U.S. GOVERNMENT PUBLISHING OFFICE

57–576 PDF WASHINGTON : 2024

S. HRG. 115–875 

ENHANCING THE MARINE MAMMAL 

PROTECTION ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OCEANS, ATMOSPHERE, 

FISHERIES, AND COAST GUARD 

OF THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

APRIL 25, 2018 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

Available online: http://www.govinfo.gov 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JOHN THUNE, South Dakota, Chairman 

ROGER F. WICKER, Mississippi 

ROY BLUNT, Missouri 

TED CRUZ, Texas 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

DAN SULLIVAN, Alaska 

DEAN HELLER, Nevada 

JAMES INHOFE, Oklahoma 

MIKE LEE, Utah 

RON JOHNSON, Wisconsin 

SHELLEY MOORE CAPITO, West Virginia 

CORY GARDNER, Colorado 

TODD YOUNG, Indiana 

BILL NELSON, Florida, Ranking 

MARIA CANTWELL, Washington 

AMY KLOBUCHAR, Minnesota 

RICHARD BLUMENTHAL, Connecticut 

BRIAN SCHATZ, Hawaii 

EDWARD MARKEY, Massachusetts 

TOM UDALL, New Mexico 

GARY PETERS, Michigan 

TAMMY BALDWIN, Wisconsin 

TAMMY DUCKWORTH, Illinois 

MAGGIE HASSAN, New Hampshire 

CATHERINE CORTEZ MASTO, Nevada 

JON TESTER, Montana 

NICK ROSSI, Staff Director 

ADRIAN ARNAKIS, Deputy Staff Director 

JASON VAN BEEK, General Counsel 

KIM LIPSKY, Democratic Staff Director 

CHRIS DAY, Democratic Deputy Staff Director 

RENAE BLACK, Senior Counsel 

SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES, 

AND COAST GUARD 

DAN SULLIVAN, Alaska, Chairman 

ROGER F. WICKER, Mississippi 

DEB FISCHER, Nebraska 

JAMES INHOFE, Oklahoma 

MIKE LEE, Utah 

RON JOHNSON, Wisconsin 

CORY GARDNER, Colorado 

TODD YOUNG, Indiana 

TAMMY BALDWIN, Wisconsin, Ranking 

MARIA CANTWELL, Washington 

RICHARD BLUMENTHAL, Connecticut 

BRIAN SCHATZ, Hawaii 

EDWARD MARKEY, Massachusetts 

GARY PETERS, Michigan 

(III) 

C O N T E N T S 

Page 

Hearing held on April 25, 2018 .............................................................................. 1 

Statement of Senator Sullivan ............................................................................... 1 

Alaska State Senate Joint Resolution Number 4 .......................................... 51 

Alaska State Senate Joint Resolution Number 13 ........................................ 53 

Alaska Federation of Natives 2017 Annual Convention Resolution 1725 ... 60 

Letter from the Alaska Board of Fisheries to Secretary Zinke and Secretary Ross .................................................................................................... 62 

Letter dated April 23, 2018 from the Alaska State Senator Bert Stedman 64 

Statement from the Southeast Alaska Regional Dive Fisheries Association ................................................................................................................. 68 

Letter dated April 24, 2018 from the Southeast Alaskan Fishermen’s 

Alliance .......................................................................................................... 70 

Statement of Senator Baldwin ................................................................................ 3 

Statement of Senator Markey ................................................................................. 37 

Statement of Senator Blumenthal .......................................................................... 40 

WITNESSES

Chris Oliver, Assistant Administrator for Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce ........................................................................................ 4 

Prepared statement .......................................................................................... 6 

Michael Miller, Chair, Indigenous Peoples Council for Marine Mammals ......... 12 

Prepared statement .......................................................................................... 14 

Guy R. Norman, Washington Member, Northwest Power and Conservation 

Council .................................................................................................................. 15 

Prepared statement .......................................................................................... 17 

Rae Stone, DVM, President and Partner, Dolphin Quest on behalf of The 

Alliance of Marine Mammal Parks and Aquariums .......................................... 20 

Prepared statement .......................................................................................... 23 

Jane P. Davenport, Senior Attorney, Conservation Law, Defenders of Wildlife 30 

Prepared statement .......................................................................................... 32 

APPENDIX

Response to written question submitted to Chris Oliver by: 

Hon. John Thune .............................................................................................. 73 

Hon. Dan Sullivan ............................................................................................ 73 

Response to written questions submitted to Jane P. Davenport by: 

Hon. Bill Nelson ............................................................................................... 76 

(1) 

ENHANCING THE MARINE MAMMAL 

PROTECTION ACT 

WEDNESDAY, APRIL 25, 2018 

U.S. SENATE, 

SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES, 

AND COAST GUARD, 

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:34 p.m. in room 

SR–253, Russell Senate Office Building, Hon. Dan Sullivan, Chairman of the Subcommittee, presiding. 

Present: Senators Sullivan [presiding], Baldwin, Blumenthal, 

Cantwell, Fischer, Markey, Wicker, and Young. 

OPENING STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM ALASKA 

Senator SULLIVAN. The Subcommittee on Oceans, Atmosphere, 

Fisheries, and the Coast Guard will now come to order. 

Good afternoon, everybody, and welcome to our witnesses. 

We are here for essentially what is an oversight hearing of the 

Marine Mammal Protection Act, which was enacted by Congress in 

1972. This is an extremely important issue for the country, certainly for my constituents in Alaska and many other coastal states 

and even states with upstream tributaries. As I mentioned, I know 

some of you had to travel far, shuffle competing demands, to be 

here. So I want to thank everybody for being here. 

I also want to welcome my Ranking Member, Senator Tammy 

Baldwin. She and I worked on a number of issues together and I’m 

excited that she’s here. Senator Peters and I had a good working 

relationship here when he was the Ranking Member, and I certainly look forward to the same with my colleague from Wisconsin. 

I want to thank Senator Cantwell for being here, as well, and 

Senator Young. Hopefully we’re going to have some more members 

coming in and out for today’s hearing. 

So as I mentioned, the Marine Mammal Protection Act, which is 

the focus of this hearing, was enacted by Congress in 1972 to protect mammals in the marine environment. It took the form of a 

moratorium on taking marine mammals, that’s the legal term. 

However, the statute also provided authorization for the take of 

marine mammals in certain circumstances as well as for incidental 

effects of categories of activities, including commercial fishing, military defense training and deployment, marine infrastructure, and 

exploration. 

2 

Of particular note for my constituents, Alaska Natives were explicitly recognized by Congress for the cultural subsistence and ecological significance of marine mammals, including walruses, 

whales, seals, sea lions, otters, and polar bears for Alaska Natives. 

That’s a long list of animals and not many other states have that 

many animals. 

This exemption is allowed on the basis of sustainable use and to 

provide not just access to food but also a cash economy sourced 

from the sustainable production and sale of significantly altered 

animal products. 

Finally, the MMPA regulates the public display, import, and care 

and captive of marine mammals. As originally intended by Congress, the MMPA was designed to restore depleted populations, 

regulate negative human-animal interactions, and protect populations from dropping below obtainable sustainable numbers within 

their ecosystems. 

By many estimates, the MMPA has been successful in protecting 

many species. Certain populations of seals, whales, sea lions, walruses, and sea otters have benefited or significantly expanded to 

carrying capacity within their ecosystems. 

Despite these successes, there are many issues that continue to 

arise as the National Marine Fisheries Service and the Fish and 

Wildlife Service oversee marine mammal populations and their 

interactions with human activity. 

One issue I wanted to highlight for today’s hearing that I’ve been 

particularly concerned about is the trend of states enacting overly 

broad bans on the sale of ivory that includes walrus ivory. Those 

bans are actually very well intended. They focus on the African elephant and the bans on the sale of ivory there, but everybody would 

agree, and the Obama Administration agreed with us on this issue 

previously, that those bans of African elephant ivory should not include walrus ivory, which is legal for Alaska Natives and other indigenous populations to take. 

The MMPA explicitly authorizes Alaska Natives to sustainably 

harvest marine mammals as well as create and sell handicrafts 

made out of the non-edible portions of these animals. Many reports 

have shown that the confusion related to these legal takings and 

the bans on African elephants have significantly impacted Alaska 

Natives’ ability to access economic opportunity. 

In response, I recently introduced Bill S. 1965. Senator Murkowski is a co-sponsor, The Allowing Alaska Ivory Act, to preempt 

these state bans. 

Beyond walrus ivory, there are other examples we need to review 

on how the MMPA is working. These include: whether existing permitting requirements and management authorities are flexible 

enough to provide timely implementation of the MMPA, whether 

we could implement take permits for various activities to more efficiently permit beneficial activity while still protecting marine mammals, whether we can better manage conflicts between the MMPA 

and the Endangered Species Act, whether we can address conflicts 

between marine mammals and commercial fisheries to ensure balanced ecosystems through flexible management, and whether there 

are other fixes to the existing regulatory regimes for public display 

3 

organizations that could potentially help those organizations more 

efficiently achieve their missions and goals. 

We are here today to look at some of these and other issues. As 

I mentioned at the outset, the MMPA was passed in 1972 and it 

was last reauthorized in 1994 and there haven’t been any even 

amendments to the law since 2004. 

Challenges as well as inefficiencies have arisen as a result of 

changes and successes and population growth and locations and the 

development and construction have shifted to new areas. 

This committee needs to determine where the Department of 

Commerce, NOAA, and the Fish and Wildlife Service can deploy or 

tweak their existing authorities to ensure the MMPA works smarter and better for our wildlife, our communities, our fisheries, our 

Native populations, and our ecosystems. 

Additionally, after 20 years, we need a rigorous assessment of 

the MMPA’s success and, further, we need to closely examine what 

creative and flexible solutions Congress, the Federal agencies, and 

the states and local stakeholders can employ to achieve the goals 

of protecting species and communities in a sustainable balance. 

So I’d like to now turn it over to Ranking Member Baldwin for 

her opening statement. 

Welcome. 

STATEMENT OF SENATOR TAMMY BALDWIN, 

U.S. SENATOR FROM WISCONSIN 

Senator BALDWIN. Thank you, and if I can first respond to your 

words of welcome, it is a delight to get to join you as the Ranking 

Democrat on this Subcommittee. 

Just like your Subcommittee Ranking Member prior to me, Senator Peters, we both come from Great Lakes states, and oftentimes 

people think of the state of Wisconsin as flyover territory. 

I think of it as a state with three coasts, three freshwater coasts, 

the East Coast of Lake Michigan, the North Coast of Lake Superior, and the West Coast of the St. Croix River, and the Mighty 

Mississippi River. 

And so I’m very much looking forward to the work we are going 

to do together on this Subcommittee. 

One other tangential note. You were talking about accomplishments and work we have done together and earlier this morning, 

we were reflecting on an effort we joined together on to recognize 

the helicopter pilots of the Vietnam War. 

Last week that project came to full fruition as it was dedicated 

at Arlington National Cemetery and it was great to work with you 

on that. 

Senator SULLIVAN. Great bipartisan success for our veterans. 

Senator BALDWIN. Absolutely, absolutely. So I want to greet our 

distinguished witnesses today and thank you for coming to testify 

before our Subcommittee. 

In 1972, in response to growing public concern about the negative impacts of human activities on whales, dolphins, seals, and 

other marine mammal species, this committee and ultimately the 

Full Congress acted to mitigate and reverse those impacts. 

4 

At the time, many of the great whales which once populated the 

oceans had dwindled to the edge of extinction as a result of ship 

strikes, fishing gear entanglements, and other human interactions. 

As many as 100,000 to 300,000 dolphins per year were estimated 

to be killed by the U.S. tuna industry during the catching of tuna. 

Congress responded to these and other negative impacts on marine mammals with the Marine Mammal Protection Act of 1972, 

the MMPA. The MMPA established a general moratorium on the 

taking of marine mammals from the wild with certain exceptions, 

a permitting regime to manage human interactions, and a Marine 

Mammal Commission to advise various Federal agencies regarding 

the impacts of their activities on marine mammal species. 

By most accounts, the MMPA has worked well in achieving its 

goal, although there are still species that are struggling. This overall success is evidenced by the fact that the MMPA has only been 

substantially amended once in 1994 and there have been few calls 

to amend it in the decades since. 

As the Subcommittee looks at the best ways of enhancing the 

MMPA, as this hearing is entitled, I believe we must be guided, as 

previous generations were, by the commitment to protect these important species so that they continue to rebound and thrive in the 

future. 

Thank you, Mr. Chairman. 

Senator SULLIVAN. Thank you, Senator Baldwin, and we have a 

distinguished panel, and I’m going to go through it quickly from 

our left to right. 

Mr. Chris Oliver, an Alaskan, we’re proud to say, who is the Assistant Administrator for Fisheries at NOAA here in Washington, 

D.C. 

Mr. Mike Miller, also an Alaskan, who’s the Chairman of the Indigenous People’s Council for Marine Mammals from Anchorage, 

Alaska. Thank you, Mike, for being here. 

Mr. Guy Norman, who’s the Chair, Fish and Wildlife Committee, 

Northwest Power and Conservation Council, from Portland, Oregon. 

Dr. Rae Stone, President and Partner of Dolphin Quest, Middleburg, Virginia. 

And Ms. Jane Davenport, Senior Attorney, Conservation Law Division, Defenders of Wildlife, in Washington, D.C. 

So, again, I would like to welcome everybody. Thank you for traveling, some of you, many hundreds, if not thousands, of miles for 

this hearing. 

And, Mr. Oliver, we will begin with you. Five minutes, please, 

and if there’s additional written testimony, we would be glad to 

submit it for the record. 

STATEMENT OF CHRIS OLIVER, ASSISTANT ADMINISTRATOR 

FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE, 

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 

U.S. DEPARTMENT OF COMMERCE 

Mr. OLIVER. Good afternoon, Mr. Chairman, Senator, good to see 

you again, and Members of the Committee. Thank you for inviting 

me to talk on the Marine Mammal Protection Act. 

5 

Under the MMPA, we’re responsible for protecting certain marine mammals, namely 246 different stocks of cetaceans and 

pinnipeds. The MMPA established a national policy to prevent marine mammal species and populations from declining beyond the 

point where they cease to be significant functioning elements of the 

ecosystem. 

We are a global leader in marine mammal conservation and sustainable fisheries with U.S. fisheries abiding by some of the world’s 

most robust conservation practices, including measures to reduce 

marine mammal bycatch. 

We have experienced great success over the past 45 years with 

our efforts under the Act, resulting in a number of stocks recovering to healthy levels. For example, some populations of whales in 

our waters, including gray and humpback whales, have recovered 

to levels that they are no longer listed under the Endangered Species Act. 

Under the auspices of the MMPA, Alaska Natives have continued 

to exercise their rights to subsistence hunting of many species of 

marine mammals. Some of the programs for which we regularly receive requests for incidental take authorization include coastal construction projects, oil and gas exploration, military testing and 

training, renewable energy sighting, and biological research. 

NMFS’s implementation of the incidental take provisions has allowed numerous activities critical to the U.S. economy and national 

security to proceed in compliance with the MMPA while also ensuring protection of marine mammals and subsistence uses. 

Between 2009 and 2012, we issued 11 different five-year incidental take regulations to bring the Navy into full MMPA compliance for all of its major training and testing activities across the 

U.S. EEZ. 

We have achieved MMPA goals for reducing mortality and serious injury of several stocks to below each stock’s potential biological removal level, such as beaked whales in California, Harbor porpoises in New England, and Insular False Killer whales in Hawaii. 

Turning to specific provisions of the MMPA, I want to talk about 

Section 120 and that allows NMFS to authorize the intentional lethal take of individual pinnipeds that are having a significant negative impact on the decline or recovery of ESA-listed salmonid 

stocks, namely Chinook salmon and steelhead, Columbia River 

prime example. 

Pursuant to that authority, states may request authorization to 

lethally remove pinnipeds. We strongly share concerns about the 

impact that these robust populations of pinnipeds are having on 

these ESA-listed salmon and steelhead stocks and we support 

amendments to the MMPA which will improve our ability to address those issues. 

I want to highlight some of the program-based streamlining efforts we have recently implemented. In 2017, in response to multiple Executive Orders aimed at reducing regulatory burden, we 

committed to decreasing processing times for typical incidental 

take authorization requests and during the year 2017, we reduced 

the average processing time from what was 21 and a half months 

in the preceding 5 years down to 14 and a half months in 2017, 

6 

and we’re going to continue to collect data to track the impacts of 

those streamlining efforts. 

Moving forward, we’re working on additional measures and guidance to increase efficiency and reduce the burden on the applicants, 

including measures recommended by the Marine Mammal Commission in a recent GAO audit. 

Based on challenges that NMFS and the public have encountered 

in implementing or complying with the Act, I would like to summarize a subset of ideas that we’re considering that could reduce unnecessary burden and improve implementation while ensuring appropriate protection for marine mammals. 

I would note that we have been in conversations with our sister 

agencies in the Department of Interior on many of these suggestions. 

The first, remove the 5-year limitation on incidental take authorizations. 

The second is increase the maximum time period for incidental 

harassment authorizations. Currently, we are limited to one year 

on those. 

Third, and this is a very important one, is to remove the small 

numbers requirement in the incidental take authorizations. As it 

stands now for all but military readiness activities, which are exempt from this requirement, we may authorize take of only small 

numbers of marine mammals and I don’t have time to elaborate on 

that but that’s an important one. 

The fourth is to remove the specified geographic region requirement. At this time, we may authorize take in a single incidental 

take authorization only if it’s within a specified geographic area. 

However, there are circumstances where the impacts of an activity 

on marine mammals are similar across multiple regions. 

Fifth is to clarify the authority to issue renewals of IHAs, and 

I want to just close by saying we’re committed to work with other 

agencies, including the Department of Interior, on other proposals 

for streamlining implementation of the Act, and I would welcome 

any comments that you might have. 

Thank you. 

[The prepared statement of Mr. Oliver follows:] 

PREPARED STATEMENT OF CHRIS OLIVER, ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC

ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

Chair and Members of the Subcommittee, I am Chris Oliver, Assistant Administrator for Fisheries at the National Oceanic and Atmospheric Administration 

(NOAA). Thank you for inviting me to testify today on the Marine Mammal Protection Act (MMPA). 

Overview of the MMPA 

Under the MMPA, the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS), as delegated by the Secretary of Commerce, is responsible for protecting certain marine mammals, namely cetaceans and 

pinnipeds, excluding walruses. The MMPA established a national policy to prevent 

marine mammal species and population stocks from declining beyond the point 

where they cease to be significant functioning elements of the ecosystems of which 

they are a part. The United States is a global leader in marine mammal conservation and sustainable fisheries, with U.S. fisheries abiding by some of the world’s 

most robust conservation practices, including measures to reduce marine mammal 

bycatch—a global threat to many populations of marine mammals. We have experienced great success over the past 45 years with our efforts under the MMPA resultVerDate Nov 24 2008 12:19 Dec 03, 2024 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\57576.TXT JACKIE
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1 Jurisdiction over species is split between the NMFS and U.S. Fish and Wildlife Service 

(FWS), with NMFS having jurisdiction for all whales, dolphins, seals, and sea lions and FWS 

having jurisdiction for polar bears, sea otters, manatees and dugongs, and walrus. 2The small numbers and certain other provisions in sections 101(a)(5)(A) and (D) were modified for military readiness activities. 

ing in a number of stocks recovering to healthy levels. For example, several species 

of seals and sea lions have returned to their historical habitats and increased in 

abundance. Some populations of whales in our waters, including gray and humpback whales, have recovered to such levels that they are no longer listed under the 

Endangered Species Act. Under the auspices of the MMPA, Alaska natives have 

continued to exercise their rights to subsistence hunting of many species of marine 

mammals. 

General Moratorium on Take and Exceptions 

The MMPA provides protection for all marine mammals,1 including a general 

moratorium on ‘‘take’’ that applies to all activities in U.S. waters and to U.S. citizens conducting activities on the high seas. The term ‘‘take’’ means to harass, hunt, 

capture, or kill a marine mammal or to attempt to engage in any of these activities. 

The MMPA further defines ‘‘harassment’’ for activities other than military readiness 

and Federal scientific research as ‘‘any act of pursuit, torment, or annoyance which: 

(i) has the potential to injure a marine mammal or marine mammal stock in the 

wild [Level A harassment]; or (ii) 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 [Level B harassment].’’ 

In recognition of the fact that there are numerous activities that can result in 

‘‘take’’ of marine mammals, including those with minimal impacts on marine mammals or that are in the national interest, Congress included a number of exemptions 

and exceptions to the moratorium, including allowing for the authorization of ‘‘incidental’’ take related to activities other than commercial fishing (Section 118 of the 

MMPA, described later, governs incidental take from commercial fishing activities). 

‘‘Incidental’’ take may be an expected and unavoidable effect of the activity (e.g., 

coastal construction, oil and gas exploration, or military readiness training), but is 

not intentional. The MMPA contains two distinct but similar provisions, sections 

101(a)(5)(A) and (D), governing the authorization of incidental take from non-commercial fishing activities. Both provisions require that an applicant submit a request for authorization containing specific information. 

Sections 101(a)(5)(A) and (D) of the MMPA direct the Secretary of Commerce (as 

delegated to NMFS) to authorize, upon request by U.S. citizens who engage in a 

specified activity within a specified area, the incidental take of ‘‘small numbers’’ of 

marine mammals.2 Such incidental take is to be authorized, provided that the take 

(i) will have a ‘‘negligible impact’’ on the species or stock(s) and (ii) any adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant) could be mitigated. NMFS has defined ‘‘negligible impact’’ in 50 C.F.R. 

216.103 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. The authorization must 

prescribe mitigation requirements sufficient to effect the ‘‘least practicable’’ adverse 

impact on the affected marine mammal species and stocks and their habitat. Monitoring and reporting requirements must also be included in the authorization. There 

are also some differences between the two provisions: 

Incidental Harassment Authorizations: Section 101(a)(5)(D) provides an expedited process by which authorization of incidental take may be issued through 

incidental harassment authorizations (IHAs), which does not require promulgation of regulations. IHAs require one 30-day public comment period, are valid 

for a maximum of one year, and are typically issued for shorter-term actions. 

IHAs may not be issued when the activity has the potential to result in death 

of a marine mammal. 

Incidental Take Regulations and Letters of Authorization: For actions with the 

potential to result in the death of a marine mammal, authorization must be 

issued through section 101(a)(5)(A), which requires promulgation of regulations 

and issuance of associated letters of authorization (LOAs). LOAs may be valid 

up to 5 years (versus a 1-year IHA) and are often used for actions without potential mortality in order to provide greater administrative efficiency and regulatory certainty for applicants with multi-year projects, such as coastal infrastructure projects. The LOA process includes incorporating input from two pubVerDate Nov 24 2008 12:19 Dec 03, 2024 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\57576.TXT JACKIE
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lic comment periods, one on an early notice of receipt of the application, and 

one on NMFS’ proposed regulations under which an LOA would be issued. Typical LOA applicants include the military and transportation agencies (either at 

the Federal or state levels). 

Some of the activities for which NMFS regularly receives requests for incidental 

take authorizations include: coastal construction (e.g., pile driving), oil and gas exploration (e.g., seismic surveys), military testing and training (e.g., active tactical 

sonar and explosive detonation), renewable energy site characterization (e.g., active 

sonar and impulsive sources), and biological research that disturbs pinnipeds on a 

beach. Short-term, one-time activities carried out by non-Federal entities are typically covered by 1-year IHAs, whereas incidental take regulations are typically used 

to cover activities that last more than a couple of years, are ongoing, and/or are 

managed by Federal agencies. Also, activities with the potential to result in mortality of marine mammals may only be covered under incidental take regulations. 

MMPA section 101(a)(5)(E) allows NMFS to authorize, under certain conditions, 

the incidental taking of marine mammals from a species or stock, designated as depleted because of its listing under the Endangered Species Act (ESA) of 1973 (19 

U.S.C. 1531 et seq.), in the course of commercial fishing operations. This authorization can only be issued if NMFS determines the incidental mortality and serious injury will have a negligible impact on the affected species or stock; a recovery plan 

has been developed or is being developed; if required, a monitoring program has 

been established; and a take reduction plan has either been developed or being developed for the species or stock. 

Commercial Fisheries Interactions 

Section 118(c)(1) of the MMPA requires NMFS to annually classify commercial 

fisheries into one of three categories according to the level of incidental mortality 

or serious injury of marine mammals: (I) ‘‘frequent’’ incidental mortality or serious 

injury of marine mammals, (II) ‘‘occasional’’ incidental mortality or serious injury 

of marine mammals, and (III) ‘‘remote likelihood of or no known’’ incidental mortality or serious injury of marine mammals. For some fisheries classified in Categories I and II, NMFS works collaboratively with the commercial fishing industry 

and other stakeholders to identify measures to reduce serious injury and mortality 

from commercial fisheries on marine mammals to sustainable levels. 

