘‘migration, breeding, care of young, etc.’’? If so, which behaviors are missing and why are they important to explicitly mention in 

the proposed definition? 

Most definitions of harassment have something of a hodge-podge list of activities, 

which must be why the list is qualified ‘‘including, but not limited to.’’ The NRC 

list was carefully crafted to include all of the major classes of behavior that directly 

impact survival, growth, and reproduction in mammals. I do not believe that any 

critical classes are missing from this list. 

8. Would this revised definition still allow for the consideration of the 

cumulative negative impact on an individual or population of marine 

mammals? 

The definition of harassment comes into play regarding the prohibition of taking 

marine mammals. I cannot see how regulation and enforcement of the prohibition 

on individual acts of taking is the place to deal with cumulative impacts. NEPA 

analyses are the well-tested existing method to deal with cumulative impacts. I believe that adding a requirement for all seafaring activities to consult with NMFS 

to do NEPA analyses would be the best way to address the issue raised by this 

question. 

9. If the consideration of small numbers and geographic area were to be 

eliminated, how would this affect the ability to determine the potential 

negative impact for an activity? 

The critical issue for negative impact is the well established finding of no significant impact. Whether numbers are small or area is specified, is simply not important except to the extent necessary to make a determination about adverse impact. 

To the extent this information is used to determine the potential negative impact, 

it should be required, but it need not be a separate requirement on top of negligible 

impact. 

10. Has NOAA Fisheries or USFWS contemplated regulating truly incidental activities that have little if any direct effect on marine mammals, 

such as boat wakes? 

I am not aware of this. However, NOAA Fisheries clearly regulates scientific research to much higher standards than other activities not designed to benefit 

marine mammals. The majority of NMFS staff working on MMPA issues, regulate 

research, even though this has a tiny impact compared to other human activities. 

Permitting for Scientific Research 

1. Has the permitting process for targeted scientific research on marine 

mammals and oceanographic research that falls into the incidental take 

(Level B) category been sufficiently streamlined as a result of the 1994 

amendments? 

Oceanographic research not on marine mammals is not eligible for scientific research permits. The first NRC report on Low-Frequency Sound and Marine Mammals recommended that research permits be made available to a broader range of 

oceanographic research. 

The 1994 amendments added a streamlined general authorization process for research involving only level B takes to marine mammals that were not endangered. 

My understanding is that this system works well for this limited category. However, 

research on endangered species, which is often the most critical for conservation, 

can be delayed for years. The ironic situation today is the more important the research is for conservation, the more delay in permitting. 

• What additional changes, either legislative or regulatory, are 

necessary? 

One of the simplest and most helpful changes would require NMFS to issue permits within a fixed deadline of 3-4 months. This is compatible with the normal planning and funding cycle for research. In general, both research and the cause of 

marine mammal conservation would best be served by uniform standards for regulating all activities, with regulation and enforcement targeting those situations that 

pose the highest risk of adverse impact. 

• Are there still problems with the permitting process for targeted research on marine mammals that falls into the Level A (probability to 

injure) category? 

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I am not aware of many applications being held up on this ground. Obviously 

every vessel that maneuvers around marine mammals has a potential to injure, so 

there might be potential to harass researchers on those grounds. Luckily it has not 

happened yet. 

2. How do overlapping requirements under the Endangered Species Act 

and NEPA interact with permitting requirements under the MMPA? What 

could be done to further streamline the process or coordinate timetables 

when a proposed project involves a threatened or endangered species? 

ESA species trigger a section 7 consultation. When I have called about delays in 

processing my permit, the personnel from the Permit Division who I deal with often 

state that the permit is delayed in the section 7 office. This office appear impervious 

to the urgency of impending field seasons. It would help if the MMPA specified a 

timetable for this section 7 consultation, and required the permit office to notify the 

applicant when the application was sent to the section 7 division. The applicant 

should have some way to obtain compensation if either the permit division or the 

section 7 section did not meet the statutory deadlines. In my experience, NMFS may 

not decide whether to conduct a NEPA analysis until after receiving comments from 

the Marine Mammal Commission, which is often a month or so after submission at 

the earliest. An EA can take several months, and an EIS a year or more. One way 

to expedite the NEPA paperwork would be to require NMFS to develop background 

NEPA documentation for all research. Then only completely new techniques would 

trigger these delays of a year or more. 

• Would moving the NEPA requirement earlier in the permitting process 

help to expedite the final awarding of a permit? Why or why not? 

Absolutely. Recent court cases have challenged NMFS’ usual reliance on a categorical exclusion from NEPA for research permits. This means that Environmental 

Assessments or Impact Statements will need to be prepared for many if not most 

research permits. EAs typically take several months to complete, and EIS’s often 

take more than a year. Delays of a year or more will kill most research projects. 

Therefore NMFS must develop a proactive strategy to meet NEPA requirements for 

common research methods in advance of permit applications. They need to advise 

scientists developing new methods of the requirement to prepare new NEPA documentation if the method is not covered under existing paperwork. 

• Would conducting programmatic NEPA reviews in various categories of 

frequent permit applications be helpful in eliminating individual NEPA 

requirements on each application? 

Absolutely. I am extremely pleased at Rebecca Lent’s testimony to the committee 

stating that NMFS is planning to conduct programmatic NEPA reviews. Unless 

Congress finds a way to reverse the higher standards applied to research compared 

to activities that do not benefit marine mammals, I believe that this is the only way 

for Congress to protect marine mammal research from the crushing burdens of time 

and money imposed by Federal regulation. This commitment will require considerable funding from Congress, especially in the first few years as NMFS must prepare 

the NEPA documents while continuing to process permits. 

A more ambitious approach to require uniform standards for regulation might 

meet the needs of research without requiring this extra bureaucracy. I think that 

Chairman Pombo was exploring this issue in his questioning at the hearing. Most 

challenges under MMPA now are procedural, so the very act of requesting a permit 

or authorization triggers threats that do not exist for activities that violate the 

MMPA but never ask for permission to ‘‘take.’’ If fisheries, commercial shipping, etc 

were all required to adhere to the same standards as research, I am confident that 

researchers would quickly find themselves with a workable regulatory process. From 

my perspective, uniform standards would also better meet the conservation goals of 

the Act, than the current system of proliferating loopholes. Perhaps the best way 

to achieve this would be to require each seafaring activity or user group to consult 

with NMFS to perform a NEPA analysis of the risks of adverse impact. 

Section 14- Incidental Taking of Marine Mammals 

1. Why does the scientific community seek a general authorization for 

marine mammal research activities, in both the Level A and Level B 

category? 

The 1994 amendments to the MMPA created a general authorization process for 

level B harassment involving non-endangered species. I am not aware that the scientific community has requested that this be broadened to include level A harassment. What I have supported is for a streamlined general authorization be made 

available to any activity that after NEPA analysis has been found to have a negligible impact. 

140

2. Would the language in Sec. 14 (which provides a general authorization 

for incidental take at the discretion of the Secretary) produce the desired 

outcome? Do you feel that it opens an unrestricted loophole for a variety 

of other activities in the ocean that may also cause the incidental taking 

of a marine mammal, such as off shore oil and gas exploration? 

Under the current regime, most of the effort goes into the mechanics of the authorization process, which is so difficult, expensive, and restrictive, that most activities try to avoid it altogether. As long as the new GA is restricted to activities demonstrated to have ‘‘negligible impact,’’ I favor a streamlined process. What is missing 

from section 14 is the necessary requirement for all seagoing activities to consult 

with NMFS under NEPA to assess the broad impacts of their activities. If this were 

added to section 14, this would redirect regulatory effort to the area where it would 

do the most good. Once activities are determined to have negligible impact, in a 

well-defined NEPA process, why not streamline authorization? 

Threats to Marine Mammals: 

1. There seem to be many emerging threats to marine mammals that were 

not considered 25 years ago, when the original act was written. • Do you think it would be helpful for the Marine Mammal Commission 

to report on the magnitude of emerging and existing threats to marine 

mammals? 

There have been more than a dozen such reports. I do not believe that we need 

more workshops on the problem. We require focused efforts to suggest new regulatory mechanisms to protect marine mammals from these more diffuse and pervasive threats, which often can better be viewed as forms of habitat degradation rather than acute ‘‘takes.’’

• Is it practical to believe that we can address these threats, and if so, 

what threats should be priorities for action? 

This might include identifying data gaps, coming up with research plans and evaluating the health of marine mammal stocks in the wild as relates to other environmental parameters. 

Yes. Right now Federal actions stifle research on impacts of human activities on 

marine mammals, and the worse the problem, the more difficult it is to conduct critical research. Each of the three NRC panels on the effects of noise on marine mammals list the same data gaps, and suggest basically the same research. Now what 

is needed is a commitment from Congress to correct the regulatory obstacles, and 

to fund a research program following these suggestions. I strongly urge Congress 

to request similar NRC panels on the impact of chemical contaminants on marine 

mammals, and on the impact of fisheries modifying marine ecosystems to the detriment of marine mammals. Once these panels develop research programs, they 

would likely require similar levels of funding. Prior to crises such as the Steller sea 

lion or northern right whale, great progress could be made with budgets of several 

million dollars per year. After this kind of crisis, costs go up and benefits drop rapidly. One important area for Congress lies in the decision of how to organize the 

research program. I favor an open peer-reviewed process overseen by a review board 

of groups that fund the science and that are concerned about the policy and regulatory priorities. 

• Would such an undertaking be within the scope and purview of the 

MMC? 

The MMC is a small commission with primarily an oversight role. Its primary activity is review, writing letters, and issuing a handful of grants at about $10k 

apiece. It would have to be changed and expanded considerably to take on the role 

of a science funding agency at a level commensurate with the research needs. I believe that it would be more efficient to identify an existing successful program that 

selects and funds science research projects at a level of several million dollars annually. It should also involve larger partnerships on the funding side and on the 

science performer side than is common in marine mammal research today. 

• Has the MMC ever investigated the growing incidence of ship strikes? 

Would the MMC support a mandate to convene a panel to recommend 

steps to reduce ship strikes and report to Congress in 2 years? 

Yes the Commission investigated the ship strike issue and David Laist of the 

Marine Mammal Commission has shown a steadfast involvement in this problem. 

However, this issue has moved well beyond the government panel of experts stage. 

NGOs such as the International Fund for Animal Welfare have consulted with the 

shipping industry in an attempt to find workable solutions. Where Congress could 

help would be to require relevant agencies to take part in this broader search for 

solutions. Obvious Federal agencies include NMFS, the Coast Guard, and any agencies involved in establishing or maintaining shipping channels. These channels repVerDate 0ct 09 2002 16:24 Jan 05, 2004 Jkt 088533 PO 00000 Frm 00144 Fmt 6633 Sfmt 6621 J:\DOCS\88531.TXT HRESOUR1 PsN: KATHY
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resent Federal actions that may direct ships to areas where they may collide with 

whales. It would be worth inquiring whether shipping channels go under NEPA review, and if not, why not. This is an international problem; Congress could help by 

supporting international efforts to resolve this issue, with the IMO and other organizations. • Should there be a similar directed program on ocean noise that would 

be mandated under the MMC or another program such as the National 

Oceanographic Partnership Program? 

The group tasked with running this research program should have demonstrated 

competence with the relevant administrative resources already in place. It makes 

little sense to spend money duplicating administrative overhead, especially for an 

organization without proven abilities to run this kind of research program. As I 

mentioned above, I do not believe the MMC is set up to run a research program 

on ocean noise of the scale suggested by the NRC. By contrast, NOPP routinely runs 

research programs on exactly the scale suggested by NRC. They maintain open peer 

review of proposals, and have a mechanism to involve partners from academia, government agencies, and industry. The one area where it may need slight modification 

is the addition for research so directly relating to policy, of an executive oversight 

board, to ensure that the science is as focused as possible on the critical issues. 

Captive release prohibition: 

H.R. 2693 includes a prohibition on releasing captive marine mammals 

into the wild. 

• Considering the very limited space available to care for stranded 

marine mammals, could such a change create a situation where animals are held in captivity permanently regardless of their health and 

survival? 

No. H.R. 2693 allows release under sections 104 and 109 of the MMPA. There 

have been irresponsible releases, and the few that have been demonstrated to have 

succeeded have involved close follow through from researchers. Release remains an 

experimental approach, best permitted as a research activity. 

• Would this provision affect NOAA Fisheries’ release of the five pilot 

whales that were stranded on April 18, 2003? 

I do not know 

• Does this provision require a U.S. citizen to apply for a NOAA Fisheries 

permit to release a marine mammal in other countries’ EEZ (would this 

apply to Keiko’s release in Norway)? 

NMFS views research activities in territorial waters of other countries as under 

the jurisdiction of other countries. However, my understanding of the CBD vs NSF 

case is that if the vessel came from the U.S. or was funded by US, requirements 

for permitting may extend to the territorial seas of other countries. This is an area 

where Federal courts in some districts may disagree with current NMFS policy, so 

the safe approach would be to apply for the permit. 

Response to questions submitted for the record by Randall S. Wells, 

Conservation Biologist, Chicago Zoological Society, and Director, Center 

for Marine Mammal and Sea Turtle Research, Mote Marine Laboratory 

Questions submitted by The Honorable Wayne Gilchrest 

1) Do you think marine mammals immune systems are affected by human 

activities? If so, which activities would cause such a reaction? 

Yes. Research is underway to investigate relationships between human activities 

and marine mammal immune system function. I am not an immunologist, but several work in collaboration with my long-term bottlenose dolphin research program 

in Sarasota Bay, Florida. Preliminary findings indicate that declines in dolphin immune system function are correlated with elevated concentrations of some environmental contaminants, such as PCB’s and DDT and its metabolites. This finding is 

consistent with those from studies of effects of these man-made chemicals on terrestrial mammals. 

2) Is it possible to determine if a marine mammal is having 

immunological effects from an activity by observing the animal? 

To the best of my knowledge, the identification and measurement of 

immunological effects requires collection of samples from the animal, especially 

blood samples. Marine mammals such as dolphins are very adept at hiding health 

problems until they become severe—an ability that is very useful if you do not wish 

to appear vulnerable to a potential predator. While at some point in the course of 

condition development it may become possible to determine from observations that 

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a marine mammal is ill, the specific root of that illness (immunological vs. some 

other cause) would likely have to be determined through veterinary examination 

and sampling. 

3) Can you determine such effects by taking a blood or biopsy sample 

from the animal? How would taking a sample from an already 

immunologically affected animal impact the animal? Would it cause any 

additional harm? If so, how can we properly address this issue? 

Small blood samples can be used in a variety of tests to evaluate immune system 

function. The collection of blood from small cetaceans (from a vessel in the tail 

flukes) is a relatively simple and straight-forward process that should have minimal 

impact on the animal. The potential impacts from the capture process itself would 

depend on the species and the animal’s condition. Some species, such as bottlenose 

dolphins, can typically handle such activities with few if any problems, while other 

dolphin and porpoise species are more highly-strung and do not respond as well to 

the capture process. As an individual’s condition worsens, it should be expected to 

be less tolerant of any stress that might be associated with capture. Thus, selecting 

relatively hardy species for evaluation of effects of activities/pollution on immune 

system function would be a reasonable approach—balancing minimizing risk with 

the ability to detect indications of immunological effects. 

4) You mention reauthorizing funds for the Prescott Marine Mammal Rescue Assistance Grant Program. Have you received grants under this program? If so, have you had any difficulties in receiving the funds? Has the 

agency been helpful to you in the grant process? 

I have not personally received any grants through this program, but in my role 

as Director of Mote Marine Laboratory’s Center for Marine Mammal and Sea Turtle 

Research, I oversee scientists who have received such grants. They have experienced 

no problems in receiving the funds, and have found the agency to be helpful in the 

process. This program has been much-appreciated by the members of the stranding 

response network that has been established around the country. This is a volunteer 

network, with most of the resources provided by the members themselves. Stranding 

response can be a very expensive operation—federal support through the Prescott 

Program has been most welcome. 

