[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]



 
                     MARINE MAMMAL PROTECTION ACT
=======================================================================

                           OVERSIGHT HEARING

                               before the

      SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            October 11, 2001

                               __________

                           Serial No. 107-65

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                      Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              James P. McGovern, Massachusetts
Greg Walden, Oregon                  Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho            Hilda L. Solis, California
Thomas G. Tancredo, Colorado         Brad Carson, Oklahoma
J.D. Hayworth, Arizona               Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                   Allen D. Freemyer, Chief of Staff
                      Lisa Pittman, Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
                  Jeff Petrich, Democrat Chief Counsel
                                 ------                                

       SUBCOMMITTE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                 WAYNE T. GILCHREST, Maryland, Chairman
           ROBERT A. UNDERWOOD, Guam, Ranking Democrat Member

Don Young, Alaska                    Eni F.H. Faleomavaega, American 
W.J. ``Billy'' Tauzin, Louisiana         Samoa
Jim Saxton, New Jersey,              Neil Abercrombie, Hawaii
  Vice Chairman                      Solomon P. Ortiz, Texas
Richard W. Pombo, California         Frank Pallone, Jr., New Jersey
Walter B. Jones, Jr., North 
    Carolina






                                 ------                                
                            C O N T E N T S

                              ----------                              


                                                                   Page

Hearing held on October 11, 2001.................................     1

Statement of Members:
    Abercrombie, Hon. Neil, a Representative in Congress from the 
      State of Hawaii, prepared statement of.....................   248
    Cunningham, Hon. Randy ``Duke,'' a Representative in Congress 
      from the State of California, prepared statement of........   126
    Gilchrest, Hon. Wayne T., a Representative in Congress from 
      the State of Maryland......................................     1
        Prepared statement of....................................     2
    Jones, Hon. Walter B., a Representative in Congress from the 
      State of North Carolina, prepared statement of.............    70
    Miller, Hon. George, a Representative in Congress from the 
      State of California, prepared statement of.................    10
    Mink, Hon. Patsy, a Representative in Congress from the State 
      of Hawaii..................................................     4
        Prepared statement of....................................     6
    Underwood, Hon. Robert A., a Delegate to Congress from Guam..     2
        Prepared statement of....................................     3

Statement of Witnesses:
    Fletcher, Bob, President, Sportfishing Association of 
      California.................................................   140
        Prepared statement of....................................   141
    Fristrup, Dr. Kurt, Bioacoustics Research Program, Cornell 
      Laboratory of Ornithology..................................   200
        Prepared statement of....................................   202
        Responses to questions submitted for the record..........   319
    Gaffney, Kaitilin, California Central Coast Program Manager, 
      The Ocean Conservancy......................................   160
        Prepared statement of....................................   161
        Responses to questions submitted for the record..........   311
    Hayes, Margaret, Director of Office of Ocean Affairs, Bureau 
      of Oceans and International Environmental and Scientific 
      Affairs, U.S. Department of State..........................    55
        Prepared statement of....................................    56
        Response to question submitted for the record............   285
    Hogarth, Dr. William T., Assistant Administrator for 
      Fisheries, National Marine Fisheries Service, U.S. 
      Department of Commerce.....................................    11
        Prepared statement of....................................    13
        Responses to questions submitted for the record..........   258
    Johnson, Charlie, Executive Director, Alaska Nanuuq 
      Commission, Indigenous Peoples Council on Marine Mammals...    78
        Prepared statement of....................................    80
        Responses to questions submitted for the record..........   285
    Jones, Marshall, Acting Director, Fish and Wildlife Service, 
      U.S. Department of the Interior............................    20
        Prepared statement of....................................    22
        Responses to questions submitted for the record..........   266
    Ketten, Dr. Darlene, Associate Scientist in Biology, Woods 
      Hole Oceanographic Institution, Assistant Professor in 
      Otolaryngology, Harvard Medical School.....................   207
        Prepared statement of....................................   210
        Responses to questions submitted for the record..........   323
    Mannina, George, American Zoo and Aquarium Association and 
      the Alliance of Marine Mammal Parks, and Aquariums.........    94
        Prepared statement of....................................    95
        Responses to questions submitted for the record..........   295
    Marks, Rick, Member of Take Reduction Teams, Garden State 
      Seafood Association........................................   109
        Prepared statement of....................................   111
        Responses to questions submitted for the record..........   301
    McGinn, Vice Admiral Dennis V., Deputy Chief of Naval 
      Operations, WarfareRequirements and Programs, OPNAV (N7), 
      U.S. Navy..................................................   229
        Prepared statement of....................................   232
    Rebuck, Steve, Member, Sea Otter Technical Consultant Group, 
      Southern Sea Otter Recovery Team...........................   146
        Prepared statement of....................................   148
    Reynolds, Dr. John E., III, Chairman, Marine Mammal 
      Commission.................................................    26
        Prepared statement of....................................    28
        Responses to questions submitted for the record..........   271
    Rose, Dr. Naomi, Marine Mammal Scientist, The Humane Society 
      of the United States.......................................   193
        Prepared statement of....................................   195
        Responses to questions submitted for the record..........   315
    Scordino, Dr. Joe, Deputy Director, Northwest Region, 
      National Marine Fisheries Service, U.S. Department of 
      Commerce...................................................   129
        Prepared statement of....................................   132
        Responses to questions submitted for the record..........   303
    Thompson, Steve, Acting Manager, California-Nevada 
      Operations, Fish and Wildlife Service, U.S. Department of 
      the Interior...............................................   154
        Prepared statement of....................................   155
        Responses to questions submitted for the record..........   307
    Whitehead, Dr. Hal, Killam Professor of Biology, Dalhousie 
      University.................................................   190
        Prepared statement of....................................   192
        Responses to questions submitted for the record..........   314
    Young, Sharon, Field Director for Marine Issues, The Humane 
      Society of the United States...............................    81
        Prepared statement of....................................    83
        Responses to questions submitted for the record..........   290

Additional materials supplied:
    Gipson, Dr. Chester, Acting Deputy Administrator for Animal 
      Care, Animal & Plant Health Inspection Service, U.S. 
      Department of Agriculture, statement submitted for the 
      record.....................................................   256
        Responses to questions submitted for the record..........   326
    Humane Society of the United States, statement submitted for 
      the record.................................................   181
    Phillips, David, The International Marine Mammal Project, 
      Earth Island Institute, statement submitted for the record.    70
    Sinkin, Lanny, Attorney at Law, Hilo, Hawai'i, statement 
      submitted for the record...................................     7




         OVERSIGHT HEARING ON THE MARINE MAMMAL PROTECTION ACT

                              ----------                              


                       Thursday, October 11, 2001

                     U.S. House of Representatives

      Subcommittee on Fisheries Conservation, Wildlife and Oceans

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:05 a.m., in 
Room 1324, Longworth House Office Building, Hon. Wayne 
Gilchrest [Chairman of the Subcommittee] presiding.

  STATEMENT OF THE HON. WAYNE GILCHREST, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MARYLAND

    Mr. Gilchrest. Good morning, everyone. The Subcommittee on 
Fisheries Conservation, Wildlife and Oceans will come to order.
    What I would like to do this morning, just before we begin, 
if we could have a moment of reverent silence, the tragedy that 
has occurred a month ago today. There will be, as you all know, 
memorial services in New York and at the Pentagon. A moment of 
silence.
    [Moment of silence.]
    Mr. Gilchrest. I am pleased to convene today's hearing. 
This will be a comprehensive review of the Marine Mammal 
Protection Act and issues for its reauthorization. We have a 
great number of witnesses scheduled to testify, and therefore 
we will quickly move through our opening statements.
    The Marine Mammal Protection Act was first enacted in 1972, 
to ensure that marine mammals are either restored or maintained 
at healthy population levels. The act was last amended in 1994, 
and we will hear testimony on how the agencies have implemented 
these changes.
    There are a number of topics before us today. We will hear 
testimony on two marine populations, California sea lions and 
Pacific harbor seals, whose population numbers have increased 
to the point where there is growing concern about their 
interactions with humans. We will also discuss success or 
failure of the experimental sea otter population off the coast 
of California and what, if anything, needs to be done to 
address this matter.
    We will be enlightened on the issue of Take Reduction Teams 
and how they have worked to develop management plans to reduce 
interactions between commercial fishing activities and marine 
mammal populations. I am interested to hear about the efforts 
being take to disentangle whales from fishing gear, as well as 
the need for a new Polar Bear Treaty, and issues of concern to 
the environmental and public display communities.
    The last topic of discussion will be on the sonar 
technology used by the Navy, specifically the use of 
Surveillance Towed Array Sensor System Low Frequency Array, or 
SURTASS LFA. The use of this sonar has been controversial due 
to its possible adverse effects on marine mammal populations. I 
hope the discussion will shed some light on the issue and help 
us to understand what type of research has been done to assess 
the effects of this sonar on marine mammals and on other marine 
life.
    I look forward to the testimony this morning and this 
afternoon as a very positive exchange of information. We can 
learn from your testimony, and hopefully you can learn from the 
interactions with us, as well, and move forward in a better 
understanding of the life as we know it in many various ways to 
be very fragile, and how we can be very positive in our efforts 
to protect that fragility in the ecosystems and also especially 
in the area of the economy of many communities and the defense 
of this country. We can not only find a middle ground on all of 
these issues, but we can find the highest plane, the best 
direction to proceed.
    I now yield to the gentleman, Mr. Underwood.
    [The prepared statement of Mr. Gilchrest follows:]

    Statement of the Honorable Wayne Gilchrest, A Representative in 
                  Congress from the State of Maryland

    Good morning, I am pleased to convene today's hearing. This will be 
a comprehensive review of the Marine Mammal Protection Act and issues 
for its reauthorization. We have a great number of witnesses scheduled 
to testify and, therefore, I will quickly go through my opening 
statement.
    The Marine Mammal Protection Act was first enacted in 1972 to 
ensure that marine mammals are either restored to or maintained at 
healthy populations levels. The Act was last amended in 1994 and we 
will hear testimony on how the agencies have implemented these changes.
    There are a number of topics before us today, we will hear 
testimony on two marine mammal populations, California sea lions and 
Pacific Harbor seals, whose populations numbers have increased to the 
point, where there is growing concern about their interactions with 
humans. We will also discuss the success or failure of the experimental 
sea otter population off the coast of California and what, if anything, 
needs to be done to address this matter.
    We will be enlightened on the use of Take Reduction Teams, and how 
they have worked to develop management plans to reduce interactions 
between commercial fishing activities and marine mammal populations. I 
am interested to hear about the efforts being taken to disentangle 
whales from fishing gear as well as the need for a new Polar Bear 
Treaty and issues of concern to the environmental and the public 
display communities.
    The last topic of discussion will be on the sonar technology used 
by the Navy, specifically the use of Surveillance Towed Array Sensor 
System Low Frequency Array (SURTASS LFA) sonar. The use of this sonar 
has been controversial due its possible adverse affects on marine 
mammal populations. I hope the discussion will shed some light on the 
issue and help us understand what type of research has been done to 
assess the affects of this sonar on marine mammals and other marine 
life.
    I now recognize the Ranking Member, Mr. Underwood, for his opening 
statement.
                                 ______
                                 

  STATEMENT OF THE HON. ROBERT UNDERWOOD, A REPRESENTATIVE IN 
                       CONGRESS FROM GUAM

    Mr. Underwood. Thank you, Mr. Chairman, and I am impressed 
by the turnout today, both in the number of witnesses that we 
have scheduled and in the number of people in the audience. I 
think this turnout again demonstrates the deep and abiding 
interests of millions of Americans in the long-term protection 
and well-being of marine mammals.
    Panel by panel, we will move from general oversight to more 
specific issues, some controversial, others less so. But that 
there is some controversy is not surprising to me, for very few 
species of wildlife generate the same type of passion among 
human beings as whales, sea lions, and sea otters, to name only 
a handful of the more charismatic species.
    Congress passed the Marine Mammal Protection Act in 1972 to 
rectify our Nation's sorry historical record of marine mammal 
management, a record punctuated more frequently by episodes of 
unregulated massacre than by attempts at thoughtful and 
sustainable conservation. Today we will review what the act has 
done in order to help recover marine mammal populations.
    And certainly we should all take pride in the recovery of 
some populations such as the Pacific gray whales and California 
sea lions. But ironically, we will also learn that despite 
these successes, other problems, either perceived or real, have 
arisen through the recovery of formerly depleted marine mammal 
populations.
    We cannot escape the looming human paradox that confronts 
this Committee. For if we, as the ultimate users of ocean 
resources, are going to coexist sustainably with recovered or 
robust populations of marine mammals, we are going to need to 
find new ways to restrain ourselves, not marine mammals. If we 
ever hope to meet both the demands of a growing human 
population and the overarching need to maintain a healthy 
marine environment on which both humans and marine mammals are 
mutually dependent, we must meet this challenge.
    With that thought in mind, I will conclude simply by saying 
that I look forward to hearing from everyone this morning. I 
hope to work with all of you and with all other stakeholders as 
we begin the important process to reauthorize the Marine Mammal 
Protection Act. Thank you.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Underwood follows:]

  Statement of the Honorable Robert Underwood, A Delegate to Congress 
                               from Guam

    Thank you, Mr. Chairman. I'm impressed by the turnout today, both 
in the number of witnesses we have scheduled, and in the number of 
people in the audience. I think this turnout again demonstrates the 
deep and abiding interest of millions of Americans in the long-term 
protection and well-being of marine mammals.
    Panel by panel, we will move from general oversight to more 
specific issues - some controversial, others less so. But that there is 
some controversy is not surprising to me, for very few species of 
wildlife generate the same type of passion among human beings as 
whales, sea lions and sea otters, to name only a handful of the more 
charismatic species.
    Congress passed the Marine Mammal Protection Act in 1972 to rectify 
our Nation's sorry historical record of marine mammal management - a 
record punctuated more frequently by episodes of unregulated massacre, 
than by attempts at thoughtful and sustainable conservation.
    Today, we will review what the Act has done to help recover marine 
mammal populations. And certainly we should all take pride in the 
recovery of some populations such as Pacific gray whales and California 
sea lions. But ironically, we also will a learn that despite these 
successes, other problems, either perceived or real, have arisen 
through the recovery of formerly depleted marine mammal populations.
    We cannot escape the looming human paradox that confronts this 
committee. For if we, as the ultimate users of ocean resources, are 
going to co-exist sustainably with recovered or robust populations of 
marine mammals, we are going to need find new ways to restrain 
ourselves, not marine mammals. If we ever hope to meet both the demands 
of a growing human population and the overarching need to maintain a 
healthy marine environment on which both humans and marine mammals are 
mutually dependent, we must meet this challenge.
    With that thought in mind, I will conclude simply by saying that I 
look forward to hearing from everyone this morning. I hope to work with 
all of you and all other stakeholders as we begin the important process 
to reauthorize the Marine Mammal Protection Act. Thank you.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Mr. Underwood. I want to thank 
Mr. Pombo from California for joining us this morning.
    We will first recognize The Honorable Patsy Mink from the 
great State of Hawaii. Welcome, Mrs. Mink, for coming to 
testify this morning.

STATEMENT OF THE HON. PATSY MINK, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF HAWAII

    Mrs. Mink. Thank you very much, Mr. Chairman, Ranking 
Member Underwood, Mr. Pombo, members of the Subcommittee. I am 
enormously grateful for this opportunity to testify before this 
Subcommittee on your embarking on very, very important 
oversight hearings about the efficacy of the Marine Mammal 
Protection Act and how it is being administered.
    I am especially grateful because included in your oversight 
hearings, you have included a panel that will discuss the U.S. 
Navy's Surveillance Towed Array Sensor System Low Frequency 
Active sonar, that we refer to as SURTASS LFA, and its impact 
on our marine environment. I am deeply concerned about the 
potential harm that the deployment of this technology could 
have on marine mammals.
    Never in my 23 years of service in the Congress has there 
been such an enormous outpouring of concern from citizens all 
over the country, but primarily those from my district. I had 
my staff this morning sort of look through the computer 
statistics on the number of times that we have been contacted 
about this issue, and the number exceeds 3,500, which is far 
more than what we received during impeachment or any of the 
other controversial issues. So the concerns are there and I 
think are very real.
    The Navy's final EIS statement acknowledges that they 
really don't know how this technology is affecting, or will 
affect ultimately, marine life in the areas where they are 
conducting this experiment. We do have instances where we have 
seen the consequences, in the Bahamas and elsewhere, and other 
witnesses on panel five will undoubtedly discuss and explore 
those ramifications where the use of sonar has resulted in 
deaths of whales and strandings and other kinds of physical 
manifestations of the impact on them. During the testing in 
Hawaii in 1998, numerous witnesses reported that the whales 
fled the area where the sonar testing was being conducted.
    Sound is an integral part of the daily life of marine 
mammals. Low-frequency broadcasts such as the Navy's SURTASS 
LFA sonar could endanger the delicate balance between the 
habitat and these species.
    Research suggests that the first indicator of physical 
damage to the whales from low-frequency sound is a temporary 
hearing loss. At higher levels, there is tissue damage to the 
lungs, heart, and nervous system.
    The unusual feature of this sonar is not its volume or its 
loudness, but the low frequency at which it operates, 100 to 
150 Hz. Sound energy in the high frequencies, typical of most 
sonar, is absorbed by seawater, but low frequency sounds can 
travel and be detected hundreds of miles away. Not only does 
this sonar disrupt the behavior of animals at relatively low 
levels, the behavioral disruption can occur over a large 
proportion of the species' habitat, and it could have very 
strange behavioral changes and could impact on the breeding and 
raising of the young.
    Disruption of behavior of endangered marine mammals and the 
assault on their habitat is a violation of the Marine Mammal 
Protection Act, which is designed to protect the habitat of 
these species. More egregious is that some of these species 
that frequent the waters of Hawaii are endangered, so there is 
a double responsibility on the part of the protectors that have 
been commissioned as responsible under the Federal Government 
to protect the humpback whale, not only endangered but the 
Congress established a national sanctuary for these species 
because they are so highly endangered.
    It is true that the sonar experiment does not engage itself 
within the sanctuary, but there is no traffic cop there to tell 
the endangered species specifically the zone which they may 
occupy at any given time. So we are very concerned that even 
with the exclusion of the testing within the zone area excluded 
as a sanctuary, its mere permission in the area, and in the 
area which the humpback whale transverses between Hawaii and 
its northern climates, is an area of tremendous concern.
    I would like to submit for the record extensive research as 
conducted by one of my constituents, Mr. Lanny Sinkin of the 
Big Island, Hawaii. I would like to have permission to include 
this material as part of my testimony today.
    Mr. Gilchrest. Without objection, so ordered.
    Mrs. Mink. Thank you very much.
    Furthering my inquiry in this whole subject as to the 
responsibility of the Federal agencies, I have asked the 
General Accounting Office to undertake a study, and I hope that 
this study will be available to Members of Congress and others 
within a year. They have Committee themselves to conduct this 
investigation, and I would certainly be happy to have this 
Committee join in that inquiry and perhaps have them expand on 
it.
    Under the act, the Secretary of Commerce, acting through 
the National Marine Fisheries Service, is responsible for the 
conservation and management of whales, dolphins, all of the 
marine mammals, and it is vital for this agency to stand up and 
exercise its responsibility of protection, not to concur in the 
EIS documents that are being proffered by the Navy to permit it 
to conduct its experiments.
    So I think that this Committee can have a very large impact 
on the adherence of our numerous, various national agencies, on 
their responsibilities to marine mammals. I would hope that 
this Committee would engage itself in looking specifically at 
areas in which those responsibilities commissioned to these 
various agencies cam be tightened up, made more specific, and 
indeed in the preparing of EIS's, to assume full responsibility 
for their content, direction, and recommendations, rather than 
to simply be added on as a concurrent partner.
    So, with those remarks I certainly leave with you a 
tremendous appreciation on the part of thousands of my 
constituents, and the hope that as a result of these oversight 
hearings we will have a better view of what this particular 
experiment is doing to our marine mammal population, and to be 
ever vigilant if there should be others that are proposed, 
recognizing, of course, that there are two responsibilities 
that are colliding.
    We have the national security argument which we explored in 
the Government Reform Committee, where the Navy insisted that 
this was absolutely essential for them to do. And so you have 
really a struggle of responsibilities here, and I look upon 
this Committee to be able to work through it and come up with 
some way in which the species that we are commissioned to 
protect will indeed have better protection.
    Thank you very much.
    [The prepared statement of Mrs. Mink follows:]

Statement of the Honorable Patsy T. Mink, a Representative in Congress 
                        form the State of Hawaii

Mr. Chairman,

    I want to thank you for the opportunity to testify today before the 
Subcommittee on Fisheries Conservation, Wildlife, and Oceans as part of 
the oversight hearings on Reauthorization of the Marine Mammal 
Protection Act.
    I especially want to thank you for including a panel to look at the 
impact of deployment of the U.S. Navy's Surveillance Towed Array Sensor 
System Low Frequency Active Sonar (SURTASS LFA) on our marine 
environment. And I thank you for inviting Dr. Hal Whitehead of 
Dalhousie University to testify before the Subcommittee.
    I am deeply concerned about the potential harm that deployment of 
this technology could have on marine mammals. In the Navy's Final EIS, 
it acknowledges that they really do not know how this technology will 
affect marine life. But we do know that there have been several 
instances, in the Bahamas and elsewhere, where use of sonar has 
resulted in whale deaths and strandings. During the testing in Hawaii 
in 1998, numerous witnesses reported that whales fled the area when 
sonar testing began.
    Sound is an integral part of the daily life of whales, dolphins, 
and other marine life. Low-frequency broadcasts, such as the Navy's 
SURTASS LFA sonar, could endanger the delicate balance between the 
natural habitat and these species.
    Research suggests that the first indicator of physical damage to 
whales from low-frequency sounds is temporary hearing loss, which can 
occur from exposures to 185-200 dB. At higher levels, tissue damage in 
the lungs, heart, and nervous system can occur.
    The unusual feature of this sonar is not its volume, but the low 
frequency at which it operates (100-150 Hz). Sound energy at the high 
frequencies typical of most sonar is absorbed by seawater, but low 
frequency sounds can travel and be detected hundreds of miles away.
    Not only does this sonar disrupt the behavior of animals at 
relatively low levels, the behavioral disruption can occur over a large 
proportion of a species' habitat. It could change behaviors related to 
breeding and raising. of young.
    Disruption of the behavior of endangered marine mammals and the 
assault on their habitat is a violation of the Marine Mammal Protection 
Act, which is designed to protect these species from man-made harm.
    The Navy claims that the effect of LFA sonar on marine animals is 
negligible. I frankly worry about having the agency that is committed 
to deploying a technology so intimately involved in deciding whether it 
is environmentally safe.
    I submit for the record a statement and detailed critique of the 
Navy's Environmental Impact Statement prepared by one of my 
constituents, Lanny Sinkin of Hilo, Hawaii. Mr. Sinkin is an attorney 
whose legal work has been in the areas of the environment, national 
security, and civil rights. From his research, Mr. Sinkin has gained a 
broad knowledge of the history of the LFA program and of the evidence 
that SURTASS LFA is too dangerous to deploy. Mr. Sinkin's research 
supports the conclusion that had the Navy complied with environmental 
laws early in the LFA process, they-would have avoided expenditure of 
hundreds of millions of dollars on the development of LFA and pursued 
other technologies that have, in fact, proven capable of achieving the 
same purpose.
    I have asked the General Accounting Office to undertake a study of 
the Navy's SURTASS LFA sonar program. I asked them to investigate the 
potential environmental costs of deploying this technology and to 
examine whether the close relationship between the Navy and the 
National Marine Fisheries Service (NMFS) in preparing the EIS 
represents a conflict of interest.
    Under the Act, the Secretary of Commerce, acting through the 
National Marine Fisheries Service, is responsible for the conservation 
and management of whales, dolphins, porpoises, seals, and sea lions. It 
is vital that the agency responsible for protecting these species 
maintain the highest possible standards in assessing possible harmful 
effects. Perhaps another agency, like the National Ocean Service, which 
has more of a conservation focus and manages our National Marine 
Sanctuaries, should be given responsibility for conservation and 
management of these species.
    Clearly, the Navy's first responsibility is to protect our nation 
from attack. And they have invested millions of dollars in developing 
and testing this technology. We all support a strong national defense, 
especially in light of the horrific events of a month ago today. But 
this does not mean that we can shirk our responsibilities as stewards 
of our environment. We must ask ourselves: Is' deployment of LFA sonar 
truly essential to protect us from the security challenges facing our 
nation today? Wouldn't these funds be better spent on improved 
intelligence and on deployment of a environmentally safer passive sonar 
system? Must we endanger the well-being of our magnificent marine 
mammals--a heritage that belongs to all the world--to effectively 
protect ourselves?
    Hawaii is home to many endangered species. We are host to the 
largest Pacific population of the endangered humpback whale during the 
months of November through May. The Navy's application specifically 
excludes deployment of SURTASS LFA in the Penguin Banks area of the 
Hawaiian Islands during this period, but they would still be able to 
deploy the system beyond the 12-mile limit surrounding the islands.
    Many other endangered species are found in the waters surrounding 
Hawaii, including the Hawaiian Monk seal, several species of dolphins, 
and endangered and threatened sea turtles.
    I oppose deployment or further testing of SURTASS LFA Sonar in the 
open oceans surrounding Hawaii. I urge the Subcommittee to maintain and 
strengthen our commitment to protecting marine mammals from harassment 
and harm as you study how to improve the Marine Mammal Protection Act.
                                 ______
                                 
    [The statement of Mr. Sinkin follows:]