Section 118(f) of the MMPA directs NMFS to develop and implement Take Reduction Plans to prevent the depletion and assist in the recovery of certain marine 

mammal stocks that are killed or seriously injured in commercial fisheries. Each 

Plan is designed to minimize mortality and serious injury through regulatory or voluntary measures. NMFS convenes stakeholder-based teams that are charged with 

developing consensus recommendations to reduce incidental mortality and serious 

injury of particular marine mammal stocks in specific U.S. commercial fisheries, initially to below the stock’s potential biological removal level, and ultimately to insignificant levels approaching a zero mortality and serious injury rate. 

Subsistence Use of Marine Mammals 

Section 119 provides for cooperative agreements with Alaska Native Organizations to conserve marine mammals and provide co-management of subsistence use. 

Co-management promotes full and equal participation by Alaska Natives in decisions affecting the subsistence management of marine mammals (to the maximum 

extent allowed by law) as a tool for conserving marine mammal populations in Alaska. Agreements may involve: (1) developing marine mammal comanagement structures and processes with Federal and state agencies; (2) monitoring the harvest of 

marine mammals for subsistence use; (3) participating in marine mammal research; 

and (4) collecting and analyzing data on marine mammal populations. 

Pinniped Removal Authority 

Section 120 allows NMFS to authorize the intentional lethal taking of individually 

identifiable pinnipeds that are having a significant negative impact on the decline 

or recovery of salmonid fishery stocks which have been listed as threatened or endangered species under the ESA. The authorization applies only to pinnipeds that 

are not listed under the ESA or designated as a depleted or strategic stock under 

the MMPA. Pursuant to the MMPA, a state may request authorization to lethally 

remove pinnipeds. NOAA shares concerns about the impact robust populations of 

pinnipeds throughout the West Coast are having on ESA-listed salmon and 

steelhead stocks. We welcome the opportunity to work with Congress to improve the 

process. 

9 

Marine Mammal Commission 

Title II of the MMPA established the Marine Mammal Commission to provide 

independent oversight of the marine mammal conservation policies and programs 

being carried out by Federal agencies. As directed by the MMPA, NMFS consults 

with the Commission on certain actions and the Commission regularly reviews our 

actions and provides recommendations to NMFS. 

Marine Mammal Health and Stranding Response Program 

Title IV of the MMPA authorizes the Marine Mammal Health and Stranding Response Program (MMHSRP), which mandates: 

• emergency preparedness and response for stranded, entangled, distressed, imperiled, or dead marine mammals; 

• scientific investigations into the overall health of marine mammal populations 

in the wild and causes of marine mammal illness and death; and 

• administration of the John H. Prescott Marine Mammal Rescue Assistance 

Grant Program to help fund non-Federal organizations that participate in the 

Marine Mammal Stranding Network community. 

International Whaling Commission and Aboriginal Subsistence Whaling 

The U.S. has been an active member of the International Whaling Commission 

(IWC) since its establishment in 1948 under the International Convention for the 

Regulation of Whaling. At the IWC, there are three types of whaling considered: 

commercial, scientific, and aboriginal subsistence whaling (ASW). In 1986, the IWC 

implemented a global moratorium on commercial whaling. The moratorium on commercial whaling does not apply to ASW or scientific research whaling. Since 1977, 

ASW has been regulated by catch limits established by the IWC. Today, the IWC 

governs aboriginal whaling by its member countries by specifically identifying stocks 

subject to ASW, establishing principles governing such whaling, and, since 1982, by 

requiring that overall catch limits be set for such whaling on such stocks on the 

basis of scientific review by the IWC Scientific Committee. To initiate the catch 

limit-setting process, Contracting Governments, acting on behalf of aborigines in 

their respective nations, make a proposal to the IWC based on subsistence needs 

and available science. The existing catch limits for ASW were adopted in 2012 by 

the IWC and are set to expire at the end of 2018. The U.S. and the Russian Federation will again jointly propose updated catch limits for bowhead and gray whales 

on behalf of their native groups at the upcoming September 2018 biennial IWC 

meeting. Domestically, for bowhead whales, the U.S. co-manages its catch limits 

through a cooperative agreement with the Alaska Eskimo Whaling Commission. 

These protections and exceptions are consistent with NOAA’s duty to protect 

cetaceans, such as whales, under the MMPA. 

What’s working? 

Incidental Take Provisions: NMFS’ successful implementation of the incidental 

take provisions of the MMPA (sections 101(a)(5)(A) and (D)) has allowed numerous 

activities critical to the U.S. economy and national security to proceed in compliance 

with the MMPA, while also ensuring protection of marine mammals and subsistence 

uses and providing for the collection of important marine mammal data that is used 

to inform agency decisions. For example, between 2009 and 2012, NMFS issued 11 

five-year incidental take regulations to bring the Navy into MMPA compliance for 

all of its major training and testing activities in the U.S. EEZ. In continued close 

coordination with the Navy, these actions were combined into five regulations for 

the second five-year round and we are working on the third round now to provide 

MMPA-compliant continuity of critical military readiness activities. Protective measures for marine mammals have continued to evolve and improve and the required 

Navy monitoring program, which includes extensive collaboration with NMFS scientists, has greatly increased our understanding of marine mammals and the effects 

of Navy activities. 

Research Permit Provisions: NMFS’ successful implementation of the research permit provisions of the MMPA has allowed research critical for responsible management decisions to move forward in compliance with the MMPA, while minimizing 

impacts to marine mammals. For example, the biopsies and tagging permitted 

under these permits provide important information about genetics, physiology, dive 

profiles, daily/seasonal movement patterns, and specific responses to certain 

stressors in controlled exposure experiments. These data are necessary to understand marine mammal population structure, life history, and how different stressors 

impact individuals, which is in turn critical for minimizing impacts and making responsible management decisions. 

10 

Take Reduction Teams: During the past 20 years, NMFS has convened nine teams 

charged with reducing the mortality and serious injury of marine mammals from 

35 stocks and 30 commercial fisheries. Take reduction planning and monitoring 

would not be possible without strong collaboration between NMFS and its partners, 

including the fishing industry, scientists, environmental groups, and other government agencies. Throughout this experience, we have learned which factors are optimal for establishing and working with teams to ensure those teams have the best 

chance for successfully reaching consensus. We have achieved the MMPA goals for 

reducing mortality and serious injury of several stocks to below each stock’s potential biological removal level, such as beaked whales in California, harbor porpoise 

in New England, and insular false killer whales in Hawaii. 

Marine Mammal Health and Stranding Response Program (MMHSRP): For the 

last 26 years, the MMHSRP has been highly successful in developing public-private 

partnerships to provide emergency response to live or dead marine mammals, and 

to investigate the health of marine mammal populations in the wild. Over 100 partners comprise the National Marine Mammal Stranding Network and each member 

plays an important role in helping NMFS meet our Congressional mandates. The 

Network responded to more than 56,800 stranded animals in the past decade alone. 

Valuable data collected from stranded animals are used for informing marine mammal stock assessment reports, identifying key species recovery activities, monitoring 

ocean health, and identifying natural and manmade causes of stranding, illness, and 

death in marine mammals around the United States. 

Since 1992, NMFS and the National Marine Mammal Stranding Network have 

identified, responded to, and investigated 65 marine mammal unusual mortality 

events, including three concurrent large whale mortality events currently ongoing 

along the Atlantic coast. In responding to over 770 entangled large whales over the 

past 10 years, our marine mammal entanglement response partners have collected 

important information to help fishery managers determine the types of gear causing 

entanglements, which allows development of appropriate mitigation measures by 

NMFS in partnership with the fishing industry. 

Interventions by stranding and entanglement responders also significantly improve health and welfare of individual animals, often times relieving anthropogenic 

caused injury. Biomonitoring and scientific investigations by the MMHSRP and our 

partners have increased baseline scientific information, as well as improved conservation and management of these protected species. For example, the invaluable 

long-term data from stranded animals in the Gulf of Mexico was essential in evaluating the impact of the 2010 Deepwater Horizon oil spill and the subsequent development of the Damage Assessment and Restoration Program. 

Program-Based Streamlining Efforts 

In 2017 (in response to the issuance of multiple Executive Orders prioritizing the 

reduction of regulatory burden), NMFS specifically committed to decreasing processing times for typical MMPA incidental take authorization requests. To accomplish this, we have accelerated the development and application of certain targeted 

program improvements and NMFS brought in needed additional temporary staff to 

assist in further implementing these improvements. 

BASELINE METRICS: Based on project tracking information compiled (and quality control-checked) from January 2011 through the end of December 2016 (6 years) 

the length of time between the day the application was received and the day a final 

decision was effected, average processing times were as follows: 

• IHAs (172)—7.5 mo. 

• Regulations (23)—21.5 mo. 

IMPROVEMENT: Recent reporting indicates that for authorizations issued from 

mid-December 2016 through November 2017 (time within which NMFS has begun 

implementing new streamlining measures), average timelines were shortened as follows: 

• IHAs (28)—6.6 mo. 

• Regulations (7)—14.4 mo. 

NMFS will continue to collect data to track the impacts of our streamlining 

efforts. 

Successful Measures: Upon committing to a reduction in MMPA processing 

timelines in 2017, NMFS developed a Streamlining Implementation Plan that summarized current timelines, specifically identified steps in the MMPA process where 

efficiencies could be gained and laid out process improvement actions or procedures 

that could be developed and implemented. Following are some of the new measures 

11 

that NMFS has developed and begun implementing that increase efficiency and help 

decrease processing time: 

• NEPA Categorical Exclusions: We developed and began implementing (in 2017) 

Categorical Exclusions for MMPA incidental take authorizations that have been 

found not to have a significant effect on the environment, which has saved significant analysis, writing, and review time for NMFS staff. 

• NOAA General Counsel (GC) Review Waivers: We recently began implementing 

legal review waivers for agreed-upon low impact/low controversy actions not expected to be at risk of litigation, which saves time in processing authorizations. 

Following successful implementation, we are expanding the scope of the waivers 

this year to further increase efficiency. 

• Templates and Standardized Language: The 2017 development of more templates and standard language to address established topics has decreased analyst writing time. 

• Assessment of When Authorizations are Needed: We have been taking a closer 

look at when MMPA authorizations are actually required (e.g., in some cases 

take might be unlikely or could be avoided by feasible mitigation) and working 

with potential applicants more actively to appropriately identify when authorizations are needed. We have returned multiple applications in the last year 

and averted the need to process overly precautionary applications through discussions, saving significant time for applicants and NMFS staff. Additional external guidance is under development. 

• Renewals and Extensions of IHAs: We have developed a proposed process 

wherein a 1year extension or renewal of an IHA could be allowed in specific circumstances without an additional public comment period. In January 2018, we 

published the first proposed notice of an IHA where NMFS included notice and 

the opportunity to comment on the possibility of a one-year renewal. 

• Early Review Teams: We have developed and begun implementing mechanisms 

to help ensure earlier identification and resolution of difficult issues with applicants and other NMFS offices, which facilitates a quicker process and reduces 

confusion and burden. 

Moving Forward: In addition to the actions noted above that NMFS has begun 

successfully implementing, we are working on additional methods, guidance, and 

procedures that will further increase efficiency and reduce burden on the applicant, 

including several measures recommended by the Marine Mammal Commission. 

Some of these efforts, which provide guidance to potential applicants, necessitate extensive coordination with other agencies. We are also working on new guidance to 

identify the information needed for an application to be considered ‘‘adequate and 

complete,’’ which was recommended by a recent GAO audit to help us better track 

processing timelines. That guidance also is expected to help applicants develop better applications, thereby reducing the need for and time spent obtaining additional 

information to conduct our analyses. 

Implementation Challenges and MMPA Ideas Under Consideration 

NMFS and the public have encountered challenges in implementing or complying 

with the MMPA. The Administration is committed to improving and streamlining 

regulatory processes, and we are in the midst of an interagency discussions to determine the best means of supporting this agenda in the context of the MMPA. Summarized below are a subset of ideas we are considering that could reduce unnecessary burden and improve implementation of the MMPA while ensuring appropriate 

protection for marine mammals; this list is not exhaustive and is subject to change. 

We also are continuing to work with other agencies, including the Department of 

Defense and the Bureau of Ocean Energy Management and the U.S. Fish and Wildlife Service within the Department of the Interior, on other proposals for streamlining implementation of the MMPA and ESA for oil and gas activities and G&G 

permitting specifically. We would welcome the opportunity to further discuss any of 

these with the Committee. 

1. Remove the 5-year limitation on Incidental Take Authorizations under 

101(a)(5)(A) Under current law, NMFS cannot authorize incidental take of marine mammals under incidental take regulations for longer than 5 years at a 

time. 

2. Increase the maximum time period for an incidental harassment authorizations 

(IHA) IHAs, the expedited process for authorizing harassment only, are currently limited to 1 year. 

12 

3. Remove the ‘‘small numbers’’ requirements in incidental take authorizations For 

all but military readiness activities (which were exempted from this requirement via the NDAA of 2004), NMFS may authorize take of only small numbers 

of marine mammals. 

4. Remove the ‘‘specified geographical region’’ requirement in incidental take authorizations NMFS may authorize take in a single incidental take authorization only if it is within a specified geographic area. However, there may be circumstances where the impacts of an activity on marine mammals is similar 

across multiple regions. 

5. Clarify the authority to issue renewals of IHAs NMFS recently implemented a 

programmatic procedure to allow one-year renewals and is tracking performance metrics to assess the impacts of change on both the agency and permittees. 

Conclusion 

The MMPA has served as a sound model for marine mammal conservation and 

management policies and practices around the world but has posed challenges for 

certain types of activities. I look forward to working with Members of the Subcommittee, your staffs, and other interested members of the public to meet the challenges that face us in better protecting marine mammals, while balancing human 

needs. 

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. 

Senator SULLIVAN. Thank you, Mr. Oliver, and we all think 

you’re doing a great job there. I’m glad to have you in that very, 

very important position for the Federal Government. 

Mr. Miller, welcome. The floor is yours. 

STATEMENT OF MICHAEL MILLER, CHAIR, INDIGENOUS 

PEOPLES COUNCIL FOR MARINE MAMMALS 

Mr. MILLER. Thank you, Mr. Chairman, and Members of the 

Committee. 

My name is Mike Miller. I’m actually from Sitka. That’s where 

I live, and I’m here—I sit on the Sitka Tribal Council in Southeast, 

but I’m here as Chairman of the Indigenous People’s Council for 

Marine Mammals or IPCoMM. 

IPCoMM was formed in 1992. It’s made up of 17 Alaska Native 

organizations that are tribal or tribally authorized specifically to 

speak on issues related to the harvest and use of marine mammals. 

While our members are distinct organizations working on issues 

specific to their respective species or geographic region, IPCoMM 

itself holds an umbrella agreement to interact with agencies on 

issues of common concerns for all our members. 

Of course, in Section 101 of the MMPA, there is the exemption 

that the Senator referenced for Alaska Natives to harvest and use 

marine mammals, a practice that goes back hundreds, if not thousands, of years and continues to this day in much the same manner. 

Section 119 of the MMPA does allow for agreements to be developed between Federal agencies and Alaska Native organizations for 

the co-management of the subsistence harvest of marine mammals. 

The responsible agency for walrus, polar bears, and sea otters is 

Fish and Wildlife Service under Department of Interior. The Department of Commerce, specifically National Marine Fisheries 

Service, has other species of whales, which would be bullhead and 

beluga, sea lions and seals, including fur seals, Harbor seals, and 

ice seals. 

13 

Alaska still has many communities today that rely heavily on the 

harvest of marine mammals for food, economic, and cultural purposes. 

Increasingly, though, communities, from the Arctic through the 

Bering Sea and the Aleutians to Southeast, are recognizing the importance of having a stronger role in the management or co-management of the marine mammal species they rely on. 

Issues related to climate change, shifting marine mammal populations, changing in community demographics, and outside 

misperceptions of the harvest are all having an impact on how our 

organizations set priorities and use the available resources. 

Over the past year, IPCoMM has worked to increase its effectiveness for the member organizations. For example, in November of 

last year, we did a mass board training for all the individual board 

members of our organization, so there are about 120-some people 

that came, and we did specific training to help people understand 

their roles as nonprofit organizations, their responsibilities to the 

communities, but also the roles and responsibilities that are required of board members when they are working with Federal 

funding. 

So we have also recently assisted in restructuring the Polar Bear 

Co-Management Identity with support of the 15 Polar Bear Harvesting Communities and the Regional Representative Organizations, as well. 

The present funding structure requires national marine fisheries 

species organizations with co-management agreements to compete 

annually for project funding which also includes base funding operations. So it’s a year-by-year process. 

U.S. Fish and Wildlife species organizations are funded through 

annual or multiyear cooperative agreements. National Marine 

Fisheries does have a specific line item for Section 119 funding but 

Fish and Wildlife does not and we feel like it would be helpful if 

they did. 

Outside of our specific concerns we have related to funding, our 

relationship, though, with agencies, such as Marine Mammal Commission, National Marine Fisheries, U.S. Fish and Wildlife, and in 

a lesser role BIA, are generally very positive at this point, and I 

will mention in the case of Fish and Wildlife Service, this is a market improvement from two years ago. There has been essentially a 

180 in the working relationship which we’re hoping that the effort 

towards stronger relationships and partnerships with the agencies 

continues. 

Strong Alaska Native involvement is not only essential to management in the harvest and use of marine mammals but it’s essential to full understanding and general management of the species, 

as well, IPCoMM common member organizations are uniquely created and positioned to provide key information and direction and 

proper management by Federal agencies. 

IPCoMM previously proposed that MMPA language change about 

10 years ago and it was specific to increasing language in support 

of harvest management prior to depletion. That’s something that 

we would like to continue to look at. 

We do feel that MMPA has wonderful language and so we’d look 

at it very cautiously, but we have proposed and would like to again 

14 

1 16 U.S.C. § 1361–1423h. 

2 16 U.S.C. § 1372. 

3Defined in 50 CFR 18.3. 

4 16 U.S.C. § 1371(b). 

5 16 U.S.C. § 1388. 

6 16 USC 1362(1)(A)-(C). 

look at essentially what we called ‘‘harvest management prior to 

depletion,’’ which one of the key parts of it was adding enforcement 

provisions for the plans that are locally created. 

It could be used to address all kinds of things, including the 

handicraft issues. Certainly a harvest management plan could lead 

toward sustainable harvest designation which could help folks. It 

could be used to deal with definition of Alaska Native for folks and 

things like that. So we’re hoping to continue to work with the Committee on that. 

That being said, again we like the language in the Act, but in 

closing, we certainly would like to work with the Subcommittee to 

see if there are changes that could be made to enhance the Act. 

Thank you for allowing me to testify today and hope we can continue to do this work. 

[The prepared statement of Mr. Miller follows:] 

PREPARED STATEMENT OF MICHAEL MILLER, CHAIR, INDIGENOUS PEOPLES COUNCIL

FOR MARINE MAMMALS

The Indigenous Peoples Council for Marine Mammals (IPCoMM) is a coalition of 

eighteen (18) Alaska Native marine mammal commissions, councils, and organizations. It was formed in 1992 for the purpose of identifying and addressing marine 

mammal issues of common concern. Our membership stretches from the northernmost town in the United States, Utqiagvik (formerly Barrow) on the banks of the 

Arctic Ocean, down the Bering Sea coast out to Attu Island at the end of the Aleutian chain, and along the Gulf of Alaska past Ketchikan in southeast Alaska. Alaska’s coastline is 6,640 miles long, which is longer than the coastlines of all other 

states combined. Including islands, our shoreline is 33,904 miles long. As you can 

imagine, the ocean and its bounty is part of the fabric of life for our communities. 

As of the 2010 U.S. Census, the total population in Alaska was 710,231, of which 

Alaska Natives comprise about 20 percent. Over the course of as many as 10,000 

years in some villages, our communities have been stewards of the lands and resources that form the basis of who we are as distinct peoples. Our solemn commitment to serve as stewards for the marine mammals that have sustained our people 

for many generations is strong, and we co-manage these resources with our children, grandchildren and future generations in mind. 

The Marine Mammal Protection Act (MMPA)1 prohibits the hunting of all marine 

mammals in Federal waters, in addition to other forms of taking marine mammals.2

The MMPA contains a provision referred to as the ‘‘Native exemption,’’ which provides that the prohibition of marine mammal takes does not apply to Alaska Natives 

who reside in Alaska and dwell on the coast, if such take is for subsistence purposes, for purposes of creating and selling ‘‘authentic native articles of handicrafts 

and clothing,’’ 3 and is not accomplished in a wasteful manner.4 It is under the Native exemption that Alaska Native peoples across the state are able to continue to 

hunt and use marine mammals, which are critical to our nutritional, cultural, mental, and spiritual wellness. 

The National Marine Fisheries Service (NMFS) within the Department of Commerce is charged with regulating whales, seals, and sea lions. The Fish and Wildlife 

Service (FWS) in the Department of the Interior regulates polar bears, sea otters, 

and Pacific walrus. Under Section 119 of the MMPA, NMFS and FWS and certain 

Alaska Native organizations have cooperative agreements in place to conserve and 

co-manage Alaska Native subsistence uses of specific marine mammals.5

Avoiding depletion of a marine mammal stock is a primary shared goal of the 

MMPA and one of the most significant areas of co-management between Alaska Natives and the managing Federal agencies. Under the MMPA, if a species or stock 

of marine mammal is ‘‘depleted,’’ 6 the appropriate department can restrict or reguVerDate Nov 24 2008 12:19 Dec 03, 2024 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\57576.TXT JACKIE
15 

7 16 U.S.C. § 1371(b)(3). 

late Alaska Native subsistence hunting.7 As co-stewards of marine mammals, some 

Alaska Native organizations have developed harvest management plans as tools to 

guide and promote sustainable harvests and ensure the opportunity to continue 

their cultural, economic and nutritional way of life. However, this essential tool is 

not being fully utilized. All Alaska Native organizations need clear and enhanced 

authority, and sufficient capacity and funding, to develop management plans well 

in advance of any threat to the conservation of the stocks. These plans are particularly vital with the growing impact of climate change in the Arctic and on the marine mammal stocks in Alaska. We believe that the MMPA is a strong statute as 

written, and great care should be exercised before any amendment is considered 

that would impact the subsistence harvest and management rights that are currently protected in the Act. If, however, amendments were to be considered, 

IPCoMM would want to discuss including language strengthening the authority and 

funding for Alaska Native co-management organizations to fully develop, implement 

and enforce harvest management plans. 

Subsection (d) of Section 119 authorized appropriations to both Federal agencies 

to carry out cooperative agreements from 1994–1999. For ten years now, there has 

not been a specific appropriation to implement cooperative agreements. Each agency 

does its best to find funding to commit to cooperative agreements, though it is on 

a year-by-year basis. The FWS budget does not include a specific line item for cooperative agreements. NMFS has a cooperative agreements line item, though it is typically insufficient to meet needs. The result of this budget reality is that there is a 

tremendous amount of uncertainty around funding, with multiple negative impacts. 

It is difficult to plan and carry out important work around the species themselves— 

for example, population monitoring is something that needs to occur on a multi-year 

basis to produce meaningful data. It can be difficult to recruit and retain high quality professionals to carry out the work of our co-management organizations and cooperative agreements with NMFS and FWS. There is consistently insufficient funding to engage in succession planning; there is typically funding for one executive director in an organization and no funds for a high caliber person for the executive 

director to hire and mentor to perform the unique work of an Alaska Native marine 

mammal co-management organization. Finally, Alaska Native organizations with cooperative agreements covering different species are required to compete with each 

other for funding. A solution to this funding predicament would be to update subsection (d) to authorize appropriations for a particular multi-year period as was 

done in the past. Congress could also create a line item that resulted in multi-years 

blocks of funding coming directly to the Alaska co-management organization rather 

than being sifted through the budget of a Federal agency. 

Thank you very much for the opportunity to submit testimony. Guanlche ́esh 

(thank you in Tlingit). 

Senator SULLIVAN. Great. Thank you, Mr. Miller. 

Mr. Norman, the floor is yours, sir. 

STATEMENT OF GUY R. NORMAN, WASHINGTON MEMBER, 

NORTHWEST POWER AND CONSERVATION COUNCIL 

Mr. NORMAN. Thank you, Mr. Chairman, for the opportunity to 

testify today. 

I represent Washington State on the Northwest Power and Conservation Council. 

The Council’s an interstate compact composed of the states of 

Idaho, Montana, Oregon, and Washington. It was authorized by the 

Northwest Power Act of 1980, giving the region a greater voice in 

how we plan our energy future in balance with mitigation for fish 

and wildlife resources in the Columbia Basin. 

As part of a comprehensive recovery strategy for salmon and 

steelhead, the region is actively addressing long-term issues associated with dam operations, harvest, habitat, hatcheries, and bird 

and fish predation, with long-term solutions. 

16 

But predation by sea lions is an immediate and increasing problem that needs an immediate solution. There’s widespread concern 

in the region that increasing sea lion predation is offsetting the billions invested in salmon recovery in the basin. 

The MMPA has been successful in rebuilding the sea lion population to the West Coast and that’s a good thing. The California sea 

lion population has grown to nearly 300,000 and biologists believe 

they are at or near carrying capacity. 