5) There are a number of different behavioral terms recommended by the 

NRC, environmental groups, and the Administration for a revised definition of level B harassment. Here is a list of terms used: ‘‘breathing’’ or ‘‘surfacing’’; ‘‘feeding’’ or ‘‘foraging’’; ‘‘communication’’; ‘‘migration’’; ‘‘breeding’’; 

‘‘nursing’’ or ‘‘care of young’’; ‘‘predator avoidance’’ or ‘‘defense’’; and ‘‘sheltering’’. Can you give us your opinion on what terms are biologically significant and should be used in a revised definition of level B harassment 

to more appropriately address those activities that cause more than a 

minor disturbance? 

Most of these terms identify significant activities in an animal’s life. The relative 

importance of some of the terms may vary from species to species (for example, a 

pinniped or otter on a beach is not concerned with surfacing). A swimming and diving marine mammal must breathe, and in order to do this it must surface. Either 

foraging or feeding can be an inclusive term that summarizes the process of searching for, capturing, handling, and consuming prey—each component is integral to the 

animal meeting its energetic requirements. Of the two, foraging might be considered 

the broader term, whereas feeding often is considered in the narrower context of ingesting food. Communication is very important among many of the cetaceans, and 

can be crucial to coordination of groups. The importance of communication to 

pinnipeds, sea otters, or manatees, for example, outside of breeding or rearing contexts is less the clear. Some marine mammals migrate, while others do not. For migratory species, successful completion of the migration can be crucial to survival. 

Some of these species are pushing energetic limits (i.e., they do not feed again until 

they complete the return migration, or they need to move ahead of temperature 

changes) such that disruptions to their normal migration may drain resources to the 

point of compromising the animals. Breeding is absolutely necessary to continue the 

species. Nursing is one aspect of care of young, reflecting simply the nutritional requirements. Caring for young involves more than simply providing milk for many 

species. Maternal care includes protecting them from predators and other members 

of the same species in some cases, and teaching them what it will take to survive 

as an independent individual. For some species of dolphins, calves will remain in 

their mothers’ care for 3-6 years or more. With regards to activities relative to predators, there are several biologically important components. Predators must first be 

detected, which can be done acoustically (active or passive) or visually, depending 

on the habitat and the nature of the predator. The most common marine mammal 

predators are large sharks, killer whales, or polar bears. If a predator is detected, 

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most marine mammals’ first response is to try to avoid the predator. In some cases, 

an active defense might be mounted, but this depends on the relative size and numbers of predators and marine mammals, and the nature of the habitat and predator. 

I have never used the term ‘‘sheltering’’ and therefore can not comment on the original intent of the term, nor its importance for inclusion in the definition. 

6) It has been suggested by some scientists that in order to get a better 

understanding of the hearing ranges of marine mammals rarely seen by 

man, that a hearing device similar to those used to test the hearing in 

newborns should be used on stranded marine mammals. What are your 

thoughts on this? Is this technology currently being used on stranded 

marine mammals? Has it been successful in gaging the hearing range of 

stranded animals? Have there been any problems using this technology, either with the animals or getting permits to use the device? 

Given the increasing concerns about the effects of anthropogenic sounds on 

marine mammals, it is crucial that hard data be gathered on the hearing 

capabilities of the animals, and how these capabilities may have changed as a result 

of human activities. Stranded individuals provide some of our only access to marine 

mammals that inhabit deep, offshore waters. It should be stressed that acoustic impacts are not just limited to marine mammals rarely seen by man. More common 

coastal species, such as bottlenose dolphins, are also subject to much anthropogenic 

sound, through boat traffic, coastal construction, and industrial activities. While 

some of the deep-water species may face more acute trauma from sound (such as 

military sonars or seismic exploration), the more subtle but chronic impacts on 

coastal species must also be considered. In both cases, data on hearing capabilities 

are needed, and non-invasive techniques are available to obtain the necessary data. 

I have been working with colleagues from the University of South Florida to evaluate wild bottlenose dolphin hearing capabilities through measurements of auditory 

brainstem response (ABR). This is, I believe, the technology to which you are referring. The process involves placing 3 suction-cup-mounted electrodes on the head and 

body of a dolphin (in our case, the dolphin is resting on a foam pad on our veterinary examination boat), and then playing back a range of sounds through another 

small suction cup, recording the ABR on an attached computer. The entire process 

takes about 5-10 minutes, and there have been no adverse effects on the dolphins. 

I do not know if this technique has been used on stranded marine mammals, but 

I can think of no reason why it should not. There is no risk to the individual, and 

there is great potential for gathering information of benefit to entire populations. 

We encountered no difficulties in modifying our Level A permit to include this procedure for wild bottlenose dolphins. 

Questions submitted by The Honorable Frank Pallone, Jr. 

Definition of harassment: 

1. Over the past year, Congress has been presented with several different 

options to redefine the definition of harassment. A new definition is being 

offered in H.R. 2693. 

• Please compare the definition proposed in H.R. 2693 and discuss 

whether it compares positively or negatively to other proposed definitions. 

In general, I consider the definition proposed under H.R. 2693 to be reasonable, 

and a significant improvement over the current definition in the Act. It is a simplified, more direct definition that, with slight modifications, should greatly facilitate interpretation and enforcement. I would suggest clarifying (i) by changing it to: 

‘‘(i) injures or has the potential to injure a marine mammal or marine mammal 

stock in the wild;’’ The phrase ‘‘has the probability’’ is essentially meaningless. All 

actions have a probability for an effect, some low, some high. If an activity has been 

demonstrated to cause injury to marine mammals, or if such a demonstration is 

lacking but the activity includes components that clearly could injure a marine 

mammal, and it is likely (more than 50% probability) that marine mammals will 

be exposed to this activity, then it should be considered as Level A harassment. 

2. How will the proposed change to the definition of harassment affect 

scientific research and/or military readiness activities? 

• Are there specific activities that might fall outside this definition? 

The effectiveness of the Act is directly related to its inclusivity. As proposed in 

H.R. 2693, the definition of Level A harassment would seem to provide opportunities for exemptions of some activities that should be of concern, but for which insufficient evidence is available to demonstrate a ‘‘probability to injure.’’ Though I am 

not a legal expert, the proposed definition (with my modifications) should cover most 

eventualities of concern. 

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3. The definition for Level A (potential to injure) harassment proposed in 

H.R. 2693 requires that an activity have ‘‘the probability to injure’’ a 

marine mammal. It seems to me that this change would require a higher 

burden of proof for a given activity’s likelihood of causing harm. • Do you feel that this change would make the definition of harassment 

less protective of marine mammals? 

Yes, I agree that the proposed wording in H.R. 2693 would be less protective, as 

it would seem to allow activities that have not yet been demonstrated to cause 

harm, and for which insufficient data are available to demonstrate a likelihood that 

harm would occur. The precautionary principle should be applied, providing protection for the animals until such time as sufficient information is available to make 

an informed decision relative to risks. • Does the word ‘‘probability’’ have a clear and commonly understood 

legal definition? ’What is the distinction from ‘‘potential?′′ I am not a legal expert, but it seems to me that the phrase ‘‘has the probability’’ 

is essentially meaningless. All actions have a probability for an effect, some low, 

some high. Without a quantitative modifier, the term is no more clear than ‘‘potential,’’ which appears to be used in a sense of indicating the existence of a possibility 

that an impact could occur. • Would the addition of a modifier that explains the relative probability 

of injury (such as 20%, 50%, 90%) be helpful in clarifying the intent of 

the word ‘‘probability?’’

The inclusion of a quantitative modifier would help to clarify the meaning of 

‘‘probability’’—leading to useful distinctions between a possibility (any probability) 

vs. a likelihood (more than 50% probability). There would need to be further clarifications of how such probabilities should be measured and expressed. For example, 

how would the probability of injury be calculated for an activity that was very likely 

to injure a marine mammal if it occurred within 100 meters of an animal, but the 

activity is unlikely to take place within such close range? What would happen in 

the case of an activity that had never been used with marine mammals (so no information is available on the likelihood of injury that would allow quantification of a 

probability), but which will definitely occur in close proximity to marine mammals? 

Would the percent probability refer to injury to any individual? I would prefer to 

return to more basic language, such as: ‘‘(i) injures or has the potential to injure 

a marine mammal or marine mammal stock in the wild;’’ This language is more in 

accordance with the precautionary principle, and presumably would place the burden on those desiring to conduct an activity to collect the data demonstrating the 

level of risk, before exposing the animals to the activity. 

4. The proposed change to the definition of Level B harassment would require that an activity cause a ‘‘biologically significant disruption’’ of activities including, but not limited to, migration, breeding, care of young, predator avoidance, defense, or feeding. In contrast, the definition proposed 

earlier by the NRC would require that an activity cause a ‘‘disruption to 

biologically significant’’ activities. 

• Is this inversion of words important? Why? 

The NRC definition is much more in concordance with the precautionary principle. It appears to presume that any disruption to a biologically significant activity 

is of concern. This definition is fairly straight-forward for enforcement action in 

terms of defining harassment as any demonstrable disruption of normal activities. 

The proposed definition in H.R. 2693 would require clear definitions of what constituted ‘‘biologically significant’’ disruption before enforcement action could be 

taken. This is a less conservative approach, providing reduced protection for the animals. 

5. It seems to me that it would be easier to define a disruption to a biologically significant activity than it would be to determine what constitutes 

a biologically significant disruption to that activity. 

• If this is true, would the proposed change in the definition make it less 

protective of marine mammals? 

As I indicated in response to the previous question, I agree. The proposed change 

in H.R. 2693 would make the Act less protective. 

6. How would the change in the definition of Level B (I assume you mean 

Level A?) (potential to injure) harassment affect scientific permitting? 

I do not foresee any major changes to the permitting process for scientific activities with the potential for injury. 

7. Are there activities, such as ’sheltering’ or ’resting’, that are missing 

from the list of ‘‘migration, breeding, care of young, etc.’’? If so, which behaviors are missing and why are they important to explicitly mention in 

the proposed definition? 

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Marine mammals engage in a wide variety of activities, and engage in them in 

a continuous string that forms their daily lives. It would be very difficult to identify 

the relative importance of different activities, because the behavioral patterns that 

we see are the result of millions of years of evolution—each behavioral component 

is an integral part of the whole of the animals’ activity patterns that are required 

for survival and continuity of the populations. While some activities are easy to 

identify, others are less conducive to definition. Thus, keeping the list open-ended 

is important. I would suggest adding several terms, because they can be clearly 

identified: 

Resting—Resting is important to all mammals, to recover from activity. Many 

marine mammals rest in places where they are exposed to human activities, so protection during this important period may be necessary. 

Socializing—Many marine mammals are very social, and periods of intense social 

activity (not just breeding) are important for the development and strengthening of 

social bonds and coordination of activities (development and refining of the relationships that are needed to facilitate coordinated feeding, for example, on fish schools). 

In some species, socializing is a regular component of the daily activity cycle. This 

period often includes many activities that are very visible, such as leaping and other 

aerial behavior. These behaviors attract people, and therefore may lead to the need 

to protect the animals during this activity state. 

Communicating—Communication is crucial for all marine mammals, whether it 

be limited to breeding and calf rearing, or whether it includes complex communication among members of large groups of the more social species. The acoustic mode 

is the primary communication means in the aquatic environment, and human activities can mask important components of acoustic communication. 

Traveling—Many marine mammals move through daily ranges. These daily movements should be considered separately from longer-distance migrations, but they are 

equally important as they get the animals between different habitats where different activities occur. 

Foraging—I would add this to feeding, as it includes the stages of searching for 

prey, capturing prey, and handling prey, leading up to ingestion—the actual act of 

feeding. 

8. Would this revised definition still allow for the consideration of the 

cumulative negative impact on an individual or population of marine 

mammals? 

It is not clear to me how the revised definition considers cumulative effects. Explicit consideration of cumulative effects would be an important advance in protection of the animals. 

9. If the consideration of small numbers and geographic area were to be 

eliminated, how would this affect the ability to determine the potential 

negative impact for an activity? 

Most marine mammal stocks are defined at least in part by geographical criteria. 

It is crucial for stock assessments and evaluation of potential Biological Removals 

that takes be able to be assigned to specific stocks. It seems that elimination of consideration of geographic area would unnecessarily complicate this process. 

10. Has NOAA Fisheries or USFWS contemplated regulating truly incidental activities that have little if any direct effect on marine mammals, 

such as boat wakes? 

I do not feel that I can speak to the contemplations of the agencies. 

Permitting for Scientific Research: 

1. Has the permitting process for targeted scientific research on marine 

mammals and oceanographic research that falls into the incidental take 

(Level B) category been sufficiently streamlined as a result of the 1994 

amendments? 

• What additional changes, either legislative or regulatory, are 

necessary? 

I have not encountered any problems with obtaining scientific research permits/

authorizations for Level B activities since 1994. The idea that researchers must put 

the time and effort into applying for authorization to do what in some cases members of the general public do without any such authorization is sometimes frustrating, especially when the researchers likely are more aware of, and more sensitive to, the needs of the animals than are most members of the public. 

• Are there still problems with the permitting process for targeted research on marine mammals that falls into the Level A (probability to 

injure) category? 

I have not encountered any problems with obtaining scientific research permits/

authorizations for Level A activities since 1994. 

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2. How do overlapping requirements under the Endangered Species Act 

and NEPA interact with permitting requirements under the MMPA? What 

could be done to further streamline the process or coordinate timetables 

when a proposed project involves a threatened or endangered species? 

• Would moving the NEPA requirement earlier in the permitting process 

help to expedite the final awarding of a permit? Why or why not? 

I have no first-hand experience with the NEPA process, and therefore do not feel 

that I can comment meaningfully on this. 

• Would conducting programmatic NEPA reviews in various categories of 

frequent permit applications be helpful in eliminating individual NEPA 

requirements on each application? 

This would seem to make sense, but again, I have no first-hand experience with 

the NEPA process, and therefore do not feel that I can comment meaningfully on 

this. 

Section 14 -- Incidental Taking of Marine Mammals: 

1. Why does the scientific community seek a general authorization for 

marine mammal research activities, in both the Level A and Level B 

category? 

I am not familiar with the specific origin of this effort, but my best guess would 

be that this is an effort to streamline the process of seeking authorization for generic activities, rather than considering separately a number of requests by individual researchers to conduct similar research. In theory, this would reduce the 

workload of the agency, and would allow researchers to better predict the probability of implementing a research project on time. 

2. Would the language in Sec. 14 (which provides a general authorization 

for incidental take at the discretion of the Secretary) produce the desired 

outcome? Do you feel that it opens an unrestricted loophole for a variety 

of other activities in the ocean that may also cause the incidental taking 

of a marine mammal, such as off shore oil and gas exploration? 

This clause has the potential to meet the presumed need, but it does raise concerns about providing loopholes for a variety of activities that could be authorized 

at the discretion o the Secretary. The key to the effectiveness of this clause is in 

how it will be determined that the generic activity ‘‘will have a negligible impact 

on such species or stock.’’ If the initial process of permitting the generic activity is 

one that follows the lines of permit reviews, with public comment, then this may 

work. If it is simply at the discretion of the Secretary, then it does not provide appropriate or adequate safeguards for the animals. 

Threats to Marine Mammals: 

There seem to be many emerging threats to marine mammals that were 

not considered 25 years ago, when the original act was written. 

• Do you think it would be helpful for the Marine Mammal Commission 

to report on the magnitude of emerging and existing threats to marine 

mammals? 

I understand that this is in progress. The Marine Mammal Commission just sponsored a workshop in Portland, Oregon, on future directions in marine mammal research. The workshop was intended to identify threats to the animals and the research needed to address these issues. 

• Is it practical to believe that we can address these threats, and if so, 

what threats should be priorities for action? 

It is essential to marine mammal conservation that we address these threats. 

Though many of the threats may appear at this time to be of a scope or nature as 

to be impractical to address, or incapable of being mitigated, we should not be deterred in our efforts to begin to address them. When the Marine Mammal Protection 

Act was first implemented, the ideas that commercial whaling could be fully controlled, or fisheries could be managed to reduce marine mammal takes without complete closures likely also seemed impractical. We have made much progress in 30+ 

years under the Act, and these advances have come through the dedicated efforts 

of a number of bright, capable, and creative minds. If these same kinds of resources 

are directed toward the emerging issues, then we will likely find workable solutions. 