       Statement of Lanny Sinkin, Attorney at Law, Hilo, Hawai'i

    As an attorney, I have filed three separate legal actions 
challenging the U.S. Navy's testing and planned deployment of its 
Surveillance Towed Array Sensor System Low Frequency Active Sonar 
(SURTASS LFAS). In the course of preparing and pursuing that 
litigation, I have extensively researched the history of this program, 
the evidence available regarding potential impacts from deployment of 
this system, and the regulatory actions of agencies having a legal 
responsibility to conduct oversight of this program. I have also spent 
well over 100 hours analyzing the draft and final Overseas 
Environmental Impact Statement/Environmental Impact Statement (OEIS/
EIS).
    I am also aware of the U.S. military's campaign to convince 
Congress that environmental laws are hampering military preparedness 
and that the controversy over SURTASS LFA is cited as an example.
    I understand that in these terrible times the military has strong 
support in Congress and that there is a reluctance to question any 
program the military says is necessary to national security. I consider 
the health of the marine environment essential to national security. I 
urge the subcommittee to remain objective about this particular 
technology and exercise its legitimate oversight function.
    Based on my research, I believe that SURTASS LFA demonstrates quite 
clearly the value of having the military obey current environmental 
laws. Had the U.S. Navy conducted a full environmental evaluation of 
the potential harm from SURTASS LFA prior to investing $350 million in 
this technology, I am convinced the Navy would have looked harder at 
alternative technology that could achieve the same purpose without the 
adverse effects on marine life. In fact, the Navy did develop passive 
alternatives capable of achieving the stated purpose of SURTASS LFA - 
the detection of silent submarines in the littoral environment.
    The Navy ignored numerous environmental laws and made their 
investment in design, engineering, construction, testing, and other 
activities designed to produce a deployable LFA system. With the 
investment made, the Navy prepared an OEIS/EIS that is replete with 
false statements, contradictions, misuse of science, and other 
indicators of a document structured to justify a past decision, rather 
than an objective analysis prior to making major commitments. Cf. 42 
U.S.C. Sec. 4332(C)(v) (prohibiting irreversible and irretrievable 
commitments of resources prior to the preparation of an EIS).
    I have prepared an extensive analysis of the flaws in the OEIS/EIS 
that will be submitted for the record of this hearing. As illustrations 
of the nature of the OEIS/EIS, I offer two examples:
    1. Faced with potential litigation, the Navy agreed to prepare an 
OEIS/EIS. As part of that process, the Navy agreed to study the 
potential impact of SURTASS LFA on whales. In the subsequent Scientific 
Research Program (SRP), the Navy identified four species of whales as 
indicator species for all the others. One of the four is the Gray 
Whale. OEIS/EIS at pages 1-20. 4.2-27 and 28, and Comment Response 4-
5.2 on page 10-100. The selection of these four species ``was a 
critical element of the logic of the LFS SRP.'' OEIS/EIS at 4.2-27.
    When a comment filed on the draft OEIS/EIS raised the evidence that 
Gray Whales avoid sound at 115 to 120 decibels - far below acceptable 
levels for LFA deployment - the OEIS/EIS took the position that 
``[tg]ray whales inhabit a unique environment, and all research 
conducted to date indicates that their behavior does not generalize to 
other species.'' Comment 4-4.18 at page 10-96.
    The selection of the four indicator species was a ``critical 
element of the logic'' of the SRP because the Navy needed to answer 
criticism that studying so few species in such a limited fashion did 
not provide adequate information to reach conclusions about the impacts 
on other species. When one of those species, however, turned out to be 
very sensitive to sound, suddenly that species was not an indicator any 
more.
    2. The OEIS/EIS section titled ``Definition of Biological Risk and 
Determination of Risk Function'' states: ``Based on the MMPA 
(Subchapter 1.3.3.1), the potential for biological risk was defined as 
the probability for injury or behavioral--harassment of marine 
mammals.'' OEIS/EIS at 4.2-20 (emphasis added).
    Subchapter 1.3.3.1 accurately states that the MMPA contains two 
categories of harassment. Ibid. at 1-16. The first is injury (Level A). 
Id. The second is disruption of important behavioral patterns. (Level 
B).--Id.
    The OEIS/EIS ``defines the potential for biological risk as 
``potentially caus[ing] hearing, behavioral, psychological, or 
physiological effects.'' Ibid. at 4.2-20.
    The OEIS/EIS then states that the analysis of biological risk 
assumes ``all marine mammals exposed to RLs [the level received by the 
marine mammal] > 180 dB are evaluated as if they are injured.'' Id. 
(emphasis added).
    What the OEIS/EIS has done is to combine Level A and Level B 
harassment into one risk assessment and address mitigation of injury 
only. The underlying assumption must be that mitigating injury will 
also mitigate disruption of important behavioral patterns.
    This assumption is the exact reverse of the correct assumption. 
Mitigation preventing disruption of behavioral patterns would 
significantly mitigate the potential for injury. Mitigation preventing 
injury takes effect long after the biological effects level is passed.
    Disruption of singing, mating, feeding, migration, and other 
biological activities will take place well below the physical injury 
level.
    In the Section titled ``Determining Risk Function,'' the OEIS/EIS 
provides a graph (Figure 4.2-2b at 4.2-24) that purports to show the 
Single Ping Equivalent Risk Function. The x axis of the graph is the 
``Received Level (RL) SPE - dB.'' The y axis is ``Risk of Significant 
Change in Biologically Important Behavior.'' This graph uses the 180 dB 
RL as the point of 95% probability of changing a biologically 
significant behavior. As noted above, however, that level is the 95% 
probability level for injury, not for causing a significant change in 
biologically important behavior. As also noted above, the 95% level for 
such potential behavioral change takes place well below 180 dB. The 
graph's y axis, therefore, falsely represents that the graph shows the 
probability of changing biologically important behavior.
    The false analysis continues with the following statement: ``The 
risk continuum modeled a smooth increase in risk that culminates in a 
95 percent level of risk of significant change in biologically 
important behavior at 180 dB.'' OEIS/EIS at 4.2-29. Again, the sound 
pressure level creating a 95 percent probability of injury is very 
different from the level creating a 95 percent probability of changing 
biologically important behaviors.
    Obviously the chart presents an increase in risk until the level 
that the Navy defined as injury , not the level of significant change 
in biologically important behavior. This single instance of attempting 
to conceal the actual science on the central question calls the 
integrity of this entire process into question.
    These flaws in the OEIS/EIS represent the best efforts of those 
preparing the document to avoid the obvious evidence that SURTASS LFA 
poses a significant threat to marine life. This avoidance simply 
mirrors the experiences we had during and after the litigation in 
Hawaii.
    The Navy came to Hawaii to test SURTASS LFA in March of 1998. Soon 
after the testing began, I began receiving reports that the Humpback 
Whales had left the test area. Eventually, I accumulated 14 different 
observer reports from people who have spent much of their lives 
observing whales in the area. This response by the whales is highly 
significant because the test area is a prime breeding and birthing area 
for this endangered species.
    I received other reports of unusual activity in the test area, such 
as hammerhead sharks schooling in areas where such behavior had never 
been seen before.
    I also received a report of a snorkeler exposed to an LFA 
broadcast, who suffered physiological and psychological damage compared 
by a doctor to that of a trauma patient in a hospital.
    We brought all this information to the Navy (and NMFS). The Navy 
never made any attempt to contact the whale watch captains and shore 
observers who had noted the departure of the whales from the test area. 
Instead, the Navy issued an ``information paper'' claiming that there 
was no scientific data to support the claim that the whales left the 
test area. I had provided declarations from the observers. Had the Navy 
wished to follow up to determine the accuracy of their observations, 
the Navy could have contacted these observers. The Navy made no attempt 
to do so.
    Similarly with the injured snorkeler, the Navy never contacted her, 
never sought to have their medical officers examine her, and never 
inquired as to her health subsequent to the exposure.
    A truly objective scientific research project would have pursued 
further information on both these serious indicators of adverse 
effects.
    From the refusal to pursue such information, a clear picture 
emerges of an agency that prematurely invested in a technology only to 
find the technology unacceptably hazardous. The OEIS/EIS attempts to 
justify this mistake by ignoring the evidence.
                                 ______
                                 
    [An attachment to Mr. Sinkin's statement, ``Comments of 
Lanny Sinkin on National Marine Fisheries Service Proposed 
Rule, Docket No. 990927266-0240-02,'' has been retained in the 
Committee's official files.]

    Mr. Gilchrest. Thank you very much, Mrs. Mink. We can 
assure you that this Committee will be vigilant. We would be 
happy to continue to pursue this issue in all the avenues that 
you have suggested.
    Mrs. Mink. I would especially welcome your joining in on 
the GAO report, because I do think that they will provide an 
impartial kind of view and analysis of what is going on, and 
the degree to which this test that the Navy is conducting is in 
fact essential for national security.
    Mr. Gilchrest. We will be happy to be a part of that.
    Mrs. Mink. Thank you very much.
    Mr. Gilchrest. Mr. Underwood, any questions?
    Mr. Underwood. I don't have any questions, but I certainly 
want to thank Mrs. Mink for bringing these issues to the 
surface. And I understand that she would like to join us at 
some point in time, perhaps in one of the panels.
    Mrs. Mink. When the Committee takes up panel five, I would 
like to return to the Committee room to listen to the 
statements at that time.
    Mr. Gilchrest. We will be sure to let you know about that.
    Mrs. Mink. If it is all right.
    Mr. Gilchrest. Yes, ma'am.
    Mrs. Mink. Thank you.
    Mr. Underwood. Thank you very much, and it is a critical 
issue that we find a way to balance the need for national 
security as well as to obey our own laws, the laws that we have 
passed, and I certainly look forward to joining in that 
challenge. Thank you.
    Mr. Gilchrest. Thank you very much, Mrs. Mink.
    Mrs. Mink. Thank you.
    [The prepared statement of Mr. Miller follows:]

Statement of the Hon. George Miller, a Representative in Congress from 
                        the State of California

                          polar bears. no ice
    ``It is strange to envision polar bears in Puerto Rico. But they 
are top attractions in the traveling Suarez Circus. The U.S. Fish and 
Wildlife Service and the Animal and Plant Health Inspection Service 
(APHIS), have approved permits which allow the Suarez Circus to keep 
these huge and powerful animals in transient facilities without 
adequate access to water or cool air. This is disturbing.
    ``Empowered by CITES to regulate the import and exports of animals 
into the United States, the Fish and Wildlife Service approved a permit 
in May to import seven polar bears, of dubious origin, into Puerto Rico 
despite numerous concerns raised by the Marine Mammal Commission and 
animal welfare organizations. In August, the Puerto Rican Department of 
Natural Resource (DNR) filed charges with Suarez Circus regarding the 
mistreatment of these polar bears. According to the DNR, polar bears 
were held for approximately 24 hours in 113 degree heat without water 
or air conditioning to cool themselves.
    ``Despite documentation of substandard care for these magnificent 
animals, the circus maintains it's permit. It is my understanding that 
APHIS is adding to this problem by issuing a variance to this permit 
allowing for a transient facility.
    ``It is disturbing that the two federal agencies responsible for 
protecting polar bears would allow arctic animals to be held captive in 
tropical climates. If lax enforcement of federal standards meant to 
ensure the humane care of these animals is compounding the problem, 
then this situation cries out for better congressional oversight. Even 
if you don't care about the humane treatment of wild animals, everyone 
on this committee should be concerned about government accountability. 
We need a thorough review of current compliance with law and 
regulations. I hope to work with the majority in addressing this 
issue.''
                                 ______
                                 
    Mr. Gilchrest. Our next panel, Dr. Bill Hogarth, the 
Administrator of the National Marine Fisheries Service, 
accompanied by Dr. Don Knowles, Director, Office of Protected 
Resources; Mr. Marshall Jones, Acting Director, U.S. Fish and 
Wildlife Service; Dr. John Reynolds III, Chairman, Marine 
Mammal Commission; Ms. Margaret Hayes, Director of Office of 
Ocean Affairs, Bureau of Oceans and International Environmental 
and Scientific Affairs, U.S. Department of State.
    You may come forward, lady and gentlemen. The next time we 
have this hearing, we may have to hold it in the Ways and Means 
Committee hearing room.
    [Laughter.]
    We want to welcome all of you here this morning, appreciate 
very much your attendance, and look forward to your testimony. 
Dr. Hogarth, you may begin.

 STATEMENT OF WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR FOR 
 FISHERIES, NATIONAL MARINE FISHERIES SERVICE, ACCOMPANIED BY 
      DON KNOWLES, DIRECTOR, OFFICE OF PROTECTED RESOURCES

    Mr. Hogarth. Thank you, Mr. Chairman, members of the 
Subcommittee. I appreciate being here today and testifying on 
the Marine Mammal Protection Act, MMPA. I am Bill Hogarth, the 
Assistant Administrator for Fisheries in the Department of 
Commerce.
    NMFS and the Fish and Wildlife Service jointly administer 
the MMPA, under which NMFS is responsible for the management 
and conservation of over 140 stocks of marine mammals. Today I 
will discuss NMFS's implementation of the 1994 amendments, and 
areas of MMPA that could be addressed to improve the agency's 
ability to fulfill its responsibilities.
    In passing the MMPA in 1972, Congress found that certain 
species and population stocks of marine mammals were or may be 
in danger of extinction or depletion as a result of man's 
activities. Additionally, Congress found that marine mammals 
have proven to be international resources of great aesthetic, 
recreational, economic, and ecosystem significance. These 
findings and objectives still guide NMFS in implementation of 
the MMPA.
    While there have been numerous changes to the MMPA since 
1972, the 1994 amendments were the most comprehensive. They 
included provisions directed toward the entire spectrum of 
marine mammal programs that NMFS conducts.
    NMFS has made significant progress in implementing the 
amendments. However, there continue to be a few issues that 
still need to be resolved and areas that we continue to work to 
improve. We have made significant progress in governing the 
take of marine mammals incidental to commercial fisheries, 
through the use of stock assessments, fishery monitoring, 
vessel registration and authorization, and take reduction 
plans.
    Take reduction plans have been completed for Pacific 
offshore cetaceans, Atlantic large whales, the harbor porpoise 
in the Mid-Atlantic and Gulf of Maine. We will also be 
convening a team to address the take of bottlenose dolphin in 
the Atlantic.
    Through the dedication of participants from a wide range of 
stakeholder groups, we are seeing real progress. Specifically, 
the Pacific offshore cetacean and the harbor porpoise take 
reduction plans have significantly reduced the take of marine 
mammals.
    Unfortunately, other plans have not been as successful. For 
example, we are struggling to find an effective strategy to 
reduce the take of right whales through the Atlantic Large 
Whale Take Reduction Plan. We are also looking for ways to 
improve the take reduction process through the development of 
new gear technologies, expanded stakeholder participation, and 
providing more technical and outreach expertise to the 
participants during their deliberations.
    NMFS believes that the take reduction team approach is the 
right way to reduce marine mammal backcatch and maintain stable 
fisheries. Marine mammal stock assessment reports are vital to 
the success of take reduction efforts. By 1996, NMFS scientists 
had completed 140 assessment reports for marine mammal stocks 
in U.S. waters.
    However, these assessments revealed that for many marine 
mammal stocks, information critical to managers, such as 
abundance and distribution patterns, is virtually nonexistent. 
With the funds Congress has provided, we have focused on about 
20 stocks that are of the highest priority due to their 
interaction with fisheries. We have varying levels of 
information for the remaining stocks, and we are exploring ways 
to improve our capabilities with new and more cost-effective 
technologies.
    Through the Fishery Observer Program we have collected 
detailed information on fishery and protected resource 
interactions by use of the take reduction process. We have 
focused our observer programs and coverage on the fisheries 
experiencing frequent interactions with marine mammals. We have 
also been discussing the alternative monitoring techniques that 
will allow for expanded coverage and improved data collection.
    We have made strides since 1994 to implement the changes to 
the public display, scientific research and enhancement 
provisions of MMPA. One outstanding issue has been 
clarification of the public display requirements. I am happy to 
report that earlier this year we published a proposed rule to 
implement the amendments affecting marine mammals held captive 
for public display. The comment period on this proposed rule 
ends on November the 2nd.
    One area of difficulty for NMFS is the implementation and 
enforcement of the definition of ``harassment'' as an element 
of ``taking.'' The two-tiered definition is complex and 
somewhat ambiguous. For example, the definition equates changes 
in individuals with profound changes in populations. In some 
cases scientists or photographers must obtain permits, while 
other activities which would more likely have an adverse impact 
on marine mammals are not necessarily controlled if they are 
not clear acts of ``pursuit, torment or annoyance.''
    The 1994 amendments also provide for cooperative agreements 
between NMFS and Alaska native organizations to co-manage 
subsistence use by Alaska natives. Over the years, NMFS has 
worked with the Alaska native organizations to conserve marine 
mammals. However, a general shortcoming with the existing 
system is that co-management agreements will be successful only 
if all hunters voluntarily abide by them, or if the native 
organizations entering into the agreement can effectively exert 
control over all native hunters.
    In addition, we are working to assure that applications for 
small take and harassment incidental to defense and energy-
related activities are processed as quickly as possible.
    Mr. Chairman, over the years the benefits of the MMPA on 
marine mammal stocks in the U.S. have been significant, and its 
impacts around the world are surely immeasurable. However, I am 
concerned that the MMPA remains unauthorized.
    NMFS is working with both the Fish and Wildlife Service and 
the Marine Mammal Commission to develop an administration 
proposal to amend the MMPA. We hope to transmit legislation to 
Congress as soon as the proposal is reviewed by all affected 
agencies. In the interim, I welcome the opportunity to discuss 
the issues that I raised today with you and with all 
stakeholders, to work toward an effective resolution of these 
and other important marine mammal conservation issues.
    Mr. Chairman, this concludes my testimony. I look forward 
to answering any questions you or other members of the 
Subcommittee may have. Thank you.
    [The prepared statement of Mr. Hogarth follows:]

   Statement of Dr. William T. Hogarth, Assistant Administrator for 
  Fisheries, National Marine Fisheries Service, National Oceanic and 
        Atmospheric Administration, U.S. Department of Commerce

    Mr. Chairman and members of the Subcommittee, thank you for 
inviting me to testify before the Subcommittee today on the Marine 
Mammal Protection Act (MMPA). I am William Hogarth, Assistant 
Administrator for Fisheries in the National Oceanic and Atmospheric 
Administration, Department of Commerce.
    The National Marine Fisheries Service (NMFS), along with the U.S. 
Fish and Wildlife Service (FWS), administers the MMPA, which is the 
principal Federal legislation that guides marine mammal protection and 
conservation policy in U.S. waters. Under the provisions of the MMPA, 
NMFS is responsible for the management and conservation of over 140 
stocks of whales, dolphins and porpoises, as well as seals, sea lions 
and fur seals. The remaining marine mammal species (polar bears, 
walruses, manatees, dugongs, and sea and marine otters) are under the 
jurisdiction of the FWS.
    I welcome the opportunity to discuss with you NMFS' implementation 
of the 1994 amendments and the positive impacts this legislation has 
had on marine mammal conservation and management. I will also discuss 
those areas of the MMPA that could be addressed to improve the Agency's 
ability to fulfill its responsibilities.
Background of the MMPA
    The MMPA was enacted in 1972, largely due to public response to the 
high levels of dolphin mortality in the Eastern Tropical Pacific tuna 
purse seine fishery, the harvest of harp seals in Canada, and 
continuation of commercial whaling.
    In passing the MMPA, Congress found that certain species and 
population stocks of marine mammals were or may be in danger of 
extinction or depletion as a result of man's activities. Additionally, 
it was found that marine mammal species and population stocks should 
not be permitted to diminish beyond the point at which they cease to be 
a significant functioning element in the ecosystem of which they are a 
part. Consistent with the major objective of preventing this stock 
depletion, Congress found that the populations should not be permitted 
to diminish below their optimum sustainable population level, and 
measures should be taken immediately to replenish any species or 
population stock which had already been diminished below this level. 
Congress also found that there was inadequate knowledge of the ecology 
and population dynamics of such marine mammals and of the factors which 
bear upon their ability to reproduce themselves successfully. Finally, 
Congress found that marine mammals have proven themselves to be 
international resources of great aesthetic, recreational and economic 
significance. These findings and objectives still guide NMFS in its 
implementation of the MMPA.
    While there have been numerous changes to the MMPA since 1972, the 
MMPA Amendments of 1994 were by far the most comprehensive. They 
required NMFS to establish a long-term regime for protecting marine 
mammals in U.S. waters and included provisions directed toward the 
entire spectrum of marine mammal programs that NMFS conducts. These 
requirements included determining the status of marine mammal stocks, 
establishing new requirements for categorizing commercial fisheries, 
registering and reporting of vessels relative to their level of serious 
injury and mortality of marine mammals, monitoring incidental take 
through observer programs, and developing take reduction plans. The 
MMPA Amendments of 1994 also prohibited intentional lethal take during 
commercial fishing operations, and mandated changes to many of the 
Act's permit provisions.
    Implementation of these changes has required a substantial amount 
of additional work from the Agency. NMFS has made significant progress 
in fulfilling these and other mandates of the MMPA. However, there 
continue to be a few implementation issues that still need to be 
resolved and areas that we continue to work to improve.
 Highlights of The Marine Mammal Protection Act Amendments of 1994 and 
                           Its Implementation
Commercial Fisheries Incidental Take Regime (Sections 117 and 118)
    The new approach to govern the taking of marine mammals incidental 
to commercial fisheries, developed in cooperation with governmental 
agencies, the commercial fishing industry, and environmental 
organizations, reaffirmed the MMPA goal to reduce incidental mortality 
and serious injury to insignificant levels. This section directs the 
Secretary to authorize the taking of marine mammals incidental to 
commercial fishing, with restrictions where necessary to ensure that 
such mortality and serious injury would not prevent marine mammal 
stocks from recovery to their optimum sustainable population levels. 
There are a number of elements that contribute to effective management 
of this regime: stock assessment, fishery monitoring, vessel 
registration and authorization, and take reduction plans.
Marine Mammal Stock Assessments
    Under section 117, NMFS has carried out the 1994 requirements to 
assess the status of marine mammal stocks and increase stakeholder 
involvement in the decision-making process through the development of a 
series of scientific review groups. These groups review agency research 
and management needs relative to marine mammals. NMFS, in consultation 
with these groups and the public, prepares and revises stock assessment 
guidelines.
    NMFS is required to review stock assessments annually for strategic 
stocks, at least once a year for stocks for which significant new 
information is available, and at least once every three years for all 
other stocks. A strategic stock is defined as one that is listed as 
endangered or threatened under the Endangered Species Act (ESA), 
declining and likely to be listed under the ESA in the foreseeable 
future, designated as depleted under the MMPA, or for which human-
caused mortality exceeds the estimated Potential Biological Removal 
(PBR) level. The PBR level is the number of animals that may be removed 
from the stock while allowing it to reach or maintain its optimum 
sustainable population level.
    A marine mammal stock assessment incorporates several types of 
information essential to carrying out the incidental take regime: an 
estimation of abundance from surveys; an estimation of mortality and 
serious injury from observer data and other sources; an estimation of 
the stock's PBR level; and, determination of stock structure. Stock 
structure can be analyzed using a variety of methods, including 
telemetry, genetic analysis, and photo identification.
    Within two years of enactment of the 1994 amendments, NMFS 
completed over 140 marine mammal assessment reports for marine mammal 
stocks in U.S. waters. These assessments revealed that for many marine 
mammal stocks, information critical to managers, such as abundance and 
distribution patterns, is virtually non-existent. For example, 
abundance estimates are not available for 33 stocks (23%) of marine 
mammals. Of the 144 stocks under NMFS jurisdiction (57 in the Atlantic 
and Gulf of Mexico, 55 in the Pacific, and 32 in Alaska), 39 are 
designated as strategic under the MMPA. Of the 39 strategic stocks, 22 
are classified as endangered, two are classified as threatened, and 
three others are classified as depleted.
Abundance and Stock Structure
    In 1998 we developed a rotational schedule to conduct abundance 
surveys for all stocks on a three - 10 year cycle. With the funds 
provided, we have focused on about 20 stocks that are of highest 
priority due to their interaction with fisheries. The information on 
these stocks is limited B for many of the stocks we have gaps in 
trends, population structure, and habitat needs.
    Overall, we believe the stock assessment process, specifically the 
abundance and trends analysis, and the underlying science and 
methodologies for determining PBR are scientifically sound. We continue 
to try to improve our stock assessment capabilities by utilizing more 
cost-effective techniques, such as acoustic monitoring.
Fisheries Monitoring and Observer Programs
    One challenge created by the MMPA Amendments of 1994 is the 
requirement for NMFS to establish a program to monitor incidental 
mortality and serious injury of marine mammals in the course of 
commercial fishing operations. The purposes of fishery monitoring 
programs are to obtain statistically reliable estimates of incidental 
mortality and serious injury of marine mammals in commercial fisheries; 
to determine the reliability of reports submitted by fishermen; and to 
identify possible changes in fishing methods or technology that may 
decrease incidental mortality and serious injury. NMFS' monitoring 
programs are generally in the form of at-sea observer programs. These 
programs collect marine mammal and environmental data, as well as 
information on fishing technique characteristics, to help determine 
factors that may contribute to these interactions. As a result of the 
monitoring and observer programs established by the 1994 amendments, 
NMFS has collected detailed information on fisheries for which few data 
previously existed concerning protected species interactions.
    Those fisheries experiencing frequent interactions with marine 
mammals have received priority for observer program coverage. NOAA has 
identified or classified over 30 fisheries that have a significant 
impact on protected species based on observer information. We have 
adequate estimates of the level or characteristics of this take for 
eight of those fisheries. The impacts of the remaining 22 are poorly 
understood.
    Right now, the funding for marine mammal observer programs is 
focused in the Alaskan salmon gillnet rotational observer program, 
Northeast and Mid-Atlantic gillnet fisheries, the California/Oregon 
drift gillnet fishery, the Monterey Bay set halibut gillnet fishery, 
the southeast Atlantic shark drift gillnet/strike net fishery, the 
Atlantic pelagic longline fishery, and the Atlantic squid, mackerel, 
and butterfish trawl fishery.
    NMFS has been discussing the exploration of new technologies for 
alternative monitoring of fisheries. There are many instances where it 
is either not practicable or possible to have an observer on board a 
fishing vessel. This situation leads to reduced monitoring coverage and 
inadequate data collection. The development of alternative remote 
monitoring systems would allow for expanded coverage and improve data 
collection.
Classification of Fisheries
    The MMPA Amendments of 1994 also established new procedures to 
address marine mammal interactions with commercial fisheries. The 
Secretary is required to publish, and annually update, a list of 
fisheries with frequent (Category I), occasional (Category II) or 
remote likelihood (Category III) of incidental mortality and serious 
injury of marine mammals. Those in Category I or II fisheries are 
required to register and shall be issued an authorization to 
incidentally take marine mammals. Category I and II fisheries are 
required to carry an observer, if requested, and comply with any take 
reduction plan regulations. All commercial fisheries, regardless of 
category, must report takings of marine mammals. This fishery 
classification system consists of a two-tiered, stock-specific approach 
that first addresses the total impact of all fisheries on each marine 
mammal stock, and then addresses the impact of individual fisheries on 
each stock. Through this approach, NMFS can focus on species of 
particular concern relative to fisheries interactions, and then examine 
the various sources of injury or mortality.
    Information collected about the fisheries includes the geographic 
range of the fisheries, the seasons during which the fisheries operate, 
what type of gear is used, how the gear is fished, the number of 
participants in each fishery, what species of fish are targeted in each 
fishery, and what type of management program exists for each fishery. 
These data allow NMFS to more effectively manage fisheries while 
minimizing the impacts to the overall industry. They also allow NMFS to 
work with fishermen to identify and develop gear technologies that will 
reduce their interactions with marine mammals. For instance, NMFS 
worked closely with fishermen in the Gulf of Maine to develop acoustic 
deterrence devices, ``pingers,'' that can be used by fishermen to 
decrease marine mammal interactions with certain types of gear.
Registration and Reporting of Fisheries
    Section 118 also requires fishermen to submit reports of marine 
mammal injury and mortality, providing additional information about 
marine mammal interactions with fisheries. Under this provision, all 
fishermen must report to NMFS any marine mammal mortalities or injuries 
that occur incidental to commercial fishing operations within 48 hours 
of the vessel's return to port. Fishermen participating in Category I 
or II fisheries must register under the Marine Mammal Authorization 
Program to engage in lawful incidental take of marine mammals.
    Although this process has been working reasonably well, in some 
fisheries, not all vessel owners required to register have been doing 
so. Also, inasmuch as the requirement to carry observers only applies 
to registered vessels, the ability to monitor some fisheries has been 
compromised by the lack of full compliance with the registration 
requirement. In addition, compliance with the registration requirement 
is inconsistent, making available data for some fisheries less than 
complete. We may consider clarifying that it is a violation to engage 
in a Category I or II fishery without having registered under Section 
118(c)(2) to eliminate any ambiguity regarding this important aspect of 
the incidental taking regime. Further, we may consider clarifying the 
requirement that to carry an observer applies to all participants in 
Category I and II fisheries.
Take Reduction Plans
    The MMPA Amendments of 1994 also require NMFS to convene take 
reduction teams (TRTs) to develop draft plans for reducing bycatch of 
marine mammals in Category I and II fisheries that interact with 
strategic stocks. The goals of the plans are to reduce the mortality 
and serious injury incidental to commercial fishing below the PBR level 
within six months, and to insignificant levels within five years. 
Priority for developing plans is given to stocks for which incidental 
mortality exceeds PBR, those that have a small population size, and 
those declining most rapidly.
    Take reduction plans have been completed and implemented by final 
regulations for Pacific offshore cetaceans, Atlantic large whales, and 
harbor porpoise in the Mid-Atlantic and the Gulf of Maine. We have also 
recently convened a new team to address the take of bottlenose dolphin 
in the Atlantic. These plans are complex, and sometimes controversial, 
since they attempt to meet both marine mammal conservation requirements 
and the needs and concerns of the fishing industry. However, through 
the dedication of participants from a wide-range of stakeholder groups, 
we are seeing some real successes in the present stages of 
implementation. Specifically, measures within the Pacific Offshore 
Cetacean Take Reduction Plan reduced marine mammal interactions by an 
order of magnitude in only two years of implementation. Using this 
plan, commercial fishermen have reduced their interactions with whales 
and dolphins from approximately 500 per year in the early 1990s to 
about 50 in 1998. Things are also looking good for harbor porpoise. 
Takes have been reduced from a pre-take reduction plan level of an 
average of 1,521 animals per year, to 323 animals in 1999 and 529 
animals in 2000.
    NMFS believes that the TRT approach makes best use of resources and 
stakeholders' input to reduce marine mammal bycatch and maintain 
sustainable fisheries for the long term. This is an excellent example 
of NMFS' attempts to meet the mandates under the MMPA as well as the 
Magnuson- Stevens Fishery Conservation and Management Act. As we gain 
more experience, we are also learning better ways to implement the 
teams. In 1998, NMFS surveyed participants of the existing TRTs to 
evaluate the take reduction process. NMFS is working to implement some 
of the suggestions. For example, NMFS sponsored two workshops before 
convening the bottlenose dolphin TRT to ensure that participants were 
knowledgeable about bottlenose dolphin science and were prepared for 
the negotiations.
    Despite our success in some areas, we are still faced with 
challenges in others. For example, we are still struggling with finding 
an effective strategy to reduce the take of right whales in the 
Atlantic Large Whale Take Reduction Plan. So far this year, at least 
four right whales have become entangled in fishing gear. The PBR level 
for this highly endangered species is zero.
    One area for improvement that we have been discussing is to provide 
more technical and outreach expertise to take reduction teams during 
their deliberations. This step is expected to ensure that all 
participants fully understand current practices, and can make informed 
recommendations regarding any changes in fishing practices.
    Increasingly, new gear technologies are being looked to as a means 
of reducing entanglements and allowing fishers to continue operating in 
areas frequented by marine mammals. We are discussing ways to encourage 
new research and speed the development of new gear technologies.
Zero Mortality and Serious Injury Rate Goal (ZMRG)
    One of the most difficult challenges remaining in carrying out the 
1994 amendments is how to reduce levels of marine mammal mortality and 
serious injury to approach the zero mortality and serious injury rate 
goal (ZMRG). The key to success is to evaluate and clarify the concept 
of ZMRG and its implications for marine fisheries. Since 1994, we have 
focused on the immediate goal of reducing take to PBR which has taken 
all of our resources to this point. However, now that we are achieving 
success in meeting the first goal, we intend to move on to addressing 
the long-term goal.
Exclusions
    There are some noteworthy exclusions from the 1994 incidental take 
regime. It does not govern the incidental taking of California sea 
otters which remain subject to Public Law 99-625. While fishery related 
mortality is suspected as a cause of the otters' recent decline, NMFS 
holds that all elements of section 118 are currently inapplicable to 
the California sea otter.
    Another exclusion that it does not address is the incidental take 
of marine mammals from non- commercial fisheries even though this is an 
increasing problem in coastal areas. Currently the taking of marine 
mammals in the course of non-commercial fishing is not covered under 
the Section 118 exemption and those fisheries are subject to the 
enforcement provisions of the MMPA. NMFS is considering ways to address 
this issue and educate non-commercial fishers to ensure the 
conservation of marine mammals.
Increasing Seal and Sea Lion Populations
    The importance of marine mammals as significant functioning 
elements of marine ecosystems has been an underlying tenet of the MMPA 
since its enactment. The section 120 amendments in 1994 identified 
specific objectives to assess the role of seals and sea lions in their 
ecosystems, including assessment of interactions between increasing 
stocks of seals and sea lions and anadromous fish on both coasts of the 
United States. Section 120 also authorized the intentional lethal 
taking of individual pinnipeds which are having a significant, adverse 
affect on the salmonid stocks. Upon request from any State, the 
Secretary would establish and convene a task force to recommend whether 
to authorize the requested lethal take or some other alternative. 
Section 101(a)(4) also authorized fishermen to use non-lethal means to 
deter a marine mammal from damaging their gear or catch.
    Responding to this issue on the West Coast, NMFS submitted to 
Congress the second of two reports on West Coast interactions in 1999. 
This report found that although seal and sea lion predation did not 
cause the decline of endangered salmonid species on the West Coast, it 
may be affecting the recovery of already depressed populations. This 
document recommends implementing expanded lethal removal authority of 
the MMPA for certain situations. The report also recommends the 
development of safe, effective non-lethal deterrence measures, site-
specific management of these interactions, and identifies information 
needs for conducting further research and streamlining the process for 
States to obtain authority for lethally removal of nuisance pinnipeds.
    NMFS also investigated this issue on the East Coast and in 1997 
submitted the first of two reports to Congress which concluded that 
more information is needed on seal and sea lion interactions with 
salmonids and the East Coast aquaculture industry. The report also 
concluded that deterrence technologies should be enhanced before any 
significant management actions can be taken.
    The Secretaries of Commerce and the Interior were required to 
publish guidelines on measures to deter marine mammals safely and to 
prohibit any form of deterrence that would have a significant adverse 
impact on marine mammals. For species listed as threatened or 
endangered under the ESA, the Secretaries were to specify non-lethal 
deterrence measures that may be used.
    NMFS issued proposed deterrence regulations in 1995, but did not 
publish final regulations because of the difficulty in identifying 
measures for safely deterring endangered and threatened marine mammals. 
The issue of deterrence and how to deal with expanding populations of 
marine mammals will continue to be a management challenge. NMFS will 
continue to study and work with other interested organizations to find 
effective measures for non-lethal deterrence.
Permitting and Captive Display and Release
    The MMPA Amendments of 1994 also made significant changes to the 
permitting provisions of section 104 of the MMPA, which governs permits 
for public display, scientific research, and enhancement of marine 
mammal species and stocks and made a related change to the Acts 
enforcement provisions in section 102. These amendments: 1) simplified 
the procedures for authorizing transfers of marine mammals among public 
display facilities and substantially reduced NMFS role in the oversight 
of the care and maintenance of captive marine mammals; 2) established a 
streamlined General Authorization procedure for scientific research 
activities that have the potential to disturb, but not to injure, 
marine mammals not listed under the ESA; 3) created a new permit 
category for photography of non-listed marine mammals for commercial 
and educational purposes; and, 4) established a prohibition on exports 
of marine mammals and marine mammal parts, except for purposes of 
public display, scientific research, or enhancement.
    On May 10, 1996, NMFS published a final rule amending the 
regulations for permits to reflect many of the 1994 changes. The rule 
updated and consolidated the regulations for special exception permits 
and established basic permit requirements applicable to all permits to 
take, import, and export marine mammals and marine mammal parts for 
purposes of scientific research and enhancement, photography, and 
public display. It also provided permit criteria specific to scientific 
research and enhancement.
    A Memorandum of Agreement among NMFS, FWS, and the USDA's Animal 
and Plant Health Inspection Service to clarify federal responsibilities 
pertaining to the oversight of marine mammals on public display was 
completed in July 1998. On July 3, 2001, NMFS published a proposed rule 
to implement the 1994 amendments to the MMPA affecting marine mammals 
held captive for public display purposes, and clarify the public 
display requirements relating to: 1) permits to capture or import 
marine mammals, 2) transport or transfer of marine mammals, 3) export 
and, 4) marine mammal inventories. The public comment period on this 
proposed rule closes November 2, 2001.
    Issues also have arisen concerning the intent of Congress with 
regard to the release of marine mammals being held for purposes of 
public display to the wild and the export of such marine mammals to 
foreign facilities. Section 104(c)(9) of the MMPA added in 1994, 
specifies that no marine mammal may be exported from the United States 
for the purpose of public display, scientific research, or enhancing 
the survival or recovery of a species or stock, unless the receiving 
facility meets standards that are comparable to those applicable to 
U.S. facilities. The primary focus of this amendment was on exports for 
purposes of public display. There has been some debate as to whether 
this is a continuing obligation on the part of the receiving facility. 
The rulemaking currently underway may resolve these issues regarding 
exports for public display.
    In addition, the 1994 Amendments, as part of a package of permit-
related amendments, added a prohibition to section 102 on exporting 
marine mammals. Although some provisions of section 104 of the Act were 
amended to reflect this new prohibition, corresponding changes were not 
made elsewhere in the Act, which has led to some confusion. For 
example, there is uncertainty as to whether handicrafts being made and 
sold by Alaska Natives under section 101(b) may be exported from the 
United States.
    There is also a need to add certainty to the Act with regard to the 
release of captive marine mammals to the wild. Within the scientific 
community, the release of marine mammals held in captivity for extended 
periods of time is widely regarded as potentially harmful to both the 
animals released and wild populations they encounter. Fundamental 
questions remain as to the ability of long-captive marine mammals to 
forage, avoid predators, and integrate with wild populations. Moreover, 
release creates the risk of disease transmission, inappropriate genetic 
exchanges, and disruption of critical behavioral patterns and social 
structures in wild populations.
Definition of Harassment
    The 1994 amendments added several new definitions to the MMPA. For 
the most part, these definitions pertain to the new regime governing 
the taking of marine mammals incidental to commercial fishing 
operations or the revisions to the Act's permit provisions. One 
definition, however, has broad applicability throughout the Act--that 
of ``harassment,'' which is an element of ``taking.'' The definition 
was subdivided into ``Level A'' and ``Level B'' harassment. Level A 
harassment is defined as ``any act of pursuit, torment, or annoyance 
which has the potential to injure a marine mammal or marine mammal 
stock in the wild.'' Level B harassment is 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.''
    NMFS has experienced difficulties with respect to interpretation, 
implementation, and enforcement of the current definition of 
harassment. The two-tiered definition is complex and is somewhat 
ambiguous. For example, the definition equates changes in individuals 
(e.g., momentary disturbance of an animal's breathing pattern) with 
profound changes in populations (e.g., disrupting an animal, or a group 
of animals from migrating to a feeding or breeding area). Scientists 
and photographers must obtain permits for Level B harassment, but 
activities which may be more likely to affect marine mammals are not 
necessarily controlled if they are not clearly acts of ``pursuit, 
torment or annoyance.''
Small-Take Provisions
    Amendments were also made to section 101(a)(5), the Act's so-called 
``small-take provision,'' under which the taking of small numbers of 
marine mammals incidental to activities other than commercial fishing 
may be authorized if the activities are expected to have a negligible 
impact on the affected stocks and will not have any unmitigable impacts 
on the availability of marine mammals for Native subsistence in Alaska. 
Prior to the 1994 amendments, such authorizations could be issued only 
by regulation. In 1994, a streamlined mechanism for authorizing 
incidental takes by harassment for a period of up to one year, 
requiring public notice and opportunity for comment, but not 
rulemaking, was enacted.
    In general, the new provision has worked well and has succeeded in 
shortening the time required to issue incidental harassment 
authorizations (IHAs). The problem is that the number of applications - 
both IHAs (1 year harassment only authorizations) and Letters of 
Authorization (5 year incidental take authorizations) has increased 
significantly so that the effect of the 1994 streamlining is being 
overcome by the increased workload. We are discussing ways to enhance 
the ability of the program to analyze and process applications in a 
timely manner.
Gulf of Maine and Bering Sea Ecosystem Studies
    Section 110 of the Act, which governs marine mammal research 
grants, was amended in 1994 to require the Secretary of Commerce, in 
consultation with the Marine Mammal Commission, adjacent coastal 
States, environmental organizations, the fishing industry, and other 
appropriate groups and individuals, to convene a regional workshop to 
assess human-caused factors affecting the health and stability of the 
Gulf of Maine marine ecosystem. A workshop was held in 1995 and NMFS 
transmitted a report to Congress that same year.
    The recommendations included the need to identify the critical 
linkages between contaminants and other stressors and their impacts on 
biologically and economically important species and habitats. The 
recommendations also highlighted the importance of basing management 
actions on a precautionary principle, reflecting the level of 
uncertainty concerning the status of, and linkages among, various 
ecosystem components.
    Another provision of this section required the Secretary, in 
consultation with pertinent organizations, to conduct a research 
program to monitor the health and stability of the Bering Sea marine 
ecosystem and to resolve uncertainties concerning the causes of 
observed declines in populations of marine mammals, sea birds, and 
other living resources.
    NMFS prepared a draft Bering Sea ecosystem study plan in 1995. 
Although the plan was never finalized, research has been conducted 
through the North Pacific Marine Research Initiative administered by 
the University of Alaska.
Cooperative Agreements in Alaska
    The 1994 amendments provided for cooperative agreements between 
NMFS and Alaska Native organizations to conserve marine mammals and to 
co-manage subsistence use by Alaska Natives. On April 29, 1999, NMFS 
and the Alaska Native Harbor Seal Commission signed an agreement to 
work together in developing a co-management plan for harbor seals. NMFS 
has also reached an agreement with several parties interested in beluga 
conservation, including the Cook Inlet Marine Mammal Council, on 
appropriate levels of beluga whale harvest in Cook Inlet, Alaska, for 
2001-2004. NMFS and the Alaska Beluga Whale Committee have signed a co-
management agreement for beluga whales outside of Cook Inlet as well.
    A general shortcoming with the existing co-management system is 
that co-management agreements, to the extent that they are intended to 
regulate or limit subsistence taking, will be successful only if all 
hunters voluntarily abide by those limits or the Native organization 
entering into the agreement can effectively exert control over all 
Native hunters, such as is the case with the Alaska Eskimo Whaling 
Commission. While Alaska Natives traditionally have demonstrated a 
willingness to act responsibly in conserving marine mammals and other 
resources, the recent experience with Cook Inlet belugas demonstrates 
the delicate underfooting that exists. For some marine mammals, all it 
takes is a few hunters refusing to act responsibly to put a stock at 
risk.
Enforcement
    While the 1994 amendments have been effective in clarifying and 
strengthening regulatory processes under the MMPA, some aspects could 
be updated. For example, the penalties for violations of the MMPA have 
remained unchanged since 1972. It may be worthwhile to discuss 
increasing penalties and other means of improving enforcement 
capabilities.
Conclusion
    The MMPA Amendments of 1994 made significant strides forward in 
marine mammal conservation. Since then, NMFS has been working to 
implement these changes. Over the years, the benefits of the MMPA on 
marine mammal stocks in the United States have been significant, and 
its indirect impacts on the status and conservation of marine mammal 
species around the world are surely immeasurable. Since its passage, 
other countries have not only looked toward the United States for 
guidance on marine mammal conservation issues, but have established 
policies of their own modeled after the MMPA. We will continue to face 
emerging issues and new threats to marine mammals and the MMPA will 
need to evolve to effectively protect marine mammal populations, while 
balancing human needs.
    As you know, Mr. Chairman, the MMPA needs to be reauthorized. I am 
pleased to note that NMFS is working with both the FWS and the Marine 
Mammal Commission to develop an Administration proposal to amend the 
MMPA. Of course, the Department of Justice will be involved in the 
development of any proposal to ensure that it meets constitutional 
scrutiny under the Commerce and other clauses. We hope to transmit 
legislation to the Congress as soon as a proposal is developed and 
reviewed by all affected agencies. In the interim, I welcome the 
opportunity to discuss the issues I have raised here today in detail 
with you and stakeholders to work toward effective resolution of these 
and other important marine mammal conservation issues.
    Mr. Chairman, this concludes my testimony. Again, thank you for the 
opportunity to be here today. I look forward to answering any questions 
you or other members of the Subcommittee may have.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Dr. Hogarth.
    Mr. Jones?