The Stellar sea lion population has also steadily grown, now 

numbering near 75,000 individuals. These sea lions have historically foraged in the Pacific Ocean and West Coast estuaries. However, in 2001, dozens of adult male sea lions began traveling over 

140 miles up the Columbia River to prey on salmon and steelhead 

at Bonneville Dam. 

Those numbers soon increased to hundreds each year, prompting 

state agencies to apply for removal authority at Bonneville Dam, 

which they received in 2008. Sea lions traveling that far inland is 

new behavior. According to marine mammal biologists, that did not 

occur historically. 

Spring Chinook salmon consumption by sea lions at Bonneville 

Dam is on the rise with 9,500 consumed at the dam in 2016, representing almost 6 percent of the run. These figures are observed 

salmon mortality within a quarter mile of the Dam and do not include the additional 140 miles of river downstream. 

NOAA Fisheries has conducted a study since 2010 to get a better 

idea on the sea lion mortality in the entire Lower Columbia River. 

The research has identified an unexplained mortality of Spring 

Chinook salmon that has ranged as high as 43 percent of the run 

in 2014 and 37 percent in 2015, totaling over 100,000 Spring Chinook each of those years. The NOAA researcher has concluded 

these mortalities are likely attributed to sea lion predation. 

Sea lions are also showing up in the Willamette River in increasing numbers, feeding on Spring Chinook, steelhead, and sturgeon. 

The predation is pushing a wild winter steelhead population to the 

brink of extinction. 

The current removal provisions in the MMPA are very restrictive. It takes considerable resources and time to qualify an animal 

for removal. 

Senate Bill 1702 would qualify for a removal of those sea lions 

that move far inland above River Mile 112 in the Columbia River 

and into the tributaries where diet studies and observations show 

they are targeting salmon, steelhead, and sturgeon and causing significant damage to the fish populations. 

The current Section 120 permit requirements have limited the effectiveness of the program and have not provided managers the opportunity to get ahead of the recruitment of new California sea 

lions nor have managers been able to deal with increasing numbers 

of Stellar sea lions moving far inland, eating sturgeon and increasingly salmon and steelhead. 

State and tribal managers need a more streamlined and effective 

process. This does not mean removal of thousands of sea lions each 

year. It means, rather, a program that addresses a small portion 

of the adult male sea lion population that moves far upstream in 

the Columbia River and into the tributaries. 

17 

This number is in the low hundreds of individual sea lions annually and would equate to a fraction of a percent of the West Coast 

population. 

I believe it’s reasonable to predict that the numbers of removals 

necessary over time would likely decrease if the program were 

more effective in the near term. 

The Council strongly supports updating the Marine Mammal 

Protection Act to reflect increasing threats from sea lions to endangered salmon and steelhead populations in the Columbia River, 

and I thank you again for the opportunity to testify today, Mr. 

Chairman. 

[The prepared statement of Mr. Norman follows:] 

PREPARED STATEMENT OF GUY R. NORMAN, WASHINGTON MEMBER, NORTHWEST POWER AND CONSERVATION COUNCIL

Good morning and thank you for the opportunity to speak here today. My name 

is Guy Norman, and I represent Washington on the Northwest Power and Conservation Council. I also am Chairman of the Council’s Fish and Wildlife Committee. 

The Northwest Power and Conservation Council is an agency of the four Northwest states of Idaho, Montana, Oregon, and Washington, authorized in a 1980 Federal law, the Northwest Power Act. Under the Act, the Council prepares and periodically updates a Northwest Power Plan and a Columbia River Basin Fish and 

Wildlife Program. The fish and wildlife program is a component of the power plan. 

Both are implemented by the Bonneville Power Administration. 

The Council strongly supports updating the Marine Mammal Protection Act to reflect increasing threats from sea lions to endangered salmon and steelhead populations in the Columbia River. Senate bill 1702, the Endangered Salmon and Fisheries Predation Prevention Act, would modernize the MMPA to improve the ability 

of state and tribal managers to manage this natural resource issue. We understand 

that fish and wildlife managers have suggested some modifications to the bill that 

could be considered in a final version. After witnessing the alarming increase in sea 

lion predation on salmon, steelhead, sturgeon, and lamprey in the Columbia and 

Willamette rivers in recent years, we believe that it is incumbent upon Congress 

to provide the Northwest’s state and tribal fish and wildlife agencies more effective 

options for protecting our fish and fisheries from these aggressive predators. Failure 

to do so risks the extinction of some of our most precious and important fish species, 

including at-risk populations of spring Chinook salmon and Willamette winter 

steelhead, and offsets the billions of dollars spent on fish recovery. Bonneville directs more than $250 million a year to the Council’s Columbia River 

Basin Fish and Wildlife Program, which includes measures to protect, mitigate and 

enhance fish and wildlife, and related spawning grounds and habitat, from the Pacific Ocean to the farthest reaches of the interior Columbia River Basin. That funding comes from electricity ratepayers, whose investment in fish and wildlife recovery 

is increasingly threatened by sea lion predation on the very fish runs we are working to conserve and rebuild. 

Additionally, Columbia River dams have been re-configured and operations altered to provide safer passage for salmon, and harvest opportunity has been greatly 

curtailed for tribal and non-tribal fishers. These comprehensive actions and sacrifices come at a significant monetary and social cost to the region, but the people 

of the Northwest continue to support the recovery of these iconic fish species. In 

fact, all sources of impact to the survival of Columbia Basin salmon and steelhead 

have been reduced through ongoing actions affecting dams, habitat, hatcheries, harvest, and bird and fish predation. 

For at least the last 15 years we have been increasingly concerned about the presence of two species of sea lions that have been preying on salmon and steelhead in 

the Columbia and Willamette rivers in the spring. Some California and Steller sea 

lions began exhibiting unusual behavior for the first time in 2001, travelling over 

100 miles inland to prey on salmon and steelhead as the fish staged to pass over 

Bonneville Dam in the Columbia River and Willamette Falls in the Willamette 

River. Both sea lion species are protected under the Marine Mammal Protection Act. 

The California sea lion population has grown to a current level of about 300,000 

animals, rebounding from a low of about 10,000 in the 1950s. Marine biologists conclude that the population is currently at its carrying capacity. The number of sea 

lions counted at the East Mooring Basin near the mouth of the Columbia River in 

18 

Astoria, Oregon, which is a favorite resting spot for these marine mammals, has increased dramatically over time. According to the Oregon Department of Fish and 

Wildlife, in the spring of 2004 the peak count was 206; in the spring of 2014 it was 

1,420; in the spring of 2016 it hit an all-time high of 3,834. A portion of these sea 

lions (usually several hundred) follow the spring salmon run upstream and target 

them as prey near Bonneville Dam and in tributaries. 

There are 32 populations of ESA-threatened and endangered spring Chinook 

salmon being significantly harmed by the increasing sea lion predation, including 

Snake River spring/summer Chinook, which were listed as a threatened species in 

1992 and upper Columbia spring Chinook listed as endangered in 1999. Spring Chinook salmon consumption by sea lions is on the rise, reaching a high of 9,800 at 

Bonneville Dam in 2015, over five times the 2012 number of 1,750. In 2016, 9,525 

salmon were consumed, an estimated 5.8 percent of the run. In 2017, the Corps of 

Engineers estimated 4,759 to 5,227 fish, about 4.5 percent of the run. These figures 

are observed salmon mortality within a quarter mile of the dam and do not include 

the additional 140 miles of river downstream, where salmon are also being consumed by sea lions. 

NOAA Fisheries research conducted since 2010 between Astoria and Bonneville 

Dam has identified an ‘‘unexplained mortality’’ of Columbia River spring Chinook 

salmon that varies from year to year but has not been lower than 11 percent of the 

run in 2010, which translated to 34,688 salmon mortalities, and as high as 43 percent of the run in 2014, which translated to 104,333 salmon mortalities. The average mortality rate in the eight years of study is 23 percent and the average annual 

salmon missing between Astoria and Bonneville Dam is nearly 50,000 fish, which 

the chief researcher, Dr. Michelle WargoRub, said can be attributed to sea lions. 

In 2017, sea lions took a big bite out of the winter and summer steelhead runs 

at Bonneville Dam, according to a March 2018 report by the U.S. Army Corps of 

Engineers. ‘‘The low run size and high percentage of steelhead consumed by 

pinnipeds in 2017 is alarming, and warrants particular attention from fish and wildlife managers,’’ the report warns. 

An estimated 322 summer and winter steelhead were consumed at Bonneville 

Dam, which equates to 9 percent of the run, nearly twice the impact in 2016. The 

run totaled 3,241 fish during the study period, which ran from January 1 through 

June 2, 2017. In 2016, the run during the sampling period was 5,262 steelhead; 302 

were consumed, which was 5.4 percent of the run. 

The danger to Columbia River salmon and steelhead runs, particularly upper Columbia spring Chinook, was highlighted in a February 2018 report by the Independent Scientific Advisory Board (ISAB), a panel of scientists that advises the 

Council, NOAA Fisheries, and Columbia River Indian tribes. In their report, the 

ISAB cited predation by sea lions in the lower Columbia River as one of the threats 

that may be contributing to the continuing low numbers of Chinook. 

‘‘The continuing temporal increase in pinniped numbers [in the lower Columbia] 

may be an important factor limiting Upper Columbia spring Chinook abundance,’’ 

The ISAB reported. The ISAB report continued: ‘‘Surprising new evidence indicated 

a steady decline in estuarine survival of the combined runs of adult middle and 

Upper Columbia River spring Chinook and Snake River spring/summer Chinook 

(from 90 percent in 2010 to 69 percent in 2013). Survival was consistently higher 

for Chinook arriving late in the run compared to those returning early or at the 

peak, when predation by pinnipeds would have been more intense. The declining 

survival rates also coincided with the growing presence of sea lions and seals in the 

estuary.’’ 

Meanwhile, sea lions are showing up at the base of Willamette Falls in increasing 

numbers, feeding on spring Chinook salmon, steelhead, sturgeon, and lamprey. According to a report by the Oregon Department of Fish and Wildlife, the predation 

is pushing wild winter steelhead to the brink of extinction—an 89 percent probability that at least one population of the species will go extinct in the near future 

unless the predation is reduced. The state agency believes sea lions consumed onequarter of the 2017 run, which hit an all-time low of just 512 fish crossing the falls. 

In February 2018, the Oregon Department of Fish and Wildlife captured two California sea lions at the base of the falls. One had been there regularly since 2009, 

eating salmon and steelhead. Relocated 200 miles away to a beach south of Newport, Oregon, he was back at the falls in three days. The other, relocated a day after 

the first one, was back in six days. The agency has authority to kill predatory sea 

lions that are observed multiple times eating salmon at Bonneville Dam, but not 

at Willamette Falls. The agency applied for permission in October 2017, a process 

that will take a year or longer. The agency believes that the near-term risk of wild 

steelhead extinction can be significantly reduced or avoided by limiting sea lion access to Willamette Falls. 

19 

We worry that if predation is not controlled, populations of endangered wild Columbia River spring Chinook and threatened Upper Willamette winter steelhead 

could be lost in the coming years. We fear this because we have seen it before. In 

the 1980s and 1990s, California sea lions feasted on wild Lake Washington 

steelhead at the Ballard Locks in Seattle. Attempts to resolve the problem by transporting several sea lions back to the California coast failed because they returned 

in a matter of days. In relatively short order, sea lions left the population of 

steelhead functionally extinct. Where there were once thousands returning, only 

four returned in 2012. 

Fortunately, Congress took notice and enacted Section 120 of the Marine Mammal 

Protection Act, which enabled limited lethal removal of individual sea lions provided 

they were from a healthy population and were causing significant harm to a population of salmon or steelhead listed under the Endangered Species Act. Washington 

and Oregon have implemented this action at Bonneville Dam since 2008, and it has 

slowed the increase in predation at that location. However, the number of sea lions 

choosing to forage throughout the lower Columbia has soared to the point where 

Section 120 is no longer an effective option. Section 120 as written was designed 

to deal with a few problem sea lions in a small area like what occurred at the 

Ballard Locks in Seattle, not a large river system like the lower Columbia with hundreds of sea lions swimming far inland to prey on salmon. Unless Congress steps 

in again and amends the Act, the number of endangered salmon consumed by sea 

lions in the lower Columbia River and tributaries will continue to increase. 

While some critics of sea lion removal have argued that in the long term it would 

be more effective to boost declining salmon and steelhead populations by, for example, improving fish habitat, reducing fishing, addressing the impacts of ocean conditions on fish survival, and removing the four Federal dams on the lower Snake 

River, we note that with the exception of dam removal all of those concerns are 

being addressed effectively already, and improvements at the dams, such as the installation of removable spillway weirs, is boosting dam-passage survival. 

For example, fisheries are much more constrained in terms of protecting weak 

species. The conservation limits on traditional spring salmon fisheries results in 

many tribes in the basin not meeting cultural and subsistence needs. Also, non-Indian fisheries in the lower Columbia River target healthy hatchery spring Chinook, 

must release all wild fish, and have been restricted to an incidental take of no more 

than 2 percent of the annual wild-fish return. 

We are dealing effectively with long-term issues like harvest and dam passage 

with long-term solutions, but predation by sea lions is an immediate and increasing 

problem that needs an immediate solution—one that already is being pursued and, 

we believe, needs to be strengthened through the actions the Endangered Salmon 

and Fisheries Predation Prevention Act would authorize. There is concern in the region that the increasing sea lion predation on ESA-listed fish is off-setting the large 

investments in salmon recovery associated with habitat, dam operations, harvest, 

and hatcheries. 

It is important to note that while we believe sea lions need to be better managed, 

we do not support removing them altogether. We need to deal more effectively with 

the problem animals that move far inland in the Columbia River, and the Willamette River at Willamette Falls, and cause the most significant harm. These problem 

animals are all adult males and represent a very small fraction of the population. 

Over time, a number of fish-protection efforts have constrained many activities in 

the river and the ocean. Irrigators have sacrificed water rights and agriculture production. Fishing opportunities have been sacrificed throughout the West Coast and 

in the Columbia River. The region annually forgoes the generation of about 1,100 

average megawatts of carbon free, clean hydropower. Ratepayers have funded billions of dollars of habitat restoration, fish hatchery upgrades, and fish research and 

monitoring. If we fail to modernize the MMPA to reflect current biological realities, 

many of those sacrifices will be in vain. 

The current removal provisions in the MMPA are very restrictive, time consuming, and expensive. It takes considerable resources in terms of money and personnel to qualify an animal for removal. Section 120 authorizes only the removal 

of an animal that can be individually identified as causing a significant impact on 

an endangered salmon or steelhead population. This means that an individual sea 

lion must be identifiable (meaning it must have been previously captured and 

branded with a number) and observed multiple times at Bonneville Dam predating 

on salmon before becoming eligible for removal. That qualified animal must be captured again to be removed. This process results in forgoing removal of the majority 

of animals that are trapped at Bonneville Dam, even though every animal is there 

to eat salmon and steelhead. 

20 

Oregon and Washington state marine mammal biologists have conducted diet 

studies of sea lions in the Columbia River, and results show an increasing portion 

of salmon in the diet as the sea lions move inland, with the prey almost exclusively 

salmon and steelhead by the time the sea lions move over 100 miles upstream in 

the Columbia and in the Willamette River. Sturgeon are also targeted at alarming 

rates by the larger Steller sea lions. Senate Bill 1702 would qualify for removal 

those sea lions that move far inland and into the tributaries, where studies show 

they are targeting salmon, steelhead, and sturgeon. 

The current Section 120 permitted operation has slowed the increase in predation 

in the Columbia River at Bonneville Dam as wildlife managers have removed a total 

of 185 California sea lions since 2008. But the permit requirements have limited the 

effectiveness of the program and have not provided managers the opportunity to get 

ahead of the recruitment of new California sea lions. Nor have managers been able 

to deal with increasing numbers of Steller sea lions moving far inland eating sturgeon and increasingly salmon and steelhead. The current section 120 process only 

provides states and local governments the opportunity to apply for lethal removal 

permits. Senate Bill 1702 would include Columbia River tribal partners as eligible 

for removal permits resulting in a full state/tribal co-manager effort consistent with 

all other cooperative salmon recovery strategies in the Columbia River Basin. 

Again, predation by sea lions is an immediate and growing problem that needs 

an immediate solution. We simply need a more streamlined and effective process for 

the removal of those sea lions that move far inland to prey on salmon and steelhead. 

This does not mean removal of thousands of sea lions each year. It means, rather, 

a program that addresses the small portion of the male sea lion population that 

moves far upstream into the Columbia River and into tributaries. This numbers in 

the low hundreds of individual adult male sea lions annually and would equate to 

a fraction of a percent of the West Coast population. It’s reasonable to predict the 

number of removals necessary over time may decrease as the program becomes 

more effective in addressing the major predation-problem areas. 

Again, thank you for the opportunity to testify today. 

Senator SULLIVAN. Well, thank you, Mr. Norman. 

Dr. Stone, the floor is yours. 

STATEMENT OF RAE STONE, DVM, PRESIDENT AND PARTNER, 

DOLPHIN QUEST ON BEHALF OF THE ALLIANCE OF MARINE 

MAMMAL PARKS AND AQUARIUMS 

Dr. STONE. Good afternoon, Chairman Sullivan, Ranking Member Baldwin, and Members of the Subcommittee. 

My name is Dr. Rae Stone. I’m a marine mammal veterinarian 

with 35 years of experience, and while I am Co-Founder of Dolphin 

Quest, I am testifying today on behalf of the Alliance of Marine 

Mammal Parks and Aquariums. 

Accredited Alliance members advanced marine mammal conservation through public display, education, research, and the rescue and rehabilitation of stranded animals. Collectively, the 64 

members of the Alliance represent the greatest body of experience 

and knowledge about marine mammals and the care and husbandry in the world. 

In July 1993, I actually had the privilege of testifying before this 

committee on the reauthorization of the Marine Mammal Protection Act. Our support for the Act and its conservation goals remains constant and strong. 

Education is an integral part of our mission. Millions of people 

who visit our parks every year have an opportunity to connect with 

animals in meaningful and memorable ways. Guests tell us these 

connections create a powerful appreciation for the natural environment and inspire them to engage in marine conservation. 

Recent research published in Conservation Biology found in surveys of zoo and aquarium visitors a significant directional relationVerDate Nov 24 2008 12:19 Dec 03, 2024 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\57576.TXT JACKIE
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ship between this sense of connection to the animals and self-reported pro-environmental behaviors. 

Research is another key element of our mission. Our written testimony includes a letter, signed by 82 of the leading marine scientists, attesting to the essential role of public display in advancing 

science and ocean conservation. 

Personally, I had the opportunity to develop diagnostic ultrasound techniques in the 1980s working with trained dolphins. 

These same techniques are used now in wild dolphin population 

health assessments. This type of research, advancing new diagnostic techniques, is needed now more than ever and cannot take 

place in the wild. 

Alliance facilities are also global leaders in marine mammal rescue and rehabilitation. We serve as first responders to more than 

2,000 stranded incidents each year, investing more than $3 million 

annually on rescue and rehabilitation. 

The cumulative knowledge, collective experience, and resources 

of Alliance members are the primary factors in many successful rehabilitation efforts. 

At my site, Dolphin Quest Hawaii, we host workshops for stranding network there. Our marine mammal specialists give network 

volunteers crucial experience of actually handling live dolphins, 

something they will face in the wild. We teach them how to accurately monitor vital signs and safely handle large animals in the 

water. 

When we participate in a rescue, our goal is to restore the animal to good health and return it to the wild. However, that is not 

always possible. In coordination with NOAA, Alliance members 

provide long-term homes to many non-releasable animals. 

When a recent stranded Beluga neonate, Tyonek, who I’m sure 

you’re familiar with, was rescued at the Alaska SeaLife Center, Alliance members provided onsite expertise and support. Once the 

calf was stabilized and had gained enough weight, it was successfully transferred to an Alliance member, Sea World San Antonio, 

for long-term care. 

Administrator Oliver stated at the time that scientific knowledge 

gained from learning from Tyonek for years to come will benefit 

Cook Inlet Beluga research and recovery. We agree. 

Overall, the Act is working effectively but improvements could be 

made to streamline the execution of the statute, allowing the agency and the Alliance members to focus more time and resources on 

the important intent of the Act, to conserve wild marine mammal 

populations and the ocean habitats they depend upon. 

To that end, we’ve had several productive meetings with NMFS 

and offer the following suggestions. 

First, the Marine Mammal Inventory. Unfortunately, it contains 

significant errors, dating back decades, and efforts to correct those 

errors over the years have been unsuccessful. 

Furthermore, the Inventory includes information that is unverifiable and falls outside of the statutorily mandated points specified 

in the Act for inclusion. 

Misinformation contained in the Inventory is often quoted and 

used against our community by organizations that unambiguously 

22 

say their goal is to end the use of animals in agriculture, sport, and 

zoological facilities. 

We were recently threatened by this in the Hawaii Legislature. 

A committee considered legislation that sought to ban the transportation of cetaceans under human care in Hawaii. Not only did animal activists say they used research from the NMFS Inventory to 

initiate this legislation, the bill sponsors included inaccuracies that 

activists had lifted from the NMFS Inventory in the actual bill 

text. 

The information about Dolphin Quest, my organization, from the 

Inventory was grossly inaccurate and attributed dolphin deaths to 

Dolphin Quest when those animals had never been under our care 

and actually died decades before Dolphin Quest was even founded. 

The Alliance also has concern regarding inconsistencies among 

regions when NMFS representatives assessed live cetaceans as potential candidates for rescue or whether they were deemed releasable. Some regional NMFS directors recommended that stranded 

dolphin neonates be routinely euthanized on the beach. Other regions euthanize certain species of whales, citing lack of experience 

with that species. 

For many neonates, like the Beluga calf Tyonek, we have a fighting chance of saving the animal and providing it with a loving 

home and a meaningful life. Importantly, working with different 

species furthers our knowledge of the species and contributes to future success. 

We urge the Senate to encourage NMFS to resolve these inconsistencies and give Alliance members the opportunity to save 

stranded cetaceans whenever we can. 

Finally, I must mention the Prescott Grant Program. This program provides the only direct funding for the Marine Mammal 

Stranded Network. Unfortunately, in its Fiscal Year 2019 budget 

request, NOAA proposed eliminating the program and its entire 

budget of $3 million. 

In addition to eliminating the only Federal funding available for 

stranding programs, this will decrease the data produced which 

NOAA uses to establish critical links between the health of marine 

mammals and the condition of our coastal ecosystems. 

The Alliance encourages Congress and the agency to restore full 

funding to this essential program. 

Thank you, Mr. Chairman and Members of the Committee, for 

allowing me to testify and get through—sorry for my throat—talk 

about the Alliance. Thank you. 

Marine mammals in the wild today are threatened at unprecedented levels. The conservation work done by marine parks, aquariums, and zoos is needed now more than ever. 

We thank you for this opportunity and we look forward to working with you to ensure that the Act is interpreted and applied in 

a way that will support critical long-term research and public education taking place at our zoos and aquariums. 

Thank you for your patience. 

[The prepared statement of Dr. Stone follows:] 

23 

PREPARED STATEMENT OF RAE STONE, DVM, PRESIDENT AND PARTNER, DOLPHIN

QUEST ON BEHALF OF THE ALLIANCE OF MARINE MAMMAL PARKS AND AQUARIUMS

The members of the Alliance of Marine Mammal Parks and Aquariums (AMMPA) 

appreciate the opportunity to testify before the Senate Committee on Commerce, 

Science, and Transportation’s Subcommittee on Oceans, Atmosphere, Fisheries, and 

Coast Guard regarding the Marine Mammal Protection Act (MMPA). 

Introduction 

AMMPA is an international association and accrediting body for marine parks, 

aquariums, and zoos dedicated to the highest standards of care for marine mammals 

and to their conservation in the wild. AMMPA members advance the goals and objectives of marine mammal conservation through public display, education, research, 

and the rescue and rehabilitation of injured, orphaned, and distressed animals in 

the wild. Collectively, AMMPA’s 64 members represent the greatest body of marine 

mammal care and husbandry experience and expertise in the world. 

In 1993, AMMPA joined other representatives from the zoological community to 

testify in support of the MMPA. Today, 25 years later, our support for the Act and 

its conservation mission remains strong. 

AMMPA’S Conservation Mission 

AMMPA members are wholeheartedly committed to the conservation of marine 

mammals and the marine environment. We advance our conservation goals through 

a multifaceted approach that includes education, research, and wildlife rescue, rehabilitation, and care. We believe the Marine Mammal Protection Act is working relatively well in accomplishing its conservation goals and allowing us to accomplish 

ours. 

The MMPA specifically recognizes the important role played by the zoological 

community in the conservation and management of marine mammals. The Act’s legislative history clearly shows that Congress understands that interactions with marine mammals at zoological facilities generate the general public’s good will toward 

marine mammals and inspire their support for conservation and management measures for these and many other marine animals. The record also shows that Congress 

understands that limiting the extraordinary contributions of the public display community to the conservation of these animals would have long-lasting and irreparably 

negative results for the country’s marine wildlife and the people of United States. 

I. Education 

Education is a top priority for AMMPA members, and it is an integral part of our 

conservation mission. The millions of people who visit AMMPA parks every year 

have an opportunity to connect with animals in meaningful and memorable ways. 