The threats that should receive immediate attention include: 

1. Environmental contaminants—including existing and emerging contaminants 

of concern to marine mammal health and reproduction (such as persistent organic pollutants, heavy metals, pathogens). Information is needed on the effects of specific contaminants relative to specific concentrations. Parallel efforts 

are needed to assess the risks to specific stocks of marine mammals, and identifying mitigation measures. 

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2. Anthropogenic sounds in the environment—including military, scientific, and 

industrial acoustic activities, industrial noise, shipping noise, boat traffic, and 

marine construction. 

3. Vessel traffic—as it relates to collisions with marine mammals and disturbance. 

4. Habitat loss and/or degradation. 

5. Recreational fishing activities. 

6. Human interactions with wild marine mammals, including feeding and swimming with them. 

A parallel effort needs to be undertaken to determine the best method to integrate 

risks from these emerging threats with consideration of fishery takes through the 

Potential Biological Removal process, to arrive at more complete and meaningful 

stock assessments. Work will need to be done to begin to identify cumulative, longterm effects of some of these threats. 

This might include identifying data gaps, coming up with research plans and evaluating the health of marine mammal stocks in the wild as relates to other environmental parameters. 

• Would such an undertaking be within the scope and purview of the 

MMC? 

The Marine Mammal Commission (MMC) is an oversight agency, without the resources or personnel to engage in large-scale research or conservation action. It 

would seem more reasonable to task NOAA Fisheries and the U.S. Fish and Wildlife 

Service with these responsibilities, with MMC oversight. 

• Has the MMC ever investigated the growing incidence of ship strikes? 

Would the MMC support a mandate to convene a panel to recommend 

steps to reduce ship strikes and report to Congress in 2 years? 

The MMC has a long-standing interest in the ship strike issue and MMC staff 

members have been involved in scientific publications and other efforts to address 

this problem, especially as it relates to the endangered Northern Right Whale. 

• Should there be a similar directed program on ocean noise that would 

be mandated under the MMC or another program such as the National 

Oceanographic Partnership Program? 

I understand that the MMC is currently funded to hold a series of workshops on 

ocean noise. The specific topics of the workshops are currently under consideration, 

but will likely cover a wide range of issues, including the acute trauma to deep-diving marine mammals exposed to military sonar and seismic exploration, as well as 

the more subtle, but chronic, and perhaps more serious effects of noise on coastal 

species of marine mammals. 

Captive release prohibition: 

H.R. 2693 includes a prohibition on releasing captive marine mammals 

into the wild. 

• Considering the very limited space available to care for stranded 

marine mammals, could such a change create a situation where animals are he1d in captivity permanently regardless of their health and 

survival? 

The proposed language allows for release of captive marine mammals under a scientific research permit. In the past, this process has sometimes been followed voluntarily, but in other cases marine mammals have been released without such authorization, with near-tragic consequences. My understanding is that this language has 

been developed to provide more control over future releases to ensure the welfare 

of the release candidates and potential host populations, and to increase the probability of obtaining high quality data from releases that can inform future efforts. 

My understanding is also that this prohibition does not refer to stranded marine 

mammals. Determination of the releasability of stranded marine mammals undergoing rehabilitation is based on criteria established in a set of release guidelines 

prepared by NOAA Fisheries and the U.S. Fish and Wildlife Service. There should 

not be any impact on rehabilitation facilities. Accepted practice for rehabilitation of 

marine mammals is to care for them in isolation from captive marine mammals, in 

order to minimize the potential for transfer of disease. Thus, stranded and captive 

marine mammals should be maintained in separate pools and enclosures, with separate life support systems, and ideally separate staff caring for them. 

• Would this provision affect NOAA Fisheries’ release of the five pilot 

whales that were stranded on April 18, 2003? 

I do not believe that this provision would have affected the release of the five 

stranded pilot whales, as they were not considered captives. 

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• Does this provision require a U.S. citizen to apply for a NOAA Fisheries 

permit to release a marine mammal in other countries’ EEZ (would this 

apply to Keiko’s release in Norway)? 

I would defer to legal experts for interpretation relative to this question. I would 

like to see such a requirement in order to provide greater assurance that releases 

are conducted in the most humane manner, optimizing the potential for gaining information. 

Response to questions submitted for the record by Peter F. Worcester, 

Ph.D., Research Oceanographer, Scripps Institution of Oceanography, 

University of California, San Diego 

Questions submitted by The Honorable Wayne T. Gilchrest, Chairman, 

Subcommittee on Fisheries Conservation, Wildlife and Oceans 

1. There have been comments made that with a revised definition of harassment, which would create a de minimis standard, a general authorization under section 101(a)(5) is not necessary? What are your thoughts on 

this? 

I believe that adoption of a revised definition of harassment that focuses regulatory efforts on the biologically significant disruption of behaviors critical to survival and reproduction, i.e., on adverse impacts rather than simply on any detectable change in behavior, is the single most important change needed in the Marine 

Mammal Protection Act (MMPA). 

Nonetheless, I feel that it would still be very useful to include provision for a general authorization in the MMPA. The problem is that oceanographers and other 

marine operators routinely use underwater sound for a wide variety of important 

purposes. Even with a revised definition of harassment, the MMPA would not provide explicit guidance to govern its application to instrumentation that is in widespread and on-going use. Without a general authorization it is conceivable that it 

might be necessary to prepare Environmental Assessments for a large fraction of 

oceanographic research cruises, for example, even if the ultimate conclusions were 

that the activities would not result in harassment under a revised definition. There 

is also no mechanism under the MMPA for allowing for on-going activities that 

might have biologically significant effects on only a small fraction of a population, 

other than through exemptions that must be applied for on a case-by-case basis. It 

is possible that there are activities that might cause the biologically significant disruption of behaviors critical to survival and reproduction for such a small fraction 

of the population that these activities would have a negligible impact on the affected 

species and stocks. It would therefore be helpful to modify the act to provide for the 

issuance of general authorizations allowing for the use of instrumentation that has 

the potential for taking by harassment in situations in which the taking will be unintentional and will have a negligible impact on the affected species and stocks. 

2. Your research focuses on how sound travels through water at different 

water temperatures. When a sound is made and it travels through the 

ocean, does it travel throughout the water column or only through certain 

portions? Do different sounds travel in similar ways through the ocean? 

For instance, we hear a lot about sonar in the ocean and there is a perception that the sound as it travels through the ocean is at the same sound 

level as when it first was emitted from its source. Is this true? 

Sound in the ocean initially spreads out in all directions from a source (except 

for special cases in which the source is specifically designed to transmit in only certain directions). As the sound travels to long ranges in deep water, however, it is 

affected by the ocean sound channel. In the ocean the lowest sound speed typically 

occurs at depths of 800 to 1000 m, with faster sound speeds above and below this 

depth. Sound tends to be focused near the sound speed minimum because sound 

waves are continually bent, or refracted, towards the depth with the lowest sound 

speed. Sound that travels upward from a source at the sound speed minimum is 

bent back towards the minimum. Similarly, sound that travels down from the source 

is bent back up toward the minimum. The result is that sound can travel long distances, cycling above and below the sound speed minimum without hitting the 

seafloor or ocean surface. The sound therefore travels throughout the water column. 

Sound tends to be loudest near the depth of the sound speed minimum for a source 

located near the minimum, however. 

Different sounds spread out from a source in the same way. Sounds of different 

frequencies are absorbed at very different rates, however. High frequency sounds 

are absorbed much more rapidly than low frequency sounds. This means that, under 

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the same conditions, a high frequency sound will not travel as far as a low frequency sound. 

The combination of spreading and absorption mean that sound rapidly gets weaker as it travels away from a source in the ocean. This effect is of course familiar 

from every day experience, in which sounds in air become weaker the further one 

is from the source. The magnitude of the effect can be surprising, however. For the 

situation in which sound spreads uniformly in all directions from a source, the 

sound intensity100 m (328 feet) distant from the source is only 1/10,000 of the 

sound intensity one meter from the source, for example. 

Many of these questions are addressed more fully at a new web site, entitled ‘‘Discovery of Sound in the Sea (DOSITS),’’ which is located at http://omp.gso.uri.edu/

dosits/dosits.htm. The web site has a section on the Science of Sound in the Sea, 

which includes discussions of why sound gets weaker as it moves and of how sound 

travels long distances in the ocean. 

3. You encountered delays in getting your permit issued. Were these 

delays due to MMPA requirements or National Environmental Policy Act 

requirements? 

The rule-making process required to obtain a Letter of Authorization (LOA) under 

the MMPA involves the complex interplay of National Environmental Policy Act 

(NEPA), MMPA, and Endangered Species Act (ESA) requirements. NEPA documents, including the Draft and Final Environmental Impact Statements, are needed 

at various points in the MMPA rule-making process, for example. A Section 7 consultation under the ESA, involving a Biological Assessment and a Biological Opinion, is needed before the MMPA rule-making process can be completed. It is therefore difficult to assign the delays as due specifically to NEPA, MMPA, or ESA requirements. It would clearly help in any event to have a revised definition of harassment that focuses regulatory efforts on the biologically significant disruption of behaviors critical to survival and reproduction, i.e., on adverse impacts rather than 

simply on any detectable change in behavior. 

4. The bill has language to create a general authorization process for section 101(a)(5), which allows the Secretary to issue authorizations for incidental takings of marine mammals. Some provisions will need to be added 

to this language to clarify a time limit, reporting, monitoring and require 

a description of the activity to be authorized. Can you make any recommendations for a time limit, reporting, and monitoring requirements? 

My principal concern with the language creating a general authorization process 

is that I believe it is unrealistic to expect that NOAA Fisheries could issue a general 

authorization and implementing regulations within 120 days after the enactment of 

the amendments. The issues involved in the impact of undersea sound on marine 

mammals are complex, and considerable care and effort will be required to ensure 

that the activities allowed under the general authorization will have a negligible impact on the species or stock. A one-year deadline for issuing a general authorization 

and the associated implementing regulations might be more realistic. 

It is, of course, essential that the general authorization process be clearly defined. 

I am afraid that I do not feel that I can provide useful guidance here. It might well 

be valuable to obtain some input from NOAA Fisheries, as they must deal with the 

permitting process on a daily basis. 

Questions submitted by The Honorable Frank Pallone, Jr. 

Definition of harassment 

1. Over the past year, Congress has been presented with several different 

options to re-define the definition of harassment. A new definition is being 

offered in H.R. 2693. • Please compare the definition proposed in H.R. 2693 and discuss 

whether it compares positively or negatively to other proposed definitions. 

The appropriate definition for Level B harassment has been discussed in three recent National Research Council reports: 

National Research Council (NRC). 1994. Low-Frequency Sound and 

Marine Mammals: Current Knowledge and Research Needs. National Academy Press, Washington, D.C. 

National Research Council (NRC). 2000. Marine Mammals and LowFrequency Sound: Progress Since 1994. National Academy Press, Washington, D.C. 

National Research Council (NRC). 2003. Ocean Noise and Marine 

Mammals. National Academy Press, Washington, D.C. 

All three NRC committees are in agreement that it ‘‘does not make sense to regulate minor changes in behavior having no adverse impact; rather, regulations must 

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focus on significant disruption of behaviors critical to survival and reproduction’’ 

(NRC, 2000). In my mind the starting point for any discussion of an appropriate definition for Level B harassment is therefore that offered by NRC (2000): 

‘‘Level B has the potential to disturb a marine mammal or marine mammal 

stock in the wild by causing meaningful disruption of biologically significant 

activities, including, but not limited to, migration, breeding, care of young, 

predator avoidance or defense, and feeding.’’

The definition of Level B harassment contained in H.R. 2693 is: 

‘‘(A) The term ‘‘harassment’’ means any act that—

(i) has the probability to injure a marine mammal or marine mammal 

stock in the wild; 

(ii) has the potential to disturb a marine mammal or marine mammal 

stock in the wild by causing biologically significant disruption of activities, 

including, but not limited to, migration, breeding, care of young, predator 

avoidance, defense, or feeding; or 

(iii) is directed toward a specific individual, group, or stock of marine 

mammals in the wild and is likely to impact the individual, group, or stock 

of marine mammals by disrupting behavior, including, but not limited to, 

migration, breeding, care of young, predator avoidance, defense, or feeding. 

(B) The term ‘‘Level A harassment’’ means harassment described in subparagraph 

(A)(i). 

(C) The term ‘‘Level B harassment’’ means harassment described in subparagraph 

(A) (ii) or (iii).’’

Subparagraph (A) (ii) is very close to the NRC definition. One difference is that 

H.R. 2693 replaces the phrase ‘‘meaningful disruption’’ with ‘‘biologically significant 

disruption,’’ making somewhat clearer the sense in which the disruption must be 

‘‘meaningful.’’ A second difference is that H.R. 2693 replaces the phrase ‘‘biologically 

significant activities’’ with ‘‘activities,’’ presumably because it is implicit that the activities must be biologically significant if the disruption is to be biologically significant. In my view the two definitions are consistent, although the H.R. 2693 definition is perhaps somewhat less ambiguous. 

My personal preference for the definition of Level B harassment would be to combine the two definitions: 

‘‘(ii) is likely to disturb a marine mammal or marine mammal stock in 

the wild by causing biologically significant disruption of biologically important activities, including, but not limited to, migration, breeding, care of 

young, predator avoidance, defense, or feeding.’’

The use of the word ‘‘biologically’’ may seem somewhat repetitive, but the result 

is unambiguous. 

Of more concern to me is Subparagraph (A) (iii) in H.R. 2693. The reason for this 

is that subparagraph (A) (iii) retains the existing standard for harassment for activities ‘‘directed toward a specific individual, group, or stock of marine mammals...’’ 

The existing standard has been interpreted to mean that any detectable change in 

behavior constitutes harassment. Ironically, this standard would presumably apply 

to marine mammal research, which would then be regulated more stringently than 

other activities, including other oceanographic research. I recommend that Subparagraph (A) (iii) be deleted. If the goal is to regulate activities directed toward specific 

individuals or groups of marine mammals, such as whale watching and swimming 

with dolphins, the act should explicitly provide for this, rather than defining harassment in a way that would place marine mammal research, whale watching, and 

swimming with dolphins in the same category. 

2. How will the proposed change to the definition of harassment affect 

scientific research and/or military readiness activities? 

• Are there specific activities that might fall outside this definition? 

I believe that the revised definition of Level B harassment proposed in H.R. 2693 

would facilitate the constructive use of sound in the sea, focus regulatory efforts on 

activities that have biologically significant impacts on marine mammals, and make 

it easier to do important oceanographic research, while continuing to protect marine 

mammals. If Subparagraph (A) (iii) were deleted, it would also make if easier to do 

the research needed to improve our understanding of the impacts of underwater 

sound on marine life. 

3. The definition for Level A (potential to injure) harassment proposed in 

H.R. 2693 requires that an activity have ‘‘the probability to injure’’ a 

marine mammal. It seems to me that this change would require a higher 

burden of proof for a given activity’s likelihood of causing harm. 

• Do you feel that this change would make the definition of harassment 

less protective of marine mammals? 

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• Does the word ‘‘probability’’ have a clear and commonly understood 

legal definition? What is the distinction from ‘‘potential?’’

• Would the addition of a modifier that explains the relative probability 

of injury (such as 20%, 50%, 90%) be helpful in clarifying the intent of 

the word ‘‘probability?’’

Assessing the legal definition of the word ‘‘probability’’ is outside my area of expertise. In common English, I personally feel that ‘‘the probability to injure’’ sets 

a higher standard than ‘‘the potential to injure.’’ I would tend to favor the phrase 

‘‘the likelihood to injure,’’ as being somewhere in between. I am dubious that it will 

be possible to make numerical assessments of the relative probability of injury that 

are scientifically meaningful in the near term. 