  STATEMENT OF MARSHALL JONES, ACTING DIRECTOR, U.S. FISH AND 
       WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Jones. Thank you, Mr. Chairman. A great pleasure to be 
here with you today to provide testimony on reauthorization of 
the Marine Mammal Protection Act and on the agreement 
negotiated between the United States and Russia on polar bear 
conservation.
    Over the past several months, the Fish and Wildlife Service 
has been working diligently with the National Marine Fisheries 
Service, the Marine Mammal Commission, other Federal agencies, 
and our Alaska native partners to identify areas of the Marine 
Mammal Act which might benefit from well-considered changes. 
Today I will discuss a few of the key areas that are under 
consideration for changes. The statement we have submitted for 
the record provides information on other areas of the act where 
recommendations for changes are under consideration, as well as 
our involvement in monitoring the status of marine mammal 
populations and our implementation of the 1994 amendments to 
the act.
    Mr. Chairman, one of the most significant amendments made 
to the act in 1994, Section 119, authorized cooperative 
agreements with Alaska native organizations for co-management 
of subsistence use of marine mammals. Through this provision, 
we have further developed working relationships with our native 
partners, very similar to what Dr. Hogarth has outlined, and we 
have reaped the benefits for their enhanced capability to 
gather and disseminate information. We have also cooperatively 
developed local management strategies for subsistence harvest. 
We believe that these cooperative agreements have been a 
positive addition to the act.
    One change to the act now under consideration within the 
administration would build on the strengths of Section 199 to 
address a significant limitation elsewhere in the act, the 
inability to actively manage subsistence harvest of marine 
mammal stocks unless or until those stocks have been designated 
as depleted.
    We agree with our Alaska native partners that sound 
management of marine mammal harvests should occur well before 
they are in serious decline, but today the lack of enforceable 
management measures on nondepleted stocks could lead to such 
sharp declines in those stocks. Active management of the 
harvest of marine mammals, in cooperation with Alaska native 
organizations, we believe is the best way to ensure their 
continued health.
    We are now considering a mechanism that would enable native 
organizations to initiate the development of expanded co-
management agreements. These agreements would manage 
subsistence harvest, and would be administered by either the 
tribal or Federal signatories to the agreement. Under this 
concept, violations of the terms of the agreement or of tribal 
ordinances enacted to enforce the agreement would be violations 
of the act.
    An additional amendment we are now contemplating relates to 
the export of marine mammal products. The 1994 amendments added 
some new prohibitions on export, but inadvertently omitted some 
corresponding changes to clearly exempt certain otherwise 
authorized export situations from the new prohibition. This has 
resulted in confusion for the regulated public. The changes now 
being considered would address these current inconsistencies in 
the act.
    Yet another area under review is the definition of the term 
``harassment.'' We have been considering ways to clarify the 
definition to provide greater notice and predictability to the 
regulated community, and to improve the ability of Federal 
agencies to comply with the prohibition on harassment, while 
continuing to protect marine mammals in the wild and allow 
agencies to accomplish their missions.
    Mr. Chairman, let me conclude my remarks by discussing an 
international agreement that we believe represents a very 
significant step forward for the conservation of polar bears.
    In February 1998, representatives from the United States 
and Russia negotiated a bilateral agreement on the conservation 
and management of the shared Alaska-Chukotka polar bear 
population. The agreement was signed by the two nations in 
Washington, D.C. in 2000. The purpose of the agreement is to 
ensure long-term conservation of the shared polar bear 
population, in particular to address the widely different 
harvest provisions and practices of the United States and 
Russia.
    As I previously mentioned, U.S. law does not allow 
restrictions on subsistence harvest unless a polar bear 
population has been designated as depleted under the Marine 
Mammal Protection Act. On the other side of the border, the 
Russian Federation will soon open a polar bear subsistence 
hunting opportunity for native Chukotkans. The bilateral 
agreement will create a management framework to prevent any 
possibility of an unsustainable combined harvest. Draft 
legislation to implement the agreement is currently undergoing 
review within the administration.
    Mr. Chairman, in closing I would like to emphasize that 
this administration is committed to conserving and managing 
marine mammals by working with our partners in a cooperative 
fashion. In particular, I want to emphasize our ongoing 
commitment to work with our Alaska native partners to enhance 
their role in the conservation and management of marine 
mammals. We look forward to working with you and the members of 
the Subcommittee and the full Committee on legislation which 
will improve the Marine Mammal Protection Act and implement the 
bilateral agreement during this session of Congress.
    Mr. Chairman, that concludes my remarks, but I would be 
happy to answer any questions.
    [The prepared statement of Mr. Jones follows:]

 Statement of Marshall Jones, Acting Director, U.S. Fish and Wildlife 
                  Service, Department of the Interior

    Mr. Chairman, I am grateful for the opportunity to provide 
testimony on the Marine Mammal Protection Act (MMPA or Act) of 1972 and 
implementation issues related to the recently negotiated U.S. - Russia 
agreement on polar bear conservation.
    The MMPA establishes a federal responsibility, shared by the 
Secretaries of the Interior and Commerce, for the management and 
conservation of marine mammals. The Secretary of the Interior, through 
the U.S. Fish and Wildlife Service (Service), protects and manages 
polar bears, sea and marine otters, walruses, three species of 
manatees, and dugong. As the Subcommittee is aware, the MMPA is 
currently due to be reauthorized. While the Administration is in the 
early stages of its review of the Act, the Department has been working 
diligently with the National Marine Fisheries Service (NMFS), the 
Marine Mammal Commission, the Navy, Alaska Natives and others to 
identify areas of the Act that might benefit from well-considered 
changes.
    Mr. Chairman, you asked the Administration to discuss whether any 
changes are needed to the Act at this time. The Administration does 
believe that the Act can be improved upon in a way that will enhance 
the conservation of marine mammals, improve implementation of the Act 
generally, and strengthen relationships with our non-federal partners. 
However, as noted above, because the Administration has not yet 
completed its review of the Act, my testimony today necessarily must 
focus only on the types of changes that have been under consideration, 
and not on specific recommendations. I will also provide the 
Subcommittee information on areas where we have made significant 
progress in implementing the 1994 amendments beyond that reported to 
the Subcommittee at hearings on June 29, 1999 (regarding implementation 
of the 1994 amendments), and on April 6, 2000 (regarding implementation 
of Section 119 of the MMPA).
Section 119
    Currently, Section 119 of the MMPA authorizes the Secretaries of 
the Interior and Commerce to enter into cooperative agreements with 
Alaska Native Organizations to conserve marine mammals taken for 
subsistence and handicraft purposes. Marine mammals are a vitally 
important cultural and subsistence resource for Alaska Natives, and are 
visible indicators of changes in the marine environment. Given the size 
and remoteness of the marine systems in Alaska, monitoring the health 
and status of marine mammal populations, discussed briefly later in 
this testimony, is a highly challenging endeavor. Alaska Natives, as 
subsistence users, are often first to note changes in marine mammals 
that are important to assessing conditions in the marine environment. 
Section 119 recognizes these connections, and allows their potential 
benefits to be realized by providing a mechanism to access information 
available only to Native Alaskans.

    Current Section 119 Successes and Limitations

    Under this section and the existing cooperative agreements that it 
authorizes, the Administration works with its Native partners to 
develop management strategies that are implemented through existing 
authorities, such as tribal ordinances. The Administration believes 
that these cooperative agreements have been a positive addition to the 
Act. However, the conservation benefits provided by these management 
strategies are limited for several reasons. They are strictly voluntary 
endeavors carried out on a village-by-village basis, with further 
limitations related to the varying levels of compliance.
    From a conservation standpoint, actively managing the harvest of 
marine mammal stocks is the best way to ensure their continued health. 
Currently, this is not possible because the MMPA does not allow 
subsistence harvests of marine mammal stocks to be managed unless those 
stocks are designated as depleted under the Act. The current lack of 
management measures on non-depleted stocks of marine mammals can lead 
to sharp declines in those stocks. Both the Department and our Alaska 
Native partners agree that it is essential that sound management of 
marine mammal harvests occur prior to depletion, in order to avoid 
depletion.
    Last year, before this Subcommittee, the Department discussed the 
benefits of Section 119 and progress made in working with its Native 
partners in a number of areas. At that time, Chairman Young challenged 
those directly involved in marine mammal management in Alaska to 
develop a proposal supporting management of subsistence harvest by 
Alaska Natives. We have been working hard with our federal and non-
federal partners to meet that challenge.
    In this vein, a proposal has been considered by this group that 
would provide a mechanism for Alaska Native Organizations to initiate 
the development of co-management agreements containing management 
restrictions, related to subsistence harvest, which would be 
administered by either the tribal or federal signatories to the 
agreement. Under this proposal, violations of the terms of the 
agreement, or of tribal ordinances enacted pursuant to the agreement, 
would be violations of the Act.