For many, visiting one of our facilities is often the first and may be the only experience they have with marine mammals. AMMPA programs strengthen the humananimal bond and leave visitors with a sense of wonder and a deeper understanding 

of marine mammals and their marine habitats. These connections, combined with 

formal and informal education programs, inspire guests who come away with a powerful appreciation for the connection between their own actions, the natural environment, and the importance of conservation. This is a particularly important link to 

the natural world for the increasingly urbanized young people of this country. 

AMMPA members also have robust education programs that extend beyond the 

parks. These include innovative distance learning programs, websites, TV programming, Skype visits, and education partnerships. AMMPA members also provide offsite school programs, outreach to community organizations and teacher training, 

curriculum development, and instructional guides. 

An informed and inspired global public is more likely to advocate for the conservation of marine mammals and their habitats and support research and conservation 

projects important to understanding challenges these animals face in the wild. Research confirms that zoological education programs have been successful in increasing conservation-related knowledge, influencing individual behavior, and inspiring 

personal responsibility for environmental stewardship. 

II. Research 

Research is another key element of AMMPA’s conservation mission. AMMPA 

members spend millions of dollars supporting marine mammal and ocean research. 

We conduct, fund, and support hundreds of scientific studies that help scientists better understand our ocean and its inhabitants. This research not only enhances animal care in AMMPA facilities, but often directly benefits animals in the wild. 

Knowledge acquired through research using husbandry data from animals in public 

display facilities, in tandem with field research, is essential to marine mammal conVerDate Nov 24 2008 12:19 Dec 03, 2024 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\57576.TXT JACKIE
24 

servation and one of the most effective ways of ensuring the health and sustainability of wild marine mammal populations in the 21st century and beyond. (See the 

attached letter signed by 82 members of the scientific community who acknowledge 

the importance of marine mammals in zoos, aquariums, and marine mammal facilities and express their support for research conducted at these facilities.) 

Some vital physiological and behavioral data can only be gathered from animals 

in human care because, for many physiological parameters, the mere act of collecting information in the wild can interfere with and skew the natural processes 

scientists are trying to measure. Terrie M. Williams, professor of biology at the University of California—Santa Cruz, recently posted comments about her experience 

working with a bottlenose dolphin at Long Marine Lab. Throughout the post, Williams reflects on what will happen to the wild animals researchers have been trying 

to save. ‘‘I fear that the ensuing ignorance concerning marine mammal biology will 

keep wild dolphins, whales, seals and sea otters at risk. The evidence is clear as 

carcasses and sick animals wash up on our shores every day. We desperately need 

the science to solve the problems.’’ Williams continued, ‘‘. . . after 30 years of conducting marine mammal science, I’ve learned that it is unrealistic to think that we 

will solve the threats to wild marine mammals by only studying them in the 

oceans.’’ 

Specific examples of research involving AMMPA facilities include the collection of 

hearing data by Hubbs-SeaWorld Research Institute scientists on a variety of marine mammals in zoological parks that have been used to help set the first sciencebased guidelines for protecting marine mammals from noise. Research on animals 

in zoological parks provides vital ‘ground-truthing’ of methods used to study wild 

marine mammals, including calibrating equipment, validating assays to study impacts of toxins and pathogens, and testing new approaches to studying feeding behavior and habitat use. Transmitters attached by researchers to rescued and rehabilitated marine mammals are revealing important data on the animals’ movements 

and habitat use—information that is needed by resource managers as they develop 

management and conservation plans. In addition to rescuing animals injured 

through interactions with marine debris and fishing gear, zoological parks are helping to prevent these entanglements from occurring in the first place through experiments designed to better understand the conditions that lead to harmful interactions, and through tests of equipment and procedures hypothesized to prevent entanglements or enable animals to escape once entangled. Zoological parks also provide important public outreach to their millions of guests each year on best practices 

for marine mammal viewing and fishing and on the perils facing ocean wildlife. For 

example, AMMPA members also collaborate with NOAA on projects like Dolphin 

SMART, a program designed to reduce the disruption of wild dolphins by encouraging responsible viewing of these marine mammals, and helping to train dolphin 

and whale watching tour operators on appropriate ways of conducting dolphin and 

whale watching tours. 

III. Rescue and Rehabilitation 

AMMPA facilities are global leaders in marine mammal rescue and rehabilitation. 

We respond to more than 2,000 stranded marine animals each year, voluntarily investing more than $3 million annually on the recovery, rescue, and rehabilitation 

of these animals. Under the MMPA, the National Oceanic and Atmospheric Administration (‘‘NOAA’’) established stranding networks to respond to animals in need. 

We have played an integral role as first responders for decades. 

The accumulated knowledge, collective experience, and resources of AMMPA facilities are the primary factors in many successful rehabilitation efforts. Our expertise and training programs involving animals in our care also benefit other members 

of the stranding network. For example, Dolphin Quest hosts training workshops for 

stranding team members, which provide volunteers with hands-on experience working with live animals. We teach the volunteers how to take a heart rate and evaluate respiration, something they will need to manage during a wild animal rescue. 

We also teach the stranding team members how to monitor vital signs and recognize 

situations and behaviors that might present a danger to team members or the public. 

The need has been particularly acute in recent years with unusual mortality 

events (UMEs) involving cetaceans on the Atlantic coast and intracoastal waterways 

(e.g., four UMEs in bottlenose dolphins since 2001) and elevated levels of strandings 

seen among California sea lions and Guadalupe fur seals in California. 

One notable stranding case recently took place in Alaska. Last September, a 

beluga whale calf was found stranded on the Cook Inlet mud flats. Alliance member 

organizations, including Georgia Aquarium, Mystic Aquarium, SeaWorld, and Vancouver Aquarium, as well as Shedd Aquarium, joined together to provide expertise 

25 

and assistance in caring for this stranded calf. After months of 24/7 monitoring and 

care at Alaska SeaLife Center, the calf, named Tyonek, gained weight and his 

health improved. NOAA Fisheries determined Tyonek to be nonreleasable. Because 

of his young age—he was less than one month old when he was rescued-he was 

found to be nutritionally and socially dependent and lacked the survival and socialization skills needed to be successful on his own in the wild. As provided for in the 

MMPA, Administrator Chris Oliver and his colleagues at NOAA Fisheries considered options and determined that SeaWorld San Antonio was the location best suited for Tyonek’s long-term care. Earlier this year, he made the 4,000 mile-journey 

from Alaska to Texas and has integrated into a social group that includes mature 

females who act as surrogate mothers and two young male calves who provide companionship. 

When AMMPA members participate in a rescue, our goal is to restore the animal 

to good health so it may safely be returned to the wild. However, that is not always 

possible. In coordination with NOAA, AMMPA members have provided long-term 

homes to non-releasable animals such as Tyonek. This, too, is consistent with our 

conservation mission. When Tyonek was transferred to SeaWorld San Antonio, 

NOAA Administrator Oliver stated that the scientific knowledge gained by learning 

from him for years to come will benefit Cook Inlet beluga research and recovery. 

AMMPA members agree. 

Conservation Goals Under the MMPA—Challenges 

From the perspective of the zoological community, we believe the MMPA is relatively effective in accomplishing its conservation goals and allowing us to accomplish ours. Congress, in its wisdom, enacted amendments to the MMPA in 1994 that 

clarified that the Animal and Plant Health Inspection Service (APHIS) has the sole 

authority to regulate marine mammals in human care, and NMFS has the authority 

to regulate marine mammals in the wild. This allowed the Act to better serve its 

underlying conservation goals by ending duplicative regulatory demands and easing 

the then unwieldy and duplicative regulatory structure. The case of Tyonek is just 

one of many examples of the public-private partnerships under the MMPA that create successful conservation outcomes. As AMMPA testified before this Committee in 

1993, the MMPA is truly a significant environmental statute. 

That is not to say that the zoological community has no challenges associated 

with provisions in the MMPA. Fortunately, AMMPA members have recently engaged in constructive dialogue on some MMPA-related concerns with NOAA Administrator Oliver and his colleagues at NMFS, and we are hopeful that many of these 

challenges can be administratively addressed. 

Marine Mammal Inventory 

To offer a few specific examples of these challenges—first, under the MMPA, 

NMFS is required to maintain an inventory of marine mammals in zoological facilities. As discussed below, the need for an inventory is an anachronism. But more importantly, the inventory contains significant errors, many dating back four decades. 

To the frustration of AMMPA members, efforts to correct these errors over the years 

have been unsuccessful. 

The marine mammal inventory is largely a holdover from the days prior to the 

1994 MMPA amendments when both NMFS and APHIS claimed jurisdiction to regulate the care and maintenance of marine mammals in public display facilities. In 

1994, Congress chose to allow NMFS to continue to maintain the marine mammal 

inventory, information that NMFS began collecting in the early 1970s. In part, this 

may have been related to the fact that in the 70s and 80s, NMFS had received several permit applications from public display facilities seeking to collect marine mammals from the wild. At the time, NMFS’s marine mammal inventory was seen as 

a tool that could be helpful in reviewing these ‘‘take’’ permit applications. Today, 

24 years after the passage of the 1994 amendments, the fact is that no marine 

mammal has been collected from U.S. waters for public display purposes since 1993. 

The importance of NMFS maintaining this inventory designed to track animals in 

human care for purposes related to animal take permit applications and wild population management is questionable. The NMFS marine mammal inventory also duplicates information reviewed by APHIS and their team of inspectors in fulfilling 

their responsibilities under the Animal Welfare Act. 

Even putting aside the questionable need for an inventory at this point, there are 

additional, more pressing problems relating to the inventory. One major one is the 

fact that information contained in the inventory is often obtained through FOIA requests and then manipulated and used against our community by organizations that 

unambiguously say their goal is to end the use of animals in zoological facilities, 

agriculture, and other sectors. In February of this year, evidence of this was seen 

26 

in the Hawaii legislature. A committee was considering legislation that sought to 

ban the transfer of cetaceans in human care ‘‘for breeding or entertainment purposes.’’ Not only did animal extremists supporting this bill say they used ‘‘research’’ 

gleaned from the NMFS inventory to support this legislation, the bill sponsors included inaccuracies from the NMFS inventory in the actual bill text. The information about Dolphin Quest from the inventory that was the basis of this ‘‘research’’ 

was grossly inaccurate and referenced animals that were never at Dolphin Quest 

and died before Dolphin Quest was even founded. 

In the early days of the inventory, AMMPA members found that facilities were 

not given the opportunity to correct errors we discovered in the inventory about the 

animals in our care. The process was later adjusted so that NMFS staff would send 

annual reports to facilities asking that they review the data and report errors to 

NMFS. (Compounding the challenge of correcting inaccurate information, for a period of time after the passage of the 1994 amendments to the MMPA, NMFS 

stopped sending out the yearly inventory report to public display facilities to update.) Although AMMPA members reviewed the records and provided corrections to 

NMFS, to our frustration, frequently these errors were never corrected. And the following year, we would go through the same exercise, only to find that the corrections were not made. As a result, the historical data continues to be full of inaccuracies. 

Based on how the information was collected in the past, the inventory also includes information that falls outside of the eight statutorily mandated points specified in the MMPA for inclusion in the inventory. These eight points are: (1) the 

name of the marine mammal or other identification; (2) the sex of the marine mammal; (3) the estimated or actual birth date of the marine mammal; (4) the date of 

acquisition or disposition of the marine mammal by the permit holder; (5) the source 

from whom the marine mammal was acquired, including the location of the take 

from the wild, if applicable; (6) if the marine mammal is transferred, the name of 

the recipient; (7) a notation if the animal was acquired as a result of a stranding; 

and 8) the date of death of the marine mammal and the cause of death when determined. (See 16 U.S.C. § 1374 (c) (10) (a)–(h)) 

Information beyond the eight limited points required by the statute is not required to be part of the inventory, and any additional information should be purged, 

including data that may have once been listed in the inventory. To help ensure accuracy, facilities should be able to review and correct the inventory for inaccurate 

or superfluous information. This includes any ‘‘double’’ information, such as a name 

of an animal and multiple ID numbers, which is not part of the statutory requirement and often ends up creating confusion. In turn, NMFS must ensure that these 

corrections are accurately reflected in the inventory before providing potentially 

damaging and inaccurate information to the public. Furthermore, if the inventory 

contains old information, albeit strictly limited only to the eight points required by 

the MMPA, that for whatever reason is no longer verifiable, the fact that the specific information is no longer verifiable should be noted in the inventory. 

An additional problem with the inventory concerns the issue of whether stillbirth 

information must be reported to NMFS for inclusion in the inventory. 

AMMPA believes the statute does not require that stillbirths be reported at all 

and that such information was never intended to be part of the inventory. We would 

like to see these points clarified. Although the word ‘‘stillbirth’’ is not found in the 

statute, reporting stillbirths is something NMFS has been erroneously advocating 

for several decades through a proposed rulemaking and other means which rightly 

were never finalized. 

The inventory is intended to keep track of the number and whereabouts of marine 

mammals in zoo, aquarium, and marine park collections. Notifying NMFS about an 

animal that is born dead does not fulfill the purpose of the inventory since a stillborn animal will never become part of the inventory of animals at a public display 

facility. The MMPA does require that a person holding a permit for the take or import of marine mammals must ‘‘notify the Secretary of the birth of such progeny 

within 30 days after the date of birth.’’ The same paragraph of the MMPA also requires that such a person must ‘‘notify the Secretary of the sale, purchase or transport of such progeny no later than 15 days before such action.’’ Finally, the same 

paragraph states that the information regarding a ‘‘birth’’ is limited to the information that is ‘‘required for the inventory established under paragraph (10)’’ (i.e., the 

paragraph relating to the Marine Mammal Inventory] (See in general 16 U.S.C. 

§ 1374(c)(8)(B)(i)–(ii)) Again, reporting ‘‘stillbirths’’ neither fits into nor fulfills the 

statutory scheme or purpose of the ‘‘birth’’ notification, as a stillborn was never part 

of a collection and therefore would not be sold, purchased, or transported. AMMPA’s 

understanding of what is required has remained the same over the years: namely, 

27 

that animals alive at the 30-day mark, now clearly a part of our collections, are to 

be reported. 

In the past, NMFS has implied that mortality rates are the reason for reporting 

stillbirths. AMMPA acknowledges that mortality rates are one indicator of appropriate animal care at public display facilities. However, as was made clear by the 

1994 amendments to the MMPA, animal care is solely under the purview of APHIS 

under the Animal Welfare Act and thus outside of NMFS’s jurisdiction with respect 

to maintaining the inventory. 

Further, the ability to track/document stillbirths in wild populations is impossible. 

Therefore, stillbirths of animals in human care have no scientific correlation with 

stillbirths in wild populations. In fact, the scientific community that tracks killer 

whale populations in the Pacific Northwest does not count a birth into their inventory unless and until they see it the following year. 

AMMPA will continue to work with NMFS and encourage the agency to make it 

clear that the information in the NMFS marine mammal inventory does not meet 

the rigorous criteria to serve as a scientific database for general research purposes 

and is not suitable for such use. In the end, however, Congress should clarify that 

the reporting of stillbirths is not, and never was, a requirement and further that 

such information should not be a part of any inventory. 

AMMPA has been working with NMFS to ensure that the inventory contains accurate, factual information, and only the information required by statute. There is 

no question that AMMPA members and NMFS would be better able to fulfill their 

conservation missions if our resources weren’t diverted to addressing problems associated with this inventory. AMMPA members understand that the agency itself is 

burdened by FOIA requests for information contained in the inventory, and we appreciate the willingness of Administrator Oliver and the career staff at NMFS to 

address some of these concerns, although it is a work in progress. 

Importation for Purposes of Public Display 

Over the past several years, NMFS has issued both draft and final documents 

that indicate its position is that the MMPA prohibits the importation of animals 

born in human care that have at least one parent that originated from a stock designated as ‘‘depleted.’’ E.g., 81 Fed. Reg. 74711, 74714 (Nov. 28, 2016) (‘‘importation 

. . . from this [stock designated as depleted] (or their progeny) into the United 

States for the purpose of public display will now be prohibited’’) (emphasis added). 

Given the MMPA’s definition of ‘‘population stock,’’ NMFS’ interpretation is not supported by the plain language of the MMPA. Specifically, the MMPA defines the term 

‘‘population stock’’ or ‘‘stock’’ to mean ‘‘a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature.’’ 16 U.S.C. § 1362(11) (emphasis added). Animals born in human care, however, 

are not interbreeding with members of a stock designated as depleted because they 

are geographically separate from that stock. Nor are they in a common spatial arrangement with that stock. Thus, it cannot be that the MMPA’s importation prohibitions are intended to apply to a member of a depleted stock’s progeny that is born 

in human care. 

As a practical matter, if a population in human care originated with an animal 

taken from the wild 20 years ago, and that animal has produced several generations 

of offspring, NMFS currently prohibits any zoo or aquarium from importing those 

offspring. That is true even for the offspring of an animal taken from a stock that 

was not designated as ‘‘depleted’’ at the time of the original take. In taking this position, NMFS incorrectly interprets the MMPA as prohibiting their importation. 

This undermines not only the intent of the MMPA’s language in the definition of 

‘‘population stock’’ and ‘‘stock’’ but also the spirit of the statute. 

It must also be noted that NMFS has adopted its interpretation—that is, applying 

the MMPA’s importation prohibitions to a member of a depleted stock’s progeny 

born in human care-without undertaking a formal rulemaking. At the very least, 

NMFS must engage in a formal rulemaking process, including notice and an opportunity for public comment, prior to imposing its mistaken interpretation which departs from the plain meaning of the statute with respect to the scope of the MMPA’s 

importation prohibitions. 

Draft Procedural Directive—Releasable Rehabilitated Marine Mammals 

AMMPA also has concerns about a NMFS draft procedural directive on releasable 

rehabilitated marine mammals. The stated purpose of the draft is to clarify NMFS’s 

interpretation of MMPA regulations pertaining to release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals. 

As mentioned earlier, AMMPA members have a long history of working closely 

with NMFS to rescue, rehabilitate, and release marine mammals back into the wild 

28 

and to provide homes for rehabilitated animals deemed non-releasable. These activities are central to our conservation mission. 

However, we find the proposed directive, which seeks to apply existing permit requirements for a take from the wild to a releasable rehabilitated marine mammal, 

to be inappropriate for application to releasable animals. First, NMFS has received 

only a handful of requests from public display facilities to retain releasable animals. 

Nonetheless, it is an option that deserves careful and thoughtful consideration 

under circumstances that may merit it. 

Considerations associated with a true take from the wild are significantly different than for an animal that has stranded and been rehabilitated. Rather than 

force this unique fact pattern into an existing and incompatible permitting regime, 

in comments filed on December 15, 2017, AMMPA urged NMFS to reject the draft 

directive and to propose reasonable and appropriate policies and procedures specifically applicable to rehabilitated marine mammals deemed releasable. Furthermore, 

we strongly believe that a policy as significant as this should be addressed through 

a formal rulemaking process and should be reviewed by the Office of Management 

and Budget. 

Obtaining a permit to collect animals from the wild is a lengthy, costly, and difficult process, requiring extensive population and environmental assessments. Imposing these same time-consuming and costly requirements on a facility seeking to 

obtain a releasable rehabilitated animal would be excessive and onerous. In fact, it 

is reasonable to anticipate that such a requirement would essentially establish a 

barrier that would make it nearly impossible for a public display facility to ever obtain and provide long-term care for a releasable animal because of the associated 

costs, length of time the process requires to complete, and exposure to potential litigation from those who oppose any animals in human care, creating a tremendous 

burden on both the regulated community and the agency. 

Further, these requirements, as described in the Application Instructions and 

Supplemental Information for Public Display Permits Under the Marine Mammal 

Protection Act (OMB No. 0648–0084), do not make sense with respect to a stranded 

and rehabilitated animal. For example, how should an applicant who is interested 

in acquiring a stranded animal respond to questions such as: 

• How will the proposed activity affect the individual’s behavior, physiology, etc.; 

• What impacts will there be from the removal of individuals from the population 

and from incidental disturbance; 

• Describe the effects on the human environment; and 

• Describe the effects on the marine ecosystem? 

In addition, further review of the Application Instructions shows that answering 

questions related to a take from the wild for a releasable rehabilitated animal would 

be like trying to fit a square peg into a round hole. It simply doesn’t work. For example, under IV. Description of the Marine Mammals and the Proposed Activity of 

the Application Instructions, the applicant must list: 

• Specific geographic location(s) of the take, including locations from which the 

animals will be imported; 

• Non-target species, including but not limited to, marine mammals, reptiles, sea 

birds, sharks, etc., and any ESA-listed species (plant or animal) that may occur 

in the capture area, and therefore, may be taken (e.g., disturbed, harassed, or 

injured) incidentally during the course of your proposed activities. Include any 

USFWS species that may be taken; 

• Indicate the status of each species or stock as determined under the Convention 

on International Trade in Endangered Species of Wild Fauna and Flora (CITES 

Appendix I, II or III) as applicable. Note that species listed as depleted under 

the MMPA or threatened or endangered under the ESA cannot be covered 

under this permit; 

• Provide a written certification from the attending veterinarian responsible for 

the animals during and immediately after capture that the methods of capture 

and postcapture care will be adequate to ensure the well-being of the animals; 

and 

• Give a detailed description of the manner of capture, including gear to be used. 

Describe the techniques and equipment to be used to approach, capture, and restrain; for example, indicate: (a) any drugs or other substances to be used, including the name, dosage, and method of administration; and/or (b) the method 

of capture and restraint. 

29 

NMFS notes in the draft directive that the agency has issued only three permits 

from 2005–2016 to allow the retention of releasable marine mammals for public display purposes and only one of these permits was actually used. From the perspective of AMMPA’s members, it is not surprising that this situation infrequently presents itself. When we voluntarily donate our time and resources to participate in 

a rescue, our objective is to save the animal and, consistent with Title IV and section 109(h) of the MMPA, to return the animal to the wild. This is true to our conservation mission. 

AMMPA believes this draft procedural directive is inappropriate for application to 

releasable animals. In our comments, we encouraged NMFS to reject the draft directive and to propose a new process that is compatible with the principles of the Marine Mammal Protection Act. 

There have been many occasions when NMFS has asked AMMPA members to 

provide long-term homes to rescued marine mammals that have been deemed nonreleasable. These are not animals that AMMPA members sought to integrate into 

their collections. Nonetheless, AMMPA members have readily agreed to provide this 

long-term and costly care, even though some of these animals never were suitable 

to be integrated into the facility’s existing populations. This includes sea lions from 

the Bonneville Dam, blind Hawaiian monk seals, and sea lions rescued in California 

that were suffering from domoic acid poisoning that can destroy the brains of sea 

lions until they no longer know basic survival functions, such as how to evade predators and find food, and can cause sea lions to have seizures and paralysis. We 

agree to provide care to animals like these because we see it as the right and compassionate thing to do and because it is consistent with our conservation mission. 

On occasion, AMMPA members have disagreed with agency determinations that 

certain animals are releasable. Scientific data documenting the survival rates of 

these released animals is lacking. Anecdotally, AMMPA members know that, despite 

our best efforts, a significant number of released animals end up stranding again, 

some multiple times. Sadly, it is likely that some others simply do not survive. 

Assessing the releasability of an animal is not an exact science. Nor, in our experience, is a consistent standard used across all regions. AMMPA members have 

noted inconsistencies among regions not only on questions related to when an animal is deemed releasable but even on when they are considered candidates for rescue. Some regional directors recommend, as a general practice, that stranded neonates be euthanized—including animals that AMMPA experts believe could be 

saved. Other regions direct stranding response teams to euthanize certain species 

of whales, citing the lack of experience with the species and what they believe to 

be a lower probability of success. The recent case of the neonate beluga calf, Tyonek, 

who was successfully rescued, rehabilitated and is now an ambassador for his species and is contributing to the future conservation of Cook Inlet belugas, is evidence 

that, thanks in large part to the knowledge and expertise of AMMPA members, 

stranding networks are able to save neonates and whales. In reviewing conservation 

programs under the Marine Mammal Protection Act, we urge the Senate to be 

mindful of and encourage NMFS to address these inconsistencies. 

In the eyes of AMMPA members, the value of animals that never recover fully 

enough to be safely and successfully released, such as those non-releasable animals 

placed in zoological facilities through NFMS’ administrative procedures, should not 

be underestimated. These animals have important conservation, scientific, and education value. 

All animals in our care are at the center of our education and conservation missions, programs, and activities and are essential to promoting environmental stewardship. This is true for animals that are in our care for only a short time, such 

as those that are rescued, rehabilitated, and released. It is also true for animals 

that are in our care long-term, such as animals that are determined to be non-releasable. Rescue work performed by AMMPA members contributes to our collective 

understanding of the natural history and husbandry of these animals. It also helps 

us gain a more detailed understanding of marine mammal physiology and behavior 

and provide a meaningful conservation message to the public. Scientists affiliated 

with AMMPA member facilities work closely with animal care staff and veterinarians to expand our scientific knowledge about these species. The knowledge gained 

from working with these animals directly benefits animals in the wild and enhances 

our ability to successfully rescue, rehabilitate, and release animals in the future. 