4. The proposed change to the definition of Level B harassment would require that an activity cause a ‘‘biologically significant disruption’’ of activities including, but not limited to, migration, breeding, care of young, predator avoidance, defense, or feeding. In contrast, the definition proposed 

earlier by the NRC would require that an activity cause a ‘‘disruption to 

biologically significant’’ activities. 

• Is this inversion of words important? Why? 

Please see my response to item 1. 

5. It seems to me that it would be easier to define a disruption to a biologically significant activity than it would be to determine what constitutes 

a biologically significant disruption to that activity. 

• If this is true, would the proposed change in the definition make it less 

protective of marine mammals? 

Please see my response to item 1. 

6. How would the change in the definition of Level B (potential to injure) 

harassment affect scientific permitting? 

Please see my response to item 1. 

7. Are there activities, such as ‘‘sheltering’’ or ‘‘resting’’, that are missing 

from the list of ‘‘migration, breeding, care of young, etc.?’’ If so, which behaviors are missing and why are they important to explicitly mention in 

the proposed definition? 

Assessment of the behaviors critical to survival and reproduction is outside the 

area of my expertise. 

8. Would this revised definition still allow for the consideration of the cumulative negative impact on an individual or population of marine mammals? 

The revised definition of harassment would not affect the consideration of cumulative impacts, as cumulative impacts are considered as part of the NEPA process. 

9. If the consideration of small numbers and geographic area were to be 

eliminated, how would this affect the ability to determine the potential 

negative impact for an activity? 

Under current law, requests for an incidental taking or harassment authorization 

must apply to ‘‘small numbers’’ of marine mammals of a species or stock, which the 

Secretary of Commerce must find will be negligibly impacted by the authorized activity. Similarly, requests for an incidental taking or harassment authorization must 

be for marine mammals in a ‘‘specified geographical region,’’ which the Secretary 

must find will be negligibly impacted by the authorized activity. 

Until now, federal managers essentially have interpreted the requirements for 

small numbers, specified geographically region, and negligible impact as a single requirement in the authorization process for incidental takes or harassment of marine 

mammals. However, recent court decisions have called that interpretation into question and if such a change is not made, it is conceivable there would be three distinct 

and separate tests for determining takes—small numbers and specified geographical 

region first, and if that test were met, negligible impact from the take. The proposed 

change would prevent the denial of research permits that might insignificantly harass large numbers of animals or animals in more than one geographic region, while 

leaving the key ‘‘negligible impact’’ test intact. The goal is to focus our efforts to protect marine mammals on avoiding adverse impacts. 

10. Has NOAA Fisheries or USFWS contemplated regulating truly incidental activities that have little if any direct effect on marine mammals, 

such as boat wakes? 

This question should be directed to NOAA Fisheries and USFWS. 

Permitting for Scientific Research 

1. Has the permitting process for targeted scientific research on marine 

mammals and oceanographic research that falls into the incidental take 

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(Level B) category been sufficiently streamlined as a result of the 1994 

amendments? • What additional changes, either legislative or regulatory, are 

necessary? 

The permitting process for scientific research on marine mammals was streamlined as a result of the 1994 amendments by the establishment of a Scientific Research Permit procedure for research on or directly benefiting marine mammals. No 

special provision was made for other oceanographic research, Any other scientific research affecting marine mammals falls under the Incidental Harassment Authorization (IHA) procedure for activities lasting less than one year or the lengthy rulemaking procedure leading to a Letter of Authorization (LOA) for longer term activities, such as those needed for monitoring climate change. These procedures are time 

consuming and burdensome at best. 

The complex and lengthy permitting process under the MMPA has become a 

major impediment to conducting both the research needed to understand better the 

effect of human-generated sound on marine mammals and other oceanographic research. This problem has been exacerbated in recent months by legal decisions that 

could require extensive analyses under the National Environmental Policy Act 

(NEPA) for any research that may affect marine mammals, even in situations where 

there is widespread agreement among federal managers and scientists that the research activity has no potential to cause harm. In addition, the situation is placing 

new burdens on the already stretched resources of the National Marine Fisheries 

Service. The ocean science community is urgently in need of a timely and predictable permitting or authorization process that is not unnecessarily burdensome and 

provides them with assurances that research will proceed in compliance with all applicable laws, when the permit is issued. 

• Are there still problems with the permitting process for targeted research on marine mammals that falls into the Level A (probability to 

injure) category? 

This question is outside the area of my expertise. 

2. How do overlapping requirements under the Endangered Species Act 

and NEPA interact with permitting requirement under the MMPA? What 

could be done to further streamline the process or coordinate timetables 

when a proposed project involves a threatened or endangered species? 

• Would moving the NEPA requirement earlier in the permitting process 

help to expedite the final awarding of a permit? Why or why not? 

• Would conducting programmatic NEPA reviews in various categories of 

frequent permit applications be helpful in eliminating individual NEPA 

requirements on each application? 

The various permitting processes under the MMPA involve the complex interplay 

of NEPA, MMPA, and ESA requirements. NEPA documents are needed at various 

points in the MMPA permitting process, for example. For activities that might affect 

endangered species, a Section 7 consultation under the ESA, involving a Biological 

Assessment and a Biological Opinion, is often needed before the MMPA permitting 

process can be completed. It is difficult to assign delays in the permitting process 

as due specifically to NEPA, MMPA, or ESA requirements when they are so interrelated. I am therefore dubious that somehow moving the NEPA requirements earlier in the permitting process would help expedite the final awarding of a permit 

under the MMPA. Conducting programmatic NEPA reviews in various categories of 

frequent permit applications might well be helpful if doing so eliminated individual 

NEPA requirements on each application. 

Section 14 -- Incidental Taking of Marine Mammals: 

1. Why does the scientific community seek a general authorization for 

marine mammal research activities, in both the Level A and Level B 

category? 

I believe that adoption of a revised definition of Level B harassment that focuses 

regulatory efforts on the biologically significant disruption of behaviors critical to 

survival and reproduction, i.e., on adverse impacts rather than simply on any detectable change in behavior, is the single most important change needed in the 

MMPA. 

Nonetheless, I feel that it would still be very useful to include provision for a general authorization in the MMPA. The problem is that oceanographers and other 

marine operators routinely use underwater sound for a wide variety of important 

purposes. Even with a revised definition of harassment, the MMPA would not provide explicit guidance to govern its application to instrumentation that is in widespread and on-going use. Without a general authorization it is conceivable that it 

might be necessary to prepare Environmental Assessments for a large fraction of 

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oceanographic research cruises, for example, even if the ultimate conclusions were 

that the activities would not result in harassment under a revised definition. There 

is also no mechanism under the MMPA for allowing for on-going activities that 

might have biologically significant effects on only a small fraction of a population, 

other than through exemptions that must be applied for on a case-by-case basis. It 

is possible that there are activities that might cause the biologically significant disruption of behaviors critical to survival and reproduction for such a small fraction 

of the population that these activities would have a negligible impact on the affected 

species and stocks. It would therefore be helpful to modify the act to provide for the 

issuance of general authorizations allowing for the use of instrumentation that has 

the potential for taking by harassment in situations in which the taking will be unintentional and will have a negligible impact on the affected species and stocks. 

2. Would the language in Sec. 14 (which provides a general authorization 

for incidental take at the discretion of the Secretary) produce the desired 

outcome? Do you feel that it opens an unrestricted loophole for a variety 

of other activities in the ocean that may also cause the incidental taking 

of a marine mammal, such as off shore oil and gas exploration? 

As noted above, I believe that a general authorization such as that specified in 

Section 14 of H.R. 2693 would be very helpful to the scientific community. I feel 

that it is unrealistic to expect that NOAA Fisheries could issue a general authorization and implementing regulations within 120 days after the enactment of the 

amendments, however. The issues involved in the impact of undersea sound on 

marine mammals are complex, and considerable care and effort will be required to 

ensure that the activities allowed under the general authorization will have a negligible impact on the species or stock. A one-year deadline for issuing a general authorization and the associated implementing regulations might be more realistic. 

Threats to Marine Mammals: 

1. There seem to be many emerging threats to marine mammals that were 

not considered 25 years ago, when the original act was written. 

• Do you think it would be helpful for the Marine Mammal Commission 

to report on the magnitude of emerging and existing threats to marine 

mammals? 

• Is it practical to believe that we can address these threats, and if so, 

what threats should be priorities for action? 

This might include identifying data gaps, coming up with research plans 

and evaluating the health of marine mammal stocks in the wild as relates 

to other environmental parameters. 

• Would such an undertaking be within the scope and purview of the 

MMC? 

• Has the MMC ever investigated the growing incidence of ship strikes? 

Would the MMC support a mandate to convene a panel to recommend 

steps to reduce ship strikes and report to Congress in 2 years? 

These questions should be directed to the MMC. 

• Should there be a similar directed program on ocean noise that would 

be mandated under the MMC or another program such as the National 

Oceanographic Partnership Program? 

Our understanding of the effects of underwater sound on marine mammals is discussed in the three recent NRC reports referenced above. In its reports, the NRC 

makes it clear that the current understanding of the effects of sound in the ocean 

on the behavior and health of marine mammal needs to be improved. Different 

sound frequencies and intensities have different effects on various species, and those 

effects change with location in the water column and characteristics of the sea floor. 

It is clear that increasing our scientific understanding would clarify and narrow the 

need to obtain permits and authorizations under the MMPA, as well as making it 

easier for researchers to include effective mitigation measures in their experimental 

plans. A robust marine mammal research program is absolutely essential to protecting marine mammals. 

Funding and scientific leadership in this area to date has come from the United 

States Navy. Over the years, the Navy has supported the efforts of pioneers like 

Sam Ridgway and Ken Norris to expand the boundaries of our knowledge about 

these unique animals. Today, the Office of Naval Research maintains a substantial 

research program on underwater sound and marine mammals. 

I believe that an enhanced research program on the effects of underwater sound 

on marine mammals is needed. It is important that this program be independent 

and peer-reviewed. It should be broadly based, with participation from funding 

agencies in addition to the Office of Naval Research, including the National Science 

Foundation, the National Oceanic and Atmospheric Administration (NOAA), and the 

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Minerals Management Service. Support from private industry and non-governmental organizations for research managed in such a manner should be encouraged. 

The National Oceanographic Partnership Program offers a potential mechanism to 

bring these entities together in a process that provides both the needed coordination 

and scientific independence. 

Captive release prohibition: 

H.R. 2693 includes a prohibition on releasing captive marine mammals 

into the wild. 

• Considering the very limited space available to care for stranded 

marine mammals, could such a change create a situation where animals are held in captivity permanently regardless of their health and 

survival? 

• Would this provision affect NOAA Fisheries’ release of the five pilot 

whales that were stranded on April 18, 2003? 

• Does this provision require a U.S. citizen to apply for a NOAA Fisheries 

permit to release a marine mammal in other countries’ EEZ (would this 

apply to Keiko’s release in Norway)? 

The issues raised by the prohibition on releasing captive marine mammals 

contained in H.R. 2693 are outside the area of my expertise. 

Response to questions submitted for the record by the

Marine Mammal Commission 

Questions from Chairman Wayne Gilchrest 

1. You mention in your testimony how you met with federal agencies and 

affected interests and from these meetings developed a good understanding 

of potential environmental threats that might be caused by sound in the 

oceans. Can you go into more detail on what these threats are? 

Response: Potential threats to marine mammals caused by anthropogenic sound 

in the marine environment can be categorized as direct or indirect. Direct threats 

include the following: 

• Disruption of normal behavior—Such disruptions may be brief in duration or 

may extend over long periods, thereby having more significant consequences. If 

animals are disturbed once or twice at a single site, they may leave the area 

temporarily. If they are disturbed repeatedly, they may abandon the area permanently. For example, if pinnipeds are disturbed during the reproductive season, they may abandon primary pupping habitat. In such cases, disturbance 

could reduce their reproductive success. Similarly, marine mammals may abandon primary feeding habitat or change migratory routes, with multiple consequences to their health and condition and, ultimately, to their ability to survive and reproduce. We have limited ability to predict the nature and severity 

of an animal’s response to a particular stimulus because it is a function not only 

of the perturbing activity, but also of the animal’s perception of the threat posed 

by that activity. 

• Masking—Marine mammals use sounds for a variety of purposes (e.g., communication, prey detection, navigation). Their ability to do so depends on their 

ability to distinguish useful sounds from background or ambient levels of noise. 

If anthropogenic sound levels increase to the point that marine mammals are 

no longer able to make those distinctions, then masking occurs, which may have 

a variety of significant consequences. 

• Physiological stress and injury—If sound levels are sufficiently intense, they 

may result in significant physiological responses and injury. Such effects may 

result in stress and may lead to more severe consequences if, for example, distressed animals beach themselves. Temporary and permanent hearing threshold 

shifts are examples of such stress and injury. 

• Death—Postmortem examinations of marine mammals that have died from 

stranding on beaches—for example episodes involving beaked whales in the Bahamas and Canary Islands—have revealed trauma to the ears of some individual animals. Although it is not yet possible to understand fully the sequence 

of events that led to their deaths, some of these strandings have occurred following exposure to certain types of anthropogenic sounds introduced into the 

marine environment. 

Detrimental indirect effects may occur when anthropogenic sounds adversely affect elements of marine ecosystems (e.g., prey) upon which marine mammals are 

ecologically dependent. Scientists are just beginning to study the potential effects 

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of sound on other marine vertebrates and invertebrates, and it is premature to characterize the risks to them. 

2. How soon will you determine whether or not you will need to charter 

the group holding the meetings as a federal advisory committee? 

Response: The Commission has worked with the U.S. Institute for Environmental 

Conflict Resolution to procure facilitation services from Suzanne Orenstein, Lee 

Langstaff, and Linda Manning. The team will be assessing the situation by interviewing people who represent diverse interests on the effects of sound in the ocean 

on marine mammals. The purpose of the assessment is to determine the likelihood 

of a successful policy dialogue and the format that such a dialogue should take, assuming we pursue one. The consultants completed their assessment in December 

and the Commission has chartered the advisory committee. The Commission will 

continue to provide Congress with periodic updates on the progress being made on 

the project. 

3. What interest groups will you have participating in these workshops 

or as a member of the advisory committee? Will there be an equitable distribution of affected constituencies? 

Response: The Commission is keenly aware of the diverse interests among many 

stakeholders in this process. We have discussed the project with more than 80 representatives of various groups. To foster early acceptance of the process, the Commission and the Institute invited representatives of the oil and gas seismic industry, 

academic/research institutions, environmental groups, and federal agencies (Navy 

operations and research, the Minerals Management Service, the Fish and Wildlife 

Service, and the National Marine Fisheries Service) to advise us on the selection 

of facilitators. Six people not associated with the Commission participated in the 

interviews and advised the Commission and Institute about potential facilitators. 

The Commission has balanced representation on the advisory committee, as required by the Federal Advisory Committee Act. Representatives of the following interests are participating: • oceanographic research institutions, • various sectors of the oil and gas industry, • shipping industry, • environmental organizations, and • federal agencies including the National Marine Fisheries Service, the Minerals 

Management Service, the Navy, the Fish and Wildlife Service, and the National 

Science Foundation. 

4. It was reported at the hearing that Canada has altered its shipping 

traffic into the Bay of Fundy and incorporated speed reductions in certain 

areas to help reduce ship strikes of right whales. It was mentioned that 

this was done using the International Maritime Organization (IMO) process. Are you familiar with the actions taken by Canada? Did they institute 

these action using national legislation or was is done solely through the 

IMO? Could the U.S. take similar actions? Would it require legislation? 

Response: The U.S. Coast Guard serves as the lead agency representing the 

United States at meetings of the IMO and would be the most appropriate agency 

to answer this question. However, the Commission is familiar with the Canadian 

action to shift the designated shipping lanes and the process used to do so. 