    Implementation of Section 119

    The Service currently has three cooperative agreements in place: 
(1) for sea otters, with the Alaska Sea Otter and Steller Sea Lion 
Commission; (2) for polar bears, with the Alaska Nanuuq Commission; and 
(3) for Pacific walruses, with the Eskimo Walrus Commission. These 
agreements have been in place since 1997 and provide a contractual 
framework for accomplishing specific activities, which are detailed 
through ``scopes-of-work'' attached to the cooperative agreement. 
Agreements are reviewed and implemented annually. A basic benefit of 
these agreements and the resources they provide is improved 
communication not only between the Commissions and ourselves, but also 
among the Commission members and hunters.
    Both the Alaska Sea Otter and Steller Sea Lion Commission and the 
Service emphasize involving local Native organizations in the 
management of activities that affect sea otters throughout the State of 
Alaska. Such efforts include: development of local sea otter management 
plans; collection of traditional knowledge regarding sea otter 
distribution and abundance; and projects to assess local sea otter 
population status and health. Small boat surveys, conducted by local 
residents in their areas on an annual basis and following protocols 
developed in cooperation with the Service, have the potential to 
provide an important long-term data base for tracking population 
trends. In addition, the surveys provide a mechanism for incorporating 
local, traditional knowledge. This past year, funding through Section 
119 also supported participation of the Commission in an international 
workshop on sea otters that focused in part on the ongoing decline of 
sea otters in the Aleutians.
    The Alaska Nanuuq Commission (ANC) was formed in 1994 to represent 
Alaska Native hunters from 16 coastal communities in Alaska on polar 
bear matters. Our cooperative agreement with the ANC supports polar 
bear conservation through the direct involvement of subsistence users. 
A highlight of our work with the ANC has been its support in developing 
the bilateral agreement with Russia on the conservation of the Alaska-
Chukotka polar bear population. The ANC coordinated meetings, conducted 
negotiations, and is developing a Native-to-Native agreement with 
Russia's Chukotka Natives to assist in implementing the agreement 
between countries. Another accomplishment of working with the ANC has 
been the expansion of the effort to study and compile traditional 
ecological knowledge of polar bear habitat use to include Chukotka, 
Russia. This expanded effort is being conducted in partnership with the 
National Park Service. An upcoming project for the ANC is a planned 
workshop to provide technical assistance to representatives from 
Chukotka to develop a harvest monitoring program in Chukotka.
    Our agreements with the Eskimo Walrus Commission (EWC) relating to 
Pacific walrus support communications with village hunters, provide 
assistance with biological and contaminant monitoring, and promote 
sustainable harvest and conservation actions. An accomplishment of our 
partnership is the collection of information on Russian harvest of a 
shared U.S. - Russian population of walrus. The data collection effort 
began two years ago with the training of Russian harvest monitors in an 
Alaskan village during the Russian Spring harvest. We now have two 
years of Russian harvest data and an expanding program in Chukotka that 
provides important information on this shared population. Another focus 
of the EWC is to expand the harvest monitoring program in Alaska. To 
achieve this, joint efforts have been undertaken to include additional 
villages in the collection of specific harvest information and 
biological samples.
    In sum, Mr. Chairman, while improvements to Section 119 have been 
discussed, that section does provide substantial benefits for marine 
mammal conservation, in addition to helping us forge and strengthen 
essential relationships with our Alaska Native partners. We believe 
Section 119 should be retained, even in the event that legislation 
relating to co-management is ultimately enacted. This would allow 
continued authorization of cooperative research and monitoring 
activities related to subsistence use even when the parties desire 
something less than full ``co-management'' of a marine mammal stock.
Monitoring Marine Mammal Populations
    As I have mentioned, one of the benefits provided by Section 119 is 
the ability for the Service to access data collected by Alaska Natives. 
This data is used as a compliment to that collected by the Service 
through its own programs. The Service uses a variety of approaches to 
monitor populations of sea otter, polar bear, and Pacific walrus in 
Alaska. Sea otters are most commonly censussed using aerial and 
shipboard surveys. The advantage of aerial surveys is the ability to 
cover vast distances in a relatively short period of time. Shipboard 
surveys are generally less expensive than aerial surveys, and are 
typically used to monitor population trends in specific areas. Polar 
bear populations are monitored by aerial surveys and mark-recapture 
methods. In recent years, the Service has conducted surveys of polar 
bears in the southern Beaufort sea using helicopters flown from the 
deck of a Coast Guard icebreaker. Staff of the U.S. Geological Survey, 
Biological Resources Division have an ongoing mark-recapture study of 
polar bear populations with over 20 years of data.
    The Pacific walrus population is perhaps the least studied of the 
Service's trust species of marine mammals. The last range-wide aerial 
survey of walrus was conducted in 1990, and as a result, the current 
population size is unknown. The aerial survey technique used at that 
time is generally considered to be inadequate for detecting population 
trends, and the Service is in the process of developing better survey 
methods for Pacific walrus. In the absence of range-wide population 
surveys, the Service monitors the walrus population by recording the 
numbers of male walrus that come ashore at several locations in Bristol 
Bay, Alaska. While this is not an estimate of the overall walrus 
population, biologists believe that it is a useful index of population 
trends.
    In addition to monitoring the status and trend of the living 
population, the Service also records the number of marine mammals 
removed for subsistence purposes. In 1988, the Service initiated the 
Marine Mammal Marking, Tagging, and Reporting Program (MTRP). The 
program requires Alaska Natives to present the hide and skull of sea 
otters and polar bears, or the tusks of the Pacific walrus to a Service 
representative within 30 days of harvest. The representative attaches 
permanent tags to the specified items, and records basic biological 
information about the animal such as age class and gender. The MTRP 
currently has taggers in over 100 villages throughout coastal Alaska. 
The MTRP database contains records for 1,000 polar bears, 8,000 sea 
otters, and 20,000 walrus harvested by Alaska Natives. In addition to 
the MTRP, the Service also conducts and additional program to monitor 
the annual spring harvest of Pacific walrus in selected villages in the 
Bering sea. The Walrus Harvest Monitor Project collects basic harvest 
information and sample materials such as teeth for age determination 
and female reproductive tracts for life history analysis.
Export Prohibition
    One of the 1994 amendments to the MMPA added to Section 102 a 
prohibition on exporting marine mammals. At that time, certain 
provisions of Section 104 of the Act, which authorizes the issuance of 
permits for various activities, were amended to reflect the new 
prohibition on exports. However, other appropriate corresponding 
changes were inadvertently not made in the Act. This has resulted in 
confusion for the regulated public. For example, Section 101(a)(6), 
also added in 1994, authorizes Native inhabitants of Russia, Canada, 
and Greenland to import marine mammal products into the United States 
in conjunction with personal travel. However, Section 101(a)(6) 
neglects to address the export of those imported products at the 
termination of the travel within the U.S. Similarly, the export 
prohibition added uncertainty as to whether handicrafts made and sold 
by Alaska Natives under Section 101(b) may be exported from the United 
States. The implementing agencies have been considering ways to clarify 
these ambiguities.
Southern Sea Otter - Fishery Interaction Data
    Mr. Chairman, you requested that we provide testimony on the 
management of southern sea otters. This testimony will be presented 
later today by a different Service witness as part of the panel on 
California issues. However, I do want to briefly touch on one issue 
related to southern sea otters.
    Pursuant to Section 118 of the Act, the Department is interested in 
gathering information on fishery interactions with southern sea otters. 
It is known that southern sea otters are incidentally taken in fishing 
operations. MMPA reauthorization may provide an opportunity to enhance 
efforts to assess the impact of commercial fisheries on this threatened 
sea otter population.
Polar Bear Trophy Permits
    In 1994, Congress added a provision to the Act that allows the 
issuance of permits for the importation of certain trophies of sport-
hunted polar bears. These trophies must be taken legally in Canada, and 
from populations for which certain findings have been made. The 1994 
amendments specified that applications for such permits do not require 
review by the Marine Mammal Commission. However, the application 
process does require that public notice be given prior to, and after, 
issuance or denial of the permits.
    In recent years, the Service has processed more than 100 
applications annually for sport-hunted polar bear trophy importation 
permits. Although notice of each application has been published in the 
Federal Register, we have not received any public comments responding 
to these notices. MMPA reauthorization might provide an opportunity to 
streamline this process. One possible approach would be to consolidate 
the public notice requirement to a semi-annual listing in the Federal 
Register. Such an approach would also have an additional benefit of 
reducing administrative expenses associated with the public notice 
requirement.
Research Grants
    The Administration also continues to be interested in the potential 
for research grants as described in Section 110(a). For example, one 
change to this provision that might be considered is a clarification 
that research grants authorized under this provision may be targeted at 
plant or animal community-level problems.
    Community-level research could prove especially important in light 
of the significant, but poorly understood, environmental changes 
occurring off Alaska in the Bering Sea and Chukchi Sea regions. These 
environmental changes, which include rapid and extensive sea ice 
retreat, extreme weather events, and diminished benthic productivity, 
could have widespread effects. There is a pressing need to monitor the 
health and stability of these marine communities, and to resolve 
uncertainties concerning the causes of population declines of marine 
mammals, sea birds, and other living resources of these communities. 
Because residents of these regions largely depend upon marine resources 
for their livelihoods, research on subsistence uses of such resources, 
and providing ways for the continuation of such uses, should be 
integral parts of the effort to study these communities.
    Similarly, there is concern over possible widespread changes to the 
California coastal marine community. These changes may be adversely 
affecting prospects for recovery of the threatened southern sea otter 
population. This community would similarly benefit from a system-wide 
study.
Definition of Harassment
    Finally, the participating agencies have been looking at ways that 
the definition of the term ``harassment,'' found in Section 3(18)(A) of 
the Act, can be clarified. The provision, added to the Act as part of 
the 1994 amendments, is viewed by some as ambiguous and confusing. Many 
also believe that it could be amended to provide greater notice and 
predictability to the regulated community and to improve the ability of 
federal agencies to enforce the prohibition on harassment, while 
continuing to protect marine mammals in the wild.
U.S. - Russia Polar Bear Agreement
    Lastly, amendments to Section 113(d) enacted in 1994 authorized the 
Service, for the United States, to enter into negotiations with Russia 
to enhance the conservation and management of polar bear stocks. We 
have acted on this authorization. Since 1990, the Service has worked to 
improve cooperative research and management programs with Russia for 
the conservation of polar bears. Significant progress has been made in 
this effort. Building on this progress, United States and Russian 
representatives negotiated a bilateral agreement on the conservation 
and management of the shared Chukchi/Bering Seas polar bear population 
in February 1998. That agreement was signed by the two nations in 
Washington, D.C., on October 16, 2000.
    The purpose of the Polar Bear Agreement is to ensure long-term, 
science based conservation of the Alaska-Chukotka polar bear 
population. A particular concern addressed by the agreement is the 
widely different harvest provisions and practices of the U.S. and 
Russia. Unknown (but potentially significant) levels of illegal harvest 
are occurring in Chukotka. While lawful harvest by Alaska Natives for 
subsistence purposes occurs in Alaska, as discussed above, United 
States law does not allow restrictions of this harvest unless a polar 
bear population becomes ``depleted'' under the MMPA. The Russian 
Federation will soon open a lawful polar bear hunting opportunity for 
the subsistence purposes of native Chukotkans. When this happens, there 
will be an immediate, pressing need for the coordination of harvest 
restrictions on both sides of the border to prevent an unsustainable 
combined harvest that could lead to the Alaska-Chukotka polar bear 
population becoming depleted under the MMPA and threatened or 
endangered under the Endangered Species Act. The Agreement will create 
a management framework to prevent this from happening.
    In order for the Agreement to be implemented a number of steps 
still need to be taken: submission of the Agreement to the United 
States Senate by the Administration; ratification of the Agreement by 
the Senate; enactment of necessary implementing legislation and 
promulgation of regulations.
    The Administration is also developing draft legislation to 
implement the Agreement; that legislation is currently undergoing 
review. The draft legislation will be consistent with, and will carry 
forward the spirit and stated intent of, the 1973 multi-lateral 
Agreement on the Conservation of Polar Bears, as well as domestic 
legislation. Of course, before any legislation is put forward, both it 
and any proposed amendments to the MMPA will undergo review by all 
federal agencies, including Department of Justice, who will review the 
package for legal sufficiency. The Agreement and the draft implementing 
legislation represent a major step forward for polar bear conservation, 
and enhance our collaborative efforts with Russia to conserve shared 
natural resources. The Administration looks forward to working with the 
Subcommittee to ensure introduction and passage of this legislation.
Conclusion
    Mr. Chairman, in closing, I would like to state that this 
Administration is committed to conserving and managing marine mammals 
by working with our partners in a cooperative fashion. In particular, I 
want to emphasize the commitment to continued collaboration with our 
Alaska Native partners to further enhance their role in the 
conservation and management of marine mammals. We believe we can be 
more effective at addressing our responsibilities in marine mammal 
conservation, and look forward to working with you and members of the 
Subcommittee and full Committee to enact meaningful improvements to the 
Act during this Congress.
    Mr. Chairman, this concludes my remarks. I would be happy to answer 
any questions.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Jones.
    Dr. Reynolds?

  STATEMENT OF JOHN E. REYNOLDS III, CHAIRMAN, MARINE MAMMAL 
                           COMMISSION

    Mr. Reynolds. Thank you, Mr. Chairman, for inviting the 
Marine Mammal Commission to testify on the 1994 amendments to 
the Marine Mammal Protection Act and on further changes that we 
believe can make programs under the act even more effective.
    At previous hearings in 1999 and 2000 we submitted detailed 
statements concerning implementation actions. I therefore am 
appending the commission's earlier statements to today's 
testimony, which focuses on recent actions, to provide the 
Committee with a complete picture of what has been accomplished 
and what remains to be done. I request that all three 
statements be included in the record.
    Among the recent actions that have been taken to implement 
the 1994 amendments, I call your attention to the following. 
When I last testified before this Committee, not enough had 
been done to reduce the taking of Gulf of Maine harbor porpoise 
incidental to commercial fishing. Now it appears that the 
incidental mortality of this stock has been reduced to below 
the potential biological removal level.
    My previous testimony also highlighted the need to 
establish a take reduction team to address the incidental 
taking of bottlenose dolphins associated with various fisheries 
along the Atlantic Coast. Now such a team has been established.
    Regarding permits, the National Marine Fisheries Services, 
as we have heard, has published proposed revisions to its 
public display regulations to reflect the changes made by the 
1994 amendments, and the Fish and Wildlife Service has taken 
action in response to recent information concerning the status 
and composition of the M'Clintock Channel polar bear 
population, and suspended the authorization to import trophies 
from this Canadian management unit.
    Finally, amendments to Section 113 of the act called on the 
Secretary of the Interior, in consultation with the commission 
and others, to pursue cooperative research and management 
programs with Russia concerning the shared population of polar 
bears. As Mr. Jones has described, the result was a bilateral 
agreement to promote the conservation and management of the 
Alaska-Chukotka population of polar bears, which was signed 
last October. Ratification documents and proposed implementing 
legislation should be transmitted to Congress shortly.
    Although progress toward full implementation of the 1994 
amendments has certainly been made, several actions remain to 
be taken. These are identified in my full statement. Among 
these is the need to assess progress toward achieving the zero 
incidental mortality and serious injury rate goal for 
commercial fisheries, which under the 1994 amendments was to 
have been met by April of this year.
    The commission was also asked to include in its testimony 
any changes in the act that we believe the Committee should 
consider during the current reauthorization of the act. In this 
regard, the commission has worked extensively with other 
agencies and with representatives of Alaska native 
organizations to identify all of the areas where the act needs 
to be strengthened or clarified, and to fashion a comprehensive 
legislative proposal to address those concerns.
    Over the past few months, the National Marine Fisheries 
Service and the Fish and Wildlife Service, along with the 
commission, have been revisiting the bill submitted to Congress 
last session, and pending review within the administration, we 
expect to provide a new proposal to Congress shortly. On 
completion of that review, however, it would be inappropriate 
for me to discuss specific legislative proposals.
    I can, however, identify a few problems that have been 
encountered and general areas that the commission will seek to 
have addressed in an administration bill. Among the key issues 
discussed in my full statement are the following:
    First, whether refinements are needed to improve the take 
reduction team process;
    Second, whether there is a need to clarify and enhance the 
registration and observer provisions of Section 118;
    Third, whether California sea otters should be considered 
when categorizing fisheries and making decisions regarding 
observer placement;
    Fourth, how to address incidental taking by recreational 
and other noncommercial fisheries which may be using identical 
or similar gear and fishing methods in the same areas as 
commercial fishermen;
    Fifth, how to address the problems created by the 1994 
amendments, which added an export prohibition to the act but 
which provided only limited exceptions as to when exports are 
or may be authorized;
    Sixth, whether statutory provisions to address releases of 
captive marine mammals and traveling exhibits are needed;
    Seventh, what actions may be necessary to ensure that the 
Animal and Plant Health Inspection Service has sufficient 
authority to regulate specific activities that present risk to 
captive marine mammals;
    Next, whether clarification of the act's harassment 
definition is needed;
    Ninth, how to improve upon the authority of Section 119 to 
provide a mechanism for concluding enforceable co-management 
agreements between Federal agencies and native Alaskan 
subsistence hunters;
    Tenth, whether to update the ex-penalty provisions and 
other monetary limitations to reflect economic changes since 
1972;
    And, finally, how to improve enforcement of and compliance 
with the act.
    Mr. Chairman, this concludes my presentation. I thank you 
for the opportunity to discuss these issues with you, and would 
be pleased to answer any questions you or the Committee may 
have.
    [The prepared statement of Mr. Reynolds follows:]

    Statement of Dr. John E. Reynolds, III, Chairman, Marine Mammal 
                               Commission

    Thank you for providing the Marine Mammal Commission with the 
opportunity to advise the Committee on actions that have been taken to 
implement the 1994 amendments to the Marine Mammal Protection Act, 
problems that have arisen concerning implementation, and possible 
amendments. The Commission submitted a comprehensive statement 
concerning these subjects to the Committee on 29 June 1999 and provided 
additional testimony at a 6 April 2000 hearing that reviewed progress 
being made to implement the regime governing the taking of marine 
mammals incidental to commercial fishing operations. Rather than 
revisiting these matters, the Commission asks that its previous 
statements, which are appended, be made a part of the record of this 
hearing. This will enable us to provide an update, focusing on more 
recent developments, those places where action is still needed, and 
proposed amendments.
    Since the earlier hearings, the Commission has worked extensively 
with other agencies and with representatives of Alaska Native 
organizations to identify all of the areas where the Act needs to be 
strengthened or clarified and to fashion a comprehensive legislative 
proposal to address those concerns. During the previous session of 
Congress, the Secretaries of Commerce and the Interior transmitted a 
proposed bill to this Committee and its Senate counterpart for their 
consideration. Over the course of the past few months, the National 
Marine Fisheries Service and the Fish and Wildlife Service, along with 
the Commission, have been reworking the bill and, pending review within 
the Administration, expect to be able to provide a revised proposal to 
Congress shortly. Of course, the Department of Justice will be involved 
in the development of any such proposal to ensure that it meets 
Constitutional scrutiny under the Commerce and other clauses.
Taking Incidental to Commercial Fisheries, Sections 117 and 118
    As of the 6 April 2000 hearing on implementation of the incidental 
take regime for commercial fisheries, the National Marine Fisheries 
Service had established five take reduction teams to help develop plans 
to reduce the mortality and serious injury of strategic marine mammal 
stocks to below the stock's potential biological removal level, and 
eventually to a level approaching a zero rate. As noted in our earlier 
testimony, the Atlantic Offshore Cetacean Take Reduction Team was 
disbanded after the Service closed the swordfish gillnet fishery and 
portions of other fisheries that were to be the focus of the plan. At 
that time, the Service indicated that it intended to reconstitute the 
team to address remaining issues. The team, however, has yet to be 
reconvened and the Service's plans in this regard remain uncertain.
    Recently, the Service has initiated the process of establishing a 
bottlenose dolphin take reduction team to address the incidental taking 
of this species in a variety of fisheries along the Atlantic coast. 
Several general meetings were held to provide background information to 
potential team members, and a team, which includes the Commission's 
chairman and a Commission staff member, has now been selected. The 
first meeting of the team, originally scheduled for 12-13 September 
2001, is expected to occur in the near future. Preparation of a take 
reduction plan for bottlenose dolphins sufficient to meet the mandates 
of the Act will be particularly challenging because of uncertainties 
concerning the stock structure of the species and incomplete 
information on the numbers of dolphins being killed or seriously 
injured incidental to fishing operations and on the locations and 
circumstances surrounding those takings. In this regard, the Commission 
encourages the Service to complete the analyses that will enable it to 
make better use of existing data and expand its observer programs for 
the suspected fisheries to obtain this essential information and to 
monitor the effectiveness of the take reduction measures that are 
eventually adopted.
    Since the April 2000 hearing, it has become apparent that efforts 
to reduce the incidental mortality and serious injury of Gulf of Maine 
harbor porpoises have proven successful, and it is now believed that 
the level of such taking is below the stock's potential biological 
removal level. Although some of this reduction can be attributed to 
measures adopted under the take reduction plan, a large part appears to 
be due to measures taken under the Magnuson-Stevens Fishery 
Conservation and Management Act to reduce fishing effort. While the 
statutory and regulatory basis for the actions leading to the 
reductions may not matter, it should be recognized that fishery 
management plans are subject to different procedural and substantive 
standards and that the measures taken to reduce fishing effort could 
change in the future, possibly affecting the incidental take of harbor 
porpoises. This being the case, the Commission has recommended that the 
take reduction plan and its implementing regulations be amended to 
consolidate the take reduction gains under the Marine Mammal Protection 
Act authority.
    As the Committee is well aware, the process for convening take 
reduction teams, translating the team's recommendations into a final 
plan, and promulgating implementing regulations has not always gone 
smoothly. To help address these problems, the responsible agencies are 
reviewing the take reduction team process. Among the possible 
refinements currently under consideration are directing the Service to 
appoint an individual with commercial fishing expertise to serve as a 
technical liaison to each take reduction team and requiring the 
Service, once it has formulated proposed implementing regulations, to 
reconvene or otherwise consult with the involved take reduction team to 
explain and solicit advice concerning any deviations from the draft 
take reduction plan submitted by the team.
    The Commission also believes that review of other aspects of 
section 118 may be warranted. As the Commission has advocated in the 
past, we think that this provision may need to specify that a take 
reduction plan need not be prepared for those strategic stocks for 
which mortality or serious injury related to fisheries is 
inconsequential. We also believe that consideration should be given to 
an amendment to clarify that it constitutes a violation of the Act to 
participate in any category I or category II fishery without having 
registered as required by section 118, regardless of whether incidental 
takes occur. Other possible changes that would strengthen this 
provision also need to be reviewed. Among the proposals meriting 
consideration are to specify that all participants in category I or 
category II fisheries, whether registered or not, are subject to the 
observer requirements of section 118 and that fishery-related 
mortalities and injuries of California sea otters should be factored 
into determinations with respect to listing fisheries and placing 
observers under section 118.
    Another problem that has been identified is that coverage of the 
section 118 incidental take regime is limited to commercial fisheries. 
However, in some cases, recreational and other non-commercial fishermen 
are using identical or similar gear and fish for the same species in 
the same areas. Although these fisheries presumably present incidental 
take problems similar to their commercial counterparts, they are not 
included within the coverage of the Act's incidental taking 
authorization and have no responsibility to register, carry observers, 
report marine mammal injuries and mortalities, or comply with the terms 
of take reduction plans. The responsible agencies are currently 
reviewing this issue.
    The Commission's June 1999 testimony noted that available funding 
has not always been sufficient to place observers within all fisheries 
that need to be monitored or to place them at levels needed to provide 
statistically reliable results. We again call this issue to the 
Committee's attention, requesting that it explore possible solutions. 
One possible solution would be to require a contribution from the 
involved fisheries to help support a more comprehensive monitoring 
program.
    As a housekeeping measure, we recommend that section 114 of the 
Act, which established the pre-existing, interim exemption for 
commercial fisheries, be struck, along with references to that section 
in other statutory provisions. Similarly, section 120(j), pertaining to 
the Gulf of Maine harbor porpoise, is no longer operative and should be 
deleted.
    The Commission would also like to take this opportunity to update 
the Committee on the outstanding issues preventing full implementation 
of section 118. Section 118(b) mandates that commercial fisheries 
reduce the incidental mortality and serious injury of marine mammals to 
insignificant levels approaching a zero mortality and serious injury 
rate within seven years of enactment of the 1994 amendments that is, by 
30 April 2001. Further, the National Marine Fisheries Service was to 
review the progress toward meeting that goal on a fishery-by-fishery 
basis and submit a report of its findings to Congress by the end of 
April 1998. Although considerable work was done on the report, it has 
yet to be completed and transmitted to Congress.
    In hindsight, the zero mortality and serious injury rate goal 
appears to have been overly ambitious. While this goal likely has been 
achieved for some fisheries, it remains a considerable challenge to 
bring mortality and serious injuries down to such a level across the 
board. Although the existing statutory deadlines have passed, the 
Commission believes that a comprehensive progress report on where we 
stand with respect to meeting the goal, as originally envisioned by 
Congress in the 1994 amendments, continues to be a worthwhile 
undertaking and should be pursued under a revised schedule. Likewise, 
we encourage the Committee to adopt a revised schedule for meeting the 
zero mortality and serious injury rate goal and provide sufficient 
resources to enable the agencies and fishermen to adhere to that 
schedule.
    One of the problems that has been encountered with respect to 
determining if the zero mortality and serious injury rate goal has been 
met is the lack of clear guidance as to how it should be quantified. We 
encourage the Committee, in consultation with the responsible agencies 
and other interested parties, to provide such guidance during the 
reauthorization process. In this regard, the Commission has endorsed a 
two-tiered approach that equates the goal with reducing mortalities and 
serious injuries to some biologically insignificant level (e.g., 10 
percent of a stock's potential biological removal level) for most 
stocks, but that also establishes a numerical cap to ensure that the 
taking of large numbers of marine mammals from abundant stocks would 
not be deemed as meeting the goal.
    Another related issue that has yet to be fully resolved is the 
delineation of when an injury to a marine mammal is to be considered 
serious. Under section 118, fishermen are required to report all 
injuries, but only mortalities and serious injuries are to be 
considered when classifying fisheries and developing take reduction 
plans and in determining if the zero mortality rate goal has been 
achieved. Although the National Marine Fisheries Service, in its 
implementing regulations, has defined ``serious injury'' as any injury 
that will likely result in mortality, it is not always apparent at the 
time a marine mammal is released from fishing gear whether its injuries 
are life-threatening. To address this issue, the Service held a 
workshop in 1997 to establish more definitive criteria for 
differentiating between serious and non-serious injuries. It was 
expected that the workshop would enable the Service to publish clear 
guidelines for determining when injuries are to be considered serious. 
However, such guidelines, which the Commission still believes would be 
useful, have yet to be issued.
Taking of Endangered and Threatened Species Incidental to Commercial 
        Fisheries, Section 101(a)(5)(E)
    Section 101(a)(5)(E) directs the National Marine Fisheries Service 
to authorize the incidental taking of marine mammals listed as 
endangered or threatened if it determines that 1) the incidental 
mortality and serious injury from commercial fisheries will have a 
negligible impact on the species or stocks; 2) a recovery plan has 
been, or is being, developed for the species or stock under the 
Endangered Species Act; and 3) where required under section 118, a 
monitoring program has been established, the vessels are registered, 
and a take reduction plan has been, or is being, developed. The Service 
is to publish a list of the fisheries to which the authorization 
applies and, for vessels required to register under section 118, issue 
appropriate permits. Vessels participating in fisheries included on the 
list, but which are not required to register, are covered by the 
authorization, provided that they report any incidental mortality or 
serious injury.
    The most recent authorizations under this provision were published 
by the Service in October 2000. They authorize the incidental taking of 
fin, humpback, and sperm whales and Steller sea lions in the 
California/Oregon drift gillnet fishery for thresher shark and 
swordfish.
Pinniped-Fisheries Interactions, Section 120
    Section 120, added by the 1994 amendments, called on the Secretary 
of Commerce to study pinniped-fishery interactions and provided a 
mechanism for authorizing the lethal removal of individual pinnipeds 
that are adversely affecting certain salmonid stocks without obtaining 
a waiver of the Act's moratorium on taking. As discussed in the 
Commission's previous testimony before this Committee, the National 
Marine Fisheries Service provided a report to Congress in 1997 on the 
findings of a task force established to examine interaction problems 
between pinnipeds and aquaculture operations in the Gulf of Maine. In 
1999, a report on the impacts of California sea lions and Pacific 
harbor seals on salmonid stocks and West Coast ecosystems was also 
provided to Congress. The Commission expects that this Congress will 
consider those reports as it fashions a reauthorization bill. We 
welcome the opportunity to work with the Committee on specific 
proposals if it determines that amendments to address these issues are 
needed.
Non-Lethal Deterrence of Marine Mammals, Section 101(a)(4)
    Section 101(a)(4), as amended in 1994, authorizes fishermen to use 
non-lethal means to deter a marine mammal from damaging their gear or 
catch. This provision also authorizes owners of private property or 
their agents to use non-lethal means to deter marine mammals from 
damaging that property and government employees to deter marine mammals 
from damaging public property. Non-lethal deterrence of marine mammals 
to prevent endangerment of personal safety also is authorized under 
this provision. In each case, however, the deterrence measures used 
must not result in the death or serious injury of a marine mammal.
    To implement this provision, the Secretaries of Commerce and the 
Interior, in consultation with appropriate experts, were required to 
publish guidelines setting forth the measures that may be taken to 
deter marine mammals safely and to prohibit, by regulation, any form of 
deterrence that is determined to have a significant adverse effect on 
marine mammals. For species listed as threatened or endangered under 
the Endangered Species Act, the Secretaries were to specify non-lethal 
deterrence measures that may be used.
    The National Marine Fisheries Service issued proposed deterrence 
regulations in 1995, but has yet to publish final regulations. No 
measures for safely deterring endangered and threatened marine mammals 
have been proposed. In this regard, it should be noted that, even if 
the Service were to identify measures for safely deterring endangered 
and threatened species under the Marine Mammal Protection Act, 
employing such measures likely would constitute a violation of the 
Endangered Species Act, which contains no similar provision authorizing 
intentional taking. The Fish and Wildlife Service has yet to take any 
action to implement the deterrence provision.
Permits for Public Display, Scientific Research, and Other Purposes, 
        Section 104
    The 1994 amendments included changes to most of the Act's permit 
provisions and added authority for the issuance of permits for 
commercial and educational photography and the importation of polar 
bear trophies from Canada. Some, but not all, of the actions needed to 
implement these provisions have been taken by the regulatory agencies.
    The National Marine Fisheries Service, some time ago, revised its 
regulations concerning general permitting issues and scientific 
research permits. Also, as required by the 1994 amendments, the Service 
published an interim final rule in 1994 implementing the general 
authorization for scientific research involving only Level B 
harassment. We understand that the Service intends to replace the 
interim regulations with a permanent rule, but it has yet to do so. 
Recently, the Service published proposed revisions to its public 
display regulations to reflect the 1994 amendments. Those regulations 
are currently open for public comment. We have been advised that the 
Service also intends to issue specific regulations concerning permits 
for educational and commercial photography to supplement its existing 
general regulations.
    The Fish and Wildlife Service has concentrated its efforts on 
implementing the 1994 amendment concerning the importation of polar 
bear trophies legally taken in Canada's sport hunts. Regulations 
authorizing imports from 5 of Canada's 12 management units were 
published in 1997. Affirmative findings with respect to two additional 
management units were published in 1999. A recent survey of the 
M'Clintock Channel polar bear population, one of the originally 
approved management units, indicated that it was less abundant than 
originally believed and that the population was heavily skewed toward 
females, suggesting that the number of males had been reduced by 
hunting. This prompted the Service, on 10 January 2001, to publish an 
emergency interim rule rescinding the previous finding for this 
population.
    The 1994 amendments directed the Fish and Wildlife Service to 
undertake a scientific review of the impact of issuing import permits 
on the polar bear populations in Canada. No further import permits 
could be issued if the review indicated that allowing polar bears to be 
imported into the United States is having a significant adverse effect 
on Canadian polar bear stocks. The review originally was to have been 
completed by 30 April 1996. Inasmuch as regulations authorizing any 
imports had yet to be finalized by that date, however, the Service 
indicated in its 1997 final rule that it would delay the review for two 
years. We understand that the Service has been working on this review 
but, as of yet, it has not been completed.
    The Fish and Wildlife Service has yet to amend its permit 
regulations to reflect any of the 1994 amendments to section 104. As 
such, implementation of these provisions has largely been on an ad hoc 
basis. Among other things, the Service needs to promulgate regulations 
governing the general authorization for scientific research created 
under the 1994 amendments as specifically required by section 
104(c)(3)(C) of the Act.
    The Commission believes that several amendments related to the 
Act's permit provisions are warranted. First, we think that sections 
101(a) and 104 should be amended to clarify that permits can be issued 
to authorize the export, as well as the taking and importation, of 
marine mammals.
    The Commission notes that little purpose seems to be served by the 
publication and comment requirements of section 104 as they pertain to 
permits for the importation of polar bear trophies from Canada. The 
crucial question is whether to approve a population for import, a 
determination that would remain subject to public notice and comment. 
At the permitting stage, however, the only question is whether the bear 
to be imported was taken legally from an approved population. More than 
400 polar bear trophy import permits that have been issued since 1997, 
and the Fish and Wildlife Service has received no substantive comments 
on any of them. Considerable costs could be avoided by eliminating the 
publication requirement for this class of permits. Nevertheless, it is 
important that the public continue to have access to information on the 
numbers of permits issued and on the ages, sexes, and taking locations 
of the bears authorized to be imported.
    As detailed in prior Commission testimony, the return of captive 
marine mammals to the wild has the potential to pose significant risks 
to the animals unless it is well planned, the animals are thoroughly 
prepared, and there is adequate post-release monitoring. Moreover, the 
released animals may present a risk to humans they encounter and to 
wild marine mammal populations. The Commission continues to believe 
that this is an issue that merits review.
    Also as previously discussed by the Commission, traveling marine 
mammal exhibits, by their very nature, present special problems for 
successful maintenance of the animals. We believe that, at least with 
respect to cetaceans, the risks to the animals in mobile or transient 
facilities are unacceptably high and that such displays should not be 
allowed. This view is shared by the National Marine Fisheries Service, 
which, until nullified by the shift in agency responsibilities under 
the 1994 amendments, had in place a policy not to authorize traveling 
cetacean exhibits. Such matters now are solely within the jurisdiction 
of the Animal and Plant Health Inspection Service, which has taken the 
position that it does not have authority under the Animal Welfare Act 
to prohibit such exhibits. While we disagree with this interpretation, 
and believe that this issue could be addressed by regulation, given the 
agency's view of its authority, we believe that a statutory 
clarification may be necessary.
    More recently, serious questions have arisen concerning the level 
of care being provided to polar bears in a traveling exhibit currently 
touring Puerto Rico. The types of problems that have been encountered 
(e.g., maintaining temperatures within acceptable levels) seem to be 
related, at least in part, to the transitory nature of the display. 
This being the case, the Committee, as it considers this issue, might 
want to consider a ban on traveling exhibits that includes taxa other 
than cetaceans. We note, however, that polar bears, in general, are 
hardier than cetaceans and that the problems associated with the polar 
bear exhibit might be more a function of the individual facility and 
the fact that a polar species is being housed outdoors in a tropical 
climate. With respect to this last point, the Commission has 
recommended that the Animal and Plant Health Inspection Service, in 
consultation with independent experts, review the appropriateness of 
allowing polar species to be maintained in outdoor tropical 
environments and, as warranted based on the results of that review, 
revise its care and maintenance standards accordingly. The Service has 
replied that such an evaluation would be worthwhile, but concluded that 
it is beyond the scope of its authority under the Animal Welfare Act to 
prohibit such a practice. Again, the Commission disagrees with the 
Service's conclusions concerning the breadth of the actions that can be 
taken under the Animal Welfare Act. In this regard, we note that, under 
the 1994 amendments to the Marine Mammal Protection Act, the Animal 
Welfare Act is left as the sole federal authority available to ensure 
the well-being and humane maintenance of captive marine mammals. While 
we are not advocating a return to the shared jurisdiction over captive 
marine mammals that existed prior to 1994, we recommend that the 
Committee review the scope of the Animal Welfare Act as it pertains to 
marine mammals and provide additional guidance, as appropriate, either 
through amendment or in report language.
Prohibitions--Exports of Marine Mammals, Section 102(a)(4)
    The package of permit-related amendments enacted in 1994 also 
amended section 102(a)(4) of the Act to add a prohibition against 
exporting any marine mammal or marine mammal product taken in violation 
of the Act or for any purpose other than public display, scientific 
research, or species enhancement. The language of this provision is 
problematic in two ways. As noted in our 1999 testimony, the amendment 
resurrected an enforcement problem that previously had been fixed in 
1981 by reinstating the requirement that, to bring an action for the 
otherwise illegal transport, purchase, sale, or export of a marine 
mammal product, the government must show that the underlying taking was 
also in violation of the Act. As noted in the legislative report 
accompanying the 1981 amendment, this confounds enforcement actions by 
enabling marine mammals originally taken for legitimate purposes (e.g., 
Native subsistence) to be diverted to other ends. The Commission 
continues to believe that this is an issue warranting review.
    The second problem noted in our earlier testimony is that the 
language of the 1994 amendment restricts exports to those made for 
purposes of public display, scientific research, or species 
enhancement. Exports for other purposes (e.g., for cultural exchanges, 
associated with personal foreign travel, or pursuant to a waiver of the 
Act's moratorium on taking and importing marine mammals) technically 
are not permissible. There also exists some question as to whether the 
export prohibition applies to handicrafts made and sold by Alaska 
Natives pursuant to section 101(b) of the Act. The Commission, along 
with the Fish and Wildlife Service and the National Marine Fisheries 
Service, has conducted a comprehensive review of the Act to help ensure 
that exports and other transactions involving marine mammals can 
continue to occur as Congress apparently intended prior to 1994. The 
Commission intends to pursue this issue as the Administration considers 
reauthorization proposals.
Imports Associated with Personal Travel and Cultural Exchanges, Section 
        101(a)(6)
    In addition to highlighting the problems associated with exporting 
items allowed to be imported or exchanged under section 101(a)(6), the 
Commission's previous testimony recommended that the National Marine 
Fisheries Service and the Fish and Wildlife Service explore the 
appropriateness of developing a registration and tracking program to 
monitor compliance with this provision and consider whether the 
benefits of such a program would outweigh the costs. To date, neither 
agency has responded to this recommendation, and we are unaware of any 
analysis that has been done to assess the merit of such a program. 
Other than an amendment to overcome the export problem noted above, no 
changes are needed to this section.
Definitions, Section 3
    The Commission's 1999 testimony noted that the definition of 
``harassment'' added to section 3 in 1994 had created some practical 
difficulties related to interpretation and enforcement. We anticipate 
that any reauthorization bill forthcoming from the Administration will 
address this issue.
Small-Take Provisions, Section 101(a)(5)
    The 1994 amendments added a new provision to section 101(a)(5) 
allowing the National Marine Fisheries Service and the Fish and 
Wildlife Service to use streamlined procedures (notice and comment) to 
authorize the taking of small numbers of marine mammals by harassment 
incidental to otherwise lawful activities when such taking will have 
negligible impacts on marine mammal populations. Prior to enactment of 
those amendments, such taking could only be authorized by regulation. 
As noted in our 1999 testimony, the National Marine Fisheries Service 
has revised its small-take regulations to reflect the new provisions. 
However, the Fish and Wildlife Service has yet to update its 
regulations.
    The Commission, in its 1999 testimony, noted one possible problem 
with the new authority. Incidental harassment authorizations are 
limited to one-year periods. As such, some applicants are segmenting 
long-term projects into one-year intervals and seeking a separate 
authorization for each such period. By doing so, it becomes difficult 
for the reviewing agencies to assess possible long-term and cumulative 
impacts that could have more than negligible impacts on marine mammal 
populations. The Commission reiterates its recommendation that Congress 
consider ways to address this problem, for example, by lengthening the 
period for which such authorizations may be issued.
Polar Bear Agreements, Section 113
    Amendments to section 113 enacted in 1994 called on the Secretary 
of the Interior to undertake two reviews with respect to the Agreement 
on the Conservation of Polar Bears. Section 113(b) required the 
Secretary, in consultation with the other four parties to the 
agreement, to review the effectiveness of the agreement and to 
establish a process for conducting future reviews. Although all parties 
have been consulted, preparation of a final report is awaiting an 
official response from one of the parties.
    The Secretary in consultation with the Secretary of State and the 
Marine Mammal Commission, was also directed to undertake a review of 
domestic implementation of the polar bear agreement, with special 
attention to be given to the agreement's habitat protection mandates. A 
report on the results of that review was to be submitted to Congress by 
1 April 1995. Although the Fish and Wildlife Service convened a 
workshop in 1995 to review U.S. implementation of the agreement and 
circulated a draft report in 1996,the report it has yet to be finalized 
and transmitted to Congress.
    The 1994 amendments also called on the Secretary of the Interior, 
acting through the Secretary of State and in consultation with the 
Marine Mammal Commission and the State of Alaska, to consult with 
appropriate Russian officials in an effort to develop and implement 
enhanced cooperative research and management programs for conserving 
the shared population of polar bears. A report on the consultations and 
periodic progress reports on research and management actions taken 
under this provision are to be provided to Congress. Pursuant to this 
directive, the United States has negotiated a bilateral agreement with 
the Russian Federation, which was signed by the two parties last 
October. The advice and consent of the Senate is needed before the 
agreement enters into force. It is expected that the ratification 
documents, along with proposed implementing legislation, will be 
transmitted to Congress shortly.
Co-Management Agreements, Section 119
    Both the Fish and Wildlife Service and the National Marine 
Fisheries Service have entered into cooperative agreements with various 
Alaska Native organizations to promote the conservation and co-
management of marine mammal stocks taken for subsistence. Since 1997, 
the Fish and Wildlife Service has entered into annual agreements with 
the Eskimo Walrus Commission, the Alaska Sea Otter and Steller Sea Lion 
Commission (for sea otters), and the Nanuuq Commission (for polar 
bears). The National Marine Fisheries Service has concluded agreements 
with the Alaska Native Harbor Seal Commission and with the Alaska 
Beluga Whale Commission. In addition, the Service has entered into a 
co-management agreement with the Cook Inlet Marine Mammal Council to 
authorize the limited taking of beluga whales from this depleted stock, 
which otherwise is prohibited by section 627 of Public Law 106-553, 
enacted last December. This year, the strike of a single Cook Inlet 
beluga whale was allocated to the Native Village of Tyonek, which 
successfully harvested the whale in July. The National Marine Fisheries 
Service is also working to conclude a cooperative agreement with the 
Alaska Sea Otter and Steller Sea Lion Commission for Steller sea lions 
and with tribal governments in the Pribilof Islands for fur seals and 
Steller sea lions.
    Despite the success of the Services and Alaska Native groups in 
concluding agreements and carrying out actions of mutual interest under 
them, both the government agencies and the Native groups recognize that 
much more could be accomplished in appropriate instances if the Act 
provided a mechanism to make co-management agreements enforceable among 
and between the parties. For example, the overharvesting of the Cook 
Inlet beluga whales by a few hunters during the late 1990s, which 
reduced the population by half in only four years and which led to the 
stock's designation as depleted, likely could have been avoided had 
there been such an authority in the Act at that time.
    At the April 2000 hearing of this Committee, the former chairman 
urged the responsible government agencies to work with the affected 
Native groups to develop a proposal for such legislation. Pursuant to 
that charge, the Fish and Wildlife Service, the National Marine 
Fisheries Service, and the Marine Mammal Commission held a two-day 
session with representatives of the Indigenous People's Council for 
Marine Mammals (IPCoMM). Over the course of subsequent weeks, a 
preliminary consensus concerning the details of the joint proposal was 
reached among the negotiating parties. The agreement was carefully 
crafted to achieve the joint goals of marine mammal conservation and 
protection of Native subsistence practices. We will consider this 
agreement in our review of the Administration bill.
Authorization of Appropriations
    The Marine Mammal Protection Act contains several authorization 
provisions, including those for general appropriations under sections 
116 and 207 pertaining to the activities of the Department of Commerce, 
the Department of the Interior, and the Marine Mammal Commission under 
the Act. The Commission recommends that appropriations be reauthorized 
for a five-year period. Also coverage could include section 405 to 
authorize the Secretary of Commerce to allocate appropriated funds 
toward responses to unusual mortality events. Currently, only donations 
and specifically earmarked monies can be placed in the response fund.
Other Issues Meriting Attention
    As the Commission noted in 1999, several provisions of the Act 
setting monetary limits have not been updated to reflect economic 
changes since they were enacted in 1972. These include the Act's 
penalty provisions, which establish upper limits on fines that are 
quite low as compared with other natural resources statutes. We 
recommend that the provisions of sections 105 and 106 be reviewed and 
that increases to the available penalties be considered. We also 
recommend that Congress review section 206(4), which places a limit of 
$100 per day on the amount the Commission can expend in procuring the 
services of outside experts and consultants, and consider ways to place 
the Commission on an equal footing with other agencies when seeking 
such services.
    The Commission supports the freestanding provision enacted in 1999 
and codified as part of the Marine Mammal Protection Act (16 U.S.C. 
Sec. 1375a) that allows fines collected by the Fish and Wildlife 
Service for violations of the Act to be used for activities directed at 
the protection and recovery of manatees, polar bears, sea otters, and 
walruses. We believe that similar authority for the National Marine 
Fisheries Service, enabling it to use penalties collected under the 
Marine Mammal Protection Act for the conservation of species under its 
jurisdiction, would likewise benefit the agency's ability to carry out 
its mandates under the Act .
    The Commission also believes that the Committee should consider 
ways for improving compliance with, and enforcement of, the Act. Such 
proposals might usefully include adding a prohibition against 
interfering with enforcement investigations, increasing penalties for 
violations that harm or threaten enforcement officials, and allowing 
seizure and forfeiture of a vessel's cargo for fishing in violation of 
the requirements of section 118.
    Another provision that merits overhauling by the Committee is 
section 110, which identifies specific research projects to be carried 
out by the regulatory agencies. The time frames for completing the 
existing activities set forth in this section have elapsed. As such, 
those provisions that are no longer operative should be deleted. In 
their place, the Committee should consider a more generic directive to 
the agencies, enabling the agencies to pursue pressing, broad-scale 
projects. Among the studies that might be worthwhile are an 
investigation of ecosystem-wide shifts in the Bering and Chukchi Seas 
and an examination of possible changes in the coastal California marine 
ecosystem that may be contributing to the recent declines in the 
California sea otter population.
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    Mr. Gilchrest. Thank you very much, Dr. Reynolds.
    Ms. Hayes, welcome.