Finally, it is important to highlight the value of the Prescott Grant program, 

named in honor of our late colleague, John Prescott, the former Executive Director 

of the New England Aquarium and the man who testified on behalf of AMMPA before this Committee on the Marine Mammal Protection Act nearly 25 years ago. The 

Prescott program, which provides the only direct funding available to the U.S. national marine mammal stranding network, is modestly funded, but has been highly 

30 

impactful since its inception in 2002. With its requirement for matching funds, the 

program has leveraged more than $17 million in non-federal support for marine 

mammal rescue, release, and research. Unfortunately, in its FY 2019 budget request, NOAA proposed eliminating the program and its entire current budget of 

$3,029,000, down from its original $4 million annual level. Not only does this eliminate the only source of Federal funding available for these programs, it also will 

decrease the data and resources from the national stranding network, which helps 

NOAA establish links between marine mammal health and the condition of coastal 

ecosystems. AMMPA strongly encourages Congress and the agency to restore full 

funding to this essential program. 

Conclusion 

Marine mammals in the wild today are threatened at unprecedented levels from 

pollution, ship strikes, entanglement in fishing debris, novel diseases, and prey scarcity. The conservation work done by marine parks, aquariums, and zoos is needed 

now more than ever. We thank the Committee for holding this hearing and look forward to working with you to ensure the Act is interpreted and applied in a way 

that enhances our ability to contribute to marine conservation. 

Senator SULLIVAN. Thank you, Dr. Stone. 

Ms. Davenport, the floor is yours. 

STATEMENT OF JANE P. DAVENPORT, SENIOR ATTORNEY, 

CONSERVATION LAW, DEFENDERS OF WILDLIFE 

Ms. DAVENPORT. Mr. Chairman and Members of the Subcommittee, thank you for inviting me to testify in support of the 

Marine Mammal Protection Act. 

My name is Jane Davenport, and I’m a Senior Attorney at Defenders of Wildlife. 

For 71 years as of today, Defenders has worked to protect and 

restore imperiled species and their habitats. We represent more 

than 1.8 million members and supporters. 

Americans love marine mammals and want to protect them. For 

45 years, the Act has played a central role in protecting and recovering some of our beloved and iconic marine mammal species: 

whales, sea otters, manatees, seals and sea lions, porpoises, and 

dolphins. 

Today, when we can stream nature documentaries on demand, 

public support for marine mammal conservation is stronger than 

ever. A poll last year showed that nearly three-quarters of Americans want to protect marine mammals and support the Act. 

The conservation successes of the Act have had enormous economic benefits. People spend over a billion dollars every year in the 

United States on whale-watching and related travel, pumping 

money into coastal communities that rely on eco-tourism. 

In my years of marine mammal advocacy, I have been repeatedly 

impressed by how forward-thinking the 92nd Congress was. For example, this Act was our first national law mandating an ecosystem 

approach to wildlife conservation. 

Subsequent amendments have built on the 1972 Act’s strength 

and flexibility while maintaining the statute’s conservation commitment. 

Defenders and our allies believe there is no need to amend the 

statute. The Act and its implementing regulations already have 

mechanisms to protect marine mammals while resolving potential 

conflicts with commercial fisheries, military readiness, subsistence 

uses, and pinniped-salmon interactions. 

31 

The 1994 Amendments established science-based metrics and innovative planning procedures to ensure that commercial fisheries 

do not kill unsustainable numbers of marine mammals. 

One such innovation was the requirement to develop take reduction plans with the input of take reduction teams. These teams are 

stakeholder groups of fishermen, state and Federal fisheries agency 

staff, scientists, and conservationists that develop consensus-based 

recommendations to inform agency regulations. 

In one example, the Harbor Porpoise Team recommended the use 

of acoustic pingers to deter these tiny porpoises from gill nets. As 

a result, Harbor porpoise deaths in the Northeast gill net fishery 

dropped dramatically, from over 3,000 to fewer than 400 each year. 

The porpoise population has recovered substantially while the gill 

net fleet continues to operate successfully. 

The 1994 Amendments also added the mechanism for addressing 

interactions between seals and sea lions and declining or imperiled 

salmon stocks in the Northwest. The states of Idaho, Oregon, and 

Washington currently have a permit authorizing lethal removal of 

up to 92 California sea lions a year in the Columbia River. These 

states have never come close to killing their allotted quota. 

When states have not exercised the full authorization they already have, the Act should not be amended to allow more sea lion 

removals, particularly since their removal cannot solve the myriad 

and far-greater manmade threats to salmon recovery. 

With respect to military readiness, the Act was substantially 

amended in 2003, responding to DoD concerns about obtaining permits for killing, injuring, and harassing marine mammals via sonar 

and explosives. 

Among other modifications to the Act’s requirements, these 

amendments permit the Secretary of Defense to invoke at any 

time, a two-year renewable exemption from the Act for any action 

or category of actions, if necessary, for national defense. 

Although the Act has been a conservation success, this is no time 

to rest on our laurels. We must not weaken the statute either passively through underfunding or actively by amendment. Marine 

mammals face significant new threats from climate change and 

ocean industrialization. 

Noise pollution levels impair marine mammals’ ability to hear 

and be heard, find food and mates, and nurture their young, and 

thus their very ability to survive. 

We are extremely concerned about proposed seismic air gun 

blasting surveys for offshore oil and gas deposits. This blasting imminent in the Atlantic, threatens to harass, injure, or even kill 

thousands of marine mammals. Longer-term, fossil fuel exploration 

and development pose both catastrophic and chronic cumulative 

risks to marine mammals. 

One of the species most at risk from seismic blasting is the critically endangered North Atlantic right whale. This species will likely be functionally extinct in 20 years if we do not act immediately 

to ensure its habitat is safe. In the last year alone, 18 dead right 

whales have been found. This calving season, not a single calf was 

seen. 

With all the threats facing right whales and other marine mammals, we strongly oppose any proposal that would weaken the Act’s 

32 

protections. In a changing world, we must maintain the Act’s conservational commitment, not abandon it. 

Thank you. 

[The prepared statement of Ms. Davenport follows:] 

PREPARED STATEMENT OF JANE P. DAVENPORT, SENIOR ATTORNEY, CONSERVATION LAW, DEFENDERS OF WILDLIFE

Mr. Chairman and Members of the Subcommittee: 

Thank you for inviting me to testify in support of the Marine Mammal Protection 

Act. My name is Jane Davenport and I’m a senior attorney at Defenders of Wildlife. 

For more than 70 years, Defenders has worked to protect and restore imperiled species and their habitats. We represent more than 1.8 million members and supporters. 

Americans love marine mammals and want to protect them. For 45 years, the Act 

has played a central role in protecting and recovering some of our beloved and iconic 

marine mammal species: humpback and gray whales, sea otters and manatees, seals 

and sea lions, porpoises and dolphins. 

Today, when we can stream nature documentaries on demand, public support for 

marine mammal conservation is stronger than ever. A poll last year showed that 

nearly three-quarters of Americans want to protect marine mammals and support 

the Act. 

The conservation successes of the Act have had enormous economic benefits. People spend over a billion dollars a year in the U.S. on whale watching and related 

travel, pumping money into coastal communities that rely on ecotourism. In Massachusetts alone, a study published this month by Dr. Joe Roman and colleagues 

showed that in in 2014, whalewatching revenues of $111 million exceeded commercial finfish revenues of $105 million. Even more significantly, marine stewardship 

and conservation activities contributed $179 million to the State’s economy. Many 

other coastal states, including Alaska, show similar growth in marine mammal tourism, contributing to strong state economies. 

The Act continues to set the benchmark for global marine mammal conservation. 

Since its enactment, not a single marine mammal species has gone extinct in U.S. 

waters. Unfortunately, the same cannot be said for other countries. Marine mammal 

species in our waters are doing as well or better than species outside our waters. 

And through statutory mechanisms such as the Tuna-Dolphin and Fish Import provisions, we are requiring foreign nations that want access to our lucrative seafood 

markets to meet our protective standards while leveling the playing field for U.S. 

fishermen. 

In my years of marine mammal advocacy, I have been repeatedly impressed by 

how forward-thinking the 92nd Congress was. For example, this Act was our first 

national law mandating an ecosystem approach to wildlife conservation. With current research on the crucial role that marine mammals play in ensuring the productivity of marine ecosystems, we can only be grateful that the 92nd Congress had 

the foresight to act, in their words, ‘‘conservatively’’ to protect marine mammals in 

the face of scientific uncertainty. Subsequent amendments have built on the 1972 

Act’s strength and flexibility, while maintaining the statute’s conservation commitment. 

Defenders and our conservation allies believe that there is no need to amend the 

statute. The Act and its implementing regulations already have functional mechanisms to protect marine mammals while resolving potential conflicts with commercial fisheries, military readiness, subsistence uses, and pinniped-salmon interactions. 

The 1994 Amendments established science-based metrics and innovative planning 

procedures for ensuring that commercial fisheries do not kill unsustainable numbers 

of marine mammals, especially those that are already depleted or listed under the 

Endangered Species Act. One such innovation was the requirement to develop Take 

Reduction Plans, with the input of Take Reduction Teams. These teams are stakeholder groups of fishermen, state and Federal fisheries agencies, Alaska Native or 

tribal representatives, scientists, and conservationists that develop consensus-based 

recommendations to inform Take Reduction Plan regulations. 

In one example, the Harbor Porpoise Team recommended the use of acoustic 

pingers—developed collaboratively by fishermen and scientists—to deter these tiny 

porpoises from gillnets. As a result, harbor porpoise deaths in the gillnet fishery 

dropped dramatically—from more than 3000 to fewer than 400 annually. The population has grown substantially while the northeastern gillnet fleet continues to operVerDate Nov 24 2008 12:19 Dec 03, 2024 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\57576.TXT JACKIE
33 

ate successfully. But to understand the problem and evaluate the effectiveness of 

proposed solutions, the Team needed the scientific research and data that the Act 

mandates be compiled for each stock, underscoring the need for adequate funding 

for marine mammal research. 

With respect to military readiness, the Act was substantially amended in 2003 responding to the Department of Defense’s concerns about obtaining permits for killing, injuring, and harassing marine mammals via sonar and explosives. Among 

other modifications to the Act’s requirements, these amendments permit the Secretary of Defense to invoke at any time a two-year, renewable exemption from the 

Act for any action or category of actions if ‘‘necessary for national defense.’’ 

The Act has robust mechanisms for meeting the subsistence needs of Alaska Native communities. From its original enactment, the Act has exempted take of nondepleted stocks or species for subsistence and handicraft purposes from the general 

moratorium on take. Depleted species can still be taken for subsistence needs, but 

that take must be regulated to ensure it is sustainable and allows the species to 

recover. The Act reflects a deliberate balancing of subsistence needs and long-term 

conservation goals. 

The 1994 Amendments also added a mechanism for addressing interactions between pinnipeds (seals and sea lions) and declining or imperiled salmon stocks in 

the Northwest. The states of Idaho, Oregon, and Washington have a permit authorizing lethal removal of up to 92 California sea lions a year in the Columbia River. 

These states have never come close to killing their allotted quota. Until states exercise the full authorization they already have, the Act should not be amended to 

allow more—or unlimited—sea lion removals, particularly since their removal cannot address the myriad and far greater manmade threats to salmon recovery. 

Although the Act has been a conservation success, this is no time to rest on our 

laurels. We must not weaken the statute either passively through underfunding the 

National Marine Fisheries Service, U.S. Fish and Wildlife Service, and Marine 

Mammal Commission, or actively by amendment. Marine mammals face significant 

new threats from increasing ocean industrialization. Noise pollution levels from 

ships and other activities impair marine mammals’ ability to hear and be heard, 

find food and mates, and nurture their young, and thus, their very ability to survive. 

We are extremely concerned about proposed seismic airgun blasting surveys for 

offshore oil and gas deposits. This blasting, imminent in the Atlantic, threatens to 

harass, injure, or even kill thousands of marine mammals. Longer-term, fossil fuel 

exploration and development in U.S. waters pose both catastrophic and chronic, cumulative risks to marine mammals. 

One of the species most at risk from seismic blasting and oil and gas exploration 

and development in the Atlantic is the critically endangered North Atlantic right 

whale. This species will be functionally extinct in twenty years if we do not act immediately to ensure its habitat is safe. In the last year, 18 dead right whales have 

been found. This calving season, not a single calf has been seen. 

With all the threats facing right whales and other marine mammals, we strongly 

oppose any proposal that would weaken the Act’s protections. In a changing world, 

we must maintain the Act’s conservation commitment, not abandon it. 

Thank you for the opportunity to speak in support of the Marine Mammal Protection Act. 

Senator SULLIVAN. Thank you, Ms. Davenport. 

And I’m going to start questioning, and thank you all, all the witnesses, for your very informative testimony. 

Let me begin, and this is for Mr. Oliver and Mr. Miller, but with 

regard to the issue of subsistence under the Marine Mammal Protection Act and particularly as it relates to Alaska Natives. 

Can you explain a little bit of how important that is for both— 

you know, Mr. Miller, you touched on that, in terms of entire communities? I think sometimes these hearings are helping to educate 

us but also this is all for the record. So other staff members and 

Senators who aren’t here will be able to be informed by your testimony, but I think sometimes, you know, particularly in Alaska, 

down here in Washington, there’s not a good understanding of 

what subsistence means, how it’s important culturally, how it’s imVerDate Nov 24 2008 12:19 Dec 03, 2024 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\57576.TXT JACKIE
34 

portant literally for food. We don’t have a lot of big grocery stores 

in some of our smaller communities. 

Can the two of you talk a little bit about subsistence, and do you 

think the MMPA is working well as it relates to subsistence opportunities and what changes you would recommend on that very important topic, which is a key element of the MMPA? 

Mr. MILLER. Thank you, Mr. Chairman. I’ll give it a shot. Subsistence is an interesting term. It’s a word that there’s often a lot 

of debate from our communities that are afraid it doesn’t fully encompass what it means because it’s a very—oftentimes we use cultural and traditional and sometimes people refer to subsistence as 

just a food item. 

I can’t emphasize enough how the food, though, is connected to 

the communities and a lot of our rural communities in Alaska and 

access to the food in ways that it has been traditionally harvested 

and used through all parts of life is essential to that. 

It’s tied to a way of life. When access to a way of life is compromised, you start to see the anomalies then because you have a 

way of life in a community breaking down and that’s where you see 

the other behaviors that start to show up, the substance abuse 

issues, the domestic violence, the loss of the direction for a community, and the government spends a lot of money trying to fix those 

side effects from the loss of the breakdown of the way of life. 

So I can’t emphasize enough how important the access to traditional foods that all the parts of the community that are tied to it. 

The Act itself actually is stronger than a lot of other legislation 

that deal with subsistence issues, whether it’s fish or game, in the 

state of Alaska. So, again, as I referenced in testimony, it has wonderful language to work with. It hasn’t been fully utilized, we don’t 

think, but, again, the harvest management plans, the structures 

that I referenced briefly—sorry, Mr. Chairman. I was in a car 

wreck on the way over here in that taxi and my papers got a little 

mixed up. 

Senator SULLIVAN. We heard you had quite the adventure getting 

here from Alaska to D.C. 

Mr. MILLER. Yes. 

Senator SULLIVAN. Car wrecks and all kinds of—we’re glad 

you’re here safely. 

Mr. MILLER. Yes, snowed out for the first hearing and was in a 

lockdown this morning for a couple hours with the shooter incident 

and the car wreck on the way. So I was telling people I don’t know 

if they should sit next to me or not. 

But, anyway, I’m glad I’m here because this is essential to our 

communities. We have communities that rely on walrus, for example, for—I believe it’s 70 to 80 percent of their diet, the meat diet, 

and they don’t have another access to it, and then also they use 

the ivory as a primary means of economic support for the community, and there is not an alternative. 

So, again, we’d like to work with, you know, provisions that 

maybe could make things stronger, but the Act does better than 

most in addressing subsistence issues and just finally on the issue, 

our communities take this very seriously. 

The harvest of marine mammals, the use of it is very cultural for 

a lot of people and it’s very spiritual. It’s not anything they take 

35 

lightly. It’s not just taking animals for sport or just to go do it. It 

is part of their way of life, a way of life that would not exist without it. So thanks for the question, Mr. Chairman. 

Senator SULLIVAN. Thank you. 

Mr. Oliver, you have anything to add to that? 

Mr. OLIVER. Yes, Mr. Chairman, just from an agency perspective, 

we have numerous co-management partnerships with various Alaska Native organizations that are absolutely essential to our effective management of various marine mammal stocks. 

We simply could not monitor subsistence harvests to ensure sustainability without the information and participation of the hunters. 

I would note that I know there has been suggestion about 

amending the MMPA in a way that ensures opportunities for any 

tribal members to hunt marine mammals versus the 25-percent 

blood quantum standard that is currently in NOAA and Fish and 

Wildlife Service regulations. 

I know we’ve been discussing this issue closely with the Indigenous People’s Council and the Alaska Federation of Natives. I 

think there’s some difference of opinion on that even within the 

Native community. 

My point is that we’re open to the possibility of changing our regulations or the statute to address those issues and concerns to ensure that all Alaska tribal members can enjoy that opportunity. 

And I guess the final thing I would say is one of the most important intersections that we have is through the International Whaling Commission and the Alaska Eskimo Whaling Commission. 

We have up for renegotiation later this year the Subsistence 

Bullhead Whale Quotas which, as you know and I know, are so 

critically important as not only a food source but a tradition and 

a custom for Native communities in Northern Alaska. 

We’re going to be advocating strongly to re-enact the 67, I believe 

it is, Bullhead whale quota for the next five years and also negotiating to change the rollover provision that will allow those unused 

strikes, 50 percent to be rolled over, because we really—with the 

changing environmental conditions up there and it varies the harvest ability and success is varying from year to year, we really 

need that flexibility, I think, to maintain that Bullhead whale hunt 

in the traditional way. 

So there are various ways that this is critically important and I 

know from living there for 27 years how important it is. 

Senator SULLIVAN. Great. Thank you very much. I appreciate 

your focus on those issues. 

Senator Baldwin. 

Senator BALDWIN. Thank you. 

So the original goal of the MMPA was to conserve and protect 

marine mammals after finding that certain species and stocks of 

mammals were in danger of extinction or depletion because of 

human activity. 

The Act, as we’ve reviewed, was updated in 1994 with a requirement for the development of take reduction plans to limit the 

unsustainable killing of marine mammals by commercial fisheries 

using science-based metrics and multi-stakeholder input. 

36 

Ms. Davenport, you’ve already in your testimony expressed views 

about the success of the Marine Mammal Protection Act in achieving its original intent. 

Certainly feel free to add to that, but how would the Take Reduction Teams—how do they balance the needs of commercial interests 

while limiting the take of certain species? Why don’t you answer 

that, and I have a follow up, too. 

Ms. DAVENPORT. Yes, thank you, Senator Baldwin. 

So actually a number of four take reduction teams myself, so I 

can speak from personal experience. Every take reduction team has 

its own personality and set of players, but what I think is so innovative about the take reduction team process is it’s not simply a 

question of the agency coming up with a regulation to meet the 

statutory goals of ensuring that, you know, human-cause take of 

marine mammals in these particular fisheries that require take reduction plans has to come down to a level that is either at or no 

more than what’s called the potential biological removal level with 

the goal of approaching zero mortality rate goal. 

So the plan’s goals are set by statute, but the Take Reduction 

Team process enables the various stakeholders to come together 

and there are usually presentations by National Marine Fishery 

Service scientists and often state agency scientists on what do we 

know about what’s going on with the species. 

So it’s a very data-driven process. Because the statute requires 

the agency to do stock assessment reports, you know, we have that 

information to draw on to understand what is the best available 

data to tell us about what’s going on with the species and the impacts the fishery might be having on it. 

But then what I think is a really productive aspect of the team 

process when it’s functioning successfully is that it’s a moderated 

discussion but it’s a very free-flowing discussion around the ideas 

and around the table with ideas of, you know, what additional restrictions do we need to enable the plan to reach that goal of taking 

no more than PDR and that’s a process that involves listening to 

the scientists. 

It involves listening to the fishermen and when they say, you 

know, I’m setting my gill net in this particular area, you know, and 

I really need that, that’s a huge part of my catch and it’s therefore 

a huge part of my income, you know, that kind of very personal information and that on-the-water information enables the team 

often to come up with essentially compromise, you know. 

What about if we have a restriction on, you know, setting at 

dawn and dusk when the marine mammals are more likely to be 

coming in and feeding and, you know, it’s very, you know, negotiations-based and discussion-based process, that then it doesn’t determine what the regulations will be, but it feeds into the set of consensus recommendations that then the agency can take and determine, you know, how to structure a rulemaking around that. 

So, you know, in my view, it really functions best when people 

come to the table and they’re representing their own constituency, 

whether that’s the scientific community or in my role, the environmental organization, or, you know, the fishermen have their colleagues on speed dial and say, hey, we’re talking about this, how 

would this work for you in your particular area, and I think that 

37 

it’s a real give and take process, and I think in my experience in 

environmental law, it’s a very, you know, unique kind of process 

that really allows the agency to hear from all the stakeholders. It 

enables the stakeholders to talk to each other, not just in terms of, 

you know, we’re now all submitting comments on this proposed 

rule and having a clash but really enabling that kind of understanding that can lead to compromise and I think in many cases, 

it’s worked very successfully. 

The example I gave was the Harbor porpoise one and I wasn’t 

on the team at the time that the pingers were being developed, but 

that was very much a process that depended on, you know, fishermen knowledge of the fishery, how the porpoises interact with their 

nests and, you know, getting the experimental gear to them so they 

could test it and see what happened. 

So, you know, I think it’s definitely a model for conservation that 

can happen that minimizes to some extent the conflicts between 

various interests. 

Senator BALDWIN. Thank you. 

Senator SULLIVAN. Senator Markey. 

STATEMENT OF HON. EDWARD MARKEY, 

U.S. SENATOR FROM MASSACHUSETTS 

Senator MARKEY. Thank you, Mr. Chairman, very much. 

Mr. Chairman, since the enactment of the Marine Mammal Protection Act in 1972,—were you here then? I can’t believe a law got 

passed in this country before I got here. 

Senator SULLIVAN. You’ve had a very distinguished career. 

Senator MARKEY. It’s my 42nd year in Congress. 

Senator SULLIVAN. OK. 

Senator MARKEY. So most of the laws of the Constitution all got 

passed just in the four or five years before I got here, the Clean 

Air Act of 1990, the Marine Mammal Act of 1972—I mean 1970 

Clean Air Act, Marine Mammal Protection Act, et cetera, the Nuclear Regulatory Commission was created in 1974. 

Anyway, that’s an aside. Thank you. If I can have an extra 

minute? Thank you. 

Senator SULLIVAN. No, no. I’ll give you an extra minute. I’m very 

proud of the soliloquy by the member, but in this case, I’ll let you 

have it. 

Senator MARKEY. I appreciate it. Thank you. 

So since the passage of the Marine Mammal Protection Act in 

1972, no marine mammals have gone extinct and under the 

MMPA, we have taken numerous steps here in the United States 

to protect marine mammals, including the critically endangered 

North Atlantic Right Whale, and I’m proud of the science-driven solutions in my home state of Massachusetts that have helped the 

right whale. 

Ten years ago, a simple shift in the shipping lane of commercial 

vessels in and out of Boston Harbor dramatically reduced ship 

strike mortalities of whales while only increasing travel time for 

those vessels by 10 to 20 minutes, and fishermen in New England 

have taken steps to lessen the odds of whale entanglements in fishing gear. 

38 

However, the critically endangered North Atlantic right whale 

migrates between the United States and Canadian waters. While 

fishermen in Massachusetts and elsewhere in the United States 

have taken important steps to protect these whales, I am concerned 

that Canada is not sufficiently following suit. 

Seventy percent of all right whale deaths last year occurred in 

Canadian waters and at least six right whales were entangled in 

Canadian snow crab fishing gear. It is imperative that Canada increases its gear standards to match American standards. 

We have the Marine Mammal Protection Act to address exactly 

this sort of crisis because it requires that other nations ensure that 

their commercial fishing practices meet U.S. standards. 

The Marine Mammal Protection Act requires nations that export 

fishing products to the United States to have the same standards 

to protect marine mammals as we do. Foreign nations have been 

granted a five-year exemption until January 10, 2022, to develop 

comparable marine mammal protection standards, but in the case 

of the North Atlantic right whale, we may not have five years to 

act and save this species. 

And that is why I and ten other Senators have sent a letter 

today asking NOAA to evaluate whether marine mammal conservation standards in Canada’s Atlantic fisheries are sufficient. 

So, Mr. Oliver, we know Canadian fisheries contribute to North 

Atlantic right whale deaths. 

Will you commit to have NOAA Fisheries expedite this comparability review process under the MMPA for Canadian fisheries, 

given the right whale crisis that exists today? 

Mr. OLIVER. Senator, until today, we had not been petitioned or 

initiated a comparability finding, but it seems as though we’re likely to undertake such an endeavor soon. 