Action to reconfigure or move a designated shipping lane within the jurisdictional 

area of a nation is done under domestic laws and regulations. Canada, like the 

United States, is a member of the IMO and is obligated to ensure that any actions 

affecting international vessel traffic are consistent with regulatory standards and 

provisions agreed to by the IMO. In this case, the Canadian Coast Guard proposed 

to shift an established shipping lane in the Bay of Fundy eastward so as to reduce 

its overlap with known right whale feeding areas. The proposal (and the action subsequently implemented), however, did not incorporate any speed restrictions. If that 

was suggested during the hearing, it was done so in error. Once the proposed action 

was agreed to domestically, the Canadian Coast Guard, which represents Canada 

at meetings of the IMO, presented it to the IMO to ensure consistency with the 

international measures agreed to by IMO members. Canada’s proposal was subsequently reviewed by at least two IMO committees—the Marine Environment Protection Committee and the Marine Safety Committee—both of which approved the action. The U.S. Coast Guard expressed support for the action at meetings of both 

committees when the matter was considered. With IMO’s approval, the Canadian 

Coast Guard then implemented the measure under its domestic authority and regulations. 

The U.S. Coast Guard has similar authority to designate and change shipping 

lanes under U.S. law (the Ports and Waterways Safety Act), and we do not believe 

that additional legislation would be needed to take an action similar that which 

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Canada took. It is somewhat less clear whether such an action could be taken under 

U.S. law in areas outside of territorial waters but within the U.S. Exclusive Economic Zone for the purpose of protecting right whales in high-use feeding habitats 

or whether moving shipping lanes would be an appropriate action. For example, in 

the Great South Channel off Massachusetts and Rhode Island, shipping lanes cross 

a designated right whale critical habitat. Shifting those lanes to avoid the critical 

habitat would expose ships to shoals that would pose a navigational safety problem 

and is not practical. Additional legislation may be needed to provide authority for 

establishing mandatory routing and speed measures, which were not part of Canada’s action. The National Marine Fisheries Service has, for several years, been 

studying whether to address ship strikes of large whales by regulating vessels 

speeds but to date has not proposed a regulatory program to do so. 

Because of the uncertainty concerning what actions can be taken under existing 

law, the Commission is currently supporting an analysis by independent legal experts of U.S. and international authorities regarding such measures. We expect the 

analysis to be completed soon and will provide a copy to you when it is available. 

5. How do you suggest that we protect, to the greatest extent possible, 

marine mammals from injury in Level A harassment within a statutory and 

regulatory framework? 

Response: The current definition of Level A harassment includes activities that 

have the potential to injure a marine mammal or marine mammal stock in the wild. 

The agencies charged with implementing the MMPA believe that this definition is 

too broad and would include activities with any potential to injure a marine 

mammal, no matter how remote. Therefore, in crafting the Administration’s proposed definition, we sought to exclude potential injuries that are highly unlikely to 

occur. This was done by requiring that there be a ‘‘significant potential’’ for injury. 

The definition originally proposed in H.R. 2693 would have established a higher 

standard by requiring that there be a ‘‘probability’’ of injury. As reflected in the 

Commission’s testimony, we are concerned that this would be interpreted as meaning that injury would be more likely than not to occur. As we indicated at the 24 

July hearing, this is not a protective enough standard. We are pleased that the 

Committee adopted a more inclusive term at mark-up, but continue to believe that 

defining Level A harassment as ‘‘any act that has [any] potential to injure a marine 

mammal...’’ is overly broad. 

In crafting the definition that ultimately is adopted, Congress should be mindful 

not only of the definition itself, but how it fits within the overall framework of the 

Act. That is, the definition acts as the initial filter for identifying those activities 

that merit greater scrutiny. We believe that when an activity poses more than a remote threat of injury (i.e., that there is a significant potential for injury), either to 

individual animals or to marine mammal populations, review by the responsible resource agencies during an authorization process is warranted. This does not mean 

that the activity cannot go forward. It merely means that agency examination and 

authorization are needed. If, for example, an activity has a significant potential of 

causing incidental injuries, the agency would need to determine that, should such 

an injury occur, it would have a negligible impact on the stock. The agency would 

also consider whether mitigation measures could reasonably be taken to reduce the 

frequency or magnitude of any such injuries. 

6. What are some of the factors Congress should consider when crafting 

a final harassment definition? 

Response: A good and usable definition should meet several objectives. First and 

foremost, it should provide sufficient clarity such that the regulatory agencies, those 

whose actions might harass marine mammals, and the general public have a common understanding of what activities would or would not constitute harassment. 

There should be clear guidance as to when an authorization for taking marine 

mammals is needed and when enforcement actions are warranted. 

An appropriate definition also needs to be sufficiently protective of marine 

mammals. That is, it should be broad enough to include all actions that can be expected to adversely affect marine mammals or marine mammal populations. At the 

same time, the definition should not be so broad that it places undue burdens on 

the regulatory agencies and the public. It makes no sense to expend agency resources and to require someone to obtain an authorization when the expected impact on marine mammals is truly de minimis. 

The definition should also provide a mechanism for considering the cumulative 

impacts of activities that may individually have only minor impacts on marine 

mammals but that collectively could have significant effects on those animals and 

on marine mammal populations. For example, a flight response of a marine 

mammal to a passing vessel may be relatively benign, but if it happens frequently 

in response to repeated exposures, or in conjunction with other types of disturbance, 

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it could significantly alter the animal’s behavior in ways that could affect its health 

or survival or that could lead to population-level effects, such as changes in distribution patterns. 

Another consideration in crafting a harassment definition is its adaptability to a 

variety of situations. It needs to recognize the diversity among marine mammals. 

For example, the response of a manatee to a particular stimulus may be quite different than that of a baleen whale, which might vary considerably from the response 

of a pinniped, polar bear, or sea otter. There should also be a recognition that a 

marine mammal’s response, and the importance of that response, may vary depending on a variety of factors, including age, seasonal behavioral patterns, or the activity in which the animal is engaged. 

7. How do we incorporate the level of current scientific knowledge about 

how marine mammals may be injured and at the same time protect animals 

from injuries we have not yet been able to measure? 

Response: Marine mammals may be injured by a variety of human activities including, among other things, boat or ship strikes, entanglement with actively fishing 

gear as well as fishing and other debris, illegal shooting, exposures to intolerable 

levels and types of anthropogenic sounds, and injuries that occur when pinnipeds 

are disturbed on land and injure themselves in their efforts to escape to the sea. 

Because it is difficult to examine injured animals at sea, the full nature and extent 

of such injuries and their eventual consequences are difficult to evaluate. Injuries 

from shooting, entanglement, and propeller strikes may be less difficult to detect because they result in consequences that can be observed visually. Blunt-force injuries 

or those that occur as a result of sound may be less easily detectable because they 

are internal. If injuries result in decreased survival or reproduction, then they are 

significant not only for the affected animal but also may have significant populationlevel effects. Although research has been conducted to understand the effects of injury on individuals and populations, we are still considerably limited in our ability 

to fully and reliably characterize the significance of such injuries. 

8. How should scientific research activities with potential impacts on 

marine mammals be treated by the permit process in statute if the activity 

is designed to test the level of harassment that the activity causes in certain marine mammal species? 

Response: The Commission believes that well-designed research into the effects of 

various activities on marine mammals can provide valuable information that would 

be useful for implementing the provisions of the MMPA. For example, rather than 

relying on extrapolations from tests using sound levels well below those that would 

be used in operating the LFA SURTASS sonar to predict the likely effects on marine 

mammals, the Commission encouraged the Navy to conduct additional research to 

test the reactions of marine mammals to the louder source. We also encouraged the 

Navy to conduct additional experiments to test the effectiveness of other sonars in 

locating marine mammals for use as a possible mitigation measure. A permit was 

issued by the National Marine Fisheries Service to authorize this additional research but was later enjoined because of problems with compliance with the National Environmental Policy Act in issuing the permit. 

The Commission believes that additional research into the potential effects of various human activities on marine mammals is needed and will help us make the determinations required under the MMPA. Currently there is no impediment under 

the Act to authorizing such research provided that it is bona fide and, if lethal taking is involved, it meets the other requirements of section 104(c)(3). The Commission 

recommends that the availability of such authorizations remain unchanged. 

9. What is the difference between ‘‘probability’’ and ‘‘potential’’ in describing the level of concern that would generate a need for an incidental take 

permit under Level A harassment (injury) for a particular activity? 

• Does the word ‘‘probability’’ have a clear and commonly understood 

legal definition? What is the distinction from ‘‘potential’’? 

Response: The word ‘‘probability’’ has a common dictionary definition as something that is probable—i.e., it is more likely than not to occur. The word also has 

a meaning in a statistical sense to mean the likelihood with which something will 

happen, e.g., there is a 30 percent chance that it will rain tomorrow. Absent some 

indication that we intend it to mean a lower likelihood in the particular instance, 

however, it is generally interpreted to mean more than a 50 percent likelihood. 

‘‘Potential,’’ on the other hand, is a much more inclusive term. It is generally defined to mean something that is capable of happening, even something with a very 

low probability of occurrence. 

As reflected in our testimony at the July 24 hearing, the Commission believes 

that the probability standard used in the definition of Level A harassment establishes too high a threshold for defining what constitutes taking by injury. In this 

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1This value is used for illustrative purposes only. The Commission recommends against including any such value, because it goes beyond the level of resolution that available science and 

data can provide. For further discussion, see our response to question 3 from Congressman 

Pallone. 

regard, the common understanding of the term probability, absent any modifier 

(e.g., a 10 percent probability 1), is that something is more likely than not to happen. 

When addressing possible injuries to marine mammals and marine mammal populations, this is not a very protective standard. 

10. How should the broader impacts or potential impacts of sound (for example ship propellers), that may disturb or disrupt natural behaviors of 

marine mammals, be treated in statute? 

Response: We are just beginning to understand the potential impacts of anthropogenic sound in the marine environment. If we are to ensure that marine mammals 

are protected, we must recognize the uncertainties associated with such potential 

effects, carry out research to resolve those uncertainties, and manage cautiously to 

minimize the risk to marine mammals while avoiding undue constraints on activities (e.g., shipping) that are deemed essential to national needs for security, energy, 

food, and commerce. The effects of human activities must be evaluated in the context of all factors that may threaten marine mammals (e.g., contaminants, diseases, 

direct and indirect fisheries interactions, coastal development, and habitat loss). 

Such effects may be evident only when viewed over the long term. The single occurrence of a ship passing an important marine mammal foraging area may have no 

significant effect on those animals. The establishment of a shipping lane through 

that same area may have significant effects if animals eventually abandon the site 

due to repeated disturbance. Therefore, we believe that statutes should recognize 

the potential for long-term, cumulative effects of such sounds, provide for essential 

research into those effects, and provide a cautious management approach that recognizes the uncertainties. 

11. How should the range of currently non-permitted activities that are 

directed at marine mammals (i.e., whale watching, swim with dolphin programs, or jet ski harassment) be treated by the statutory or regulatory 

process? 

Response: The Commission believes that such activities, if they disturb marine 

mammals, should be prohibited unless specifically authorized. In this regard, we believe that the current definition of harassment is sufficiently broad to encompass 

most of the activities of concern. Nevertheless, enforcement of the definition as it 

applies to such activities would likely be improved if were more explicit that actions 

directed at marine mammals in the wild that are likely to disturb the animals constitutes harassment. Although the Commission has recommended that the National 

Marine Fisheries Service promulgate regulations to establish objective criteria for 

determining when a taking by harassment has occurred as one way to address interaction problems at specific sites where problems are particularly acute (e.g., the dolphin resting bays in Hawaii), a statutory change in the definition would provide a 

clearer and more comprehensive solution. 

The Commission continues to be concerned that activities that disturb marine 

mammals, if not checked, have the significant potential to alter marine mammal behavior in detrimental ways and, if persistent, can cause marine mammals to abandon important areas used for feeding, resting, or other essential activities. The Commission therefore recommends that, whatever definition of harassment is ultimately 

adopted, it be sufficiently broad to provide an effective mechanism for addressing 

sources of disturbance targeted at marine mammals. As reflected in the Administration’s proposed definition of Level B harassment, we believe that, for these generally 

avoidable sources of disturbance, enforcement actions should be based simply on the 

fact that the animals were disturbed without requiring an additional showing that 

the disturbance somehow adversely had significant impacts—e.g., that it adversely 

affected the survival or reproduction of the marine mammal or marine mammal 

stock. 

12. In the definition of Level B harassment, does it make sense to qualify 

the activity (i.e. migration, breeding) or the effect (biologically significant 

disruption of behaviors) in Level B harassment? Why or why not? 

Response: What we should be striving for is the inclusion in the definition of those 

responses and effects that have some biological significance either at the individual 

or the population level. There nevertheless needs to be a recognition that predicting 

what activities will result in biologically significant effects, or even in determining 

whether a particular response is biologically significant, may be difficult. Making 

such determinations when marine mammals are exposed to multiple activities that 

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tively exceed that threshold, is likely to be even more difficult. Whatever definition 

is adopted, it needs to be broad enough to include such situations. 

Although less ideal in the theoretical sense, a definition based on the disruption 

of biologically significant activities would likely be easier to implement. That is, 

once these important activities are identified, the only determination to make is 

whether such an activity were being disrupted—there would be no value judgment 

to make as to whether or not the disruption were biologically significant. Because 

of this, however, the definition in some cases would likely be overly broad by including de minimis disruption of important behaviors. 

13. Which is the more scientifically used term—‘‘biologically significant 

activity’’ or ‘‘biologically significant disruption’’? Should either of these 

terms be defined in H.R.2693? 

Response: Neither of these phrases are generally used scientific terms of art. As 

a result, there will still be a need for additional interpretation, be it in statutory 

language, regulatory definition, or case-by-case implementation. We believe that 

under most of the definitions that have been proposed there is a fair amount of latitude in how they might be interpreted. That is, there is no unanimity as to what 

would constitute a biologically significant disruption of a particular activity or behavior, or even as to what activities should be considered to be biologically significant. Thus, we believe that, whatever definition is ultimately adopted, additional 

guidance concerning its implementation and interpretation would be useful. This 

could be provided either through additional statutory definitions or through more 

detailed guidance in the committee reports and other legislative history of the provision. 

14. Is it possible to define ‘‘harassment’’ and still provide the agency flexibility to modify its regulations to respond to new scientific information? 

Response: Virtually all of the definitions being debated provide some such flexibility. Under the Administration’s proposed definition, harassment would include 

those activities with a significant potential to injure a marine mammal or marine 

mammal stock or that is likely to disturb a marine mammal or marine mammal 

stock by causing disruption of natural behavior patterns to a point where those patterns are significantly altered or abandoned. The interpretation of what activities 

would fit under this definition is subject to change as new information is gathered. 

For example, as we obtained additional information to refine our understanding of 

the intensities and types of sounds that pose threats to various taxa of marine 

mammals, the definition would adapt accordingly. Similarly, the regulatory agencies 

would likely alter the way they implement the definition of Level B harassment as 

more is learned about the specific types of activities that are likely to cause significant disruption or how various activities would cumulatively affect marine mammal 

behavioral patterns. 

Latitude would also be provided under the other proposed definitions as we 

gained additional insights into the types of disruptions that would have significant 

effects, which behaviors or activities are significant to marine mammal survival and 

well-being, or what constitutes a meaningful disruption of a biologically significant 

activity. 

15. Which would you describe—‘‘feeding’’ or ‘‘foraging’’—as more biologically significant in terms of behaviors of marine mammals that need 

protection through the incidental take permitting process? 

Response: The terms ‘‘feeding’’ and ‘‘foraging’’ are closely related and in some 

cases are used interchangeably. However, we suggest that ‘‘foraging’’ is the broader 

term and includes not only the act of ‘‘feeding’’ but associated activities such as 

transiting to and from sites where prey may be found, carrying out of various behaviors related to searching for prey (e.g., dive patterns), and an overall ‘‘foraging’’ 

strategy such as focusing on benthic- or bottom-associated prey (as do elephant 

seals), surface skimming to collect zooplankton (as do large baleen whales), and so 

on. 

The intent of all these behaviors is to achieve the same goal: the securing of sufficient energy and nutrition to maintain health and promote survival and reproduction. Foraging success may be significantly altered not only when feeding is disrupted, but also when associated activities (e.g., transiting to and from feeding sites) 

are affected. Because scientists are not yet able to determine the relative significance of each element of a foraging strategy, it is difficult to say with confidence 

how much or what kinds of disturbance may be tolerated. For that reason, protection of ‘‘foraging-related behaviors’’ rather than simply ‘‘feeding’’ appears to provide 

greater assurance that human activities will not cause disruption of biologically significant behavior. At the same time, identifying and understanding all behaviors associated with foraging is a more difficult task than identification of the act of feeding. 