STATEMENT OF MARGARET HAYES, DIRECTOR, OFFICE OF OCEAN AFFAIRS, 
BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC 
               AFFAIRS, U.S. DEPARTMENT OF STATE

    Ms. Hayes. Thank you, Mr. Chairman, and members of the 
Subcommittee. Thank you for the opportunity to share the State 
Department's views on the U.S.-Russia agreement on the 
conservation and management of the Alaska-Chukotka polar bear 
population. Mr. Jones and Dr. Reynolds have briefly summarized 
that agreement, and I would like to expand on their summary for 
a couple of minutes.
    Polar bears are an internationally protected species that 
live in the circumpolar north, in five countries: the United 
States, Russia, Canada, Norway, and Greenland. An important 
part of a sensitive ecosystem, polar bears recognize no 
national boundaries. They are essential to the survival of 
native people, including Alaskans, as a renewable subsistence 
resource upon which these people have depended for centuries.
    The United States has long had an interest in the 
responsible management of shared polar bear resources. We have 
been party since 1973 to the Agreement on the Conservation of 
Polar Bears, along with Russia, Canada, Norway, and Denmark on 
behalf of Greenland. The 1973 agreement explicitly provides for 
the possibility that the parties might establish new measures 
so as to provide more stringent controls than those required 
under the provisions of this 1973 agreement.
    The U.S. and Russia signed the bilateral agreement a year 
ago. It is designed to afford protection, additional to that 
provided by the 1973 agreement, to the polar bears shared 
between our two countries. It also addresses the present day 
concerns of Alaska and Chukotka natives, as well as social, 
economic, environmental, and technological developments since 
1973. Additional protection is needed to ensure that the 
subsistence take of polar bears by native people in Alaska and 
in the Chukotka region, together with mortality from other 
activities, continue to promote a sustainable approach to 
management of this population.
    Informal discussions between the U.S. and Russia on a 
bilateral treaty to conserve our shared polar bear population 
began in 1992. Formal negotiations were led jointly by the 
State Department and the Department of the Interior. Alaska and 
Chukotka natives took part directly in these negotiations. U.S. 
participants included the Alaska Nanuuq Commission, the North 
Slope Borough, the State of Alaska's Department of Fish and 
Game, the Marine Mammal Commission, and the National Audubon 
Society.
    We agreed with Russia that sustainable management of this 
population requires a legally binding instrument for the two 
countries to jointly determine and allocate subsistence take 
from that population. U.S. negotiators specifically sought and 
achieved in the bilateral agreement the inclusion of the 
following elements:
    Recognition of the right of subsistence use of polar bears 
from this population by native people of both countries;
    Inclusion of a definition of sustainable harvest level, 
reflecting a clear obligation to conserve the population;
    Establishment of a management mechanism in the form of a 
joint commission that can establish binding quotas to ensure 
that subsistence take of polar bears from the Alaska-Chukotka 
population is consistent with maintenance of that population at 
sustainable population levels;
    Full involvement of the native people of Alaska and 
Chukotka in the implementation of the agreement, including a 
provision that each party will include in its national section 
in the commission a representative of its native people;
    And additional studies and research relating to the 
conservation and management of this population, including 
collection of data necessary for regular and accurate 
population assessment and harvest monitoring.
    In all these respects, the bilateral agreement fulfills the 
spirit and intent of the 1973 agreement. The bilateral 
agreement, which we hope to submit to the Senate soon for 
advice and consent to ratification, is in many ways a potential 
model of international cooperation. Not only will this 
agreement serve our continued interest in conserving our 
magnificent polar bears, but it will also ensure the 
continuance of a subsistence way of life that depends on the 
bear's existence.
    We and the Russians have agreed on common principles and 
set out a fair and reasonable mechanism for allocating limited 
resources between the Russia and Alaska natives. Our success 
can serve as a basis for cooperation in other areas of mutual 
interest.
    Thank you very much. I would be pleased to respond to any 
questions you may have.
    [The prepared statement of Ms. Hayes follows:]

  Statement of Margaret F. Hayes, Director, Office of Oceans Affairs 
    Bureau of Oceans and International Environmental and Scientific 
                   Affairs, U.S. Department of State

Mr. Chairman and Members of the Subcommittee:

    Thank you for the opportunity to share the State Department's views 
on the ``Agreement between the Government of the United States of 
America and the Government of the Russian Federation on the 
Conservation and Management of the Alaska-Chukotka Polar Bear 
Population'' (hereinafter referred to as the bilateral Agreement.)
    Polar bears are an internationally protected species that live in 
the circumpolar North in five countries: the United States, Russia, 
Canada, Norway, and Greenland. An important part of a sensitive 
ecosystem, polar bears know no national boundaries. They continue to be 
essential to the survival of native people, including Alaskans, as a 
renewable subsistence resource upon which they have depended for 
centuries.
    The United States has long recognized our common interest in the 
responsible management of shared polar bear resources. We have been 
party to the Agreement on the Conservation of Polar Bears since 1973, 
along with Russia, Canada, Norway, and Denmark (on behalf of 
Greenland). The 1973 Agreement explicitly provides for the possibility 
that the Parties might establish new measures ``so as to provide more 
stringent controls than those required under the provisions of this 
Agreement.'' Article VII of the 1973 Agreement further mandates that 
the Parties coordinate research, consult on management, and exchange 
information. The bilateral Agreement furthers the objectives of these 
provisions of the 1973 Agreement.
    The United States and Russia signed the bilateral Agreement in 
October 2000. It is designed to afford protection additional to that 
provided by the 1973 Agreement to the polar bears shared between our 
two countries, while addressing the present-day concerns of Alaska and 
Chukotka Natives, as well as social, economic, environmental, and 
technological developments since 1973. Additional protection is needed 
to ensure that the subsistence take of polar bears by native people in 
Alaska and in the Chukotka region, and other activities, are consistent 
with a sustainable approach to the management of this population. The 
1973 Agreement allows taking of polar bears for subsistence purposes by 
native people, as does our domestic legislation--the Marine Mammal 
Protection Act (MMPA)--in respect of Alaska Natives.
    Informal discussions between the United States and Russia on a 
bilateral treaty to conserve our shared Alaska-Chukotka polar bear 
population began in 1992. Formal negotiations began in 1998 and were 
led jointly by the State Department (OES) and the Department of the 
Interior (Fish and Wildlife Service). Other U.S. participants included 
the Alaska Nanuuq Commission, the North Slope Borough, the State of 
Alaska's Department of Fish and Game, the Marine Mammal Commission, and 
the National Audubon Society. Thus, the bilateral Agreement is the 
result of eight years of discussions and negotiations with the Russian 
Federation, and involving the direct participation of Alaska and 
Chukotka Natives.
    We agreed with Russia that sustainable management of the Alaska-
Chukotka polar bear population requires a legally binding instrument 
for the two countries to jointly determine and allocate subsistence 
take from that population.
    U.S. negotiators specifically sought and achieved in the bilateral 
Agreement the inclusion of the following elements:

     LRecognition of the right of subsistence use of polar 
bears from the Alaska-Chukotka population by native people of Alaska 
and Chukotka;
     LInclusion of a definition of sustainable harvest level 
reflecting a clear obligation to conserve the population;
     LEstablishment of a joint management mechanism, in the 
form of a bilateral commission, that can establish binding quotas to 
ensure that subsistence take of polar bears from the Alaska-Chukotka 
population is consistent with maintenance of that population at 
sustainable population levels;
     LFull involvement of the native people of Alaska and 
Chukotka in the implementation of the Agreement, including a provision 
that each party will include in its national section in the commission 
a representative of its native people (as well as a representative of 
the national government); and
     LAdditional studies and research relating to the 
conservation and management of the Alaska-Chukotka polar bear 
population, including collection of data necessary for regular and 
accurate population assessment and harvest monitoring.