We have been working very closely with Canada and the—— 

Senator MARKEY. By soon, you mean? 

Mr. OLIVER. Yes. 

Senator MARKEY. What do you mean by soon? By soon, you say 

you will do it soon. 

Mr. OLIVER. Assuming we receive such a request today, I assume 

we will initiate movement on that tomorrow. 

Senator MARKEY. OK. Thank you, sir. 

Mr. OLIVER. But we have been working very closely with the 

Government of Canada and they’ve recently announced a number 

of measures, including ship speed restrictions, gear restrictions, 

moving closure areas, that they would implement, depending on 

right whale sightings. 

We certainly are looking to Canada to step up, if you will, in the 

way that we have implemented measures in the U.S. We are reinitiating our fisheries biological opinion on our fisheries, but we 

don’t want to unnecessarily impose additional restrictions on our 

fishermen unless and until we see comparable movement on the 

Canadian side. 

I would note it does look like they’re making movement. We have 

been working very closely with them and so I expect positive movement from Canada on this issue. 

39 

Senator MARKEY. But if Canada’s regulations are not found to be 

as protective as ours, the MMPA actually requires that the U.S. 

ban Canadian seafood imports. 

Will NOAA take that step as required by law should Canadian 

regulations be found to be less protective? 

Mr. OLIVER. Presuming we came to a non-comparability finding, 

we would be compelled, I believe, to restrict at least those fisheries 

for which a non-comparability finding is made. 

Senator MARKEY. OK. And you’re going to begin soon to begin 

that process because the timeline does matter. These whales have 

a ticking clock that is now signaling a day where extinction gets 

closer and closer. 

So we thank you for that because now is the right time for the 

right whale to be given the protections which they deserve, and I 

appreciate the attention that NOAA will be giving to it. 

Thank you, and I’ll just ask one final question, and that is, would 

seismic testing and offshore drilling put our marine mammals, including the right whale, and fisheries at greater risk? 

Mr. OLIVER. If I understood your question,—— 

Senator MARKEY. Does the Trump Administration plan to begin 

seismic testing and offshore drilling off of every state in the United 

States, with the exception of Florida, for some reason that has to 

do with a Senate race that is going on? But in terms of the other 

states, will there be—is there evidence historically that seismic 

testing and drilling does in fact, including the right whale, put 

them in greater danger? 

Mr. OLIVER.—sir, cetaceans in general are sensitive to acoustic 

activity. We have had that going on for many decades in the Gulf 

of Mexico and we’re currently re-evaluating seismic activity under 

an incidental take authorization in the Gulf. 

We, last June, issued proposed rules for incidental harassment 

authorizations for five Atlantic Coast seismic activity applications 

and we’re in the process of evaluating over 117,000 comments that 

we received on that, many of them of a highly technical-legal-policy 

nature. 

So that process has taken a little bit longer than we expect, but 

we expect within the next few weeks to have made a decision on 

those authorizations. I would note that the unprecedented 17 right 

whale deaths that occurred in 2017 occurred in the absence of any 

seismic activity on the Atlantic Coast. 

Senator MARKEY. I appreciate that, sir. My belief is that the 

Trump drilling plan is a triple whammy for the right whales. One, 

it would harm the whales with seismic testing, two, it would increase the risk of an oil spill, and, three, all the burn, more fossil 

fuels that contribute to climate change which is greatly impacting 

ocean habitats, including that for the right whale. 

So in each aspect of this issue, it comes back to harming not just 

right whales, OK, but all other species that could potentially be endangered. 

So I thank you for your attention to those issues, Mr. Oliver, and 

I thank you, Mr. Chairman, for your indulgence. 

Senator SULLIVAN. Absolutely. Senator Blumenthal. 

40 

STATEMENT OF HON. RICHARD BLUMENTHAL, 

U.S. SENATOR FROM CONNECTICUT 

Senator BLUMENTHAL. Thanks, Mr. Chairman. Thank you all for 

being here. 

I have two questions at least. One concerns marine-designated 

areas. As everybody on the panel knows, the Trump Administration 

has threatened to eliminate about half of all highly protected areas 

in America’s oceans, the largest ever rollback of ocean protections 

in the history of the United States, including allowing commercial 

extraction in the Northeast Canyons and Seamounts Marine National Monument, other similar areas on the West Coast. 

I’m proud of the work that I did and others joined me to persuade the Obama Administration to create the first-ever Marine 

Monument in the Atlantic Ocean. It’s a spectacular underwater 

seascape that is precious, priceless, beautiful, and extraordinarily 

important to Connecticut and to our Nation. 

It’s important not only environmentally and aesthetically, it’s 

also a bio-diverse and pristine marine ecosystem that generates a 

lot of sea life. It enables benefits to marine mammals, as well. 

I assume everyone on the panel would agree with that proposition, and I hope everyone on the panel would agree that eliminating marine-designated areas, like the Northeast Canyons and 

Seamount Marine National Monument, would affect marine mammals adversely. They depend on these areas for forage, for abundant prey debris to raise their young, to engage in other important 

life-sustaining activities. 

Does anyone on the panel disagree with what I’ve just said, and, 

if so, why? 

[No response.] 

Senator BLUMENTHAL. The record should note that the panel was 

silent, indicating its agreement. Thank you. 

Let me move on to the second question to Mr. Oliver. I’m pretty 

alarmed that the proposed budget for Fiscal Year 2019 slashes 

funding to NOAA by about 20 percent or $1 billion. That means zeroing out programs all around the country, like the Sea Grant and 

funding for the Milford Lab in Milford, Connecticut, and for the 

University of Connecticut. 

I’m sure there are many other similar programs in states that 

my colleagues represent. 

As you know, NOAA’s National Marine Fisheries Service, the office you oversee and that’s charged with protecting marine mammals under MMP, is facing a $110.4 million or 14-percent budget 

cut. 

President Trump also wants to cut $4.8 million from habitat and 

conservation programs, wiping out funding and grants for NOAA’s 

Fisheries Habitat Restoration Projects. 

As someone who has spent literally decades as a biologist, a scientist, and an administrator in the Pacific Fisheries Management 

Program and now heading an agency with direct responsibility 

here, are you concerned about these budget cuts? 

Mr. OLIVER. Mr. Chairman, Senator, I will acknowledge that 

these budget cuts pose some significant challenges for us. They also 

are largely focused on many of our external grant programs. 

41 

So I recognize they also pose challenges and hardships for many 

of the people, including researchers that support our mission that 

previously relied on those grants, and that includes the Prescott 

Grant Program for Marine Mammals, as well, and so I do recognize 

that the choices that the Administration has made with respect to 

tradeoffs in our budget will, not only for our agency, for many 

agencies, pose challenges for us, and we hope to be able to meet 

those to the best of our ability. 

Senator BLUMENTHAL. Well, I’m going to first compliment you on 

your diplomatic answer, which I fully expected. The idea that you 

pose challenges, I think, is a profound euphemism for what’s really 

at stake here, and I’m not being critical of you personally because 

these decisions are not made by you and you don’t have to respond, 

but I do think that we are ignoring a deep and enduring failure impending in these budget cuts that for all the talk on this panel and 

in this room and in the Congress and around the country will have 

real and lasting consequences for our Nation and for marine mammals and other environmental values that we share. 

So thank you for being here today and thank you all. 

Senator SULLIVAN. Thank you, Senator Blumenthal. 

I’m going to return to some of the questioning I have here and 

for all our witnesses and, you know, I want to go back to a topic 

that we talked about, that, Mr. Oliver, you talked about a little bit 

in your comments. 

Senator Markey talks about the North Atlantic right whale, 

which my understanding is that it’s under stress, and is that listed 

right now? 

Mr. OLIVER. Yes, sir. It’s one of the more highly endangered species on the planet. I think there are 450 or 60 of them left. 

Senator SULLIVAN. And so we should be focused on trying to certainly help that with recovery. 

In the North Pacific, as you know, for example, the Bowhead 

Whale recovery has been very dramatic, has it not? 

Mr. OLIVER. Yes, sir. 

Senator SULLIVAN. And can you talk a little bit about the traditional knowledge that helped that recovery? That’s both for you, 

Mr. Oliver, and Mr. Miller. I think it’s very interesting that, you 

know, if you look at the history of that, you have the Western scientists go out there kind of saying, hey, the Bowhead’s at one level 

in terms of numbers but the Alaskan Natives, who have been fishing and harvesting that whale for thousands of years, had a much, 

much better sense of what the real numbers were. 

So can you talk about how traditional knowledge helps particularly in actual more accurate assessments because I don’t think a 

lot of people—I think everybody thinks, oh, the Western scientists 

over someone else, oh, they’re always right. 

In this case, wasn’t it true, Mr. Miller, that the Alaska Native 

whaling captains had a much better sense of the true numbers of 

the stocks and finally the Western scientists agreed with them? 

Mr. MILLER. I’ll try my best to answer that, being from Southeast and a bit removed from the whaling captains. 

Senator SULLIVAN. Or Mr. Oliver. 

Mr. MILLER. But they did. You know, I’ve worked a lot with the 

folks that work with that commission, if I might. They did. The 

42 

numbers came out early on as very small population, it was estimated, and the whalers said, no, there is a lot more whales than 

you’re seeing, and I think we found that, especially in a lot of the 

Arctic species that we had the science community that oftentimes 

was coming in seasonally and, you know, so they get a snapshot 

but that’s not the full picture of the whales. 

I think there are other science-related issues. The whalers always knew that whales could smell and that was something that 

later was proven but the people already knew that. 

The ice conditions were, you know, as applies to whaling were 

something that people inherently knew and so it can kind of go 

down the list of not just for whales but also for other Arctic species 

that there are these knowledge structures, that base knowledge 

that’s there, and it really has hurt in times when the Western scientists said, no, that’s not relevant, it’s just people’s observations, 

but the observational community science and from the people that 

actually spend their lives in that ecosystem, how the species interact with each other and different conditions affect things, have 

been quite useful to the science community that accepts it. 

Senator SULLIVAN. Let me ask a related question for both of you. 

This morning in the Commerce Committee, the Committee 

passed with strong bipartisan support a bill of mine and co-sponsored by Senator Whitehouse from Rhode Island that would set up 

a domestic process through which the Secretary of Commerce can 

preserve the Bowhead Whale Subsistence Harvest for Alaska Native Foods Security if the International Whaling Commission fails 

to act as they’re working toward a reauthorization of the quota in 

September 2018. 

This is something that has been very strongly bipartisan. The 

Obama Administration previously was a strong supporter of the 

whale harvest quota at the IWC. 

Can the two of you just talk about how important that issue is 

to the communities on the North Slope and in the institutional 

knowledge that, you know, we would lose if for some reason the 

harvest quota were not accepted at the IWC? 

We don’t think that’s going to happen but we’re very focused on 

it and, Mr. Oliver, I know you are and we appreciate that. Can you 

give us a sense of that? 

Mr. OLIVER. Yes, Mr. Chairman. 

Senator SULLIVAN. You talked about it briefly but it’s a really important issue for my constituents. 

Mr. OLIVER. I’ll give you a two-part answer and part of it’s in response to your previous question and the importance of the Alaska 

Eskimo Whaling Commission and the IWC process and I know our 

Commissioner Ryan Wolf spent a week in Barrow recently meeting 

with folks, the hunters. I know many of them personally. 

Senator SULLIVAN. Yes, we appreciate that. 

Mr. OLIVER. And I think that information, it feeds importantly 

into the IWC discussions, including endorsements to that information by the IWC’s own science panel. 

I do think that we, of course, are going to negotiate strongly with 

our Russian aboriginal whaling partners who predominantly focus 

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43 

uously to re-up for the following 5 years that Bowhead whale 

quota. 

We’ve also made the assertion at least at the NOAA level that 

even without that concurrence by the IWC, we read the terms of 

the convention that we could potentially implement our own quotas 

but having the backup of that type of legislative underpinning 

would certainly give us a sense of security going into those negotiations. 

Senator SULLIVAN. Well, that was the reason for it and we’re 

hopeful that you can utilize that and the State Department the 

way the Obama Administration had worked on that quota previously. So we appreciate your support on that and it’s a very important issue. 

Senator Baldwin. 

Senator BALDWIN. Thank you. 

Climate change poses growing threats to my home state of Wisconsin and we know that Great Lakes Region also and, frankly, the 

world. The oceans are warming, becoming more acidic, and losing 

oxygen. 

Mr. Oliver and Ms. Davenport, what do we know and what don’t 

we know about how climate change and ocean acidification can— 

how they affect marine mammals? And then I have a follow up, but 

why don’t we start with you, Mr. Oliver? 

Mr. OLIVER. I’ll give that a shot. I mean, our goal is to figure out 

what the implications are of the changing climate, climate change, 

warming as it regards fish as well as with regard to its implications for marine mammals. 

I would say that what we don’t know far outweighs what we do 

know and so that’s one of the big challenges we have is figuring 

that out. We’re not going to tell the fish and the marine mammals 

where or how to move in response to global climate change. They’re 

going to tell us, so we’re still trying to figure that out and so I don’t 

have a brilliant answer. I don’t have a definitive answer. 

It’s going to vary by different marine mammal species, stocks, 

and geographic area. So I would simply acknowledge that that is 

a very critical part of the puzzle that we have before us, and we 

don’t underestimate it. 

Senator BALDWIN. OK. Ms. Davenport, and then I have a follow 

up. 

Ms. DAVENPORT. Thank you, Senator Baldwin. As a member of 

the Atlantic Large Whale Take Reduction Team, which is the one 

that addresses the North Atlantic right whale, we recently had the 

benefit of a webinar that NOAA Fisheries put on for us about 

copepods, which are the tiny little zooplankton that right whales 

eat and they’re very picky eaters. 

It’s basically what they eat at a particular life stage and what 

this webinar was updating us on is essentially the latest information on how changing oceanographic conditions are changing the 

concentrations of where these copepods are, which then, of course, 

affects where right whales go to feed on them. 

It used to be that you could practically set your watch by the 

right whales about where they’re going to be when and, unfortunately, so much of our knowledge of that has to get thrown out the 

window because they have to move where the food is. 

44 

But one of the take-aways for me out of that webinar actually 

echoes what Senator Blumenthal was just talking about and that 

was that on the Canadian side of the border, they have these research stations where they study on an annual basis, an ongoing 

basis, they do these zooplankton surveys. So they have a really 

good idea of how the resource is reacting in any given year and the 

researchers who were giving this webinar for us was saying that 

the funding is spotty to non-existent. 

So part of the issue for them is not having, you know, that basic 

scientific information on an annual basis for comparison that would 

inform us about what is the status of this zooplankton resource, 

which, of course, is, you know, important not only for the right 

whale but also as the basis for the aquatic food chain. 

So I was really struck by how different the data can be, depending on whether the researchers have the resources they need to go 

out and get it on an annual basis and then, of course, analyze it. 

So I certainly agree that we don’t know nearly enough, but I 

think it calls for much greater funding for this basic research to try 

to understand how the resources are changing. Then, of course, you 

know, we have to have as much information as we can in order to 

base management decisions on for the right whale or any other 

species of marine wildlife that may be affected by its shifting prey 

resources. 

Senator BALDWIN. OK. My follow-up for you, Mr. Oliver, is with 

climate change posing new uncertainties for marine mammals, how 

will the National Marine Fisheries Service prioritize its use of 

funds for studying and protecting marine mammals under the 

MMPA? 

Mr. OLIVER. Well, I think probably in a similar way that we’ll 

look at prioritizing research for basic fisheries stock assessments. 

We have to go around region by region and evaluate what our 

budgetary parameters are for each of our science centers, our laboratories, our research facilities where some of this work is coordinated with other NOAA line offices, including OAR, NOS, and others. 

So I don’t have a prioritization plan that I could present to you 

today. 

Senator SULLIVAN. Great. Thank you. I have a few more questions for our witnesses and, Mr. Norman, I’m not going to let you 

come all this way and not have an opportunity to say a few words. 

So let me ask you, the Chinook that you’re talking about, those 

are endangered? 

Mr. NORMAN. Yes, there are 32 populations, but—— 

Senator SULLIVAN. The one that you’re talking about? 

Mr. NORMAN. It’s listed as endangered and another segment 

that’s listed as threatened. 

Senator SULLIVAN. OK. So that’s an important issue, and I think 

it highlights really one of the issues that I touched on in my opening statement, which is you have mandates of the Marine Mammal 

Protection Act and you have mandates of the Endangered Species 

Act, and in the case that you’re talking about, do you think those 

are conflicting mandates? What’s the solution from your perspective because obviously the King Salmon is a very, very important 

species, and if we think the predation of the sea lion is a major 

45 

cause, what’s your perspective, and are the laws conflicting? Does 

it make it harder for Mr. Oliver and others to help manage this 

stock of one of the most incredible fish on the planet? 

Mr. NORMAN. Thank you, Mr. Chairman. So there is certainly 

conflicts between, I guess, the natural resource management conundrum of trying to protect and recover these endangered salmon 

and then certainly trying to protect the marine mammals through 

the Marine Mammals Protection Act. 

I think Section 120, which was enacted in the 1990s, was certainly focused on trying to at least address specific issues like those 

that we’re now seeing in the Columbia River. Section 120 was originally enacted and associated with a similar problem in the Ballard 

Locks in Lake Washington in the state of Washington. 

Different situation. About a dozen sea lions in a small area and 

so Section 120 was developed specific for that kind of situation. In 

the Columbia River, very large system, hundreds of sea lions, and 

with this, as I indicated earlier, this new unusual behavior of moving over a hundred miles upstream to predate on salmon. 

One of the most difficult issues associated with the current Section 120 provisions is the requirement to identify an individual sea 

lion that’s causing significant impact on an endangered species. 

That requires the agencies, National Marine Fisheries Service and 

the state agencies, to actually observe one particular sea lion and 

be able to identify that individual before they’re on the list and eligible for removal. So that in itself is a very time-consuming and expensive endeavor and it only enables a fraction of those animals 

that are moving that far upstream to be removed. 

So I think one of the—Mr. Chairman, you had asked for, well, 

what’s the solution? 

Senator SULLIVAN. Yes. 

Mr. NORMAN. And one of the amendment proposals is to change 

that particular definition for an individual causing significant harm 

to be associated with the geography in the river. 

So if they’re above 112 miles in the river, the studies indicate 

that they are focusing almost entirely on salmon and steelhead or 

in the tributaries that, you know, also have salmon and steelhead, 

endangered salmon and steelhead returning. 

So redefining the definition of animal that’s causing significant 

impact, so it takes away that laborious process in order to be able 

to remove. 

Senator SULLIVAN. Thank you. That’s very helpful. You know, 

Mr. Oliver, this could be a topic of an entire other hearing that we 

probably need to entertain and that’s the weakness of the King 

Run in different parts of not only the Pacific Northwest but in 

Alaska. 

I was just back home in Southeast, Mr. Miller, and, you know, 

for example, in Ketchikan, they canceled the derby, and I think 

that’s the first time ever. So we need to get a handle on that because the runs, particularly the King Runs in Alaska, in certain 

areas and part of the state, are really weak. I think there are a 

lot of possibilities for the reason for that, but having your expertise 

weigh in would be really important. 

Dr. Stone, I just wanted to thank you for your discussion of 

Tyonek. Can you help us a little bit more to understand the beneVerDate Nov 24 2008 12:19 Dec 03, 2024 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\57576.TXT JACKIE
46 

fits and importance of, you know, that kind of example in the professional care of marine mammals and, you know, expert aquariums that you represent? 

Dr. STONE. Thank you, and thank you for the correction on the 

pronunciation. I have not had that opportunity to meet him personally. 

But any time we have an opportunity to work with a stranded 

animal, we have an enormous opportunity to gather information 

about the individual animal, about the species, about the causes of 

the stranding, and also to reflect on the implied and sometimes 

very specific causes of changes in our ecosystem that might be behind the reason for the stranding. Whether it’s decreased prey, 

malnutrition, infectious diseases, certainly plastics, debris is a 

huge issue for us and for our animals in the wild. 

We see animals coming to shore with huge amount of non-digestible plastics in their intestinal tracts. We see animals that are 

emaciated because they’ve been carrying enormous amounts of 

gear, fishing gear, abandoned fishing gear, and have been essentially starving over probably weeks or months. 

So we learn not only about the animal and the species but also 

about our coastal ecosystems from addressing stranded animals. I 

think this is a really important part of the Prescott Grant, that losing the Prescott Grant will not only affect funding for stranding 

but also the collection of that data, which dolphins and whales are 

often referred to as the canaries of the ocean. If we lose that information, then we’re going to lose vital information that we could 

gather about fish stocks and other issues affecting ocean climate 

change and other related problems. 

We also have the opportunity in working with novel species to 

learn about the physiology of that species, its hearing capacity perhaps, and other parameters that could help us better protect them 

in the wild. 

The care that’s given to those individual animals is extraordinary 

and I can speak to that from personal experience. In working with 

stranded animals, we often are with them 24/7 and often involves 

veterinary care, trained marine mammal specialists who are expert 

at handling these animals, taking lab samples, ultrasound, digital 

radiography, diagnostics, therapeutics, fluids, intensive care essentially, and sometimes that intensive care can go on literally for 

months. Sometimes it doesn’t end well. Sometimes we lose the animal, but we still learn from each of those instances, and oftentimes 

we can save them and particularly now with neonates, we are 

doing such an extraordinary job of raising baby dolphins now that 

we want the opportunity to save those animals and not have them 

euthanized on the beach. 

So that we can provide them with loving homes and they can 

have a meaningful life as an ambassador for their species. 

Senator SULLIVAN. Well, I appreciate that. I also appreciate your 

mention of plastics. It’s a topic that I’ve been very focused on. You 

may have seen Senator Whitehouse and I had a bill, The Save Our 

Seas Act,—— 

Dr. STONE. Yes. 

Senator SULLIVAN.—that has already passed the Senate and calls 

for not only increased NOAA focus on the ocean debris, plastics 

47 

front, but also calls for an international agreement, and I think 

there’s a lot of encouragement that we’re seeing from the Trump 

Administration to undertake that. 

Dr. STONE. Well, it’s also a very important issue for our constituency. We have over 40 million visitors a year and plastic debris and 

recycling and refusing plastics, as you’ll see, I do have my water 

bottle here, is very important. I think that we all can do a better 

job of encouraging our supply chains, our visitors, our employees to 

walk that talk. I would pledge the Alliance of Marine Mammals 

Parks and Aquariums to help you with that initiative. 

Senator SULLIVAN. Good, good. We’re excited. 

Senator BALDWIN. I would like to pursue the earlier line of questioning between the Chair and Mr. Norman about the predation of 

threatened and endangered steelhead and salmon by sea lions in 

the Pacific Northwest and here, two additional perspectives on the 

mechanisms by which the MMPA could address the issue. 

I’m wondering, Ms. Davenport, if you can speak to that, followed 

by Mr. Oliver. 

Ms. DAVENPORT. Thank you, Senator. If I understand your question, you’re asking how the existing mechanisms of the MMPA can 

be used to address this issue? 

Senator BALDWIN. Yes, I am. 

Ms. DAVENPORT. Well, I think that the most important part is 

there are existing mechanisms in the statute and, you know, I understand why, you know, there’s a concern about identifying individual animals, but the fact of the matter is these salmon runs face 

far greater threats than any individual or even, you know, as a 

group these pinnipeds. 

One fact that I learned from a colleague at another organization 

who works exclusively on trying to save Southern Resident killer 

whale, which is entirely dependent on Chinook salmon, is that, you 

know, one issue that she has identified is hatcheries will release 

all of their baby fish at one time. So that’s basically ringing the 

dinner bell for these pinnipeds and they’re not stupid. They’re top 

predators for a reason. They are able to learn that at a certain 

time, you know, dinner, breakfast and lunch are served. 

So I think that, you know, there needs to be a lot more careful 

thought put into how we are trying to save the salmon. Are we targeting the sea lions because we see them eating the fish, but are 

we actually, you know, doing other things around our management 

of activities that could help ameliorate that problem? 

Also, if I may, speaking to Senator Sullivan’s question, you asked 

a question about whether the Endangered Species Act and the Marine Mammal Protection Act themselves are in conflict here, and I 

would say, no, the problem is not a tension between the statutes. 

The problem, as multiple courts have found over many years, is 

that the National Marine Fisheries Service hasn’t done an adequate job under the Endangered Species Act in consulting under 

that statute and coming up with biological opinions that can appropriately address the impacts of how the dams are managed. 

So I think there’s a lot more work to be done on managing the 

dams, on managing hatcheries, on looking at, you know, human 

impacts on these salmon runs, which weren’t endangered previously before we started building these dams. 

48 

You know, we need to look at renewable energy sources so we 

can get away from these dams. There are so many different aspects 

of this problem that focusing on, you know, we’re going to kill our 

way out of it by killing sea lions, that may be, you know, an aspect 

of it with respect to these potentially problematic individuals, but 

it just can’t be the whole solution. We are just not going to be able 

to manage the predators in order to save the salmon when they 

face so many different threats. 

Senator BALDWIN. Mr. Oliver. 

Mr. OLIVER. Thank you for the question. I might have a little bit 

different perspective on it. 