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16. The Administration’s definition uses the term ‘‘surfacing’’ instead of 

‘‘breathing,’’ which is in the current definition of harassment. Why was this 

change made? 

Response: Although some have equated these terms, they in fact are not equivalent. One of the key reasons that marine mammals surface is to breathe, but they 

may surface for a variety of other important reasons. The wording change proposed 

in the Administration bill addresses this distinction by using the more inclusive 

term. 

17. Why did the Administration use the term ‘‘non-commercial’’ in its 

amendments to section 118? What types of fishing was this language trying 

to capture? 

Response: While the term ‘‘non-commercial’’ captures the thrust of the Administration’s proposal, the Administration bill does not in fact use that term. Rather, 

it uses the term ‘‘listed fishery’’ to mean all fisheries that qualify for inclusion in 

the list of fisheries as category I and II and those commercial fisheries listed as 

category III fisheries. 

As reflected in the Administration bill and the testimony presented by the Commission and others, there is a need to expand the coverage of section 118 to include 

all fisheries that frequently or occasionally take marine mammals. Originally, we 

had focused on adding recreational fisheries to the commercial fisheries currently 

included under the incidental take regime. However, the terms ‘‘commercial’’ and 

‘‘recreational’’ may not cover the full range of fisheries that may be of concern. For 

example, subsistence fishermen may not fall into either category. Thus, the term 

‘‘non-commercial’’ or its equivalent is needed to ensure that all fisheries that result 

in frequent or occasional incidental mortality or serious injuries of marine mammals 

are covered under section 118, regardless of what is done with the catch. 

18. There have been comments about the cumulative effects of activities 

on marine mammals. What is our current state of knowledge on cumulative 

effects? Do we currently have the ability to determine how different activities cumulatively affect marine mammals? Is it possible for any marine 

mammal affected by different activities to have time to recover from the 

first effect prior to the second effect happening? 

Response: The well-being of individual marine mammals and marine mammal 

populations is affected by a variety of factors, both natural and anthropogenic. Animals that carry large contaminant burdens, for example, may be more susceptible 

to disease. Similarly, animals that are subject to competition for prey from fisheries 

may be required to spend more time foraging and therefore may be more vulnerable 

to predation. Considerable progress has been made in recognizing the potential for 

such cumulative effects on marine mammals and, to a limited extent, in modeling 

those effects. Less progress has been made in actually describing the relative roles 

of such factors in wild marine mammal populations. Investigating the effects of multiple factors may be seriously confounded because it may be difficult to assess the 

significance of individual factors, and those individual factors may interact synergistically or antagonistically. Concerted, long-term multi-factor research is needed 

to provide managers with the information needed to manage cumulative effects. In 

the absence of such information, scientists and managers are limited largely to educated speculation about such effects. 

The extent to which an animal or a population of marine mammals is affected by 

cumulative factors depends on the nature, timing, and persistence of those factors 

and their effects and the nature and persistence of the response of individual animals. When such factors are relatively short-lived and the response they elicit is correspondingly short-lived, it is more likely that affected animals will be able to recover from the effects of an initial factor prior to being challenged by the effects of 

a second factor. 

19. How can we manage for cumulative effects when we may not have scientific knowledge on how activities actually affect marine mammals? If we 

were to manage based on what we thought were the impacts, wouldn’t that 

create havoc with the different industries and scientists that may have 

interactions with marine mammals? 

Response: In the three decades since the passage of the Marine Mammal Protection Act, considerable progress has been made in studying and conserving marine 

mammals. That progress includes a stronger science-based understanding of their 

natural history and their interactions with human activities. Where such progress 

has been made, it has been facilitated by careful identification of the problems affecting their conservation, development of adequate research programs to assess 

those problems and their effects, and implementation of management approaches 

that facilitate further research while minimizing risk by avoiding, minimizing, or 

mitigating the factors that may affect them. For example, observations that large 

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numbers of animals were being killed incidentally by direct interactions with fisheries led to the development of observer and research programs, adjustments in fisheries management such as time-area closures and changes in fishing practices and 

gears, and the development of a stock assessment approach to put current levels of 

mortality and injury in perspective. We believe a similar approach is needed for addressing the potential effects of cumulative factors, i.e., a combination of careful detection and description of the problems, research to provide information needed to 

solve the problems, and cautious management to avoid, minimize, or mitigate potentially adverse effects. 

There is no doubt that such an approach will require adjustments from industries 

and, on occasion, scientists to ensure that the conservation goals of the Marine 

Mammal Protection Act are met. Nonetheless, the approach has been effective in 

certain specific circumstances and is likely to be effective for cumulative effects. 

There are, at present, successful mechanisms for limiting many forms of incidental 

take and for providing permits for research while ensuring that such research does 

not cause unacceptable impacts on marine mammals. Over time, we expect such an 

approach to be more successful if the burden of research into potential adverse effects is placed on those whose activities may lead to adverse effects. Because successful management regimes are in place to address incidental takes and the effects 

of research, we do not expect that management based on potential impacts will 

cause havoc for industries or scientists but rather will lead to more proactive, 

thoughtful research to enhance our conservation objectives. 

20. If we apply the precautionary approach to the level that some groups 

have suggested, how will marine mammal researchers be able to gather information on marine mammal physiology and the effects of human activities (such as sonars) on marine mammals? 

Response: The MMPA, since its inception, has included a moratorium on the taking and importation of marine mammals. The moratorium, however, is not absolute, 

and the taking of marine mammals is allowed or may be authorized for a variety 

of purposes. The showings that must be made to obtain an authorization to take 

marine mammals varies depending on the activity (and the value Congress has 

placed on it) and the level of risk it poses to marine mammals. 

Permits for purposes of scientific research are issued to applicants that demonstrate that the proposed taking is needed to further a bona fide scientific purpose. 

If lethal taking is involved, the applicant must demonstrate that a non-lethal method of conducting the research is not feasible. And, before lethal taking of a depleted 

marine mammal can be authorized, the applicant needs to demonstrate that the results of the research will directly benefit the species or stock or will fulfill a critically important research need. The Marine Mammal Commission does not believe 

that these are overly burdensome or unreasonable criteria. 

The Commission strongly supports the reasonable application of a precautionary 

approach regarding activities that affect marine mammal populations. This is a prudent and fundamental tenet of the Act. The Commission does not believe that application of that approach would preclude scientists from studying the effects of various activities on marine mammals. In fact, good science is critical to improving our 

understanding of how human activities may affect individual marine mammals and 

populations of marine mammals. 

The Commission carefully reviews all permit applications for scientific research 

and incidental harassment authorizations that the National Marine Fisheries Service and the Fish and Wildlife Service propose to issue. We scrutinize what applicants submit to determine whether the proposed research or activities meet the requirements of the Act as to its potential to expand knowledge about marine 

mammals or their habitats. The Commission also recommends that scientists undertake their research in the most humane ways possible and that federal permitgranting agencies coordinate activities of multiple researchers to reduce duplication 

of marine mammal exposure to interference. 

It should also be kept in mind that legal challenges to scientific research by environmental groups have focused more on whether the National Marine Fisheries 

Service satisfied the requirements of the National Environmental Policy Act (NEPA) 

than on the Marine Mammal Protection Act. The two cases that have successfully 

challenged MMPA scientific research permits (one challenging a permit to biopsy 

killer whales in Puget Sound and the other a more recent case challenging research 

associated with LFA sonar) both turned on the adequacy of NEPA compliance, rather than on MMPA considerations. In another recent case challenging seismic research not involving marine mammals, the researchers had not applied for a an incidental harassment authorization under the MMPA and had not prepared any 

NEPA analysis. 

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The Commission is aware of no proposals being made that would change the 

MMPA requirements pertaining to permitting scientific research. Thus, permits 

would still be available to scientists seeking to conduct bona fide research to gather 

information on marine mammal physiology and on the effects of human activities 

on marine mammals. This could include research that might injure or even kill depleted marine mammals (e.g., research to establish the sound levels from sonars or 

other sources that pose physical threats to marine mammals), provided that a sufficient case were made as to how this would benefit the stock or fulfill a critically 

important research need. 

21. Should the MMPA be interpreted to protect each and every individual 

marine mammal or to protect marine mammal populations? 

Response: The Marine Mammal Protection Act creates broad prohibitions against 

‘‘taking’’ individual marine mammals or congregations of marine mammals. People 

doing the taking can apply for and receive various types of authorizations to engage 

in specific activities that both directly and incidentally take individuals or groups 

of marine mammals. 

The Commission supports the approach currently in the statute. Unless you maintain the specific standard of prohibiting all takes, it will be virtually impossible to 

distinguish and codify when numerous individual takes will cumulatively add to potentially significant impacts on marine mammal populations. 

22. Should the Act be changed to accommodate concerns about increasing 

conflicts between non-endangered marine mammals and humans? 

Response: At the outset, it should be noted that the MMPA currently includes a 

mechanism for authorizing the taking of marine mammals in a variety of situations, 

including the reduction of burgeoning populations. The Act provides for waiving the 

moratorium on taking marine mammals if the species or stock is within its optimum 

sustainable population and will not be disadvantaged by the taking, and the taking 

is in accord with sound principles of resource conservation and will be consistent 

with the purposes and policies of the Act. The Act even anticipates that one reason 

for authorizing such taking is the overpopulation of a particular species or stock. 

Before authorizing taking for this reason, however, the Secretary is required to consider whether it would be more desirable to transplant animals to a location historically, but not currently, inhabited by the species or stock. 

It needs to be recognized that culling expanding populations will not necessarily 

solve the identified problems, particularly competition for fishery resources. This 

would be the case if marine mammal abundance and prey consumption are not linearly related. That is, feeding efficiency of individuals may decline as competition 

with con-specifics increases. Thus, reducing a population by 50 percent will not necessarily reduce fish consumption by 50 percent. In fact, it may reduce consumption 

only marginally. 

In certain instances, the Commission could support amending the Act to provide 

additional mechanisms to address concerns with respect to conflicts between people 

and healthy marine mammal populations. The Commission would want to work 

with Congress to develop precautions to ensure that marine mammal populations 

remain stable and that federal agencies would continue to oversee marine mammal 

conservation and management unless management authority is returned to a state 

government pursuant to section 109. In such instances, the Commission would want 

to ensure that the state program meets similar standards. 

The Commission is pleased that some marine mammal populations have responded to protection afforded by the Act and increased to the point that they have 

reached their optimal sustainable population (OSP) level as defined in the Act. We 

believe that OSP would be a better management standard than whether a population qualifies for listing under the Endangered Species Act as endangered or 

threatened or has been identified as a candidate species. 

Questions from The Honorable Frank Pallone, Jr. 

Definition of harassment: 

Over the past year, Congress has been presented with several different 

options to re-define the definition of harassment. A new definition is being 

offered in H.R. 2693. • Please compare the definition proposed in H.R. 2693 and discuss 

whether it compares positively or negatively to other proposed definitions. 

Response: Several different definitions of the term harassment have been proposed by various interests as the Marine Mammal Protection Act is being considered 

for reauthorization. All of them are based to one degree or another on the existing 

definition and the proposed changes suggested by a National Research Council 

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fer primarily in four respects—the degree of likelihood that the covered activities 

will injure or disturb a marine mammal or marine mammal stock; the types of behaviors or activities that are explicitly covered; whether a significance threshold is 

established before disturbance or disruption of those activities would constitute harassment; and whether special provision is included to address activities directed at 

marine mammals. With respect to the first element, for example, there is a continuum in the proposals running the gamut from activities having any potential for 

disturbance to those that present a probability or likelihood that certain types of 

responses will be evoked, with several intermediate standards falling in between. 

These proposals reflect differing perceptions with respect to how inclusive we should 

be in order to protect marine mammals from any sort of disturbance versus how 

much we should seek to disencumber those who engage in activities that might have 

only minor effects on marine mammals from the requirements of the MMPA. 

The various definitions that have been considered are, by and large, permutations 

of these four elements. We believe that the Administration’s proposed redefinition 

strikes a better balance of addressing these considerations than does the definition 

proposed in H.R. 2693. 

As noted in our testimony at the July 24 hearing, there are aspects of the harassment definition in H.R. 2693 that we believe may cause problems if enacted. For 

example, for an act to constitute Level A harassment under the introduced bill, 

there must be ‘‘the probability’’ that a marine mammal or marine mammal stock 

will be injured. The inclusion of this threshold suggests that it must be more likely 

than not that an injury will result from the particular action being considered. That 

is, if there is a 25 percent chance that a marine mammal will be injured by exposure 

to a particular stimulus, a one-time exposure would not necessarily be considered 

harassment, even though the risk of injury is substantial. As such, we recommend 

replacing the word ‘‘probability’’ in the Level A harassment definition with a more 

inclusive phrase such as ‘‘significant potential,’’ as used in the Administration’s proposal. 

Like the existing definition of Level B harassment and that recommended by the 

Administration, the proposal in H.R. 2693 contains a list of behaviors that, if disrupted to the extent specified, would constitute harassment. We are concerned, however, that the list of specifically identified behaviors in the House bill does not include sheltering, which is an element of both the existing definition and the Administration’s proposal. For example, the resting behavior of spinner dolphins in Hawaii 

in secluded, inshore areas clearly fits within the notion of sheltering. It is not as 

clear that such behavior would be encompassed by the terms ‘‘care of young, predator avoidance, or defense,’’ which are the closest associated terms under the proposed harassment definition in H.R. 2693. Further in this regard, we note that the 

terms ‘‘care of young,’’ ‘‘predator avoidance,’’ and ‘‘defense’’ included in the proposed 

definition of Level B harassment are not very precise terms. Absent clarification, 

their inclusion in the definition may lead to implementation difficulties and, perhaps, litigation. 

In addition, as was pointed out at the July 24 hearing, any list of specifically identified behaviors in the definition should include surfacing or breathing. As reflected 

in the Administration bill, we prefer the term ‘‘surfacing’’ over ‘‘breathing’’ inasmuch 

as it is the more inclusive term. For unexplained reasons, neither term was included 

in the definitions set forth in H.R. 2693. 

We are also concerned about the ‘‘potential to disturb’’ threshold set forth in the 

second clause of the proposed harassment definition. The agencies that developed 

the Administration’s proposed definition rejected this language as being overly 

broad, inasmuch as it would include even a very remote possibility that disturbance 

might occur. We believe that the standard included in the Administration proposal, 

‘‘disturbs or is likely to disturb,’’ provides a more appropriate delimitation concerning what activities should be covered under this part of the harassment definition. 

The Commission is pleased that the proposed definition in H.R. 2693 recognizes 

the value of including a directed taking provision in the definition of Level B harassment, as recommended by the Administration. Absent this second prong, it would 

be much more difficult, if not impossible, for the regulatory agencies to bring enforcement cases in response to activities that traditionally have been considered 

harassment. Even in a case when a marine mammal had been intentionally pursued, the government, to prevail, would need to show not only that the animal was 

disturbed by the pursuit, but that the resulting disruption was somehow ‘‘biologically significant.’’ For example, is the disturbance that results from chasing a 

dolphin along a beach for a few hundred yards with a jet ski biologically significant? 

Arguably not. Nevertheless, it should be considered harassment. 

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We are concerned, however, about the inclusion of the phase ‘‘is likely to impact 

the individual’’ in this second part of the Level B harassment definition (clause iii). 

It raises a possible defense in a traditional harassment case that, even though a 

marine mammal was clearly disturbed by the directed activities of the defendant, 

the disturbance somehow did not have any impact on the health or well-being of 

the animal. It may be that the intent of the provision is to include all directed activities that are likely to disrupt one of the listed marine mammal behaviors. If this 

is the case, it should be clarified, either in the statutory language or the accompanying legislative report. 