    The Administration believes that U.S. interests will be served 
through the responsible management of the Alaska-Chukotka polar bears 
at sustainable population levels. The bilateral Agreement provides for 
long-term joint programs, such as conservation of ecosystems and 
important habitat areas, setting of sustainable harvest levels, 
collection of biological information, and increased partnerships with 
local and private interests. It is also designed to ensure that 
subsistence take from this population is by the native people of Alaska 
and Chukotka only, and to provide for equitable allocation of such take 
between them. Further, it incorporates mechanisms for the continued 
research and assessment of the status of this population. In all these 
respects, it fulfills the spirit and intent of the 1973 Agreement.
    The bilateral Agreement, which we hope to submit to the Senate soon 
for advice and consent to ratification, is in many ways a potential 
model of international cooperation. Not only will this Agreement serve 
our continued interest in conserving our magnificent polar bears, but 
it will also ensure the continuance of a way of life that depends on 
the bears, existence. Furthermore, there is benefit in reaching this 
consensus on shared interests with Russia. We have agreed on common 
principles and set out a fair mechanism for allocating limited 
resources in good faith between the legitimate claims of Russia and 
Alaska Natives. Our success here can serve as a basis for cooperation 
in other areas of mutual interest.
    Thank you very much; I would be pleased to respond to any questions 
you may have.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Ms. Hayes. Ms. Hayes, can you 
give us some idea of when Russia will implement the treaty? 
Have they implemented it? Do we have some idea of when they 
will?
    Ms. Hayes. Well, the treaty of course is not in effect yet 
on either side. I mean, both sides have to take steps to ratify 
it. We expect that once that is done, both the U.S. and Russia 
will take all the necessary steps to implement it.
    Mr. Gilchrest. But the process is ongoing, and do we have 
any idea when the treaties may be ratified, and if the Russians 
will then--I guess two questions. Have the discussions with the 
Russians gone very well? Are they difficult? Are there some 
roadblocks on either side, ourselves or the Russians, native 
Alaskans or the natives on the Russian side? And can you 
predict if this time next year the treaty will have been 
ratified and both the United States and Russia will implement 
it?
    Ms. Hayes. I am not going to attempt a prediction. I think 
that the negotiations went very well. I think the relationship 
between the native peoples is particularly strong and 
productive. There are always difficulties, I think, in these 
situations, particularly when you are talking about populations 
in such remote areas. Enforcement mechanisms may not be ideal, 
perhaps on either side. But I think we do have the commitment 
of the Russian Government to do its best to implement this 
agreement.
    Mr. Gilchrest. Now, who is involved in this process with us 
on our side? Is it NMFS, Fish and Wildlife?
    Ms. Hayes. It is Fish and Wildlife Service, the Marine 
Mammal Commission, the State of Alaska, and the native 
organizations.
    Mr. Gilchrest. Well, if you need anybody up there with 
snowshoes, Mr. Underwood and I are ready to go.
    [Laughter.]
    Ms. Hayes. We will give you a call.
    Mr. Gilchrest. He has a lot of experience in that arena, I 
think.
    Mr. Jones. Mr. Chairman, if I could add, first of all, we 
would love to have the opportunity for you and any other 
members of the Committee who could join you to come up and see 
this in Alaska. As Ms. Hayes has said, we can't predict what 
the fate will be of the legislation and the treaty, once it is 
presented to the other body here, and to you in terms of the 
legislation.
    But we do believe that this is a very strong agreement, and 
it is an unprecedented one because it was not just a 
government-to-government negotiation, but also it was a native-
to-native negotiation done simultaneously. So the U.S. 
delegation included both governmental and native organization 
representatives, the same on the Russian side.
    So we believe there is a tremendous commitment on the part 
of native organizations to be the masters of their own fates 
and take responsibility for management of marine mammals, in 
this case polar bears, on both sides of the border. That is why 
we think this agreement is so important, Mr. Chairman, and we 
look forward to having the opportunity to discuss it with you 
in more detail once the implementing legislation has been 
presented by the administration, and the treaty itself to the 
Senate for ratification.
    Mr. Gilchrest. Thank you, Mr. Jones.
    Ms. Hayes, sometimes these small obscure agreements have 
much more--a broader array of positive spinoffs, and I have a 
feeling this one might as well.
    Dr. Hogarth, can you briefly describe, you mentioned in 
your testimony the networks that are in the process of being 
developed and have been developed to discuss an array of 
issues, but specifically can you tell us how the network would 
respond to the entangled whale problem, whales that are 
entangled in fishing gear?
    Mr. Hogarth. The right whale problem, yes, sir. Well, we 
have a network set up so that they go out and rescue, like we 
did for a number of times with the Churchill, which is the 
latest one that we spent a number of days with the consortium 
looking at the entanglement.
    And we have set up a take reduction team to look at how to 
manage the effort, so to speak. If the right whales are in a 
certain area, we would have seasonal areas we close. We would 
have dynamic management areas, where we are getting ready to 
implement, that we would do surveys and then we would close 
those areas based on the number of right whales.
    We are also in the process now of having an outside 
consultant look at the ship traffic, the impact of ship traffic 
on right whales, and to give us a report on how we can deal 
with that. So we have two issues we are dealing with, the 
entanglement and also ship strikes. Both of them are problems 
with right whales.
    Mr. Gilchrest. Could you just briefly respond to any--there 
has been some criticism that in the process of the development 
of the network toward certain issues, the criticism has been 
that NMFS has not always listened to the various interest 
groups involved in developing a policy. Now, if you haven't 
heard any criticism, well, we will just move on.
    [Laughter.]
    Mr. Hogarth. No, we have heard more criticism. I was trying 
to address that, but thinking about that, at the same time we 
have had criticism of how we do the various research, you know, 
how the funding is done of the research and how we implement 
what comes out of that with the consortium. We have, I think, 
worked through that problem for this year.
    There is a great concern over right whales, and I think 
there is a lot of opinions of what should be done. You know, 
when you look at--we know we have problems with ship traffic, 
and how do you manage ship traffic from an international 
standpoint?
    Mr. Gilchrest. Is that the biggest problem with right 
whales, ship traffic coming and going to the various ports?
    Mr. Hogarth. That is one of the big problems. We know we 
have had two to four ship strikes this year, you know, for 
example. So yes, that is one of the big problems, and 
entanglements have been another problem, and we are looking at 
various types of fishing gear, you know, modifications there. 
There is money being spent to look at the type of lines, 
breakaway lines, but all of that has potential problems, too.
    So we are trying to redo the right whale process and get 
more input in to look at what we can do. It has not been 
successful, if that is your question, too. You know, we still 
have less than 300 right whales. It has been listed for a 
number of years. And you are dealing with one of the largest 
fisheries in the lobster fisheries, about 17,000 fishermen, but 
also the ship strikes.
    Calving last year was only about, I think last year it was 
about four calves; this year it is probably about 20. But the 
population itself is not responding. We have got a problem to 
deal with, yes, sir.
    Mr. Gilchrest. We will help you work with it.
    My time is up. We may have a second round if that is 
needed, but I would like to yield to Mr. Underwood.
    Mr. Underwood. Thank you, Mr. Chairman, and I ask unanimous 
consent to allow the ranking member of the full Committee to 
sit with us, Mr. Miller.
    Mr. Gilchrest. I will ask unanimous consent for Mr. Miller 
to sit up here on the dias and ask questions. Is there an 
objection?
    Hearing none, at least none that is serious, I guess, so 
ordered.
    Mr. Underwood. If I could just ask a quick question of Ms. 
Hayes, in the U.S.-Russia polar bear treaty I know that there 
is a lot of expression of goodwill in terms of trying to deal 
with this issue, and high levels of cooperation between the 
native organizations. But is it your opinion that the Russian 
Federal Government will provide the necessary resources for 
research, management and education? And is it implied in the 
agreement that the U.S. would shoulder primarily the financial 
burden to support this new commission?
    Ms. Hayes. Well, all I can say is that the Russian 
Federation did sign the agreement. I believe they have every 
intention of doing their share to implement it.
    Mr. Jones, do you have--
    Mr. Underwood. Is that outlined in the emerging agreement?
    Mr. Jones. The agreement, Mr. Underwood, provides that each 
side would bear its own share of the expenses. Now, it has been 
clear over the past decade, since the dissolution of the Soviet 
Union, that the capacity of the Russians to undertake 
conservation agreements has been seriously eroded. That has 
been a problem that we have acknowledged.
    On the other hand, we believe that they are committed to 
implementing this agreement because they have as much to gain 
from its successful implementation as we do, and they have just 
as much to lose, too. There always are issues in any 
international context, and certainly dealing with a country 
that is under financial stress, about whether they would do 
everything that we would hope they would do, and we can't 
guarantee that.
    But we do believe that the Russians negotiated this in good 
faith. They attended, participated actively. They made the 
arrangements for the natives from Chukotka to be part of that. 
And we believe that, working together, that we will be better 
off with this agreement than without this agreement, because 
without the agreement we have no ability to have the good 
things happen. With the agreement, we have that possibility, 
and we would work actively.
    That doesn't mean that we think we would need to pay all 
the expenses for Russia. We do have a program. We have 
appropriated funds in the Fish and Wildlife Service from 
Congress specifically which helps us with a cooperative program 
with the Russians, and we use those funds to implement high 
priority projects. So we might provide some financial 
assistance, but we would expect the Russians would have to pay 
their share, and we think they would do that.
    Mr. Underwood. Okay. Thank you. I yield to Mr. Miller.
    Mr. Miller. I thank my colleague for yielding, and I am 
sorry to run in and out like this but I am caught between a 
couple of meetings. But I wanted to raise an issue and a 
question with you that a number of my colleagues have asked me 
about, and that is, apparently deals with the treatment of some 
polar bears in this circus in Puerto Rico, this Suarez Circus. 
Marshall, I don't know if you are aware of this, or Mr. 
Reynolds, if you are.
    But my understanding is that there have been at least two 
inspections where this facility has been found wanting. We 
haven't had a qualified vet go in and look at these animals. 
There are questions being raised about the provenance of at 
least one of the bears, and maybe another, whether or not those 
documents have been falsified. Obviously this is a traveling 
circus, and there is concern among myself and some other 
Members here about whether or not we can quickly make some 
determinations about the care of these bears, their health, 
their lineage, if you will, whether or not they are here with 
falsified documents.
    Are you aware of this, Marshall, and can you help me on 
this? I think there is going to be a letter coming to you that 
will be more specific on this, but they wanted it raised in 
this hearing.
    Mr. Jones. Mr. Miller, we are familiar with this in some 
great detail, and you have outlined two different issues that 
are involved here.
    Mr. Miller. There are two, yes.
    Mr. Jones. One issue is the issue of the humane treatment--
    Mr. Miller. Right.
    Mr. Jones. --the care of the animals. The other is whether 
or not the animals are what they said they were in the permit 
applications. We issued permits for these animals based on 
applications which said they were--one of the animals, for 
example, was reported to have originated in the Atlanta Zoo, 
then went to Germany, and we issued a permit for it to come 
back.
    We now have a review, which does involve both our 
biologists and our law enforcement division, looking at whether 
or not in fact the information that was presented in the permit 
applications was accurate. If that information is not, then we 
would determine what the appropriate course of action would be, 
and we are doing that in close consultation with the Puerto 
Rico Department of Natural Resources, but we do have a special 
agent on Puerto Rico who is actively involved.
    Now the other issue, Mr. Miller, has to do with the humane 
treatment of the animals, and for that we are not the experts, 
and we generally in those matters defer to the Department of 
Agriculture for animal welfare issues.
    Mr. Miller. Right.
    Mr. Jones. And it is my understanding that the latest 
report from the Department of Agriculture is that they believe 
that the conditions for the animals are acceptable. Puerto Rico 
has also been conducting inspections, and I think they are 
doing that on a routine basis, maybe on a weekly basis.
    We are reviewing those reports, but we believe that it 
would be up to the Department of Agriculture to make the 
determination about whether or not the conditions meet the 
requirements under the Animal Welfare Act which are different 
than our permit requirements. And so far the information, the 
latest information that we have from APHIS would indicate that 
the conditions for the animals are acceptable.
    We have a concern about whether or not that will be 
maintained, and we are certainly going to continue to monitor 
that situation, but we are looking to the Department of 
Agriculture to give us advice about that. That is separate from 
the investigation about whether the animals are the ones that 
they were said to be.
    Mr. Miller. While the first part, while the law enforcement 
investigation is going on as to whether or not the permit was 
fraudulently presented to you or not, I assume the Department 
of Natural Resources in Puerto Rico can keep the circus from 
leaving until that is resolved, because obviously if they move 
on to another country, what have you, and it is a traveling 
circus, we would lose jurisdiction at that point. Has some 
arrangement been made to see that that doesn't happen until 
this issue can be resolved?
    Mr. Jones. Yes, sir. That would have to be done under 
permit, so--
    Mr. Miller. Let me just ask, if I might, Mr. Chairman, just 
one final point here. I realize that APHIS has the jurisdiction 
here to make this determination as to treatment, but let me ask 
you, what is your situation? What is your authority under 
current law, if you give a permit and then an animal is 
mistreated under that permit? Do you have the right to revoke 
that permit? Do you have a right to ensure, separate from 
APHIS, that there is proper treatment of the animal under that 
permit, or is that delegated to the Department of Agriculture 
under APHIS?
    Mr. Jones. I think that is a gray area. Generally speaking, 
we have said that for animals that are under the jurisdiction 
of the Animal Welfare Act, that is an APHIS responsibility. 
Now, in our permit regulations we do have a provision which 
says that if there is a really blatant case of inhumane 
treatment, we could revoke a permit. To our knowledge, we 
haven't exercised that recently, and it is very possible that 
if we did try to exercise that, there would be some legal 
challenge to that by the permittee--
    Mr. Miller. I am sure of that. Polar bears are--
    Mr. Jones. --because of its being sort of an unprecedented 
action. That is why we--we don't have veterinarians. We are not 
the experts in humane care, and we look to APHIS to advise us.
    Now, if we got a report from APHIS that said the care was 
not adequate, and that they were issuing notices of violation 
or taking steps, then I think we would feel that we have 
certainly the authority to revoke a permit under those 
conditions.
    Mr. Miller. I would just, I guess I would make this point, 
that clearly we can't be in a position where we allow animals 
to come in under your permits, then to have harm done to those 
animals. I am encouraged by your response suggesting that APHIS 
now thinks that the care has improved, but clearly subsequent 
to that finding, if that is their tentative finding, that was 
not the situation down there, because it is fairly well 
catalogued here in terms of the abuses of these animals, in 
terms of the humane treatment
    I guess what I am asking is, I assume that you will then be 
able to sort of make an independent judgment based upon the 
APHIS findings, and/or if you are not satisfied with that, you 
have some authority to figure out how to make that independent 
judgment as to whether or not these animals are being abused 
under the permit, because you obviously can't have a permit 
that allows that to continue.
    Mr. Jones. Right.
    Mr. Miller. I think in fact the law wouldn't allow that.
    Mr. Jones. I think that is correct. We have some authority. 
It is a gray area. We don't know exactly where the boundaries 
of that authority are, but we are going to monitor this. We 
have a task force that is continuing, almost on a daily basis, 
to monitor this with APHIS and with the Commonwealth of Puerto 
Rico.
    And clearly if we got evidence that indicated the animals 
were being mistreated, and that that was leading to harm, we 
would consider then what legal steps we could take to try to 
stop that. If we got to that point, then a lot of other issues 
come up about what would be the right disposition of the 
animals, and those are not easy issues.
    Mr. Miller. Thank you for your response. I know Mr. Pallone 
on this Committee is also very interested in this, as are some 
other Members, and if you could just kind of keep us informed--
    Mr. Jones. We will.
    Mr. Miller. --as to how this progresses, because we would 
hate to see that we lose jurisdiction over these animals and 
then they fall back into that kind of mistreatment that they 
were experiencing earlier. Thank you.
    Mr. Gilchrest. Thank you, Mr. Miller.
    Mr. Underwood. Thank you.
    Mr. Gilchrest. Was that your time, Mr. Underwood?
    Mr. Underwood. That was my time, but if I could just add 30 
seconds to that--
    Mr. Gilchrest. I will give you a few more minutes. Okay, 30 
seconds to Mr. Underwood. Sixty seconds to Mr. Underwood.
    Mr. Underwood. No, I just wanted to express my concerns 
along the lines that have just been expressed by our colleague 
from California, and I know that we had invited APHIS to come 
here and they have declined to come here to explain this 
situation. No? They are here?
    Ms. Kohn. No, we were not invited to speak. We have 
submitted written testimony. My name is Barbara Kohn. I am from 
APHIS. And we were told to submit written testimony.
    Mr. Gilchrest. Okay, regular order. Actually, we may ask 
you some questions. As a matter of fact, if Mr. Underwood has a 
question, we will yield first to Mr. Pombo from California, but 
if anybody has any questions here later on to APHIS, we will 
bring you up to the table, ma'am.
    Mr. Underwood. Very good. Thank you.
    Mr. Pombo. Mr. Chairman, if the ranking member has a 
question that he wants to deal with, I will yield for the time 
being for him to deal with that.
    Mr. Gilchrest. Mr. Underwood, do you have a question to 
APHIS?
    Mr. Underwood. Did you want to ask a question?
    Mr. Gilchrest. Mr. Miller?
    Mr. Miller. Thank you. I appreciate the extension of time 
here. I guess I would be interested in a comment on the events 
as outlined by Marshall here, if in fact that is an accurate 
interpretation of what your findings to date are and what you 
plan to do with them.
    Ms. Kohn. Okay, yes. I have been asked to clarify my name. 
My name is Barbara Kohn, K-O-H-N, and I work for APHIS Animal 
Care. Since the circus, Circus Suarez, has entered the country 
in early June, APHIS has been there to inspect them at least 11 
times. Our average inspection rate for a facility is once a 
year, so we are committed to making sure that these animals are 
being treated appropriately under the Animal Welfare Act.
    I must make the statement that the Animal Welfare Act is an 
act of minimum standards as designed by Congress, so that 
minimum standards do not necessarily equate to people's 
perception of the ideal way to maintain any animal, across the 
board for the number of species that we regulate.
    The facility's inspection history has been one of being in 
compliance; being out of compliance in some areas on the next 
inspection; the facility working hard to fix those areas, being 
okayed on a following inspection; and bouncing back and forth. 
As a result of this, APHIS has instigated, has initiated an 
investigation of the facility's compliance history. Because the 
facility is under investigation, I am limited in what I can 
say, but I do want to assure the Committee that APHIS has been 
monitoring the situation.
    We have consulted with experts in the field of polar bear 
management whenever we have had questions. One of the things, 
we have made the facility provide chillers for their pools; 
fans and air conditioners. We admittedly are not there 24 hours 
a day, and there have been instances where some of those 
devices have not been used.
    Mr. Gilchrest. Will the gentleman yield?
    First of all, the staff does inform me that APHIS was 
invited to attend, to testify, but the person was not available 
to do that, so we appreciate--
    Ms. Kohn. I appreciate--
    Mr. Gilchrest. The other question is, if you normally 
investigate a facility once a year, and this seemed to warrant 
11 inspections, there must be something significantly wrong. 
And perhaps if minimum standards are not what we consider to be 
ideal, maybe minimum standards should be improved, and I guess 
that would be our responsibility, working with you. Certainly 
minimum standards should not be bad standards. But if you went 
back 11 times, there was something clearly wrong.
    Ms. Kohn. The frequency of inspection has been in response 
to public concerns for what is going on there, and the only way 
for us to state equivocally what we feel is going on there is 
to inspect. This facility also has moved, because it is a 
traveling exhibitor, has moved a number of times, and we have 
tried to be on site soon after the move at each time. And so 
they, I believe, have moved three or four times already.
    I am getting a very dry mouth, so excuse me if my voice is 
changing.
    And so a lot of this has been in response. As Mr. Jones has 
indicated, his agency as well as APHIS has received a large 
number of inquiries and letters and e-mails on this topic, and 
we have responded as we would to any situation where we have a 
lot of public interest, where we will go and make sure that 
things are moving ahead.
    When the facility first arrived, we did do a couple of 
inspections to make sure that they were truly set up as their 
plans and as their protocols had been directed, because we 
could not inspect the facility until the animals were there. I 
mean, we could not do a total inspection until the animals were 
actually in the country. And so we were down there initially, 
and then in response to not only other Federal agencies but the 
public, animal welfare groups who have expressed their 
concerns, we have been back there monitoring the situation 
closely.
    Mr. Miller. If I just might follow up on a point that the 
Chairman made--and, Marshall, this may go a little bit to your 
jurisdiction--and I appreciate that this is being raised 
without notice. I mean, this isn't about mousetrapping.
    Ms. Kohn. Sure.
    Mr. Miller. It is just about a number of us in the Congress 
are getting those same e-mails and letters of concern and all 
the rest of that, and this was an opportunity, and I appreciate 
your answers.
    I guess the question is, as the Chairman said, if you went 
back 11 times and you have compliance, noncompliance, 
compliance, noncompliance, we are talking about very unique 
animals here.
    And, you know, you start off with the idea that if a polar 
bear is in Puerto Rico, you know, something is amiss unless, 
you know, global warming or something has changed. If polar 
bears could send postcards, right, hey. But anyway, sorry. I 
can't get over a polar bear in Puerto Rico. But let's start 
over again.
    This raises the question of whether or not the permit 
should, at a minimum, be modified. I would raise the question 
whether the permit should be revoked. But it would seem to me, 
Marshall, that if you are giving a permit and you are asking 
that a polar bear go to Puerto Rico, you have got to think what 
are the special conditions or something that have to be put on 
this permit to make this work?
    Apparently they didn't have chillers, they didn't have air 
conditioning, they didn't have pools of water. They were 
basically caged animals for the traveling purposes at the 
outset. That is probably not the conditions under which you 
would want to let the permit go through.
    And I am second-guessing this, okay, and I appreciate that. 
But I am also thinking that we have the authority for permit 
modification and/or even revocation. I appreciate people sue 
you. They will sue you either way. If you want to keep the 
permit, you are going to get sued; if you want to revoke the 
permit, you are going to get sued.
    But we have really got to go to the humane treatment of 
these animals. And so I would just hope that as you follow on 
this and keep up, that you would think about maybe 11 visits 
tells you that you have got to rethink about the conditions 
that must be in place and must be met, or there will be a 
revocation of this.
    And, again, I recognize this is a traveling circus and it 
may leave Puerto Rico to go somewhere else, and leave the 
country, and we ought to make sure that this is cleared up 
before that happens and they not be allowed to take this, 
especially with the criminal investigation opened as to the 
provenance of these bears.
    So I will leave it there, and I just thank you, Mr. 
Chairman, for your intervention there, because I think it does 
raise the question about the conditions of this permit. And 
thank you, the gentlewoman from APHIS. Thank you.
    Mr. Gilchrest. Thank you, Mr. Miller.
    Mr. Pombo?
    Mr. Pombo. I thank the Chairman. I just caution my 
colleagues that the purpose of the permit is a different reason 
than the Animal Welfare Act, and you have different agencies 
with different responsibilities. You know, this may be an issue 
with APHIS and not necessarily an issue with dealing with the 
permit, and so we better not confuse those two issues and try 
to use one agency against another in that particular case.
    The United States as a Nation has a history of supporting 
sustainable use of renewable wildlife and marine resources 
under appropriate professional management conditions, but it is 
my understanding that at a recent conference held in Iceland on 
Responsible Fisheries and the Ecosystem, which was sponsored by 
the U.N. Food and Agriculture organization and co-sponsored by 
Iceland and Norway, that the U.S. delegation took a position 
that there are certain species of marine mammals that the U.S. 
would oppose harvesting regardless of the science justifying 
such managed harvest. And my question is, is that a formal U.S. 
position? Dr. Hogarth?
    Mr. Hogarth. I am really not aware. I will have to get back 
to you on that. I am not aware of that agreement, or which one 
you are referring to.
    Mr. Pombo. Well, it was at a conference, and I received 
reports back that that was the position that the U.S. 
delegation took, and I was somewhat surprised by that because 
it was, I think, contrary to what U.S. law is and what 
international law is. And I have a number of questions dealing 
with that that I would like to submit to you for the record.
    Mr. Hogarth. Thanks, and we will respond, but I am really 
not prepared right now.
    Mr. Pombo. It is my understanding that the State Department 
had the lead on that issue. Can you answer?
    Ms. Hayes. The State Department certainly had some members 
on the delegation. This was the conference that was to be 
investigating ecosystem approaches to the management of 
fisheries.
    My understanding is that at the conference there were some 
delegations from some countries who wanted to use the 
conference as an opportunity to push particular theories about 
interaction between marine mammals and fishery stocks. Our 
delegation believed that that was getting the conference kind 
of off track, and tried to keep the conference focused on its 
original purpose, which was, as I said, to investigate 
ecosystem management of fish stocks. So certainly there were, I 
think, interventions made about the appropriateness or 
inappropriateness of focusing on how much fish might be eaten 
by whales, for example.
    Mr. Pombo. Can you tell me, did the U.S. delegation take 
the position that there were certain marine mammals that were 
off limits, or is--this is the report that I got back, and I am 
just trying to figure out, because I wasn't there, so I am 
trying to figure out what role the U.S. played in that and if 
that was their position.
    Ms. Hayes. I think it would be safer for me to investigate 
exactly what was said on that subject and get back to you.
    Mr. Pombo. Okay. I appreciate that, because it is a concern 
of mine, and I would like to know where we are going in that 
regard.
    Mr. Chairman, I have a number of questions that I would 
like to submit for the record for the U.S. agencies, if I may 
do that, and have some kind of a written response.
    Mr. Gilchrest. Sure. Without objection, I am sure the panel 
would like to respond to those issues.
    I think Dr. Hogarth wanted to make another comment, Rick.
    Mr. Hogarth. The one thing that came out of that was, Japan 
continued to follow up from the IWC on whale hunts, and they 
tried to take the argument that had been lost at the IWC, the 
International Whaling Commission, and take it to this meeting 
to try to get some other agreement that they should be hunting 
for certain whales that we feel like that are not at the level 
that should be hunted.
    And that was one of the issues, but I didn't know we took a 
position that there are certain ones that should never be 
hunted. But there is the level of hunt and all, and Japan was 
trying to argue from the standpoint of how much fish they may 
eat, and there should be--we should not care about the hunting 
of whales. They want to reopen all whale hunting, for example, 
and they tried to take the argument from one commission and 
carry it to another proposal. But we will answer your questions 
in detail.
    Mr. Pombo. Are you saying that what they were trying to do 
was increase?
    Mr. Hogarth. Yes.
    Mr. Pombo. And that the U.S. had taken a position opposed 
to the increase?
    Mr. Hogarth. At the International Whaling Commission, we 
had a position there that there should not be an increase in 
the take, is my understanding. And Japan wants to increase the 
whaling, and they were trying to get another avenue to get 
agreement with this.
    Mr. Pombo. Now, in that particular case, is the U.S. 
position based upon some scientific study or--
    Ms. Hayes. The U.S. position at the International Whaling 
Commission is that the moratorium on commercial whaling should 
be continued until the commission completes its work on what is 
called the revised management scheme. That is the system where 
any commercial harvest would be monitored, would be followed 
from the whaling vessels through to distribution in the 
marketplace, and we are still working with the other members of 
the IWC to complete that mechanism before we face the question 
of what position the U.S. should take on lifting the commercial 
moratorium.
    Mr. Pombo. Thank you, Mr. Chairman.
    Mr. Gilchrest. Thank you, Mr. Pombo.
    Just a follow-up question from Mr. Pombo. The team or the 
group of countries involved in this issue, Ms. Hayes, you made 
some comment about the U.S. won't take a final position until a 
mechanism has been agreed to. What does that mean? As far as 
the mechanism, does that mean a monitoring scheme, an 
assessment of the type of whales that might be taken and what 
their populations are and what the interactions are with the 
rest of the marine ecosystem?
    Ms. Hayes. The commission has already adopted in principle 
what is called the revised management procedure, and that has 
all the scientific part of assessing whale populations and 
deciding, how you go about deciding on an appropriate quota for 
any particular population. But the part that is missing is this 
monitoring mechanism. We don't yet have agreement on such 
things as how many--
    Mr. Gilchrest. Who would go on whose vessel, from what 
country?
    Ms. Hayes. Who would go on whose vessel. You know, if--
    Mr. Gilchrest. Would a visa be required?
    Ms. Hayes. Well, for example, if it is a very small vessel 
and there is only room for one additional enforcement person, 
should it be the national inspector or should it be the 
international observer? We don't have agreement yet on whether 
following distribution through to the marketplace is a 
legitimate part of this monitoring system. Of course, the U.S. 
thinks that it is, that that is the only way you can make sure 
that there isn't any cheating going on. Another issue is who 
pays for this observation scheme.
    But we are going, we are sending a delegation to a meeting 
in Cambridge at the end of this month to continue, in a small 
group of experts, to try to finish this revised management 
scheme.
    Mr. Gilchrest. Maybe we should go to Iceland as well.
    Mr. Pombo. Mr. Chairman, if I may just--I know I have no 
time left, but--
    Mr. Gilchrest. You have all the time you need, Mr. Pombo.
    Mr. Pombo. I was at a previous hearing. I was told that 
this study on the management scheme was imminent, and I believe 
that was almost a year ago. And Mr. Swingle and Mr. Barry, I 
believe, both testified that they were working toward the end 
of that and that it should be any day now at that time, and 
that was a year ago. From my understanding of what you are 
saying, we still don't have that. Is there a reason why? Are we 
working toward a conclusion on that?
    Ms. Hayes. The U.S. delegation is working very hard on 
that. We have offered a lot of different, what we thought were 
creating solutions to the problems that have been presented to 
us by the whaling countries, but so far we haven't been able to 
arrive at solutions to those problems that are acceptable to 
both sides. I hope that progress will be made in Cambridge at 
the end of the month.
    Mr. Pombo. Well, as long as the positions that we take are 
based on the science that is there, what is provided to us or 
what our own research is, as long as our positions are based 
upon that, then I don't have a problem with it. But if you are 
unilaterally making political decisions within the agencies, 
then I do have a problem with it. And that is why a year ago I 
asked the questions I did, and it doesn't seem like we are any 
closer to coming to a scientific answer, but political 
decisions are being made.
    Ms. Hayes. Well, I wouldn't really agree with that 
assessment because we are just, as I said, not at the point of 
making that political decision. As long as there is no monetary 
scheme agreed to, we think it would be dangerous and 
irresponsible to lift the moratorium on commercial whaling 
because we have no way of ensuring that the same sort of 
decimation of the whale populations didn't recur.
    Mr. Gilchrest. Thank you, Mr. Pombo. I think some of us--
Mr. Underwood, any follow-up questions?
    Mr. Underwood. I just wanted to make a couple of final 
points, and that is, one, would the woman from APHIS provide us 
with a report on the 11 inspections, kind of a summary report, 
just so that it can enhance our understanding of what is going 
on with the polar bears in Puerto Rico?
    Ms. Kohn. Sure, we would very pleased to provide you the 
information we have to date.
    Mr. Underwood. Okay, and just as a follow-up on the issues 
raised by Mr. Pombo, my understanding of the whaling issue, and 
it may be limited, but certainly it is the law of the land that 
we take, the U.S. takes the position that the moratorium on 
commercial whaling be continued. That is correct.
    But we are not by definition closing the door to changes in 
scientific whaling. You know, it seems to me that at some point 
in time, if we are talking about ecosystem management of marine 
resources, that the whales themselves would have an impact on 
the entire system. So we are not, just by definition, closing 
that door, are we?
    Ms. Hayes. No, I wouldn't say we have closed that door.
    Mr. Underwood. And is the kind of regulatory activities 
which pertain to fisheries, is there any reason to suspect that 
the whaling countries like Norway and Japan are not amenable to 
the kinds of regulatory activities that normally occur with 
other kinds of fishing vessels? Would you like to explain that 
a little bit?
    Ms. Hayes. Yes. In fact, we have been a little surprised 
that some of the suggestions, some of the elements that we 
think are necessary for this monitoring scheme, and that exist 
in fisheries management organizations internationally and 
accepted by some of those whaling countries, have not proved to 
be acceptable in the context of a scheme to monitor whaling 
activities. In other words, we don't think we are asking for 
anything so unusual or out of the way.
    Mr. Underwood. And in the interests of time, I would like a 
written response to actually a real legislative issue the 
Subcommittee is confronted with, and that is, what are the 
definitions that we would like to see, changes in the meaning 
of the term ``harassment,'' because I think that is really key 
to our work. I know we have gone a little bit far afield this 
morning, but thank you very much.
    Mr. Gilchrest. Thank you, Mr. Underwood.
    I think maybe we just should have held today's hearing with 
this panel. But there are numerous follow-up questions 
certainly dealing with harassment, with Navy sonar, with the 
take reduction teams that are out there, with a full range of 
issues, also with APHIS, and you can be sure that in the coming 
days we will be corresponding with all of you. We appreciate 
your testimony, and look forward to working with you certainly 
in the near future.
    But thank you all for coming this morning, and you did a 
fine job. Thank you.
    Our next panel will be Mr. Charlie Johnson, Ms. Sharon 
Young, Mr. George Mannina, and Mr. Rick Marks.
    I ask unanimous permission to submit for the record the 
statement by the Honorable Mr. Jones.
    Hearing no objection, so ordered.
    [The prepared statement of Mr. Jones follows:]

    Statement of the Honorable Walter B. Jones, a Representative in 
               Congress from the State of North Carolina

    Thank you, Mr. Chairman, for holding this important hearing.
    The Marine Mammal Protection Act was created to ensure that there 
is an abundance of species in our oceans. However the Act is so 
inflexible and jurisdiction so unclear, that many of my constituents 
feel their needs and professional opinions are not adequately addressed 
when decisions directly impacting their lives are made.
    North Carolina's commercial fishing industry is already in dire 
economic straits and with the approaching and some say current 
recession, North Carolina's recreation fishing industry can't be far 
behind. Eastern North Carolina has lost thousands of jobs in the 
textile industry and thousands of jobs in the tobacco industry. And 
now. we're on the threshold of losing commercial and recreational 
fishing j obs.
    These are small, family-owned businesses that have been fishing 
these waters for a century. My constituents cannot be easily placed 
elsewhere in today's economy. The Marine Mammal Protection Act and the 
Endangered Species Act have been very successful in putting many North 
Carolinians out of work and have done little to restore healthy species 
to the marine ecosystem.
    In November 2001, a Take Reduction Team will meet to determine the 
number of bottlenose dolphins that may be ``taken'' under the authority 
of the Marine Mammal Protection Act. My concerns with this process are 
twofold: That the stock assessment being utilized by the Take Reduction 
Team may be outdated and that my constituents receive fair, equitable 
and scientifically-based treatment from the National Marine Fisheries 
Service and the Office-of Protected Resources.
    1 want to discuss one more item of concern. Recently, the National 
Marine Fisheries Service closed the summer flounder fishery in Pamlico 
Sound. However, some but not all of my constituents were notified the 
day of the closure by radio. I guess if you didn't have your radio on, 
you didn't know about the closure. While the closure was imminent, 
there was no warning and no advance notice. The closure took place on 
Friday, September 28, 2001, yet most of my constituents were not 
notified until Monday, October 2, 2001.
    I would respectfully request that my natural resource-dependent 
constituents receive better treatment from their federal government. As 
this Subcommittee all-too-well knows, fishermen face daunting 
regulations and mortal danger as a part of their livelihood. If my 
constituents are going to be able to ever trust a federal agency, that 
federal agency must be accountable. To provide an unbiased, equitable 
and accountable process is the most important service you can provide, 
a process designed to allow input from the fishermen who pay the bills 
of the National Marine Fisheries Service, the Fish & Wildlife Service 
and the Animal and Plant Health Inspection Service.
    Mr. Chairman, I would respectfully request that I submit the 
following questions for the record. I look forward to seeing the 
responses, particularly from my friend Dr. Bill Hogarth and those 
directly impacted by the Marine Mammal Protection Act.
                                 ______
                                 
    Mr. Underwood. I ask unanimous consent to enter a statement 
by the Earth Island Institute.
    Mr. Gilchrest. Hearing no objection, so ordered.
    [The information referred to follows:]

Statement of David Phillips, Director, The International Marine Mammal 
                    Project, Earth Island Institute