One of the things that’s consumed a tremendous amount of my 

time since I’ve taken this position is I think there are 27 different 

endangered or threatened runs of salmonids on the West Coast. 

Whether it’s hydropower, agriculture, timber, water storage and diversion, there is a tremendous amount of time our agency spends 

on ESA consultations on all those projects and MMPA permitting. 

We impose hundreds of millions, probably billions, of dollars of 

mitigation activities and measures over the years on these various 

infrastructure projects. At the same time, as Mr. Norman said, to 

protect these endangered and threatened runs, and in the case of 

this particular issue, the Chinook salmon and steelhead, it’s also 

endangered giant sturgeon that are being eaten, literally the bellies 

ripped out and the eggs eaten out of them at these locations, particularly at the Bonneville Dam, and now more are showing up on 

the Willamette. In some cases, in recent years, significant segments of the population, despite the billions of dollars of mitigation 

measures we’re requiring on other industries, these sea lions have 

become acclimated and trained to eat at the buffet line. 

I recently had the opportunity to visit Bonneville Dam about 

three weeks ago and look at the fish passage systems at Oregon 

and Washington State personnel. Biologists showed me the sea lion 

mitigation facility and how that works, and the problem, as Mr. 

Norman noted, with identifying individual culprits that are doing 

significant damage to the population, I think there’s no question 

that significant damage is being done, both individually and collectively, but you have to capture these animals, brand them, release 

them, monitor them 24/7 for activities. 

I personally can’t imagine that these animals are swimming 140 

miles up this river to this very specific location to sunbathe. 

They’re there to eat salmon, steelhead, and sturgeon, and so I personally believe that the notion of having to rely on the individual 

identifiable factor is constraining our ability to mitigate what I 

think is a significant problem. 

Senator SULLIVAN. Thank you, and it’s a good discussion on that. 

I’m going to ask one final question, it goes back to one of the topics I mentioned and it’s under the MMPA. It’s clear legally and you 

can just say yes. I think everybody here knows it, that, you know, 

Alaska Natives are allowed to harvest and then actually use for 

Native crafts walrus ivory, correct? Everybody’s nodding their 

head. 

So we want to work with everybody here and, Ms. Davenport 

that would certainly include you. We had the World Wildlife Federation testify at a field hearing I had on this topic. The bill I had, 

49 

the Ivory Act, would say, look, we understand the issue with regard 

to the African elephant, and the ban on that kind of ivory. 

But, Mr. Miller, can you just very briefly talk about what’s going 

on in Alaska Native communities and Alaska Native artisans because I know from talking to a lot of our constituents back home 

that they’re seeing a dramatic drop in people who are purchasing 

or interested in purchasing their crafts. Now we have states that 

are literally, while it’s well intentioned, banning the sale in their 

states of what is a clearly legal product. 

I don’t think Alaska could get away with banning Hollywood 

movies, even though that’s not such a great product all the time, 

and so that shouldn’t be the case where another state can say we’re 

going to ban Alaska Native handicrafts and art from ivory. That’s 

completely legal. Nobody argues that it is. 

So can you just touch on the harm that that’s doing and how important it is to get some—and I think it’s well intentioned. I don’t 

think anyone’s doing this to target, you know, Alaska Natives, but 

it’s really harming economies and, as you know, some of the artists 

are some of the biggest resource producers in terms of the economy 

and dollars in a small village that we have. 

Can you talk about that and how important that is for all of us 

in a bipartisan way to fix this? 

Mr. MILLER. I’ll give it a try, Mr. Chairman. Thank you for that 

question. 

You’re right. We’re starting to see the impacts and it has been 

for several years now, just about the misconceptions, I think, of the 

actual harvest and how it ties into the—as I testified earlier, just 

the makeup of the community. 

It is an essential economic driver in a lot of communities, especially the ivory, that it is the sole source of income for the community. 

Senator SULLIVAN. Yes. 

Mr. MILLER. So it’s very important that there’s a clear understanding. We tried to look at education for the tourists that come 

to the communities and explain there is a difference, but we’re very 

concerned as we’re watching especially state efforts to say, ‘‘okay, 

because it’s ivory’’. ‘‘We’re just going to lump all ivory together because you can’t distinguish,’’ but you can. 

Senator SULLIVAN. And, unfortunately, that’s growing. The states 

are—— 

Mr. MILLER. It’s unfortunate, but oftentimes what we’re seeing, 

it appears that states, instead of stomping on ivory, too, are just 

lumping everything together and saying marine mammals, and so 

it starts affecting sea otter fur or polar bear fur or seal skin, as 

well, and so it’s a snowball effect. 

Senator SULLIVAN. Yes. 

Mr. MILLER. We’d love to have more time to explain. If people actually saw the meaning in the communities, they might be a lot 

more receptive to specifically saying, OK, if it’s coming from an 

Alaska Native harvest, then it is well managed. The species that 

the products are coming from are not endangered. It’s from communities that—— 

Senator SULLIVAN. And perfectly legal under Federal law. 

50 

Mr. MILLER. And perfectly legal. So we did see people that were 

fearful of traveling with it; they are just saying, well, I’m not sure 

if I can go home with it or whatever the case and we actually have 

had quite a few people that, with legal ivory, have had it seized as 

they go through Customs or with TSA. 

Senator SULLIVAN. Well, we’re going to work to fix this in a bipartisan way. I think everybody’s well intentioned here. I think a 

lot of the environmental groups are also supporting what we’re trying to do. So we want to work with everybody here and I appreciate 

that. 

Well, listen, this has been a very informative panel. I want to 

thank my Ranking Member again. 

I am going to end by asking unanimous consent that the following documents be admitted to the record. There is the Alaska 

State Senate Joint Resolution Number 4 urging the U.S. Congress 

to pass legislation providing for the exemption of legally acquired 

Walrus Mammoth Macedo Ivory from laws that ban the sale, use, 

and possession of ivory. 

The Alaska State Senate Joint Resolution Number 13 that looks 

at the Marine Mammal Protection Act. This was recently passed on 

the Co-Management Take Study of Sea Otters, which is a big issue 

back home and we might have additional questions for the record 

on the sea otter issue back home. 

The Alaska Federation of Natives 2017 Annual Convention Resolution 1725; a letter from the Alaska Board of Fisheries to Secretary Zinke and Secretary Ross regarding the Southeast Sea Otter 

Population Growth Impacts; a letter from the Alaska State Senator 

Bert Stedman regarding Marine Mammal Predation, Shellfish, and 

Salmon in Southeast Alaska, dated April 23, 2018, with attachments; a statement from the Southeast Alaska Regional Dive Fisheries Association regarding the Marine Mammal Protection Act; 

and a letter from the Southeast Alaskan Fishermen’s Alliance regarding Predator Management under the MMPA, dated April 24, 

2018. 

Without objection. 

[The information referred to follows:] 

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CITY AND BOROUGH OF WRANGELL, ALASKA 

RESOLUTION NO. 01–18–1387 

A RESOLUTION OF THE ASSEMBLY OF THE CITY AND BOROUGH OF 

WRANGELL, ALASKA, SUPPORTING SEA OTTER MANAGEMENT IN 

SOUTHEAST ALASKA 

WHEREAS, the City and Borough of Wrangell, Alaska is a small island fishing community located in Southeast Alaska with a population of approximately 2,000 citizens; and 

WHEREAS, residents of the Wrangell community are dependent on abundant, sustainable resources from the coastal waters of Southeast Alaska; and 

WHEREAS, in the late 1960s, the Alaska Department of Fish and Game reintroduced approximately 400 sea otters in six different locations to near shore waters 

of Southeast Alaska in the absence of a long-term management plan; and 

WHEREAS, the Federal government, which has jurisdiction under the Marine 

Mammal Protection Act (MMPA), has established no effective management plan for 

protecting the ecosystems affected by sea otters and maintaining an ecological balance of shellfish resources; and 

WHEREAS, the unmanaged proliferation of reintroduced sea otters, which consume 

non-quantified yet substantial volumes of the crab, abalone, urchins, sea cucumbers, 

clams and other shellfish upon which the region’s residents also heavily rely, appears to be contributing to a degradation in the ecological balance in many areas 

leading to diminished harvests of these important resources for subsistence and 

commercial purposes; and 

WHEREAS, without proper management, the sea otter population in southern 

Southeast Alaska has grown at an alarming rate (over 5,800 observed in 2003 and 

a 2010 aerial survey by the United States Fish and Wildlife Service revealed an estimate of over 11,000 otters a growth rate of 13 percent per year, which extrapolates 

to a population of nearly 70,000 by 2025); and 

WHEREAS, the drastic increase and high density of reintroduced sea otter has, in 

some areas, so depleted shellfish stocks that subsistence, personal use, and sport 

fishing is almost non-existent, and commercial fishing is closed due to unsustainably 

low abundance; and 

WHEREAS, monies derived from the harvest of Alaska’s sustainably managed 

aquatic resources form a major component of the economies of Alaska’s coastal communities and thereby make them particularly sensitive to situations negatively impacting yields from those resources; and 

WHEREAS, a degradation in the ecological balance of a diversity of species has 

taken place in many areas; and 

WHEREAS, residents of Wrangell and many other communities throughout Southeast Alaska rely on shellfish not only for their livelihood, but for survival in a subsistence way of life; and 

WHEREAS, Southeast Alaska’s indigenous inhabitants have hunted sea otters since 

time immemorial; and 

WHEREAS, Alaska Natives under the Marine Mammal Protection act are denied 

the customary and traditional ability to sell intact sea otter pelts; and 

WHEREAS, Section 101 of the U.S. Marine Mammal Protection Act further allows 

for the use of marine mammal pelts in the creation of authentic native articles of 

handicraft and clothing; and 

WHEREAS, under the Act, such value added fur products, so created, are already 

allowable for sale in both intra and interstate commerce; and 

WHEREAS, Alaska is a model for the management of harvestable resources for sustained yield and is the only state in the United States which sites this model of 

management in the Alaska Constitution; and 

WHEREAS, the mandate within the Alaska Constitution to manage for sustained 

yield is in conflict with the current interpretation and enforcement of the Marine 

Mammal Protection Act by the U.S. Fish and Wildlife Service; and 

59 

WHEREAS, implementation of a sustainable harvest management regime would 

serve the dual purposes of maintaining sea otter populations at a level suitable for 

continued ecological balance and expanded economic opportunity; and 

WHEREAS, Section 119 of the U.S. Marine Mammal Protection Act allows the Secretary of the Department of Interior to enter into cooperative agreements with Alaska Native organizations for the conservation of marine mammals, the development 

of marine mammal co-management structures with Federal and State agencies and 

the creation of local management plans for the harvest of marine mammals for subsistence use and providing protection to important subsistence shellfish resources 

creating an ecological balance; and 

WHEREAS, the loss of commercial harvests have resulted in negative economic impacts to fishermen, processors and seafood dependent communities which have experienced a loss in employment wages and associated economic activities; and 

WHEREAS, the Assembly of the City and Borough of Wrangell adopted a similar 

Resolution in 2011. 

NOW, THEREFORE, BE IT RESOLVED THAT THE ASSEMBLY OF THE CITY 

AND BOROUGH OF WRANGELL, ALASKA urges the appropriate Federal agencies 

work with the Alaska Department of Fish and Game, and the Alaska Native and 

non-Native leaders in the Southeast region, to establish strategies and plans for an 

ecological balance of shellfish resources and the reintroduced sea otter population 

of Southeast Alaska, including shellfish enhancement programs; and be it 

FURTHER RESOLVED that the Assembly of the City and Borough of Wrangell, 

Alaska urges State and Federal government managing authorities, in developing 

those management plans, to actively consider means of expanding and enhancing 

small business and broader economic opportunities for residents of Southeast Alaska; and be it 

FURTHER RESOLVED that the Assembly of the City and Borough of Wrangell, 

Alaska, as a means of expanding and enhancing economic opportunities for residents of Southeast Alaska, urges Federal authorities to consider expanding the 

scope of allowable uses for sea otters taken for subsistence purposes; and be it 

FURTHER RESOLVED that the Assembly of the City and Borough of Wrangell, 

Alaska supports the efforts of the Shellfish Preservation Alliance (SPA) to further 

these actions; and 

LET IT BE RESOLVED FURTHER, the State and Federal government managing 

authorities are requested to find ways to revive the lost economies from the Southeast Alaska region due to the relocation and re-colonization of sea otters in southern 

Southeast Alaska. 

ADOPTED: January 9, 2018 

DAVID L. JACK, MAYOR

ATTEST: Aleisha Mollen, Deputy Borough Clerk 

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1 NMFS website https://www.fisheries.noaa.gov/resource/document/ecosystem-based-fisheriesmanagementpolicy 2https://www.st.nmfs.noaa.gov/Assets/ecosystems/ebfm/EBFM_Road_Map_final.pdf 3https://www.dfw.state.or.us/news/2018/04_april/042318.asp 4https://www.st.nmfs.noaa.gov/ecosystems/ebfm/about 

SOUTHEAST ALASKA FISHERMEN’S ALLIANCE

April 24, 2018 

U.S. Senate Committee on Commerce, Science, and Transportation, 

Senate Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard, 

Senator Dan Sullivan, Chair, 

Washington DC. 

RE: Enhancing the Marine Mammal Protection Act Hearing for April 25, 2018 

Dear Senator Sullivan, Chair and Committee Members, 

Southeast Alaska Fishermen’s Alliance (SEAFA) is concerned about the aggressive growth of marine mammals in Southeast Alaska waters including sea otters, 

whales, sea lions and seals. Many of these species are reaching levels not seen in 

decades or possibly at an all-time high in some cases. Some species are also reaching their ‘‘carrying capacity’’ where populations have increased to the point where 

natural die-off will occur. This is causing an increasing tension between the Marine 

Mammal Protection Act (MMPA) the Endangered Species Act (ESA) and today’s 

human population. 

The National Marine Fisheries Service (NMFS) has recognized this increasing 

tension and the need for trade-offs of maintaining all populations at a viable level 

and still provide for the human component of the eco-system by the development 

of ecosystem-based fisheries management (EBFM). NMFS describes their support 

for ‘‘implementation of Ecosystem-Based Fisheries Management (EBFM) to better 

inform and enable better decisions regarding trade-offs among and between fisheries 

(commercial, recreational, and subsistence), aquaculture, protected species, biodiversity, and habitats. Recognizing the interconnectedness of these ecosystem components will help maintain resilient and productive ecosystems (including the human 

communities on which they depend), even as they respond to climate, habitat, ecological, and other environmental changes.’’ 1 They also have stated, ‘‘These decisions 

would otherwise be made implicitly with strictly single-species management (emphasis added). The explicit treatment, transparent examination, and analytical exploration among the trade-offs across the many objectives in a given region are key 

outcomes resulting from the execution of EBFM.’’ 2 One of the major problems with 

the current implementation of the MMPA is the consideration of single-species management that allows a marine mammal population to cause another species to become endangered or if left unaddressed, extinct. An example of this is some of the 

dive & crab fisheries in Southeast Alaska by sea otters or another example is sea 

lions preying on the endangered species of salmon, steelhead, sturgeon, and lamprey 

in the Willamette River and driving these species closer to extinction according to 

the Oregon Department of Fish and Wildlife.3

Holding this hearing is an important first step in considering and Enhancing the 

Marine Mammal Protection Act but it is time to update this important legislation 

and provide the management agencies whether Federal or state the ability to manage for a balance between species including the added dynamic of human population 

and the importance and use of the marine resources. We hope that you continue this 

discussion as necessary and tweak the act to provide for a more sustainable management regime that considers long term viability and impacts on multiple species. 

Single species management has proven that it creates negative consequences. 

NOAA Fisheries has described their responsibility as the ‘‘stewardship of the Nation’s living marine resources and their habitats, interactions and ecosystems. 

NOAA Fisheries primary mandates are derived from numerous key statutes including the: Magnuson-Stevens Fishery Conservation and Management Act; Endangered 

Species Act; Marine Mammal Protection Act; National Aquaculture Act; and National Environmental Protection Act. NOAA Fisheries must address all these mandates simultaneously and, to do that, is implementing its living marine resource 

stewardship responsibilities in an ecosystem context.’’ 4 As you look at the MMPA 

you need to consider this statement and make sure that you provide the flexibility 

and tools in order to protect and create a sustainable and ecological balance between 

species and humans. 

SEAFA has worked with the Southeast Alaska Regional Dive Fishery Association 

(SARDFA) and supports their testimony and background materials to this committee specifically on the sea otter issue in Southeast Alaska. Our membership is 

71 

5http://www.adfg.alaska.gov/static/regulations/regprocess/fisheriesboard/pdfs/2017-2018/ 

se/WR6_FMR17-59.pdf page 16–17 

particularly concerned about the effects of sea otters particularly on crab, shrimp 

and other shellfish resources but also the multiple effects of the explosion of all marine mammals in Southeast Alaska and the multiple effects they are having. 

The State of Alaska Board of Fisheries in their regulatory meeting regarding 

Southeast Alaska’s fisheries reached a level of concern about the effects sea otters 

are having on the shellfish resources of Southeast Alaska that they wrote a letter 

to the Secretary Zinke & Secretary Ross on March 9, 2018. The Board of Fisheries 

stated in their letter that they don’t take it lightly to ask the Federal Government 

to adjust the MMPA from a law that promotes species repopulation with no control, 

to one that manages the successful repopulation (of sea otters) at a sustainable level 

recognizing ‘‘the importance of sea otters to our environment, ecosystem, and visitor 

industry and place great value in maintaining a healthy sea otter population. That 

said, the impacts of this successful reintroduction and continued population growth 

is profound.’’ Alaska Department of Fish and Game at the Board of Fisheries meeting presented information that no remaining prey species were seen in areas where 

sea otters were abundant and fisheries had closed. These areas showed no signs of 

recovery of prey species a decade later when resurveyed.5 In 2016, the commercial 

harvest for key shellfish species was worth $18.6 million spread over 447 permit 

and more importantly a dollar amount cannot be put on the impact to rural subsistence fisheries affect by loss of shellfish resources used to sustain themselves. 

Southeast Alaska Fishermen’s Alliance is a multi-gear, multi-species, non-profit 

association representing our 330+ members involved in the salmon, crab, shrimp 

and longline fisheries of Southeast Alaska. Thank you for considering our testimony. 

Please contact our office at any time if we can help on this issue or would like any 

further details or information on our testimony. We may provide additional testimony after we listen to the hearing and what the invited testifiers present. 

Sincerely, 

KATHY HANSEN, 

Executive Director. 

Senator SULLIVAN. And this hearing is now adjourned. Thank 

you again very much for our witnesses. This is outstanding testimony. 

[Whereupon, at 4:17 p.m., the hearing was adjourned.] 

(73) 

1Temte, J. L. (1993). The Marine Mammal Inventory Report: independent verification of a 

captive marine mammal database. Marine Mammal Science, 9(1), 95–98). 

A P P E N D I X 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. JOHN THUNE TO

CHRIS OLIVER

Question. As required by the Marine Mammal Protection Act, NMFS maintains 

an inventory of captive marine mammals. We have heard several complaints that 

this inventory contains inaccurate information that has been used by some groups 

to attack the public display community. How does NMFS plan to address the 

inventory’s shortcomings, and can you commit to work with me, my staff, and the 

public display community to improve the accuracy of the inventory? 

Answer. The data contained in the National Inventory of Marine Mammals 

(NIMM) has been self-reported by marine mammal owners and facilities as part of 

MMPA permit requirements (prior to 1994) and MMPA statutory requirements 

(after the 1994 amendments to the MMPA). An independent review of the inventory 

prior to 1994, which cross-referenced the data with public display facilities, found 

the inventory to be 98.8 percent accurate. (98.0–99.7; 95 percent C.I.)1 There have 

been many versions of the inventory since its creation in the 1970s, including paper 

versions and several electronic versions, and data accuracy likely suffered during 

migrations between electronic platforms. Additionally, some data may not be 

verifiable due to records that are no longer available (e.g., they belonged to facilities 

that no longer exist). 

We commit to working with you, your staff, and the public display community to 

improve the accuracy of the inventory. We have met with representatives of the 

public display industry, including the Alliance of Marine Mammal Parks and Aquariums and the Association of Zoos and Aquariums, to discuss the issue of data accuracy within the NIMM. We have incorporated several of their recommendations into 

programming updates that are underway for NIMM. We agree that it is essential 

that the inventory contain accurate, factual information. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. DAN SULLIVAN TO

CHRIS OLIVER

Background. Last month, the Commerce Committee passed S.2369, a bill I introduced to set-up a domestic process through which the Secretary of Commerce can 

preserve the bowhead whale subsistence harvest and Alaska Native food security 

under U.S. law if the International Whaling Commission fails to act on the bowhead 

whale quota. In September 2018, the Alaska Native subsistence quota is up for renewal at the International Whaling Commission meeting in Brazil—and despite the 

continued sustainability of this harvest the quota renewal is not always assured. 

Ensuring this quota is renewed is critically important to me and my constituents. 

Question 1. What role does continuity and institutional knowledge play in the success of marine mammal organizations like the International Whaling Commission? 

Answer. Continuity and institutional knowledge play a critical role in the continued success of the International Whaling Commission (IWC). The United States 

draws from a wealth of institutional knowledge when selecting its delegation to the 

biennial IWC meetings as well as its delegation to the annual IWC’s Scientific Committee meetings. The average delegation member’s experience on the Scientific Committee is about 15 years. The Commission has benefited greatly from our delegation; 

because other delegations have a high rate of turnover, the Commission relies on 

our continuity and institutional knowledge. 

Question 2. The management and scientific research regarding the bowhead harvest is conducted cooperatively between the AEWC, North Slope Borough, and 

74 

NOAA. Can you provide the Committee with an explanation of this relationship and 

how the various parties interact? 

Answer. The Alaska Eskimo Whaling Commission (AEWC), North Slope Borough, 

and NOAA, including the Alaska Fisheries Science Center, the Alaska Regional Office, and the Office of International Affairs and Seafood Inspection, cooperate closely 

in the domestic management of the bowhead whale harvest, and ensure that it is 

backed by sound scientific research. Each party plays an important role in ensuring 

the continuation of the bowhead whale subsistence hunt. 

The bowhead whale harvest includes an international component through the 

IWC. The IWC governs aboriginal whaling internationally by specifically identifying 

stocks subject to aboriginal subsistence whaling, establishing principles governing 

such whaling, and, since 1982, by requiring that overall catch limits be set for such 

whaling on such stocks. Native peoples engaging in subsistence hunts do so under 

authorization from their governments. NOAA and NMFS, as agents of the Federal 

Government, have a trust responsibility to Indian tribes. In the case of Alaska Native subsistence hunts, the United States makes a request to the IWC for bowhead 

whale catch limits based in part on the needs of the AEWC. 

To implement the catch limits agreed to by the IWC, NOAA and the AEWC established a Cooperative Agreement in 1981. The purposes of the NOAA–AEWC Cooperative Agreement are to protect the Western Arctic population of bowhead whales 

and the Eskimo culture as well as to promote scientific investigation of the bowhead 

whale and effectuate the other purposes of the Whaling Convention Act, the Marine 

Mammal Protection Act, and the Endangered Species Act, as those acts relate to the 

aboriginal subsistence hunts for whales. Additionally, the AEWC agreed to cooperate with the United States in scientific research efforts and to develop a plan to be 

followed by all bowhead whale subsistence hunters to help improve the efficiency 

of the subsistence hunt and ensure it is implemented in a humane manner. The 

NOAA–AEWC Cooperative Agreement has been renewed regularly since 1981 and 

was most recently updated and signed in December 2017. 

The AEWC’s local management of the bowhead whale subsistence harvest ensures 

that the hunting is conducted in a traditional, non-wasteful manner. The AEWC 

and the North Slope Borough (NSB) have committed to a major peer-reviewed program of scientific research to improve understanding of the bowhead population status and dynamics in order to persuade the IWC that an increase in the subsistence 

catch limits is supported by the available science. In the mid-1970s, the NSB began 

a research program under NMFS’s guidance that measures and samples subsistence-harvested bowhead whales. Since the 1980s, the NSB’s Department of Wildlife 

Management has run the program. 

Question 3. In your testimony you outline several key paths forward for the agency. Specifically related to incidental harassment authorizations. Under what authority can we move forward on this—either regulatory or legislatively? Do we need to 

amend the statute to achieve these goals? 

Answer. We are making significant strides in decreasing Marine Mammal Protection Act (MMPA) compliance processing times and reducing applicant burden 

through the implementation of program-based improvements that do not require 

regulatory or legislative changes. We expect to continue this trend. However, as 

noted in Assistant Administrator Oliver’s testimony, we are considering statutory 

changes that could further reduce unnecessary burden while ensuring appropriate 

protection for marine mammals. This list is not exhaustive and is subject to change 

as we engage in interagency discussions, 

1. Increase the 5-year limitation on Incidental Take Authorizations under 

101(a)(5)(A) to 10 years. 