How will the proposed change to the definition of harassment affect 

scientific research and/or military readiness activities? 

Response: Without additional description of the terms used in the proposed definition of harassment, it remains unclear how they will affect scientific research, military readiness, or other activities. Currently, there is no unanimity as to how the 

various terms (e.g., biologically significant disruption and potential to disturb) would 

be interpreted. Although we can say that some of the activities that are considered 

to constitute harassment under the current definition will likely fall outside of the 

new definition, we cannot predict how extensive the differences will be. For example, some may argue that the testing of low-frequency sonar by the Navy would no 

longer be considered to be harassment while others are likely to argue that it would 

be under the definition included in H.R. 2693. Similarly, without additional guidance, either in the statutory provision itself, in report language or other legislative 

history, or through agency regulations and policy statements, it is difficult at this 

stage to predict exactly how the proposed changes in the definition would affect research activities. 

A further confounding issue is how cumulative impacts would be addressed under 

the any of the proposed definitions that have been put forward. Under the definition 

proposed in the House bill, for example, it is unclear how activities that individually 

would not be considered to cause biologically significant disruption but that collectively could have significant impacts would be treated. Would each activity be considered to constitute harassment? Would none? Or would only those activities beyond the critical point where the disruption becomes significant be considered harassment, and if so, how would that point be ascertained? The answers to these questions likely would profoundly affect what is and is not considered to be harassment. 

• Are there specific activities that might fall outside this definition? 

Response: Although there no doubt are some such activities, we are unable to 

identify them with any certainty because of the ambiguities inherent in all of the 

definitions currently under consideration. For example, some have suggested that a 

pinniped turning its head, of even fleeing into the water temporarily from its haulout site, in response to a passing boat would fall outside of the definition. However, 

if that boat were only one of many that passed the location prompting such a response, they could cumulatively cause significant disruptions, even causing the animal to abandon preferred habitat. 

The definition for Level A (potential to injure) harassment proposed in 

H.R. 2693 requires that an activity have ‘‘the probability to injure’’ a 

marine mammal. It seems to me that this change would require a higher 

burden of proof for a given activity’s likelihood of causing harm. 

• Do you feel that this change would make the definition of harassment 

less protective of marine mammals? 

Response: Yes. As reflected in our testimony at the July 24 hearing, the Commission believes that the probability standard used in the definition of Level A harassment establishes too high of a threshold for defining what constitutes taking by injury. In this regard, the common understanding of the term ‘‘probability,’’ absent 

any modifier (e.g., a 10 percent probability), is that something is more likely than 

not to happen. When addressing possible injuries to marine mammals and marine 

mammal populations, this is not a very protective standard. 

• Does the word ‘‘probability’’ have a clear and commonly understood 

legal definition? What is the distinction from ‘‘potential’’? 

Response: The word ‘‘probability’’ has a common dictionary definition as something that is probable—i.e., it is more likely than not to occur. The word also has 

a meaning in a statistical sense to mean the likelihood with which something will 

happen, e.g., there is a 30 percent chance that it will rain tomorrow. Absent some 

indication that we intend it to mean a lower likelihood in the particular instance, 

however, it is generally interpreted to mean more than a 50 percent likelihood. 

‘‘Potential,’’ on the other hand, is a much more inclusive term. It is generally defined to mean something that is capable of happening, even something with a very 

low probability of occurrence. 

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As noted above, there is a continuum of terms that could be used to describe the 

level of certainty that is being incorporated into the harassment definition. A possible progression from most inclusive to that requiring the highest level of probability would be as follows: possible, potential, significant potential, plausible, probable/likely, highly likely, certain. We believe that using the terms on the extreme 

ends would result in a definition that is either overly inclusive or too restrictive. • Would the addition of a modifier that explains the relative probability 

of injury (such as 20%, 50%, 90%) be helpful in clarifying the intent of 

the word ‘‘probability’’? 

Response: As discussed above, the common understanding of the word ‘‘probability’’ absent any such modifier is that something is more likely than not to occur. 

Such a standard, in the Commission’s view, is not protective enough, particularly 

when we are addressing injuries to marine mammals and marine mammal populations. This being the case, it would help to clarify the intent of Congress if more 

specific guidance concerning the degree of probability were included in the definition. Nevertheless, we recommend against including a specific numerical standard 

in the statute itself. It would create a level of specificity that, at least in some cases, 

would likely be beyond the resolution that available science and data could provide. 

Thus, in all but the most clear-cut cases, litigation could result as to whether the 

probability were above or below the statutory threshold. Recognizing the limitations 

of available science, a qualitative, rather than a quantitative, standard would be 

preferable. We continue to believe, however, that there needs to be clear guidance 

and general understanding as to how such a qualitative standard is to be interpreted and implemented. 

The proposed change to the definition of Level B harassment would require that an activity cause a ‘‘biologically significant disruption’’ of activities including, but not limited to, migration, breeding, care of young, predator avoidance, defense, or feeding. In contrast, the definition proposed 

earlier by the NRC would require that an activity cause a ‘‘disruption to 

biologically significant’’ activities. • Is this inversion of words important? Why? 

Response: Clearly, the inversion of these words is important. What we should be 

striving for is the inclusion in the definition of those responses and effects that have 

some biological significance, either at the individual or population level. There nevertheless needs to be a recognition that predicting what activities will result in biologically significant effects, or even in determining whether a particular response is 

biologically significant, may be difficult. Making such determinations when marine 

mammals are exposed to multiple activities that may not individually result in biologically significant disruption, but which cumulatively exceed that threshold, will 

likely be even more difficult. The definition needs to be broad enough to include 

such situations. 

While less ideal in the theoretical sense, a definition based on the disruption of 

biologically significant activities would likely be easier to implement. That is, once 

these important activities are identified, the only determination to make is whether 

such an activity were being disrupted—there would be no value judgment to make 

as to whether or not the disruption were biologically significant. Because of this, 

however, the definition in some cases is likely to be overly broad by including de 

minimis disruption of important behaviors. 

It seems to me that it would be easier to define a disruption to a biologically significant activity than it would be to determine what constitutes 

a biologically significant disruption to that activity. 

• If this is true, would the proposed change in the definition make it less 

protective of marine mammals? 

Response: As discussed above, it likely would be easier to identify a disruption 

of a biologically significant activity than to determine what constitutes a biologically 

significant disruption. This does not necessarily make the definition more protective, 

however. This would depend on what behaviors were identified as being biologically 

significant and on how biologically significant disruptions were defined and identified. 

How would the change in the definition of Level B (potential to injure) 

harassment affect scientific permitting? 

Response: Under either the Administration’s proposed definition or the one included in H.R. 2693, there should be few, if any, changes with respect to scientific 

research permits issued under section 104(c)(3) of the MMPA. Although certain activities may no longer fit within the first prong of the proposed Level B definitions, 

which has a significance threshold, they would continue to be covered under the second, directed activities prong. Research that involves taking only by Level B harassment would continue to be covered under the streamlined procedures of the general 

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authorization established under the 1994 amendments. Researchers would still be 

required to demonstrate that their activities constituted bona fide scientific research. Activities directed at marine mammals listed as endangered or threatened, 

even if they would result only in taking by Level B harassment, would remain subject to the full permit requirements of the Endangered Species Act. 

Activities that have potential to injure (or, under the Administration’s proposal, 

a significant potential to injure) would constitute Level A harassment and would remain subject to the full permitting requirements of the MMPA. 

Other types of research (e.g., seismic surveys) not directed at marine mammals 

but that might incidentally take marine mammals by Level B harassment would require an incidental taking authorization under section 101(a)(5) of the Act. It is possible that some activities that currently require such an authorization would no 

longer be considered harassment under the new definition and hence would not require an authorization. 

Are there activities, such as ‘‘sheltering’’ or ‘‘resting,’’ that are missing 

from the list of ‘‘migration, breeding, care of young, etc.’’? If so, which behaviors are missing and why are they important to explicitly mention in 

the proposed definition? 

Response: There are two significant omissions from the list of activities specifically identified in the definition of Level B harassment included in H.R. 2693. The 

first one is ‘‘sheltering.’’ Although sheltering may be important for predator avoidance or care of young, which are included activities under the introduced bill, it also 

has other facets, such as resting. Absent the opportunity to rest in these areas undisturbed, the animals may abandon certain locations or may be adversely affected 

through increased stress levels. 

The second omission is ‘‘surfacing,’’ which the Administration bill uses as a more 

inclusive substitute for ‘‘breathing’’ (the most closely associated term included under 

the existing definition). Obviously, the ability of marine mammals to surface when 

and where necessary to breathe, associate with conspecifics, etc., is important to 

their health and well-being. 

Would this revised definition still allow for the consideration of the 

cumulative negative impact on an individual or population of marine 

mammals? 

Response: As discussed in the response to question 2, it remains unclear how cumulative impacts would be treated under the proposed harassment definitions. 

From the Commission’s perspective, it is critical that the definition and/or its legislative history not only clearly indicate that the cumulative impacts of various activities will be factored into determining what constitutes harassment but also provide 

direction as to how such determinations should be made. For example, will each activity that contributes to what cumulatively results in significant disruption of important activities be considered harassment? If not, clear guidance needs to be provided as to which activities would be considered harassment and which ones would 

not, and how those distinctions would be drawn. 

If the consideration of small numbers and geographic area were to be 

eliminated, how would this affect the ability to determine the potential 

negative impact for an activity? 

Response: The key finding for issuing an incidental taking authorization under 

section 101(a)(5) of the MMPA is whether the taking will have a negligible impact 

on the affected species and stocks. This would not change under the proposed 

amendments. Although it is true that the ‘‘small numbers’’ and ‘‘specified geographic 

region’’ requirements provide additional mechanisms for helping to ensure that the 

scope of an activity is limited, and therefore more likely to have only negligible effects, this should not be necessary, provided that findings of negligibility are well 

justified in other contexts. 

Has NOAA Fisheries or USFWS contemplated regulating truly incidental 

activities that have little if any direct effect on marine mammals, such as 

boat wakes? 

Response: The Commission is unaware of any plans by either the NMFS or the 

FWS to regulate or prosecute those whose activities have only de minimis incidental 

effects on marine mammals. This would not be a wise use of limited agency resources. Nevertheless, as discussed elsewhere, there may be instances when seemingly trivial or benign types of disturbance may be so ubiquitous that they merit 

greater concern. 

Permitting for Scientific Research: 

It is clear to me from the testimony that we have heard today that the 

permitting process for scientific research is still problematic for many scientists, but I am still not clear on the root cause of the problem. 

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• Is the permitting process severely limited by a lack of resources and 

staff? 

Response: Lack of resources and staff likely contribute to some permit processing 

delays. Other factors also may be involved, such as the submission of an incomplete 

application or a poorly described or inadequately justified research proposal. More 

often, difficulties encountered with the issuance of scientific research permits stems 

not from the requirements of the MMPA but from those of related statutes such as 

NEPA and the Endangered Species Act. Making the additional assessments under 

the Endangered Species Act, conducting section 7 consultations, and preparing environmental impact statements or assessments no doubt slow down the process in certain instances. 

• Would the development of a classification system identifying specific 

activities and their associated risk to marine mammals be a more useful approach to expedite consideration of different types of activities 

on a more programmatic basis? 

Response: The 1994 amendments to the Marine Mammal Protection Act added a 

general authorization, with streamlined procedures, for scientific research involving 

taking only by Level B harassment. Thus, one form of classification system currently exists. The general authorization could be expanded to include other categories of research, or separate authorization systems for certain categories of activities could be designed. Using the general authorization as a template, the applicant would still be required to demonstrate that the proposed activities constituted 

bona fide research. Thus, case-by-case consideration would be necessary. Also, if 

taking by other than Level B harassment would be involved (i.e., if there is the potential to injure or kill animals, or animals will be captured) greater scrutiny, including an opportunity for public review and comment, would probably be warranted. 

As noted above, some of the delay involved in processing scientific research permits is attributable to the requirements of other statutes such as the National Environmental Policy Act. Therefore, an additional streamlining measure that could be 

taken would be the preparation of programmatic analyses to meet the requirements 

of NEPA to identify activities that would have no significant impacts or from which 

individual environmental assessments could be tiered. 

If endangered or threatened species will be taken, additional time may be needed 

to comply with the requirements of the Endangered Species Act. Heightened scrutiny is probably warranted when invasive research is being conducted on such species. However, there may be ways to streamline the authorization process, akin to 

the general authorization under the MMPA, when only low-level impacts are expected. This would require a statutory change. 

Take Reduction Teams: 

1. A new World Wildlife Fund study released in June conducted by American and Scottish biologists suggests that accidental capture or ‘‘bycatch’’ 

by the fishing industry may be the biggest immediate threat the survival 

of some marine mammals, especially large whales. This study analyzed bycatch mortality affecting 125 marine mammal populations over the period 

of 1990-1999. The study estimates that 1000 whales, dolphins, and porpoises 

drown every day. Annually, approximately 308,000 marine mammals die unintentionally. 

• In light of this information, what conclusions can be drawn about the 

effectiveness of the Section 118 take reduction team process? 

• Should specific types of fishing gear be permanently retired due to 

their associated level of bycatch? 

• Should a robust program be established to dedicate adequate resources 

and technical assistance to promote ‘‘marine mammal safe’’ fishing 

gear? 

Response: The section 118 take reduction team process has been effective for addressing fisheries bycatch of marine mammals in U.S. waters. The study described 

pertained to fisheries worldwide. Although large numbers of marine mammals have 

died incidentally in U.S. fisheries, corrective actions have been taken that have effectively reduced the number of animals killed or seriously injured. At present, 

there are relatively few marine mammal populations in U.S. waters for which incidental mortality and serious injury exceed potential biological removal levels. Six 

take reduction teams have been convened to address remaining problems. The degree of success achieved by these teams has varied, but the process provides a useful means of bringing together representatives of all stakeholder groups. At present, 

we believe that U.S. efforts to reduce marine mammal bycatch have been generally 

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successful. Although refinements in the management process are still needed, the 

take reduction team process should remain an important element of that process. 

The study described indicated that the vast majority of marine mammals killed 

incidentally in fisheries are captured in gillnets. There is no doubt that gillnets are 

problematic in that they are non-specific with regard to their catch. This indicates 

that efforts are needed to modify them or the manner in which they are used if efforts to reduce bycatch are to be successful. In the past, other gear types also have 

resulted in large numbers of marine mammal deaths, but those gear types and the 

manner in which they are deployed have been successfully modified to reduce take 

levels. Similar efforts are needed for gillnets. 

Zero Mortality Rate Goal: 

Robert Zuanich testified that the marine mammals hold a loftier status 

than all other animals in the ocean. Wasn’t this at least, in part, the goal 

of the protective approach of the MMPA? 

The ZMRG codifies this placement of marine mammals in the ocean by 

stating that anything above a zero rate mortality and injury rate is unacceptable. Although clearly intractable, this principle sets a high bar and a 

principle for how humans interact with marine mammals. 

• Can you comment on whether the zero mortality rate goal should be retained? What is its relation to the precautionary philosophy of the 

MMPA? 

Response: The MMPA recognized that—‘‘marine mammals have proven themselves to be resources of great international significance, esthetic and recreational 

as well as economic, and it is the sense of Congress that they should be protected 

and encouraged to develop to the greatest extent feasible commensurate with sound 

policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.’’

Therefore, the primary objective of the Act is to ‘‘maintain the health and stability 

of the marine ecosystem,’’ which is composed of multiple forms of marine life. Only 

when consistent with this objective are marine mammals to be maintained at optimum population levels. Even then, it needs to be recognized that the optimum level 

for each stock is defined as a range from its maximum net productivity level to the 

carrying capacity of its ecosystem. Thus, the goal with respect to marine mammals 

is to maintain stocks at ‘‘healthy’’ levels, not necessarily maximal levels. As such, 

it is not clear that marine mammals are given a ‘‘loftier’’ status than other forms 

of marine life. 