    Thank you for the opportunity to present our views on the 
reauthorization of the Marine Mammal Protection (MMPA). The 
International Marine Mammal Project of Earth Island Institute has 
worked to protect dolphins, whales and other marine mammals around the 
world, and much progress has been made in recent years to reduce the 
killing and harassing of these unique marine species. Yet, new 
challenges persist, and there is no room for complacency.
The Threat of LFA Sonar:
    Earth Island Institute is opposed to the deployment and continued 
testing of the Navy's Surveillance Towed Array Sensor System (SURTASS) 
Low Frequency Active ,(LFA) Sonar.
    Noise pollution in the oceans constitutes a growing environmental 
threat that is not being adequately addressed. The Navy's planned LFA 
Sonar system will add tremendously to the problem of ocean noise 
pollution through the use of very high energy soundblasting coupled 
with the long-range underwater effects characteristic of low frequency 
sound. (See attached chart of sound levels comparison with the Navy's 
LFA SURTASS sonar system prepared by acoustician Michael Stocker.)
    Virtually nothing is known about the short-term, long-term, or 
cumulative effects of LFA Sonar on the ocean ecosystems, or how the LFA 
Sonar soundblasting will interact with other noise sources underwater.
    What little that has been determined through limited research by 
the Navy suggests we should be deeply concerned. Instead, the Navy has 
cavalierly pronounced the LFA Sonar's effects as variously 
``negligible,'' ``minimal,'' and ``not biologically significant.'' This 
does not suggest .to us that the Navy can be counted on to fairly judge 
the results of deployment or to adequately monitor the effects. Nor 
does it give us faith that the conclusions of the Navy's own biological 
assessments and Final Environmental Impact Statement (FEIS) can be 
given credence.
    There is no scientific justification for the Navy or the National 
Marine Fisheries Service (NMFS) to claim that there will be no adverse 
impact on whales or other marine life at LFA Sonar sound levels of 180 
dB.
    According to the Navy's FEIS, the sound levels used in 
experimentation on whales was 120 to 155 dB, far lower than the 
effective operating level of 242 dB at maximum for the LFA Sonar system 
and far lower than the 180 dB deemed acceptable by the Navy. Even at 
lower levels of 120 to 155 dB, the Navy's experiments noted ``short-
term behavioral responses'' to the noisemakers. Furthermore, the Navy 
notes that ``avoidance responses were sometimes obvious in the field'' 
for migrating gray whales. However, these changes in behavior are 
dismissed as ``no significant change in biologically important 
behavior'', a point on which we clearly disagree. If singing of mating 
humpback whales or migration of gray whales is not considered 
``biologically significant'', it is hard to understand what the Navy 
would consider ``significant''.
    (It is important to note that causing ``short-term behavioral 
responses'' in whales is a violation of the MMPA when applied to 
whalewatching operations, as determined by NMFS guidelines and, in the 
case of Hawai'i, regulations. Such disturbance of behavior, however, 
under whalewatching conditions usually is limited to one or a few 
animals, not to whole populations throughout the world's oceans as the 
Navy proposes with the LFA Sonar system.)
    Extrapolation of this limited data to claim ``no harm'' at sound 
levels up to 180 dB violates the basis premises of science, not to 
mention the Precautionary Principle.
Alternatives to LFA Sonar:
    There are several strategic alternatives available to the use of 
LFA Sonar that involve substantial improvement of existing passive 
sonar systems.
    For example, RADM Malcolm I Fages, U.S. Navy Director, Submarine 
Warfare Division, Office of the Chief Of Naval Operations (N87) and 
RADM J. P. Davis, U.S. Navy Program Executive Office for Submarines, 
provided the following assessment before the House Armed Services 
Committee, Military Procurement Subcommittee on Submarine Force 
Structure and Modernization (June 27, 2000):
    ``Acoustic Superiority. The Submarine Force is. making significant, 
rapid improvements in acoustic sensors and processing. In real-world 
exercises and operations, both the TB-29 towed array and the new 
Acoustic Rapid Commercial-Off-The-Shelf (COTS) Insertion (ARCI) sonar 
system have unequivocally demonstrated our submarines retain a clear 
acoustic advantage. Use of COTS equipment in ARCI (and in a modified 
TB-29 array) has substantially reduced costs with significantly 
improved processing capability. Each ARCI ship-set costs only a small 
fraction of the price of its predecessor, yet improves processing power 
by an order of magnitude. This faster and more robust processing power 
enables us to use powerful new algorithms that result in significantly 
improved towed array detection ranges. Each modified TB-29 towed array 
will cost one- half of the price of its predecessor, yet provides 
equivalent performance. We are also working with the Navy's Chief 
Technology Officer and the Office of Naval Research to develop even 
more affordable and reliable towed arrays, specifically fiber optic 
towed arrays. Fleet Commanders have repeatedly requested ARCI systems 
at a rate faster than we can afford to provide them.
    ``Surveillance Towed Array Sensor System (SURTASS) Twin Line 
operations in 1998 and 1999 demonstrated the ability to detect advanced 
diesel submarines at substantial ranges in the littoral environment 
where contact was previously thought to be `unobtainable' by the 
operational commander. Two twin-line systems have been delivered using 
current technology arrays. No additional systems will be delivered next 
year due to funding constraints. However, follow-on SURTASS twin lines 
will leverage the submarine TB-29 developments by fielding twin TB-29 
arrays. The COTS version of the Fixed Distributed System (FDS-C) starts 
in--water testing this year. This use of COTS equipment has also 
resulted in substantially reduced costs with no reduction in fielded 
capability. Development of the new Advanced Deployable System (ADS) 
will provide a rapidly deployable acoustic array installed on the ocean 
floor that provides littoral undersea wide-area surveillance and real 
time cueing. ADS development is moving along smoothly with potential 
for accelerated capability development.''
    Furthermore, the Defense Advanced Research Projects Agency (DARPA), 
the central research and development organization for the Department of 
Defense (DOD), has made great progress-in developing passive sonar 
systems. It manages and directs selected--basic and applied research 
and development projects for DOD, and pursues research and technology 
where risk and payoff are both very high and where success may provide 
dramatic advances for traditional military roles and missions.
    Dr. Thomas J. Green of DARPA made the following address to the DoD 
(September 6-8, 2000):
    ``Good afternoon ladies and gentlemen! My name is Tom Green and I'm 
the Program Manager for the Robust Passive Sonar Program, otherwise 
known as R-P-S.
    ``The focus of R-P-S is to develop innovative, optimal end-to-end 
processing approaches that exploit tactical acoustic sensors to produce 
dramatic gains in passive detection against quiet targets operating in 
shallow water ``littoral'' environments. In recent years there has been 
much emphasis on achieving tactical control of shallow water, littoral 
regions against quiet diesel electric submarines. Towards this end, 
there has been substantial fundamental work aimed at developing 
advanced processing techniques to exploit the propagation 
characteristics of these regions. In addition, new sensors are being 
developed and deployed that have the necessary characteristics to 
support many of these processing techniques. We believe there is an 
opportunity now to realize significant acoustic gain by applying these 
and other advanced signal processing techniques to emerging sensors 
within an end-to-end sonar system context and by so doing to achieve 
substantial tactical advantage over future submarine threats.''
    Soundblasting of the oceans threatens marine life, while 
alternative systems can provide for national security without harming 
the ocean ecosystem upon which we all depend.
Tuna/Dolphin Fishery: Do Not Weaken Protections for Dolphins:
    Recently the Circuit Court of Appeals unanimously upheld a decision 
reached in Earth Island Institute's lawsuit ``Brower v. Evans'' 
(formerly ``Brower v. Daley''). to maintain the current strong 
standards for the ``Dolphin Safe'' tuna label under U.S. law (see 
attached copy of court decision). The courts have made it clear that 
all of the evidence assembled by the NMFS research program on dolphins 
has indicated that the chasing and netting of dolphins continues to 
cause harm to these species, especially to depleted populations in the 
Eastern Tropical Pacific tuna fishery. Despite the fact that only 2-
3,000 dolphins are reported killed annually in tuna nets, dolphin 
populations do not appear to be recovering from depleted status. There 
is growing evidence that chasing and netting dolphins causes harm to 
dolphins and interferes with-their reproduction (e.g. through the 
separation of mothers from dependent calves).
    In this light, we believe any weakening of the MMPA protections for 
dolphins is inappropriate at this time. The standards-for the ``Dolphin 
Safe'' tuna label, which now prohibit use of the label on- any tuna 
caught by chasing, netting, or killing dolphins, should remain in 
force, as ordered by the courts (see next section below).
    Furthermore, we strongly believe that the provision for sundown 
sets should remain ``...30 minutes before sundown...'' (Section 303 
MMPA; emphasis added), rather than weakening the definition to one 
half-hour AFTER sundown, as proposed by the Clinton Administration last 
year. Historically, more than three times as many dolphins die in 
sundown sets as die in net sets made during daylight hours. In the 
tropics, light fades rapidly after sunset, causing problems with 
manipulating and avoiding mortality of dolphins in net sets made 
deliberately on schools of dolphins. With depleted dolphin populations 
showing little recovery from the fishery, any additional sources of 
mortality should be eliminated. This is not a time to weaken dolphin 
protection provisions of the MMPA.
Tuna Tracking System is Broken:
    The MMPA provides for a tuna tracking system to ensure that tuna 
caught in the Eastern Tropical Pacific Ocean can be guaranteed to be 
``Dolphin Safe'' when it carries that label on supermarket shelves in 
the U.S.
    The U.S. government is required to adhere to the original strong 
standards for ``Dolphin Safe'' labeling established by Congress in the 
MMPA. These standards provide that tuna may be labeled ``Dolphin Safe'' 
only if ``no tuna were caught on the trip in which [it] was harvested 
using a purse seine net intentionally deployed on or to encircle 
dolphins, and . . . no dolphins were killed or seriously injured during 
the sets in which [it was] caught.'' (Emphasis added; PL 105-42., 
Section 5.)
    However, forms supplied by onboard Inter-American Tropical Tuna 
Commission (IATTC) observers no longer specify whether dolphins were 
encircled during a fishing trip. This change was made pursuant to a 
June 1999 IATTC resolution, which the U.S. delegation to the IATTC 
supported, to alter the tuna tracking and verification system such 
that: ``Processed dolphin safe tuna destined for export shall be 
accompanied by appropriate certification of such status issued by the 
competent national authority ... provided that such documentation shall 
not reference details of fishing operations, except as relates to 
identification of types of fishing gear.'' (System for Tracking and 
Verifying Tuna, Section 6.-. Part d, emphasis added. See attached copy 
as amended June 2001.) This language effectively precludes any 
communication to U.S. tuna processors, consumers, or U.S. regulatory 
agencies (NMFS and U.S. Customs Service) about whether or not any 
fishing trip involved encirclement of dolphins, thus preventing 
identification of such tuna as ``Dolphin Safe'' under the U.S. and the 
American tuna processors' standards.
    Moreover, in June 2001 - again with the support of the U.S. 
Delegation - the IATTC adopted several resolutions further restricting 
onboard observers from reporting on any fishing practices outside of 
the IATTC's narrow ``Dolphin Safe'' definition. (See ``Resolution on 
Amending the Rules of Confidentiality of the Agreement on the 
International Dolphin Conservation Program,'' 20 June 2001, attached.) 
Therefore, the IATTC onboard observers cannot report as to whether 
encirclement of dolphins occurred during a fishing trip, and the U.S. 
standards for non-encirclement cannot be fully verified. Instead, the 
IATTC observers prepare documents that only verify whether any dolphin 
mortality was observed in any dolphin net sets. We believe this is 
insufficient for purposes of U.S. law and for proper dolphin 
conservation.
    Earth Island Institute maintains monitors around the world to 
independently check on the status of tuna to maintain the integrity of 
the ``Dolphin Safe'' tuna label. However, the IATTC fails to provide 
information on whether or not a tuna vessel has a Dolphin Mortality 
Limit (DML, an IATTC ``quota'' of dolphin mortalities the tuna vessel 
can cause during a fishing trip) or whether a tuna vessel has used any 
of their DMZ's during a particular trip. This hampers efforts to verify 
``Dolphin Safe'' status of tuna shipments. Key details regarding the 
numerous violations of the IATTC's international tuna and dolphin 
regulations by vessels and companies are also withheld, such as the 
name of vessel and company involved.
    Support for these measures by the U.S. delegation to the IATTC has 
seriously undercut the efforts of U.S. tuna fishermen and U.S. tuna 
processors, not to mention U.S. tuna consumers, to adhere to the 
Congressionally-mandated standards for ``Dolphin Safe'' tuna. Virtually 
all of the 7 million+ dolphins killed in the Eastern Tropical Pacific 
tuna fishery over the past four decades died in purse-seine nets 
deliberately set by the dolphin-encirclement method. Yet, efforts by 
U.S. tuna fishermen and the industry to adhere to strong standards to 
protect dolphins have been undermined by a dysfunctional International 
Tuna Tracking System which forbids, with the active support of the U.S. 
delegation, dissemination of information to track truly ``Dolphin 
Safe'' tuna.
    For these reasons, our organizations are deeply concerned that the 
U.S. Department of Commerce is not able to fulfill the Congressional 
mandates of the MMPA and verify that tuna entering the United States is 
meeting. current U.S. Dolphin Safe standards.
    Thank you for your consideration of our comments for the record of 
this hearing.
                                 ______
                                 
    [Attachments to Mr. Phillips' statement follow:]
    [The attachment, Brower, et al. v. Evans, et al. has been 
retained in the Committee's official files.] 
[GRAPHIC] [TIFF OMITTED] 75640.040

      agreement on the international dolphin conservation program
resolution on amending the rules of confidentiality of the agreement on 
             the international dolphin conservation program
                              20 june 2001
    The Parties to the Agreement on the International Dolphin 
Conservation Program (AIDCP), at the 5th Meeting of the Parties, held 
June 15, 2001, in San Salvador, El Salvador,

    Hereby agree to amend the Rules of Confidentiality of the AIDCP, 
adopted in October 2000, as follows:

    1. LChange Paragraph 1 to: ``The following information associated 
with the responsibilities and activities of the On-Board Observer 
Program, and with the activities of the Secretariat in connection with 
the AIDCP Dolphin Safe Certification procedures, shall be treated as 
confidential:''

    2. LChange Paragraph 2 to: ``All information collected by the On-
Board Observer Program, or by the Secretariat in connection with the 
AIDCP Dolphin Safe Certification procedures, shall be made available to 
the government under whose jurisdiction the vessel operates.''
                                  ###
international dolphin conservation program revised system for tracking 
                      and verifying tuna june 2001
1. DEFINITIONS
    The terms used in this document are defined as follows:

    a. LDolphin safe tuna is tuna captured in sets in which there is no 
mortality or serious injury of dolphins;
    b. LNon-dolphin -safe tuna is tuna captured in sets in which 
mortality or serious injury of dolphins occurs;
    c. LAgreement Area is the area covered by the AIDCP;
    d. LAIDCP is the Agreement on the International Dolphin 
Conservation Program;
    e. LParty or Parties are the Parties to the AIDCP ;
    f. LState is a sovereign state or a regional economic integration 
organization to which its member States have transferred competence 
over matters covered by the AIDCP;
    g. LNational authority is the department of government or other 
entity designated by each Party as responsible for implementing and 
operating the tuna tracking and verification program described in this 
document;
    h. LIATTC is the Inter-American Tropical Tuna Commission;
    i. LSecretariat is the staff of the IATTC;
    j. LCaptain is the person aboard the vessel who has legal 
responsibility for the vessel while at sea and in port;
    k. LEngineer is the person aboard the vessel responsible for 
preparation of wells and the loading of the catch into the prepared 
wells;
    l. LObserver is the person assigned to the vessel by the IATTC or 
the Party's national observer program to record the vessel's fishing 
activities;
    m. LVessel includes any vessel which catches, stores, or transports 
tuna covered by this tracking and verification program;
    n. LWell is any compartment on a purse-seine vessel in which tuna 
is stored in a freezing brine solution;
    o. LSet is the act of deploying and retrieving the purse seine in 
order to catch tuna;
    p. LBin is any container used to store tuna after unloading, during 
cold storage, or for transport to processing.
    q. LA fishing trip terminates when a vessel unloads two-thirds or 
more of its catch, during a single unloading or during a series of 
partial unloadings.
2. GENERAL
    This document describes a system for tracking tuna caught in the 
Agreement Area by vessels fishing under the AIDCP. The sole purpose of 
this system is to enable dolphin safe tuna to be distinguished from 
non-dolphin safe. tuna from the time it is caught to the time it is 
ready for retail sale. This system is based on the premise that dolphin 
safe tuna shall, from the time of capture, during unloading, storage, 
transfer, and processing, be kept separate from non-dolphin safe tuna. 
To this end the system shall be based on a Tuna Tracking Form (TTF) and 
additional verification procedures described in this document or 
developed by individual Parties for use within their respective 
territories.
    The national authority of the Party under whose jurisdiction a 
fishing vessel operates shall be responsible for tracking the tuna 
caught, transported, or unloaded by that vessel, but may, by mutual 
consent, delegate the observation of unloadings and transfers to the 
national authority of the Party in which the unloading or transfer 
takes place. The national authority of the Party in which the tuna is 
processed becomes responsible for the tracking and verification of the 
dolphin-safe status of all such tuna when it enters a processing plant 
located in the jurisdiction of that Party, regardless of the flag of 
the catcher vessel, and for communicating the information to the 
Secretariat.
    It shall be the responsibility of each national authority to 
establish and maintain the systems, databases, and regulations 
necessary to implement the system in areas under its jurisdiction. Each 
Party shall provide to the Secretariat a report detailing the tracking 
and verification program established by that Party under its national 
laws and regulations.
    Each Party shall provide to the Secretariat, and update as 
necessary, the name, mailing address, telephone and fax numbers, and e-
mail address of a designated contact person at its national authority 
who shall be responsible for all matters pertaining to the program 
described in this document, and the Secretariat shall circulate a list 
of all such contact persons to all national authorities.
3. TUNA TRACKING FORM (TTF)
    The Secretariat shall be responsible for producing the TTFs, which 
shall be in both English and Spanish, in sufficient quantity to be used 
throughout the Agreement Area by all the Parties; for distributing the 
forms to the national authorities; for training a representative of 
each national authority in the proper use and handling of the form; and 
for maintaining physical control of all completed TTFs, once they are 
returned to the Secretariat by the national authority in accordance 
with its national laws and regulations.
    1. LTTFs utilized during a trip shall be identified by a unique 
number, which shall be the IATTC cruise number to which, it 
corresponds, and shall have provision for recording and endorsing 
information concerning each set made during a fishing trip which would 
enable the contents of any., of the vessel's wells to be identified as 
dolphin safe or non-dolphin safe.
    2. LDolphin safe and non-dolphin safe tuna caught in the course of 
a trip shall be recorded on separate TTFs.
    3. LThe Secretariat shall issue the TTFs to observers, except that 
in cases where the Party with jurisdiction over the vessel has a 
national observer program in operation, the pertinent national 
authority shall issue the TTFs to observers of its national observer 
program. The cruise number shall be recorded on the TTF at the 
beginning of each trip, and all tuna caught during that trip shall be 
recorded on the relevant TTF.
    4. LAfter a trip, the original TTF(s), with total confirmed 
quantities of tuna unloaded or transferred from that trip, shall be 
retained by the competent national authority, as follows:
     a. LIf the tuna is to be processed within the territory of the 
Party under whose jurisdiction the fishing vessel operates, the 
original TTF(s) shall be submitted to the national authority of that 
Party;
     b. LIf the tuna is to be processed within the jurisdiction of a 
Party other than the Party under whose jurisdiction the fishing vessel 
operates, at the completion of unloading the tuna the responsibility 
for tracking passes to the national authority of the. Party in whose 
territory the tuna is to be processed. In such a case, the original 
TTF(s) is (are) submitted to the national authority. of the Party under 
whose jurisdiction the tuna is to be processed, and a copy of the 
TTF(s) is (are) provided to the national authority of the Party under 
whose jurisdiction the vessel operates.
    5. LWithin ten days of receipt of a TTF, the competent national 
authority shall transmit the TTF to the Secretariat.
    6. LTTFs shall be treated by the competent national authority as 
confidential official documents of the IDCP, consistent with Article 
XVIII of the AIDCP, and the AII)CP Rules of Confidentiality.
4. FISHING OPERATIONS
    1. LAt sack up during each set, and prior to brailing or loading of 
tuna aboard the vessel and into wells, the observer determines whether 
or not dolphin mortality or serious injury has occurred in the set and 
notifies the captain immediately of his determination.
    2. LOn the basis of the observer's determination, the tuna is 
designated either dolphin safe or non-dolphin safe. The tuna is brailed 
and loaded into a prepared well or wells which already contain either 
dolphin safe tuna or non-dolphin safe tuna, as applicable, or into a 
prepared but empty well or wells which shall then be designated dolphin 
safe or non-dolphin safe, as applicable.
    3. LAt the completion of brailing, when there is no further 
question as to whether the tuna is dolphin safe or not, the observer, 
in consultation with the engineer, shall record on the appropriate TTF 
the species and estimated quantity of tuna loaded into each well used 
in that set. Both the observer and the engineer shall initial the entry 
for each set.
    4. LWithin a reasonable period after the completion of loading of 
non dolphin safe tuna, the observer may confirm the number(s) of the 
well(s) receiving the tuna by noting the subsequent change in 
temperature in the well(s).
    5. LTransfers of tuna from the net of one fishing vessel to another 
fishing vessel at sea in the course of a trip shall be documented on 
the M(s), specifying the quantity, species, and dolphin safe status of 
the tuna being transferred. The transfer shall be documented on the 
TTF(s) of both the transferring and receiving vessels.
    6. LAt the end of each fishing trip, when no more sets are to be 
made, the observer and the captain shall review the TTT(s), make any 
additional notes, and both will sign the form.
5. UNLOADING
    1. LThe captain, managing owner, or agent of a vessel returning to 
port to unload part or all of its catch shall provide sufficient notice 
of the vessel's intended place and schedule of unloading to the 
competent national authority to allow for preparations to be made for 
monitoring the unloading of that tuna.
    2. LIf a trip terminates when a vessel enters port to unload part 
of its catch, new TTF(s) shall be assigned to the new trip, and the 
information concerning any tuna retained on the vessel shall be 
recorded as the first entry on the TTF(s) for the new trip. If the trip 
is not terminated following a partial unloading, the vessel shall 
retain the original TTF(s) and shall submit a copy of that TTF(s), with 
original signatures, to the national authority of the Party where the 
tuna was unloaded. In either case, the species, dolphin safe status, 
and amount of tuna unloaded shall be noted on the respective original 
TTF(s).
    3. LIf tuna is unloaded from a fishing vessel in port and 
subsequently loaded aboard a carrier vessel for transport to a 
processing location, the Party under whose jurisdiction the fishing 
vessel operates shall be responsible for obtaining the TTF(s), 
retaining documentation of the unloading, including recording of the 
total confirmed scale weight if the tuna is weighed at that time, 
verifying that the dolphin safe tuna is kept separated from the non-
dolphin safe tuna during the carrier loading and transporting process, 
and transmitting all relevant documentation to the Secretariat. Dolphin 
safe tuna and non-dolphin safe tuna may be stored in the same -hold on 
a carver vessel provided that the two are kept physically separate, 
using netting or similar material, and the non-dolphin safe tuna is 
clearly identified as such.
    4. LIf the tuna is unloaded directly to a processing facility, the 
national authority of the Party in whose area of jurisdiction the tuna 
is to be processed shall be responsible for retaining documentation of 
the unloading of the tuna and recording of the separate confirmed scale 
weight for dolphin safe and non dolphin safe tuna. The competent 
national authority shall be responsible for returning the original
                                 ______
                                 
    Mr. Gilchrest. Mr. Charlie Johnson, Executive Director, 
Alaska Nanuuq Commission, Indigenous Peoples Council on Marine 
Mammals; Ms. Sharon Young, Field Director for Marine Issues, 
The Humane Society of the United States; Mr. George Mannina, 
American Zoo and Aquarium Association and the Alliance of 
Marine Mammal Parks and Aquariums; Mr. Rick Marks, member of 
the Take Reduction Team--oh, a member, an actual live member--
    Mr. Marks. Teams. That is plural, Mr. Chairman.
    Mr. Gilchrest. --of the Take Reduction Teams, Garden State 
Seafood Association. Is that New Jersey?
    Mr. Marks. Yes, Mr. Chairman.
    Mr. Gilchrest. The Garden State. Thank you for coming.
    I think what we will do, to give people a heads-up, no need 
to rush this panel, but at the end of this panel, whenever that 
might be, we will take an hour for lunch. Since The Humane 
Society is here, that is the humane thing to do, I think.
    Mr. Johnson, welcome. You may begin, sir.

STATEMENT OF CHARLES JOHNSON, EXECUTIVE DIRECTOR, ALASKA NANUUQ 
 COMMISSION, AND MEMBER, INDIGENOUS PEOPLES COUNCIL ON MARINE 
                            MAMMALS

    Mr. Johnson. Thank you, Mr. Chairman, honorable members of 
the Committee. I am Charles Johnson, the executive director of 
the Alaska Nanuuq Commission. I also serve on the Indigenous 
Peoples Council for Marine Mammals.
    The commission was formed in June 1994 to represent the 
villages and the hunters of north and northwest Alaska on 
matters concerning the conservation of polar bear. The 
commission is now in its fourth year of a co-management 
agreement with the U.S. Fish and Wildlife Service. This 
agreement is to represent the villages in the range of the 
polar bear, and to assist the service in the development of a 
bilateral treaty with Russia.
    The commission also has a cooperative agreement with the 
National Park Service's Beringia Program to collect polar bear 
habitat use in Chukotka from the traditional knowledge of 
native hunters. This program is now in its third and final 
year, and we hope to publish our report by the end of this 
year.
    I testified before this Committee on April 6th of 2000 and 
gave a detailed report of the co-management needs and desires 
of the Alaska Nanuuq Commission. The commission, as I 
mentioned, is a member of the Indigenous Peoples Council on 
Marine Mammals, or IPCoMM, which was formed in the early '90's 
to advocate for the co-management rights of Alaska native 
people in regard to marine mammals. IPCoMM represents most of 
the Alaska native organizations involved in marine mammal 
conservation.
    Since the April 6, 2000 hearing of this Committee, IPCoMM 
has worked very diligently with the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service to develop 
mutually acceptable language for the reauthorization of MMPA. 
The agencies are to be commended for their efforts, 
forthrightness, and willingness to compromise. As a result of 
these efforts to find common ground, IPCoMM supports the 
language that the U.S. Fish and Wildlife Service and NMFS are 
proposing to amend MMPA.
    First, each village has a tribal council that is federally 
recognized. Every Alaska Native Marine Mammal Commission gets 
its authority to enter into co-management agreements for marine 
mammals from these tribal councils. This is a reality of life 
in Alaska, and IPCoMM strongly urges that language which 
specifies that co-management agreements must be with tribal 
organizations replaces language that specifies ``Alaska native 
organizations.''
    IPCoMM feels that Section 101(b), which recognizes the 
right of Alaska natives to harvest marine mammals for 
subsistence, remain. That section is vital to maintaining our 
subsistence culture and way of life.
    We also recognize that there are times when we may want to 
limit the harvest for conservation purposes, and for this 
reason we support the introduction of the new Section 119(a), 
which allows for management of marine mammals before depletion 
through co-managements with Alaska native tribes or tribally 
authorized organizations. A co-management agreement must be in 
place before depletion takes place.
    IPCoMM also supports the prohibition section of 119(a), 
which states that Alaska natives hunting in an area with a co-
management agreement must abide by that agreement. Had this 
been in place in Cook Inlet, we may have been able to avoid the 
current situations with beluga whales being hunted to 
dangerously low numbers.
    Alaska Native Marine Mammal Commissions have accomplished a 
very great deal with very limited funding. It is now up to 
Congress to adequately fund the co-management programs with the 
$3 to $5 million that is requested or is proposed by Interior 
and Commerce.
    The Alaska Federation of Natives recognizes the 
effectiveness of co-management agreements between government 
agencies and Alaska natives, and has proposed co-management as 
a solution to the State's current subsistence divisiveness. In 
fact, AFN strongly supports preemption of State laws to provide 
a subsistence priority, should the State not find the will to 
bring itself back into compliance with Federal law.
    I would like to introduce a paper that was produced by AFN 
into the record, and it is a paper on preemption of State law 
for providing a subsistence priority.
    The Alaska Nanuuq Commission has been an equal partner with 
the U.S. Fish and Wildlife Service in negotiating the polar 
bear treaty with Russia. The treaty was signed on October 16, 
2000 in Washington, D.C. As a result, Alaska natives and 
natives of Chukotka will have equal representation on a joint 
commission created to set harvest limits of the shared polar 
bear population in Alaska and Chukotka.
    The treaty also allows for a native agreement to implement 
the treaty. The Alaska Nanuuq Commission is now developing its 
agreement with the Association of Traditional Marine Mammal 
Hunters of Chukotka. That is a grassroots organization that 
represents the natives of Chukotka.
    We also support extending the prohibition of the use of 
aircraft which is in the treaty to the rest of Alaska where the 
treaty does not cover, such as in the Beaufort Sea, and we 
would also support extending the prohibition on sales or 
exports of parts of polar bears.
    We will face challenges in developing enforceable quotas as 
we move from unlimited hunting in Alaska to quotas, and from no 
hunting to legal hunting in Chukotka. It is vital to the 
success of this organization that Congress adequately funds the 
implementation of this precedent-setting agreement.
    Thank you, Mr. Chairman, and I will be happy to answer any 
questions.
    [The prepared statement of Mr. Johnson follows:]

    Statement of Charles Johnson, Executive Director, Alaska Nanuuq 
                               Commission

    Mr. Chairman, Honorable Members of the Committee, I am Charles 
Johnson, the Executive Director of the Alaska Nanuuq Commission. The 
Commission was formed in June of 1994 to represent the villages and 
hunters of North and Northwest Alaska on matters concerning the 
conservation of polar bear. The Commission is now in its fourth year of 
a co-management agreement with the U.S. Fish and Wildlife Service. This 
agreement is to represent the villages in the range of the polar bear 
and to assist the Service in the development of a bilateral treaty with 
Russia.
    The Commission also has a cooperative agreement with the National 
Parks Service Beringia Program to collect polar bear habitat use in 
Chukotka from the traditional knowledge of the native hunters. This 
program is now in its third and final year and we hope to publish our 
report by the end of this year.
    I testified before this committee on April 6; 2000 and gave a 
detailed report on the comanagement needs of the Alaska Nanuuq 
Commission. The Commission is a member of the Indigenous Peoples 
Council on Marine Mammals or IPCoMM, which was formed, in the early 
90's to advocate for the co-management rights of Alaska Native people 
in regard to marine mammals. IPCoMM represent most of the Alaska Native 
organizations involved in marine mammal conservation.
    Since the April 6, 2000 hearing of this committee IPCoMM has worked 
very diligently with the U. S. Fish and Wildlife Service and the 
National Marine Fisheries Service to develop mutually acceptable 
language for the reauthorization of MMPA. The agencies are to be 
commended for their efforts, forthrightness and willingness to 
compromise.
    As a result of these efforts to find common ground IPCoMM supports 
the language that the U.S. Fish and Wild Life Service and NMFS are 
proposing to amend MMPA.
    Every village has a tribal council that is federally recognized. 
Every Alaska Native marine mammal commission gets it authority to enter 
into comanagement agreements for marine mammals from these tribal 
council. This is the reality of life in Alaska and IPCoMM strongly 
urges that language, which specifies that co-management agreements must 
be with tribal organizations, replace language that specifies Alaska 
Native Organizations.
    IPCoMM feels that Section 101(b), which recognizes the right of 
Alaska Natives to harvest marine mammals for subsistence, must remain. 
That section is vital to maintaining our subsistence culture and way of 
life. We also recognize that there are times where we may want to limit 
the harvest for conservation purposes and for this reason we support 
the introduction of the new Section 119A which allows for management of 
marine mammals before depletion through co-management with Alaska 
Native tribes or tribally authorized organizations. A co-management 
agreement must be in place before management before depletion takes 
place.
    IPCoMM also supports the prohibition section of 119A, which states 
that Alaska Natives hunting in an area with a co-management agreement 
must abide by that agreement. Had this been in place in Cook Inlet we 
may have been able to avoid the current situation with beluga whales 
being hunted to dangerously low numbers.
    Alaska Native marine mammal Commissions have accomplished a great 
deal with very limited funding. It is now up to Congress to adequately 
fund the co-management programs with $3,000,000 to $5,000,000 each to 
Interior and Commerce.
    The Alaska Federation of Natives recognizes the effectiveness of 
co-management agreements between government agencies and Alaska Natives 
and has proposed co-management as a solution to the State's current 
subsistence divisiveness. In fact AFN strongly supports pre-emption of 
state law to provide a subsistence priority should the state not fid 
the will to bring itself back into compliance with federal law. I would 
like to introduce into the record a briefing paper on federal pre-
emption, prepared by AFN in August 2001.
    The Alaska Nanuuq Commission has been an equal partner with the 
U.S. Fish and Wildlife Service in negotiating the polar bear treaty 
with Russia. The treaty was signed on October 16, 2000 in Washington 
D.C. As a result Alaska Natives and the Natives of Chukotka will have 
equal representation on the joint commission created to set harvest 
limits of the shared polar bear population in Alaska and Chukotka.
    The treaty also allows for a Native-to-Native agreement to 
implement the treaty. The Alaska Nanuuq Commission is developing that 
agreement with the Association of Traditional Marine Mammal Hunters of 
Chukotka, which represents the Native Peoples of Chukotka.
    We will face challenges in developing enforceable quotas as we move 
from unlimited hunting in Alaska to quotas and from no hunting to legal 
hunting in Chukotka.
    It is vital to the success of this treaty that congress adequately 
funds the implementation of this precedent setting agreement.
    Thank you Mr. Chairman
                                 ______
                                 
    [The attachment, ``Preemption of State Law to Provide a 
Subsistence Preference,'' has been retained in the Committee's 
official files.]