2. Increase the maximum time period for an incidental harassment authorizations (IHA). 

3. Remove the ‘‘small numbers’’ requirements in IHAs. 

4. Remove the ‘‘specified geographical region’’ requirement in IHAs. 

5. Clarify the authority to issue renewals of IHAs. 

Question 4. In your opinion can NMFS manage marine mammals within the 

sound principles of resources protection and consistent with the purposes and policies of the MMPA if these changes are correctly made? 

Answer. If the statutory changes identified above were made, NMFS believes that 

it could continue to manage marine mammals within the sound principles of conservation and resource protection and consistent with the purposes and policies of 

the MMPA. 

75 

Question 5. In your testimony you mention that to move forward to act more efficiently on MMPA authorizations you need ‘‘extensive coordination with other agencies.’’ What agencies in particular will you need to coordinate with to achieve this? 

Answer. Because of the scope, extent, and complexity of marine activities that the 

Navy and the Bureau of Ocean Energy Management (BOEM) conduct—continued 

close coordination with these agencies is required. Additionally, we will continue to 

coordinate closely with the Marine Mammal Commission (MMC), given its mandate 

under section 202 of the MMPA. Importantly, we continue to coordinate with the 

U.S. Fish and Wildlife Service (FWS) to try to ensure consistency in how we implement our split MMPA authority. Last, we will continue to coordinate with all agencies pursing MMPA compliance, including the National Science Foundation, U.S. 

Geological Service, and Coast Guard, to increase the effectiveness of the process. 

Question 6. In what ways have you begun these consultations? 

Answer. We have been coordinating closely with the Navy, BOEM, and the MMC 

for years. We will continue to work proactively to identify ways to improve the 

MMPA compliance process such that it is maximally efficient while ensuring appropriate resource protection. Moving forward, we are specifically working on a Streamlining MOU with BOEM and we will continue to identify agency-specific mechanisms to increase efficiency. Further, we will continue to include these agencies in 

working groups and processes designed to develop guidance, best management practices, and other tools to increase efficiency. 

Question 7. In particular, how have you worked with the FWS to implement your 

split, but joint authority under the MMPA? 

Answer. As mentioned above, we coordinate with FWS on several fronts to implement our split MMPA authority. For example, following a court decision, NMFS 

worked with FWS to develop a more detailed interpretation of the MMPA’s ‘‘least 

practicable adverse impact’’ standard that worked for both agencies. Further, as a 

result of a GAO audit, NMFS is currently coordinating with the FWS to develop 

guidance related to the designation of MMPA applications as ‘‘adequate and complete.’’ Also, the FWS and NMFS have implemented a communication protocol to ensure that each agency is aware when the other is responding to a request for MMPA 

authorization that may take species under the other’s jurisdiction. 

Question 8. Sustainably-harvested marine mammals are a food source in Alaska, 

and their ivory and other materials are also a valuable link in the cultural connection people make with these magnificent creatures. What do you recommend be 

done to carry on the crafting, use, and trade in these objects as the U.S. and other 

countries crack down on illegal trade? In particular, how have you worked with the 

FWS to implement your split, but joint authority under the MMPA? 

Answer. Alaska Natives produce handicrafts from marine mammal parts, including ivory, as a part of their subsistence uses of marine mammals. It is an integral 

part of their cultural heritage. The sale of authentic Native articles of handicrafts 

and clothing made from marine mammals is allowed under the MMPA, and there 

are similar corresponding provisions in the Endangered Species Act and the Whaling Convention Act. NMFS supports co-management of the subsistence use of marine mammals by Alaska Natives under section 119 of the MMPA. It is critically 

important for that co-management partnership that we ensure Alaska Natives can 

continue to carry on their traditions of making and selling authentic articles of 

handicrafts and clothing from marine mammals. Thus, we support efforts to draw 

a legal distinction between articles that should and should not be allowed in interstate commerce. 

The FWS has jurisdiction for sea otters, manatees, the dugong, polar bear, and 

walrus under the MMPA, while NMFS has jurisdiction for all pinnipeds (except walrus) and cetaceans. The two agencies work together as necessary and appropriate, 

including coordination regarding guidance related to the production of Alaska Native handicrafts under the MMPA. To the extent that marine mammals are listed 

under Appendix I or II of the Convention on International Trade of Endangered 

Species of Wild Fauna and Flora (CITES), the international trade of handicrafts 

made from those marine mammal parts may be regulated or restricted. FWS, as the 

lead Federal agency in implementing the United States’ CITES obligations, works 

closely with NMFS in efforts to stop illegal trade in marine mammal parts. 

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RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BILL NELSON TO

JANE P. DAVENPORT

Question 1. Can you provide detail about how the MMPA provides flexibility to 

meet the needs of commercial fisheries, military readiness and subsistence use while 

protecting marine mammals? 

Answer. The cornerstone of the MMPA is the moratorium on incidental (i.e., unintentional) ‘‘take’’ of marine mammals in U.S. waters and by U.S. nationals operating 

on the high seas. ‘‘Take’’ is defined by statute to mean the actual or attempted harassment, hunting, capturing, or killing. 16 U.S.C. § 1361(3)(13). The Secretary of 

Commerce or Interior may authorize incidental take under certain conditions specified by statute. In our view, the MMPA has sufficient flexibility to meet the needs 

of commercial fisheries, military readiness, and subsistence use without requiring 

statutory amendment. 

Commercial fisheries 

The 1994 Amendments to the MMPA (P.L. 103–238) established the current system for regulating incidental take of marine mammals by domestic commercial fisheries. This system, which permits the incidental take of marine mammals by all 

fishery participants who register their vessels and abide by fishery-wide requirements in regulated fisheries, is characterized by several innovative approaches that 

balance the statutory mandate to protect marine mammals from unsustainable levels of incidental take with the needs of commercial fisheries. 16 U.S.C. § 1387. This 

system promotes flexibility in various ways, as the following examples illustrate. 

First, this system provides flexibility to commercial fisheries participants by obviating the necessity for them to obtain individual incidental take permits or to obtain 

coverage under a general permit through a formal rulemaking proceeding before an 

administrative law judge, as had been the requirement for authorizing incidental 

take in commercial fisheries prior to the 1994 Amendments, pursuant to MMPA 

Section 103, 16 U.S.C. § 1374. 

Second, this system establishes a stock assessment process, under which the Secretary must regularly assess all marine mammal stocks in U.S. waters. 16 U.S.C. 

§ 1386. The data-driven stock assessment process, which is reviewed by scientific review groups and subject to public notice and comment, focuses particularly on the 

rates and levels of serious injury and incidental mortality of marine mammals in 

commercial fisheries, and establishes the potential biological removal (PBR) level for 

each stock, i.e., that level of human-caused mortality the stock can withstand while 

still being allowed to reach or maintain its optimum sustainable population. In turn, 

the National Marine Fisheries Service (NMFS) reviews the resulting stock assessment reports and other available data annually to categorize commercial fisheries 

into one of three categories, according to the level of incidental mortality and serious 

injury to marine mammals: Category I (frequent), Category II (occasional), and Category III (remote likelihood of or no known incidental mortality or serious injury 

of marine mammals). Category I and II fisheries participants—but not Category III 

participants—are required to register with NMFS and obtain authorization certificates and comply with any applicable take reduction plans for strategic stocks (as 

defined by 16 U.S.C. § 1362(19)). This prioritization of fisheries, based on the best 

available scientific data as reviewed and updated every year, promotes flexibility by 

ensuring that agency resources and regulations are directed toward those marine 

mammal stocks that require them while eliminating regulatory compliance burdens 

on fisheries. 

Third, this system implements a stakeholder-driven Take Reduction Team process 

to identify consensus-based solutions in Category I or II fisheries that interact with 

strategic stocks to reduce incidental take to acceptable levels under Take Reduction 

Plans promulgated as regulations by NMFS. Take Reduction Teams consist of a balance of commercial and recreational fishermen and fishing industry representatives, 

state and Federal fisheries agency staff, scientists, conservationists, Alaska Native 

or tribal representatives, and other stakeholder representatives. By bringing together these various stakeholders, NMFS can maximize flexibility in regulating 

commercial fisheries by surfacing regulatory solutions to accomplish the statute’s 

mandates, while taking into account the economics and technical capabilities and 

limitations of fishing gear and fishing practices. 

Military readiness 

The MMPA contains ample flexibility to mitigate any concerns that military readiness activities would be impeded or impaired by statutory requirements. Indeed, in 

2004, the MMPA was amended in response to Department of Defense (DOD) concerns to reduce significantly the obligations of the U.S. military to comply with the 

77 

statute’s incidental taking and incidental harassment authorization standards. National Defense Authorization Act (NDAA) for FY 2004, P.L. 108–136, Section 319. 

First, the amendments made the MMPA’s standards for incidental harassment 

less stringent for military readiness activities than for other activities. Section 

319(a), P.L. 108–136. Although the statute defines Level A harassment to mean 

‘‘any act of pursuit, torment, or annoyance which . . . has the potential to injure 

a marine mammal or marine mammal stock in the wild,’’ for military readiness activities, Level A harassment is now defined as ‘‘any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild.’’ 

Compare 16 U.S.C. § 1362(18)(A)(i) with id. § 1362(18)(B)(i). Similarly, Level B harassment is generally defined as ‘‘any act of pursuit, torment, or annoyance which 

. . . 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’’ but for military readiness activities, Level B harassment must disrupt such behavioral patterns to a point 

where they are ‘‘abandoned or significantly altered.’’ Compare 16 U.S.C. 

§ 1362(18)(A)(ii) with id. at § 1362(18)(B)(ii). 

Second, and most sweepingly, the MMPA’s general moratorium on the taking of 

marine mammals was amended to add a two-year exemption provision for military 

readiness activities from any MMPA requirements whatsoever. Section 319(b), 

P.L. 108–136. Pursuant to this provision, the Secretary of Defense, after conferring 

with the Secretary of Commerce, the Secretary of the Interior, or both, may invoke 

a complete exemption for up to two years from the MMPA’s requirements for any 

action or category of actions undertaken by the Department or its components, if 

the Secretary of Defense deems the exemption necessary for national defense. 16 

U.S.C. §§ 1371(f)(1), (2). The Secretary of Defense may extend the exemption for additional periods of up to two years each—without limitation—following a new determination that the additional exemption is necessary for national defense. Id. 

§ 1371(f)(3). 

Third, the amendments made the five-year incidental take authorization standards applicable to military readiness activities much less restrictive than those applicable to other activities. Section 319(c), P.L. 108–136. For example, the regulations to be promulgated to implement an incidental take authorization for general 

activities must set forth ‘‘means of effecting the least practicable adverse impact’’ 

on the species or stock and its habitat, but a ‘‘least practicable adverse impact finding’’ for military readiness activities must specifically consider ‘‘personnel safety, 

practicality of implementation, and impact on the effectiveness of the military readiness activity. Compare 16 U.S.C. § 1371(a)(5)(A)(i)(II)(aa) with id. at 

§ 1371(a)(5)(A)(ii). Even more significantly, the amendments removed the limitations 

on issuing incidental take and harassment authorizations only for specified activities ‘‘within a specified geographic region’’ and ‘‘within that region of small numbers.’’ 16 U.S.C. §§ 1571(a)(5)(F)(i), (iii). 

Defenders and its conservation allies strongly oppose the recent provision, as embodied in the House version of the FY 2019 NDAA (H.R. 5515), to extend the term 

of an MMPA incidental take authorization from five years to ten. The provision 

would curtail review for marine mammal stocks and species that require consistent 

oversight. Marine mammals are difficult to study and track. NMFS concluded in a 

2007 study that it would have difficulty detecting even a catastrophic collapse in 

many marine mammal populations off our coasts, and that it might take years to 

notice severe population declines in some species. Due to this challenge, the MMPA 

requires that permit holders whose activities may cause incidental take of marine 

mammals obtain authorization from NMFS every five years. The House provision 

would weaken this safeguard, which helps prevent vulnerable marine mammal species from becoming depleted, threatened, or endangered and requiring more stringent protections under either the MMPA, the Endangered Species Act, or both. 

The provision would also curtail an accountability mechanism that is core to the 

MMPA’s success. The MMPA’s permitting provisions ensure that permit holders 

comply with the law and implement appropriate mitigation measures. Without responsible, scientifically sound review and permit intervals and associated monitoring, it would be much more difficult to track how military readiness activities 

such as the U.S. Navy’s sonar and explosive operations are affecting marine mammal stocks and species. Marine mammals are generally long-lived and slow-reproducing; therefore, it is important for permits to be periodically reviewed to ensure 

they are based on the best available scientific data we have on the status of these 

species. 

NMFS has never denied an application for an incidental take or harassment authorization for a military readiness activity. As summarized above, the MMPA has 

already been significantly amended to ensure that DOD has all the flexibility it 

78 

1See https://alaskafisheries.noaa.gov/pr/comanagement 

2See, e.g., https://www.fws.gov/International/animals/african-elephants.html; https://www. 

fws.gov/International/wildlife-without-borders/african-elephant-conservation-fund.html; 

https://www.fws.gov/International/wildlife-without-borders/african-elephant-conservationfund.html; https://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html. 

might need to ensure military readiness activities are not unduly hampered or restricted in any way by the statute. We urge you to use your best efforts to ensure 

that this provision is removed from the FY 2019 NDAA in conference. 

Subsistence uses 

The MMPA was enacted with significant flexibility for ensuring the availability 

of marine mammals and stocks for subsistence use. The statute explicitly provides 

that Alaska Natives are generally exempt from the moratorium on take otherwise 

established by 16 U.S.C. § 1371(a). Section 101(b) exempts two major categories of 

activities by Alaska Natives: (1) taking for subsistence uses, (2) taking for ‘‘creating 

and selling authentic native articles of handicrafts and clothing’’ and enabling ‘‘any 

edible portion of marine mammals’’ to be ‘‘sold in native villages and towns in Alaska or for native consumption,’’ where, in each category, the taking ‘‘is not accomplished in a wasteful manner.’’ 16 U.S.C. § 1371(b)(1)–(3). Although the Secretary, 

after formal rulemaking before an administrative law judge, may restrict via regulation takings by Alaska Natives on species or stocks designated as depleted, this provision illustrates the careful balance the statute strikes between prioritizing subsistence uses and ensuring that such uses are sustainable over the long term. Id. 

§ 1371. 

The MMPA’s structural concern for retaining management flexibility to ensure 

sustainable subsistence use is also apparent in the incidental take authorization 

section, which requires the Federal wildlife management agency to determine that 

any authorized taking ‘‘will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses.’’ 16 U.S.C. 

§ 1371(a)(5)(A)(i)(I). 

Another significant provision of the MMPA promoting flexibility with respect to 

subsistence use is its authorization of, and funding for, cooperative agreements between the USFWS or NMFS as the Federal wildlife management agencies responsible for implementing the MMPA and Alaska Native Organizations in order ‘‘to 

conserve marine mammals and provide co-management of subsistence use by Alaska 

Natives.’’ 16 U.S.C. § 1388. There are currently eight such co-management arrangements.1 These agreements promote full and equal participation by Alaska Natives 

in decisions affecting management of marine mammals that are critical to Alaska 

Natives’ subsistence uses, lifestyles, and cultural traditions. To the extent permitted 

by law, both the best available scientific information as well as traditional and contemporary Alaska Native knowledge and wisdom are utilized for decisions on Alaska 

marine mammal co-management. 

These provisions ensure that the MMPA is administered flexibly to protect and 

prioritize traditional subsistence uses of marine mammals by Alaska Natives while 

ensuring that marine mammals are sufficiently protected and regulated to ensure 

long-term sustainability of such uses. Defenders and its conservation allies do not 

agree that amendments to these provisions such as those proposed by S. 1965 are 

necessary or appropriate. 

S. 1965, the Allowing Alaska IVORY Act, would, inter alia, amend the MMPA to 

preempt State laws prohibiting commerce in walrus ivory or whale bone produced 

as authentic native articles of handicrafts or clothing by Alaska Natives. While Defenders respects the skills of Alaska Native artists and supports their rights to subsistence uses of marine mammals, Congress should not circumvent ivory ban laws 

promulgated by State legislatures to protect from intrastate commerce the critically 

imperiled African elephant, a species that has suffered devastating declines due to 

demand for its ivory from international and U.S. markets. 

The Federal Government has invested significant efforts and financial resources 

under the Endangered Species Act, the Convention on the International Trade in 

Endangered Species of Wild Fauna and Flora, and the African Elephant Conservation Fund to protect the African elephant at both the international and domestic 

levels, including through a near-total ban on the commercial trade in ivory that took 

effect in July 2016.2 Defenders and its conservation allies have long advocated for 

the conservation of African elephants in the international, federal, and State arenas. 

Thus, we strongly support State bans on intrastate commerce in ivory (including not 

only elephant but whale, walrus, or mammoth ivory). Unfortunately, the United 

States continues to be the second-largest market for illegal elephant ivory products. 

79 

3See https://onlinelibrary.wiley.com/doi/full/10.1002/ece3.3406 

4See https://www.narwc.org/uploads/1/1/6/6/116623219/2017_report_cardfinal.pdf 5See https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2018-north-atlanticright-whale-unusual-mortality-event 6See https://onlinelibrary.wiley.com/doi/abs/10.1002/ece3.2615 

7See http://rspb.royalsocietypublishing.org/content/royprsb/early/2012/02/01/rspb.2011 

.2429.full.pdf 

These State laws complement Federal efforts and help limit efforts to launder illegal 

elephant ivory by mislabeling it as mammoth, walrus, or whale ivory, different types 

of ivory that are not distinguishable from elephant ivory by the naked eye. 

Question 2. Given the news that no new North Atlantic right whale calves have 

been sighted this year, can the dwindling right whale population afford the impacts 

of the additional threats of the proposed seismic testing? 

Answer. As you are aware, the North Atlantic right whale is critically endangered. Although until last year we believed that the species was on a slow recovery 

trajectory, the most recent population assessment (Pace et al. 2017,3 Pettis et al. 

2017 4), demonstrate that the right whale population is actually in its seventh year 

of decline, with only around 450 surviving animals in 2016. This 2016 population 

estimate does not account for the 18 confirmed right whale deaths known to have 

occurred between June 2017 and January 2018, which led NMFS to declare an Unusual Mortality Event for the species under the MMPA.5 Compounding our sense 

of urgency, we know that only about one-third of all right whale mortalities are actually detected. 

The magnitude of the looming right whale extinction-level crisis cannot be overstated. The 2017–18 calving season, in which no right whale calves have been detected, comes hard on the heels of the 2016–17 calving season, in which only five 

right whale calves were detected, one of the lowest calving rates in years. Scientists 

estimate that only about 100 breeding females remain in the population. Given current mortality rates, which are higher for females than for males, there are only 

two decades left before these 100 females will have died. At that point, the species 

will be functionally extinct (i.e., unable to recover, because mortalities will exceed 

births). 

The two major sources of adult right whale mortality are vessel strikes and, especially, entanglement in the vertical lines of fishing gear. Until last summer when 

a number of right whales were struck and killed by ship traffic in the Gulf of St. 

Lawrence, vessel strike mortalities had been decreasing since 2005, when speed restrictions and/or vessel rerouting measures had first been implemented in the right 

whale’s range. Conversely, right whale mortalities caused by fishing gear entanglements have been dramatically increasing since 2009. Moreover, recent scientific 

analysis (van der Hoop et al. 2017 6) has demonstrated that the chronic stress of 

sublethal entanglements (i.e., entanglements that do not kill a whale outright but 

cause extreme energetic demands on the whale dragging fishing gear) on female 

whales is likely delaying or preventing reproduction. 

The increasingly noisy ocean habitat that right whales inhabit cannot be discounted as a source of chronic stress, which may also contribute to reproductive 

delay or failure and even potentially calf or adult mortality. Like other cetaceans, 

right whales are far more dependent on their abilities to produce and hear sounds 

than they are on their eyesight. Right whales depend on sound for reproduction 

(finding mates and keeping mother-calf pairs in close proximity), foraging for prey, 

avoiding predators, navigation and migration, and communication. Accordingly, 

right whales, like other cetaceans and marine species, are extraordinarily sensitive 

to acoustic disturbance. The stress and disturbance right whales experience because 

of anthropogenic noise pollution was illustrated in a 2012 paper linking the reductions in ship traffic in the Bay of Fundy, Canada, following the terrorist attacks of 

September 11, 2001, resulting in a six-decibel reduction in underwater noise, to decreased baseline levels of stress hormones in right whales (Rolland et al. 2012 7). 

Given the right whale’s dire straits, Defenders wholeheartedly agrees that the 

dwindling population cannot withstand the threats posed by seismic testing in the 

Atlantic. As you are doubtless aware, we expect any day that the Federal Government will issue permits and corresponding MMPA Incidental Harassment Authorizations for five overlapping seismic airgun surveys in Federal waters of the Atlantic 

Outer Continental Shelf from the mouth of the Delaware Bay down to Cape Canaveral, Florida. If granted as proposed, these five authorizations will permit more than 

900 combined days of around-the-clock seismic surveys every 10 to 15 seconds, potentially totaling more than five million seismic airgun blasts in a single year. These 

blasts generate underwater sound that reverberates and can propagate through 

80 

8See https://nicholas.duke.edu/about/news/letter-to-obama-seismic-effects-whales 

enormous distances in the ocean, up to 3000 km away. Even at that distance, noise 

levels caused by seismic blasting are high enough to drown out whale calls. 

Yet the seismic blasting surveys proposed for the Mid-and South Atlantic will 

occur not 3000 km away from right whale habitat, but in an area directly overlapping the right whale’s habitat, including the species’ only known calving habitat. 

The cumulative impacts of the underwater noise pollution that large-scale seismic 

blasting will cause unacceptably risky levels of harassment and disturbance to right 

whales. The disruptive and extreme noise generated by seismic blasting will potentially harm right whales in a variety of ways. It may physically injure right whales 

directly by damaging their hearing or causing other physiological harm. It may 

cause them to abandon their current habitats, diverting breeding females to less appropriate breeding grounds or requiring additional energy expenditures in an area 

where there is no foraging habitat available. It may add to their levels of chronic 

stress, thereby decreasing their survival odds or reproductive capacity. It may even 

cause mother-calf separation, which can fatally endanger calves wholly dependent 

on their mothers for survival. 

As more than two dozen leading right whale scientists stated in an April 2016 

letter to President Barack Obama opposing the five proposed Atlantic seismic survey applications, ‘‘The additional stress of widespread seismic airgun surveys may 

well represent a tipping point for the survival of this endangered whale, contributing significantly to a decline towards extinction.’’ 8 Alarmingly, this letter was 

composed prior to the Pace et al. and Pettis et al. papers in 2017—and prior to the 

series of 18 confirmed dead right whales observed beginning in June 2017. Given 

how much worse the situation has become for right whales in the two years since 

the scientist statement issued, Defenders cannot express strongly enough how entirely unacceptable the risk posed by any level of seismic blasting in the Atlantic 

is. 

Question 3. What other impacts do you expect to occur if these tests are allowed 

to continue long-term? 

Answer. Should seismic testing proceed in the Atlantic—or in any other waters 

of the U.S., as is likely should the Administration’s plan to open the vast majority 

of Federal waters to oil and gas exploration and extraction—Defenders has serious 

concerns about the impacts to marine wildlife and the marine ecosystem in both the 

short-and the long-term. 

Most immediately, not only right whales but also beaked whales, which are extraordinarily sensitive to loud sounds, are at serious risk from the planned overlapping Atlantic seismic blasting surveys that will be permitted imminently. At least 

34 marine mammal species, including a number of dolphin species and five endangered whale species in addition to the right whale, will be harmed by the Atlantic 

seismic surveys. Seismic blasting has been demonstrated to harm commercial and 

recreational fish and shellfish stocks and catch rates, by killing eggs and larvae and 

killing, injuring, or displacing adults. These stocks directly and indirectly provide 

vital and irreplaceable revenues to the local, regional, and national fisheries and 

tourism sectors. Seismic blasting may also adversely affect sea turtles. Five of the 

world’s seven ESA-listed sea turtle species are found in the waters or on the beaches of the Atlantic survey area; Florida nesting beaches in particular are vital to sea 

turtle survival and recovery. Seismic blasting has even been demonstrated to cause 

massive mortality in zooplankton—the very foundation of the marine ecosystem— 

within a 1.5-mile radius around the blast area. 

In addition to the impacts of seismic blasting itself, seismic blasting paves the 

way for oil and gas exploration and development. Offshore oil and gas exploration 

and development threatens further damage coastal and marine wildlife, coastal and 

marine ecosystems, and human health and livelihoods anywhere it takes place. 

These impacts result not only from catastrophic releases caused by disasters such 

as the explosion of the Deepwater Horizon drilling rig in 2010, the Exxon Valdez 

oil spill in 1989, or the Santa Barbara oil spill of 1969, but also by the chronic, cumulative pollution resulting from day-to-day smaller-scale spills and leaks. One 

need only look at the long-term degradation to the Gulf of Mexico from intense offshore oil and gas exploration and development to know that this degradation is likely irreversible, and the costs and risks too high. Long-term, seismic blasting also 

paves the way for additional fossil fuel extraction and combustion, which is simply 

81 

incompatible with any hope of limiting the impacts of climate change on humans, 

on wildlife, and on ecosystems globally. 

Æ