Nevertheless, the zero mortality rate goal set a relatively high standard with regard to the reduction of marine mammal mortality and serious injury incidental to 

commercial fisheries. (It is not applicable to other types of taking or to taking in 

other contexts.) We believe, however, that, because it is described as a ‘‘goal’’ of the 

Act and because the requirement is to approach this goal, there is a recognition that 

this standard may not be possible to achieve in all cases. That achieving this goal 

is not absolute is reflected in the take reduction plan requirements of section 118 

of the MMPA. While the long-term goal of such plans is to reduce incidental mortality and serious injury to insignificant levels approaching a zero mortality and serious injury rate, the plans are also to take into account the economics of the involved fisheries and the technological limitations for achieving the goal. Viewed in 

this way, the zero mortality rate goal is not intractable but simply requires continued vigilance to reduce mortality and serious injury to the greatest extent possible, 

keeping in mind competing economic and technological factors. When viewed in this 

light, we believe that a more appropriate characterization of the rationale behind 

the ZMRG is a belief that, even when removals from a stock incidental to commercial fishing operations can be tolerated at the population level, everything that reasonably can be done to reduce the mortality and serious injury of individual marine 

mammals should be done. 

The zero mortality rate goal is consistent with a precautionary approach to the 

extent that it provides a level of insurance against unknown sources of human-related mortality and serious injury. Management of marine mammals requires judgments about their status and tolerance for human-related mortality. Some of these 

judgments will underestimate the significance of human-related mortality and, 

under such circumstances, successful efforts to approach a zero mortality and serious injury rate will provide a buffer against adverse levels of impact. In that sense, 

the admonition to approach a zero mortality and serious injury rate is consistent 

with and fosters a precautionary approach to marine mammal management. 

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Threats to Marine Mammals: 

1. There seem to be many emerging threats to marine mammals that were 

not considered 25 years ago when the original act was written. 

• Do you think it would be helpful for the Marine Mammal Commission 

to report on the magnitude of emerging and existing threats to marine 

mammals? 

• Is it practical to believe that we can address these threats, and if so, 

what threats should be priorities for action? 

• This might include identifying data gaps, coming up with research 

plans and evaluating the health of marine mammal stocks in the wild 

as relates to other environmental parameters. 

• Would such an undertaking be within the scope and purview of the 

MMC? 

Response: In its testimony before various Congressional committees over the past 

few years, the Marine Mammal Commission has noted the importance of a 

proactive, anticipatory approach to research and conservation of living marine resources, including marine mammals. By using such an approach, managers can not 

only reach more effective conservation decisions that balance the needs of people 

with protection of resources, but can also make cost-effective decisions before the 

onset of crises or litigation. Therefore, with Congressional support, the Commission 

organized and held a consultation entitled ‘‘Future Directions in Marine Mammal 

Research’’ on 4-7 August 2003 in Portland, Oregon. The consultation involved 54 

scientists and other experts from six countries, who were charged with the following 

tasks: 

• review the status and trends of various anthropogenic and natural threats to 

marine mammals; 

• articulate comprehensive research recommendations to further our understanding of such threats and methods to mitigate them; and 

• encourage new, creative, interdisciplinary approaches for resolving current and 

future issues related to conservation of marine mammals and their environment. 

To facilitate discussions at the consultation, the Commission contracted for several background documents that would summarize the status of important ongoing 

or future-oriented issues that could compromise effective conservation of marine 

mammals. The issues considered by the documents and the participants included, 

but were not limited to the following: 

• infectious diseases, 

• underwater sound levels and types, 

• chemical contamination, 

• harmful algal blooms, 

• dead (anoxic/hypoxic) zones, 

• effects of expanding populations of some pinnipeds, 

• bycatch, depredation and other direct interactions with fisheries, 

• indirect effects (e.g., competition) with fisheries, 

• habitat transformation, 

• environmental change, 

• effects of human population growth, 

• how to define appropriate conservation units in the face of scientific 

uncertainty, and 

• how to better develop regulatory standards and decision rules for management. 

We expect to have the initial report of the consultation ready shortly. This will 

be followed with a more detailed report, which we plan to have available a few 

months later. In addition, we are exploring ways to publish a peer-reviewed version 

of the background documents prepared for the consultation. Such a publication is 

anticipated in a year or two. 

The Commission appreciates the support of Congress as it endeavors to take this 

and other proactive steps to facilitate marine mammal conservation. Participants at 

the future directions meeting viewed the consultation to be a great success. The 

Commission is anxious to provide a summary to Congress soon. 

• Has the MMC ever investigated the growing incidence of ship strikes? 

Would the MMC support a mandate to convene a panel to recommend 

steps to reduce ship strikes and report to Congress in 2 years? 

Response: In 1999 the Commission asked a member of its staff to organize and 

carry out a review aimed at compiling and evaluating available information on collisions between ships and whales. The result was a paper published in early January 

2001 (attached) in Marine Mammal Science. To date, this is the most comprehensive 

summary and evaluation of information available on the subject. 

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At present we do not believe that convening a panel to recommend steps to reduce 

ship strikes is necessary. By far the most pressing need with regard to this issue 

concerns collisions with North Atlantic right whales. A report putting forth recommendations to mitigate collisions with right whales was completed in the late 

summer of 2001 and provided to the National Marine Fisheries Service at that time. 

The report, entitled ‘‘Recommended Measures to Reduce Ship Strikes of North Atlantic Right Whales’’ by Bruce Russell, was prepared under the auspices of two regional right whale recovery plan implementation teams with funding provided largely by the National Marine Fisheries Service and the International Fund for Animal 

Welfare with some seed money provided by the Marine Mammal Commission. In our 

view, that report provides a good set of recommended actions and solid basis for developing regulatory and non-regulatory management actions. We do not believe a 

panel would be necessary at this time to review those recommendations or develop 

a new set recommendations. The National Marine Fisheries Service has been developing a proposed management program based on that report. What is most important now is for the Service to move ahead expeditiously with the process of developing and implementing those actions. 

• Should there be a similar directed program on ocean noise that would 

be mandated under the MMC or another program such as the National 

Oceanographic Partnership Program? 

Response: In response to a congressional directive to the Commission enacted in 

March 2003, the Commission is organizing a series of meetings to bring together 

representatives of the environmental community, ocean industries that produce 

sound in the marine environment, the academic community, and key federal management agencies to review and identify priority research and management needs 

bearing on the effects of anthropogenic sound on marine mammals. The Commission 

has recently completed the process for contracting with a professional facilitation 

team to convene those meetings, and we expect the first of three or four meetings 

to be held early in 2004. As research priorities are examined during the course of 

this policy dialogue, we expect that the need for developing a directed program on 

ocean noise will be considered. At this time, the Commission has not formed an 

opinion on how best to proceed with regard to such a directed program. We believe 

it would be appropriate to await results of the impending policy dialogue before 

making recommendations on such an important issue. 

Captive Animal Welfare: 

The 1994 changes to the Marine Mammal Protection Act gave APHIS the 

authority for captive marine mammal welfare inspections. 

• Has APHIS demonstrated requisite expertise and ability to inspect and 

oversee marine mammals in captivity? 

Response: APHIS inspections are conducted by veterinarians on a regional basis. 

These inspections cover a broad range of facilities and species. As such, many of the 

inspectors, although trained veterinarians, are not marine mammal specialists. Because marine mammals are unlike the other animals covered under the Animal 

Welfare Act, all of which are terrestrial animals, the Marine Mammal Commission 

in 1995 recommended that APHIS develop a core group of veterinarians, with specialized training, to conduct all inspections of marine mammal facilities. APHIS declined to adopt this recommendation, opting instead to hold periodic training sessions to familiarize its general corps of inspectors with legislation, regulations, and 

issues specific to marine mammals. While this is an improvement, APHIS does not 

employ marine mammal specialists to inspect marine mammal facilities. 

Marine mammal specialists are important when the applicable standards are imprecise, requiring the inspector to judge the health, comfort, and well-being of the 

animals. For example, under the applicable standards, there is no clear-cut demarcation of what constitutes the acceptable temperature ranges for maintaining the 

various species of marine mammals. Rather, the standards require only that air and 

water temperatures be maintained within a range that does not adversely affect a 

marine mammal’s health or comfort. Without specialized knowledge about the life 

histories of marine mammals, possible signs of compromised health or discomfort, 

or the literature related to the veterinary medicine and husbandry of marine 

mammals, an inspector may not be well situated make these and other similar determinations. The problems with having such subjective standards are highlighted 

by the recent events surrounding the maintenance of polar bears at a facility in 

Puerto Rico, a situation in which there were decidedly different views on the health 

status of the animals and the stress placed on them by exposure to temperatures 

well in excess of those normally encountered by the species. 

• How many inspectors does APHIS deploy to inspect display facilities? 

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Response: The Commission understands that APHIS has 100 field inspector positions and is planning to add several more in the coming fiscal year. We also understand that, in addition to its field inspectors, APHIS has additional staff, including 

nine supervisory animal care specialists, at its regional offices and headquarters. 

• To your knowledge, has APHIS promulgated marine mammal-specific 

care standards for captive marine mammals? And have such standards 

been provided to the public? 

Response: APHIS established standards for the humane handling, care, treatment, and transportation of marine mammals under the Animal Welfare Act in 

1979. These are codified at 9 C.F.R. § 3.100 et seq. As such, the standards are available to the public. Although the standards were amended slightly in the mid-1980s, 

they have not been comprehensively revised to reflect advances in veterinary science 

and animal husbandry in the past 25 years. For this reason, the Marine Mammal 

Commission, beginning in 1990, recommended that APHIS along with the National 

Marine Fisheries Service, the Fish and Wildlife Service, and the Commission work 

cooperatively to review and update the standards. Ultimately, APHIS decided to revise the standards using negotiated rulemaking. A final rule amending certain portions of the marine mammal standards was published in 2001. However, only the 

less contentious portions of the standards were revised. APHIS decided to consider 

amendments to the remaining parts using traditional notice and comment procedures. APHIS originally indicated that it would publish a proposed rule by mid2000. Instead, however, APHIS published an advance notice of proposed rulemaking 

in 2002, soliciting additional input on the remaining parts, including (1) whether 

maximum temperature ranges for air and water should be established for each 

species; (2) whether noise thresholds should be established for each species; (3) what 

criteria should be considered when determining space requirements for each species; 

(4) whether the average adult lengths used to determine space requirements under 

the existing regulations should be revised; (5) whether minimum water depths 

should be established for each species; (6) whether minimum width or longest 

straight line swimming distance is more important; (7) whether there are other 

interactive activities not identified by the Service in its notice; and (8) how interactive activities should be regulated. Thus, although there has been some progress, 

it has been 13 years since APHIS initially committed to updating its marine 

mammal standards, and we have yet to see a proposed rule to amend the most important sections. 

• Is there any oversight or reporting requirements for APHIS in the 

discharge of this responsibility? Should APHIS be required to report 

annually to Congress? 

Response: Up until December 1999, when the Federal Reports Elimination and 

Sunset Act of 1995 took effect, APHIS was required to submit an annual report on 

its activities under the Animal Welfare Act concerning all animals (the report is not 

specific to marine mammals) regulated under the Act. Specifically, the Act required 

that ‘‘[n]ot later than March of each year, the Secretary [of Agriculture] shall submit 

to the President of the Senate and the Speaker of the House of Representatives a 

comprehensive and detailed written report with respect to—(1) the identification of 

all research facilities, exhibitors, and other persons and establishments licensed by 

the Secretary under section 3 and section 12 of this Act; (2) the nature and place 

of all investigations and inspections conducted by the Secretary under section 16 of 

this Act, and all reports received by the Secretary under section 13 of this Act; (3) 

recommendations for legislation to improve the administration of this Act or any 

provision thereof; and (4) recommendations and conclusions concerning the aircraft 

environment as it relates to the carriage of live animals in air transportation.’’ The 

Commission understands that APHIS is currently exploring different mechanisms 

for continuing to provide such information to Congress, stakeholders, and the public. 

With enactment of the 1994 MMPA amendments, responsibility for virtually all 

matters related to the care and maintenance of marine mammals was placed under 

the sole jurisdiction of APHIS under the Animal Welfare Act. This vests primary 

oversight for such matters in Congress to the Agriculture committees, which may 

not have much expertise or focus on marine mammal issues. Thus, the Commission 

believes that it is important for the committees with primary jurisdiction for marine 

mammal issues to continue to monitor actions taken under the Animal Welfare Act 

as they relate to this specialized group of animals. 

• The public display community has complained that NOAA Fisheries 

deliberately misinterpreted the intent of Congress in 1994 in its promulgation of regulations regarding permits allowing the transport and 

exchange of captive marine mammals. 

• Is this complaint valid? 

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Response: Although the Marine Mammal Commission did not agree with much of 

the discussion in the proposed rule regarding exports of marine mammals for purposes of public display, we do not believe that the NMFS ‘‘deliberately misinterpreted’’ the intent of Congress in passing the 1994 amendments to the MMPA. In 

this regard, several of the provisions of section 104 of the Act that pertain to exports 

are unclear, and some are internally inconsistent. A full discussion of these provisions, the possible interpretations, and the Commission’s recommended reconciliation of conflicting provisions are provided in the discussion on pages 2 through 8 

of the Commission’s 3 April 2002 letter (attached) commenting on the Service’s public display rule. 

We also call your attention to the observation made by the Commission on page 

8 of that letter suggesting that other schemes for authorizing exports of marine 

mammals to foreign facilities may be more workable than the current one and the 

recommendation that the Service work with the interested parties to design a system that (1) achieves the goal of providing reasonable assurance that marine 

mammals exported from the United States will be well cared for throughout the duration of their maintenance in captivity, (2) more realistically reflects the ability of 

the Service and other U.S. agencies to identify and correct problems at foreign facilities, and (3) does not establish unnecessary barriers to the exchange of marine 

mammals among qualified facilities. 

Captive release prohibition: 

H.R. 2693 includes a prohibition on releasing captive marine mammals 

into the wild. 

• Considering the very limited space available to care for stranded 

marine mammals, could such a change create a situation where animals are held in captivity permanently regardless of their health and 

survival? 

Response: No. The captive release provision included as section 502 of the Administration bill is not absolute. For example, it would not apply to rescued and rehabilitated marine mammals captured and maintained under the authority of section 

109(h) of the Act. It would only apply to the release of long-term captive marine 

mammals, which present special problems associated with their ability to adapt successfully to life in the wild and pose possible threats to wild populations. Thus, it 

is only those rehabilitated marine mammals that do not meet the release criteria 

developed by the NMFS that would not qualify for release. 

As for marine mammals being maintained in captivity under other authorities 

(e.g., a public display permit), release would still be possible. It would, however, require authorization under a scientific research or species enhancement permit that 

presumably would be conditioned to ensure that the animal had been properly prepared for return to the wild and that monitoring would be adequate to track the 

fate of the animal. 

• Would this provision affect NOAA Fisheries’ release of the five pilot 

whales that were stranded on April 18, 2003? 

Response: The provision would not be applicable to the five pilot whales, which 

were rescued and recently released under the authority of section 109(h). 

• Does this provision require a US, citizen to apply for a NOAA Fisheries 

permit to release a marine mammal in other countries’ EEZ (would this 

apply to Keiko’s release in Norway)? 

Response: Although not explicit on the face of the proposed amendment, applicable law provides that, absent some specific indication of Congressional intent to the 

contrary, U.S. statutes are not given extraterritorial applicability. Thus, there is no 

reason to believe that, unless Congress provides otherwise, this prohibition would 

be applicable to the release of marine mammals outside of waters subject to U.S. 

jurisdiction. This being said, the situation with respect to Keiko is more complicated. Keiko was imported into the United States and maintained in captivity 

under a U.S. public display permit. That permit required that, before release of the 

animal to the wild could be attempted, a scientific research permit governing the 

release had to be obtained. This permit was issued prior to enactment of the 1994 

MMPA amendments, which made several changes to the Act’s permit provisions. It 

is unclear whether the permit conditions concerning the release of Keiko remain applicable in light of those amendments and the subsequent export of the whale to 

Iceland and Norway. If they remain in force, the facility maintaining Keiko may 

have a continuing obligation to obtain a scientific research permit authorizing the 

release irrespective of the proposed captive release prohibition.

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