```

[Senate Hearing 115-875]
[From the U.S. Government Publishing Office]

                                                        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

                  [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

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

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
57-576 PDF                 WASHINGTON : 2024                   

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                   JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi         BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska                 EDWARD MARKEY, Massachusetts
DEAN HELLER, Nevada                  TOM UDALL, New Mexico
JAMES INHOFE, Oklahoma               GARY PETERS, Michigan
MIKE LEE, Utah                       TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin               TAMMY DUCKWORTH, Illinois
SHELLEY MOORE CAPITO, West Virginia  MAGGIE HASSAN, New Hampshire
CORY GARDNER, Colorado               CATHERINE CORTEZ MASTO, Nevada
TODD YOUNG, Indiana                  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       TAMMY BALDWIN, Wisconsin, Ranking
ROGER F. WICKER, Mississippi         MARIA CANTWELL, Washington
DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
JAMES INHOFE, Oklahoma               BRIAN SCHATZ, Hawaii
MIKE LEE, Utah                       EDWARD MARKEY, Massachusetts
RON JOHNSON, Wisconsin               GARY PETERS, Michigan
CORY GARDNER, Colorado
TODD YOUNG, Indiana
                            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

 
               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.
    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 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.
    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.
    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, 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 resulting 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].''
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \2\ The small numbers and certain other provisions in sections 
101(a)(5)(A) and (D) were modified for military readiness activities.

        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 public 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.
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.
    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 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.

  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.
    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 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.
---------------------------------------------------------------------------
    \1\ 16 U.S.C. Sec. 1361-1423h.
    \2\ 16 U.S.C. Sec. 1372.
    \3\ Defined in 50 CFR 18.3.
    \4\ 16 U.S.C. Sec. 1371(b).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ 16 U.S.C. Sec. 1388.
---------------------------------------------------------------------------
    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 regulate 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.
---------------------------------------------------------------------------
    \6\ 16 USC 1362(1)(A)-(C).
    \7\ 16 U.S.C. Sec. 1371(b)(3).
---------------------------------------------------------------------------
    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. 
Guanlcheesh (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.
    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.
    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 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 one-
quarter 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.
    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.
    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 
relationship 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 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:]

 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 human-animal 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 off-site 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 conservation 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 science-based 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 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 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. Sec. 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. Sec. 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, 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. Sec. 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 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.

    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 
non-releasable. 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 
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.
    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 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 
operate 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 non-depleted 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 important 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 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.
    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 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.
    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.
    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.

             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.
    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 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 on grey whales and on Bowhead but, 
nevertheless, negotiate strenuously 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.
    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 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 
benefits 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 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.
    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, 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.
    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

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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                                 ______
                                 
                      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\
---------------------------------------------------------------------------
    \1\ NMFS website https://www.fisheries.noaa.gov/resource/document/
ecosystem-based-fisheries-managementpolicy
    \2\ https://www.st.nmfs.noaa.gov/Assets/ecosystems/ebfm/
EBFM_Road_Map_final.pdf
    \3\ https://www.dfw.state.or.us/news/2018/04_april/042318.asp
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\ https://www.st.nmfs.noaa.gov/ecosystems/ebfm/about
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \5\ http://www.adfg.alaska.gov/static/regulations/regprocess/
fisheriesboard/pdfs/2017-2018/se/WR6_FMR17-59.pdf page 16-17
---------------------------------------------------------------------------
    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.]

                            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).
---------------------------------------------------------------------------
    \1\ Temte, J. L. (1993). The Marine Mammal Inventory Report: 
independent verification of a captive marine mammal database. Marine 
Mammal Science, 9(1), 95-98).

---------------------------------------------------------------------------
    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 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.

    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.
                                 ______
                                 
    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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. 
Sec. 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 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. Sec. 1362(18)(A)(i) with id. 
Sec. 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. 
Sec. 1362(18)(A)(ii) with id. at Sec. 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. Sec. Sec. 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. 
Sec. 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. Sec. 1371(a)(5)(A)(i)(II)(aa) 
with id. at Sec. 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. Sec. Sec. 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 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. 
Sec. 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. Sec. 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. Sec. 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. 
Sec. 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. 
Sec. 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.
---------------------------------------------------------------------------
    \1\ See https://alaskafisheries.noaa.gov/pr/comanagement
---------------------------------------------------------------------------
    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. 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.
---------------------------------------------------------------------------
    \2\ See, 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-conservation-fund.html; https://
www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-
answers.html.

    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.
---------------------------------------------------------------------------
    \3\ See https://onlinelibrary.wiley.com/doi/full/10.1002/ece3.3406
    \4\ See https://www.narwc.org/uploads/1/1/6/6/116623219/
2017_report_cardfinal.pdf
    \5\ See https://www.fisheries.noaa.gov/national/marine-life-
distress/2017-2018-north-atlantic-right-whale-unusual-mortality-event
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \6\ See https://onlinelibrary.wiley.com/doi/abs/10.1002/ece3.2615
---------------------------------------------------------------------------
    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\).
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    \7\ See http://rspb.royalsocietypublishing.org/content/royprsb/
early/2012/02/01/rspb.2011
.2429.full.pdf
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    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 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.
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    \8\ See https://nicholas.duke.edu/about/news/letter-to-obama-
seismic-effects-whales

    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 incompatible with any hope of limiting the 
impacts of climate change on humans, on wildlife, and on ecosystems 
globally.

                                  [all]
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