    Mr. Gilchrest. Thank you very much, Mr. Johnson.
    Ms. Young?

STATEMENT OF SHARON B. YOUNG, FIELD DIRECTOR FOR MARINE ISSUES, 
            THE HUMANE SOCIETY OF THE UNITED STATES

    Ms. Young. Mr. Chairman, members of the Committee, unlike 
my colleagues here at the table who were each addressing fairly 
specific portions of the MMPA reauthorization in '94, I am 
going to be trying to address them all. And since it is a 
pretty difficult task, I am going to do my best, but I do 
encourage you to look at the much more extended written 
testimony that we have submitted.
    I am Sharon Young, and I am the field director of marine 
issues for The Humane Society of the United States. I am 
testifying on behalf of the International Wildlife Coalition, 
the Earth Island Institute, and The Humane Society of the 
United States.
    Between '92 and '94, the HSUS participated in an ad hoc 
stakeholder negotiation, resulting in proposals to Congress for 
amendments to the Marine Mammal Protection Act that were 
enacted in 1994. Since that time, we have served on a number of 
appointed Committees, working groups, take reduction teams, and 
any number of other groups that the National Marine Fisheries 
Service convened in response to the needs for implementation of 
the many provisions that were added to the Marine Mammal 
Protection Act in '94.
    The '94 amendments to the Marine Mammal Protection Act 
established objective standards for implementing the many broad 
goals of the act and for measuring the progress toward 
achieving them. The most important standard was the concept of 
potential biological removal level. This, in conjunction with 
the zero mortality rate goal, provides a key understanding of 
human-related impacts on marine mammals, and both of these 
provisions should be maintained as they exist within the MMPA.
    The success of other amendments to the MMPA has been 
somewhat mixed. Take reduction teams, which allow stakeholder 
groups to advise the National Marine Fisheries Service on 
measures to reduce mortality of marine mammals in commercial 
fisheries, have met and produced recommendations fairly 
expeditiously. The process can be very contentious.
    Stakeholders with very different constituencies may be 
vehemently in disagreement with one another, but that is in 
fact a point of the process. To sit down together, to share 
information, to make sure we all operate from a common basis of 
understanding one another's interests and positions, and to be 
open and honest in a forum that encourages resolution of 
differences is a very important part of the act, I think.
    However, the National Marine Fisheries Service has delayed 
convening teams or has delayed action or refused to act on 
recommendations by take reduction teams until court proceedings 
have been brought against them in many instances. This 
seriously undermines the confidence in and the effectiveness of 
the process.
    There are other issues that have created problems in the 
implementation of Section 118, as well. One of them is the 
disparity between take reduction requirements for commercial 
fishing gear and the exemption of identical recreational gear 
from these same restrictions. This inequity should be 
addressed.
    Another problem for MMPA implementation is the National 
Marine Fisheries Service's use of MMPA implementation funds to 
make up shortfalls in base operating budgets. This is a budget 
issue that urgently needs to be addressed. Additionally, there 
is virtually no enforcement of MMPA take reduction mandates. 
This in turn rewards lawbreakers and undermines the efficacy of 
take reduction measures.
    These issues also need attention by enforcement agents. The 
HSUS believes that the process established under Section 118 
can work as intended, if the National Marine Fisheries Service 
upholds its responsibilities under the act.
    Native co-management of marine mammals under the MMPA 
amendments we believe has not necessarily improved the lot of 
marine mammals. Reporting of kills is as many as 5 years 
behind, and when it does occur, the National Marine Fisheries 
Service in its official reports admits that it is generally 
under-reporting.
    Another troubling aspect is that many of the species of 
marine mammals, particularly in Alaska, and including the 
endangered Steller sea lion, are being killed by natives in 
excess of established PBR levels. We believe this situation 
needs to be remedied as well.
    We believe that it is important to involve conservation 
interests and public comment in this process, to ensure an 
outside review and representation of all stakeholders, and more 
importantly, to ensure adequate protection of marine mammals. 
This is particularly true if there is going to be an expansion 
of co-management into other marine mammal species.
    The HSUS believes that the prohibition on hunting polar 
bears in Alaska should be maintained, because of evidence that 
conservation provisions in Canada to regulate polar bear sport 
hunting have been wholly inadequate to protect a number of 
polar bear stocks, the importation provision enacted as part of 
the 1994 amendments should be repealed.
    The 1994 amendments also changed the authority under which 
captive marine mammals are overseen. The intervening years have 
shown that many of the changes have proven somewhat inadequate 
to ensuring protection of the animals.
    We believe there should be a prohibition on traveling shows 
exhibiting marine mammals. There should be regular on-site 
inspections of all display facilities, and this should be 
mandatory. Permits should be required for any proposed export 
of marine mammals from the United States. Resources in the 
Department of Agriculture are inadequate to the task of 
managing public display facilities, and we believe that the 
jurisdiction over captive marine mammals should be returned to 
the National Marine Fisheries Service. We also support 
maintaining Marine Mammal Inventory reports.
    The HSUS also supports--and I know this is being dealt with 
by another panel--a prohibition of intentional killing of 
marine mammals. We encourage the National Marine Fisheries 
Service and Congress to assist them in their work by developing 
innovative and nonharmful deterrents.
    The American people continue to show broad support for 
recovering and protecting marine mammals. The MMPA stands as an 
assurance of the government's commitment to this will. We urge 
this Committee to ensure that the MMPA remains strong. Any 
amendments to the act should be limited to noncontroversial 
clarifying amendments that maintain the strong conservation 
principles of the act.
    Thank you.
    [The prepared statement of Ms. Young follows:]

Statement of Sharon B. Young, Field Director, Marine Issues, The Humane 
                      Society of the United States

    Mr. Chairman, members of the Subcommittee, my name is Sharon Young 
and I am the Field Director for Marine Issues for The Humane Society of 
the United States (HSUS). On behalf of The HSUS, the International 
Wildlife Coalition, Earth Island Institute and their more than 7 
million members and constituents, I am grateful for the opportunity to 
present our views on the implementation of the Marine Mammal Protection 
Act (MMPA) and suggestions for changes that might improve the MMPA's 
ability to protect marine mammals.
                               BACKGROUND
    Between 1992 and 1994, The HSUS participated in an ad hoc 
stakeholder negotiation that resulted in proposals to Congress for the 
Amendments to the MMPA that were enacted in 1994. Since that time we 
have served on a number of appointed committees, working groups and 
take reduction teams that have arisen from the implementation of the 
many provisions that were added to the MMPA in 1994. We have also 
testified a number of times before this and other House Committees 
regarding the implementation of various portions of the MMPA, most 
recently in an April 2000 hearing on oversight of the Take Reduction 
Team process.
    One of the questions I was asked to address in this hearing is 
whether the changes in 1994 have had a positive effect on human-related 
interactions with marine mammals. I think that the answer is mixed. The 
Amendments included a number of important provisions. Their primary 
accomplishment was that for the first time since the 1972 passage of 
the MMPA, measurable standards and objectives were established to help 
achieve the goals that were desired by the American people. In 
particular the Amendments provided an objective measure of 
understanding of the likely impacts of human-related mortality on 
marine mammals that is known as the Potential Biological Removal Level, 
or PBR. The 1994 Amendments established a process to bring stakeholders 
to a common table to share information and work toward development of 
solutions to those situations in which unsustainable levels of 
mortality in commercial fisheries are occurring. They provided 
deadlines to ensure timely enactment of management plans to reduce 
unsustainable levels of mortality. They established a process to 
address concerns about nuisance pinnipeds (seals and sea lions) that 
were thought to be having a demonstrably negative effect on endangered 
fish stocks. They also streamlined the process for obtaining scientific 
research permits. Additionally, the Amendments included provisions 
pertaining to hunting of polar bears, the care of captive marine 
mammals, and the co-management of marine mammals by native peoples. The 
success of these measures, however, has been tempered by a variety of 
actions and inaction by the National Marine Fisheries Service (NMFS) 
and failures in budgeting and enforcement. I would like to address each 
of issues these separately.
   Establishment of Objective Standards for Reducing Fishery Related 
                               Mortality
Potential Biological Removal Level (PBR)
    Among the principal accomplishments of the 1994 Amendments was the 
development of the concept of PBR. The formula that was used to obtain 
PBR was developed by scientists to ensure a precautionary approach to 
managing our interactions with marine mammals. The PBR formula 
recognized the uncertainties inherent in understanding the life history 
and population dynamics of marine mammals. Their marine habitat makes 
it easy to under-count them or to assume that animals that are widely 
distributed along a coast are parts of the same population, when in 
fact they are from separate stocks that require separate management 
strategies. We know little about the reproductive rates of most marine 
mammals, and we often know less than we should about levels and sources 
of mortality to populations. Since 1994, the principles underlying PBR 
have been adopted by other nations as well as they have sought to 
manage their own nation's interactions with marine mammals. Congress 
and the National Marine Fisheries Service deserve to be commended for 
developing an approach that is conservative and precautionary in its 
approach. This sort of approach (PBR) helps guarantee that we do not 
repeat the sorry history demonstrated by fishery management in many 
areas of the country where fish stocks have crashed and economic 
hardship has resulted as a result of non-precautionary approaches to 
management. The American public cares deeply about marine mammals, and 
PBR is an important means of ensuring protection and promoting growth 
in diminished populations.
Zero Mortality Rate Goal (ZMRG)
    In 1972, the MMPA included a goal stating that fishery interactions 
with marine mammals should be reduced to ``insignificant levels that 
are approaching a zero mortality and serious injury rate.''[16USC 1371 
(a)(2)] This has become widely known as the zero mortality rate goal or 
ZMRG. This goal is important, as it provides a commitment to ensuring 
that wasteful practices do not result in unnecessary death or injury of 
marine mammals - a goal that has long been, and still is, supported by 
the American people. Goals are by definition: ``an end that one tries 
to attain.'' ZMRG is a goal, not an objective. While goals and 
objectives may seem similar, we can look to the field of education to 
see how they are differentiated. In education, goals are broad 
principles toward which one strives, such as teaching children to 
approach one another with attitudes that are not prejudiced. Objectives 
are measurable standards, such as teaching them to use terms that are 
not derogatory to races or sexes when they speak. In the case of 
interactions with marine mammals, the MMPA strives toward the goal of 
reducing marine mammal mortalities to levels that are biologically 
insignificant; not the objective of absolute zero. This goal 
acknowledges that some incidental mortality may occur, but the phrasing 
reflects the desire of the American people to reduce mortality and 
serious injury to levels that are as low as is feasible. We often hear 
Americans speak in scathing terms of other nations that catch marine 
mammals in fishing nets without qualms. Striving toward the zero 
mortality rate goal assures us of ``clean'' fisheries of which the U.S. 
can be proud. It is a goal that should remain in the MMPA.
Take Reduction Teams and Reduction of Mortality in Marine Mammal Stocks
    The 1994 Amendments established, for the first time, a process 
designed to include input from all parties with a stake in the 
management of fishery interactions with marine mammals. The Amendments 
ensured that stakeholders were represented in advising management 
decisions. They also stipulated priorities for convening teams to 
address stocks or fisheries with the most serious levels of 
interactions. The highest priority was given to situations in which 
fisheries interacted with strategic stocks of marine mammals. Strategic 
stocks were those that were listed under the Endangered Species Act as 
threatened or endangered, or were listed under the MMPA as depleted or 
were sustaining levels of interactions with fisheries that exceeded the 
PBR for the stock or stocks. Take reduction teams are charged with 
producing a plan to reduce mortality to below PBR with six months of 
implementation. [Section 118(f)(5)(A)]
    Under the schedule established in the MMPA Amendments when they 
were enacted in May 1994, fisheries should have been at or below PBR by 
October 1996. Because of the extremely high levels of mortality of 
harbor porpoise in gillnet fisheries in the Gulf of Maine, Congress 
made special provisions for this fishery. The MMPA provided that the 
Secretary may ``modify the time period required for compliance with 
section 118 (f)(5)(A), but in no case may such modification extend the 
date of compliance beyond April 1, 1997.'' [Section 120 (j)(2)]
    With that in mind, the NMFS first convened a team to address 
mortality of harbor porpoise in the Gulf of Maine. This stock was 
subjected to mortality more than three times the PBR. NMFS then 
convened a team to address mortality of endangered large whales in the 
Atlantic, as levels of human-related mortality in North Atlantic right 
whales were unsustainable, and other endangered whales such as humpback 
whales and fin whales were also entangled in gillnet and lobster gear 
used along the U.S. east coast. Other teams that were convened included 
those for both the east coast and west coast driftnet and/or longline 
fisheries that interacted with offshore cetaceans including pilot 
whales and oceanic dolphins.
    The HSUS testified in greater depth in April 2000 as to the fate of 
these teams, but I would like to summarize what has been a needlessly 
contentious process. The MMPA Amendments provided a procedure and 
specific deadlines. Despite this, all take reduction teams were 
convened well after the legally mandated date. Because of delays within 
the NMFS, no fisheries were able to comply with the MMPA deadlines for 
reducing their interactions with strategic stocks to below PBR by 
October 1996. In fact, no take reduction plans had even been published 
by this date. Gulf of Maine harbor porpoise were still being killed at 
a rate almost three times their PBR when the April 1997 deadline came 
and went without publication of any take reduction plan.
    When the NMFS reported its 1995 activities to Congress, it stated 
that a ``coordination process'' to ``initiate'' Teams was begun in 
September 1995. The report states that they had contracted with a 
facilitator who was to be responsible for convening six (6) take 
reduction teams during 1996 to address the mortality of the strategic 
stocks whose PBR was exceeded. In the report, NMFS stated that these 
six teams would be ``in order of priority: Gulf of Maine stock 
(population) of harbor porpoise; Atlantic offshore cetaceans; Pacific 
offshore cetaceans; and the Atlantic baleen whales (humpback and 
northern right whales).'' Furthermore they reported that ``[t]he 
development of [Teams] for three other stocks: the Atlantic coastal 
stock of bottlenose dolphins; and the eastern and western stocks of 
Steller sea lions, is also being considered.'' We have emphasized the 
last four words, as these stock are all strategic stocks with known 
fishery interactions. Bottlenose dolphins were being killed in numbers 
exceeding their PBR and were a depleted stock; therefore a take 
reduction team was mandatory. Steller sea lions were declining in 
portions of their range and portions of the stock have been designated 
as endangered or threatened.
    Even if allowance is made for the fact that the stock assessments 
were late in development, thereby delaying the convening of take 
reduction teams, the MMPA states that take teams must be established 
``at the earliest possible time (not later than 30 days) after the 
Secretary issues a final stock assessment.'' Despite this clear 
mandate, NMFS did not convene the first take reduction team until 
February 1996. As of the date of this testimony, NMFS has convened only 
four of the six teams that they themselves had identified as having 
``the highest priority for the development of take reduction plans to 
reduce incidental bycatch of strategic stocks.'' Almost six years after 
the publication of the first stock assessment, there are still no take 
reduction plans for coastal stocks of bottlenose dolphins or for 
Steller sea lions in Alaska. The bottlenose dolphin team, which has 
been formed, has not yet officially met. Of the teams that have met, 
there have been mixed results.
The Pacific Offshore Cetacean Team
    This team was convened in February 1996 to address the mortality of 
multiple stocks of marine mammals in the Pacific driftnet fishery. It 
submitted a plan as mandated in August 1996. The NMFS published the 
draft and final plans in a timely manner and in early 1997 the plan was 
implemented. Since that time, its measures have apparently been 
effective in reducing mortality in the Pacific driftnet fishery. While 
there have been some issues of compliance by the fishery with some 
portions of the take reduction plan, the NMFS has gone forward to 
address these problems with education programs and enforcement and this 
team's efforts appear to have been a success. The same cannot be said 
of the other take reduction teams.
Gulf of Maine Harbor Porpoise
    Both the harbor porpoise teams reached basic consensus on plans to 
reduce mortality by mid-1997. Despite this, NMFS did not publish a plan 
until litigation forced them to act in 1999. Since that time, the 
mortality of harbor porpoise has dropped to approximately the PBR 
level, although The HSUS remains concerned that this is largely a 
result of Fishery Management Council related closures for the purposes 
of groundfish management rather than as a result of the provisions of 
the take reduction plan.
The Atlantic Offshore Cetacean Take Reduction Team
    This team initially had three fisheries represented on the Take 
Reduction Team. During the negotiation process, the NMFS disallowed one 
of the fisheries, the Pair Trawl Fishery. No plan was published under 
the MMPA for the remaining two fisheries and one of them, the pelagic 
driftnet fishery, was disallowed in 1999 without benefit of a take 
reduction plan. The plan for the Atlantic longline fishery was never 
published, although portions of the plan were adopted under the Fishery 
Management Plan for the fishery. The team has never been reconvened, 
and within the past two months, team members have been notified that 
the team is being disbanded for a period of approximately three years 
while the NMFS gathers additional data. This is an unconscionable 
decision.
    Data in the NMFS' own stock assessments for east coast marine 
mammal stocks for several years have indicated that the longline 
fishery continues to inflict unsupportable and illegal levels of 
mortality and serious injury on a number of strategic stocks. 
Furthermore, additional trawl fisheries such as the Squid, Mackerel and 
Butterfish trawl fishery are also killing or seriously injuring 
hundreds of oceanic dolphins. For example: the PBR for common dolphins 
is 227 animals, but the combined mortality due to offshore fisheries is 
406 - almost double the PBR. The PBR for pilot whales is 108 although 
fishery-related mortality is 245 per year - more than twice the PBR. 
Mortality of other species, such as Atlantic white-sided dolphins, 
varies from year to year as to whether it is over or just under PBR. 
Clearly the NMFS has a legal obligation to reconvene this Take 
Reduction Team as required by the MMPA.
Atlantic Large Whale Take Reduction Team
    This team was convened to address the mortality of a number of 
species of large baleen whales: north Atlantic right whales, humpback 
whales, fin whales and minke whales. The major focus of the team was 
the mortality and serious injury of right whales, the most critically 
endangered species of large whale. The team was convened in August 6, 
1996, following a lawsuit by Greenworld. The task of this team was 
difficult because, although the likelihood of any particular lobster 
pot entangling a whale was extremely low, the likelihood of a whale 
getting entangled in some lobster pot or gillnet was extremely high. 
With 300 or fewer right whales remaining, and evidence mounting that 
the population is in decline, it was (and remains) urgent that measures 
be taken to alter current fishing practices that entangle whales.
    The NMFS published a take reduction plan in the wake of both 
litigation and appeals by fishermen to Congress. This plan has been a 
resounding failure. In its most recent biological opinions on the 
affected fisheries, NMFS has stated that the take reduction plan (which 
is based on current best fishing practice) was ``inadequate to avoid 
jeopardy to right whales.'' This month, they published proposed gear 
modifications and a proposal for emergency response to aggregations of 
right whales that are currently subject to a 30-day public comment 
period. They also published an advanced notice of proposed rulemaking 
to consider implementation of additional seasonal restrictions in areas 
where right whales are predictably found outside of critical habitat. 
We have serious reservations about these measures, many of which 
request voluntary actions by fishermen. The NMFS continues to place its 
hopes in disentanglement response. Although several whales have been 
successfully disentangled, others have died or were lost subsequent to 
attempts to disentangle them and have not been seen since. Within the 
past two years an adult female died of grotesque injuries resulting 
from her entanglement, and an adult male (Churchill - who was the 
subject of many well-publicized disentanglement attempts) has finally 
disappeared after being seen lying motionless at the surface, emaciated 
and with his head drooping.
    Clearly the promise of research and the reliance on disentanglement 
have not been adequate. Measures contained in the plan to prevent 
disentanglement have failed and newly proposed measures are of 
questionable promise.
    Given the history of failure by the NMFS to act on a timely basis 
and in the face of a mounting death toll in right whales, The HSUS 
filed suit in the year 2000 against the NMFS for violations of both the 
ESA and the MMPA. It is with reluctance that we move in this direction; 
however, the history of the take reduction team process to date 
indicates that without litigation or threat of litigation, little is 
accomplished, even when the statutory requirements are perfectly clear 
and the body count of animals continues to rise. In our most recent 
court appearance, Judge Douglas Woodlock, of the First District Court 
of the United States, castigated the NMFS for countless delays and 
deliberate vagary in its proposals. He characterized their actions as 
``the `manana' approach,'' further stating: `` the approach you have 
chosen forces courts to act and you have only yourselves to blame.'' 
Indeed the Take Reduction process has not failed right whales, it is 
the NMFS that has failed them.
Coastal Stocks of Atlantic Bottlenose Dolphins
    The most recent team to be convened will address the mortality of 
bottlenose dolphins in gillnet fisheries in the mid-Atlantic. This team 
has not yet officially met and is long overdue. In its report to 
Congress for 1996 (released October 1997), NMFS stated that it had not 
yet convened a Mid-Atlantic Team; however, ``NMFS expects to convene 
this team in the spring of 1997 to address incidental takes of harbor 
porpoise and bottlenose dolphins in ocean gillnet fisheries from New 
York to North Carolina.'' Although the mid-Atlantic harbor porpoise 
take reduction team was originally to have addressed mortality of 
bottlenose dolphins, the Team was directed by the NMFS to focus its 
efforts solely on harbor porpoise. In 1997, the Team recommended that 
by January 1999, the NMFS should convene a team to address mortality of 
bottlenose dolphins.
    In 1999, The HSUS sent a letter to NMFS notifying them of our 
growing concern that they had not yet convened a team for bottlenose 
dolphins, despite repeated promises to do so. We received a commitment 
from NMFS to convene a Team in the fall of 2000, following completion 
of expanded data gathering efforts. In the summer of this year, NMFS 
began meeting with stakeholders to share with them information it had 
gathered pertaining to the structure of the stock, with updated and 
dramatically larger population assessments, and higher estimates of 
fishery-related mortality. This team has had a number of meetings 
postponed and has not yet met, though it is scheduled to do so in 
November. The HSUS hopes that the NMFS will abide by its agreement to 
convene a take reduction team. We would like to avoid litigation as a 
means of enforcing their statutory obligation to protect bottlenose 
dolphins.
Alaska Steller Sea Lion Team
    In its report to Congress on activities undertaken in 1996, the 
NMFS states that they had not yet convened this team; however they 
stated ``NMFS expects to convene this team to address incidental takes 
of Steller sea lions in Alaska Commercial fisheries. The team will be 
facilitated by Mediation Services, Seattle, WA.'' As of the date of 
this testimony in October 2001, this team has still not been convened, 
despite ongoing population declines and contributing mortality from 
fisheries interactions.
Summary of Section 118 Implementation
    It is troubling that, without litigation or threat of litigation, 
the NMFS has shown reluctance to abide by its legal responsibilities. 
Where take reduction teams have faltered, it is because the NMFS has 
undermined their functioning by bowing to political manipulation of the 
system that results in encouraging delay of action or in taking 
inadequate actions, which is then followed by the necessity of seeking 
assistance of the courts to force the agency to do its job. Indeed, The 
HSUS has been a plaintiff in two lawsuits pertaining to inaction on 
take reduction mandates.
    The 1994 Amendments put in place a system that was designed to 
allow conservationists, fishermen and scientists to join with 
government managers to develop plans that reduce mortality of marine 
mammals consistent with the mandates of the MMPA. This system CAN work. 
The illustration provided by the Pacific Offshore Cetacean Take 
Reduction Team is, in part, an example of this. Where the system has 
failed, it is generally not as a result of an inability of stakeholders 
to comprehend the problem and work collaboratively to develop a 
solution.
    Where the failure to convene teams or to implement plans is a 
result of funding and personnel insufficiency, the NMFS must seek and 
Congress should grant adequate funds. But funding alone does not seem 
to explain the failure of the NMFS to take action on take reduction 
plans. Some of the recommendations of take reduction teams would cost 
the agency nothing. For example only in October 2001 did the NMFS 
finally act on a 1999 recommendation by the Atlantic Large Whale team 
to remove 7/16'' line from a list of technology options designed to 
reduce risk. Also litigation was necessary to force publication of the 
take reduction plan for harbor porpoise, although the plan had been 
largely complete for over a year prior to the suit.
    The delays also undermine the confidence of Team members in the 
take reduction process. It is arduous work for diverse stakeholders to 
develop a plan that all can agree is likely to be effective and is 
acceptable to all interested parties. It is frustrating to have this 
hard work end with the NMFS refusing to publish a plan, often for 
years, with little or no explanation for the delay. Additionally, 
failure to enforce take reduction plan mandates further undermines the 
likelihood of the plan succeeding. The take reduction team process was 
designed to reduce the need to use lobbying and litigation as 
management tools. Instead, delays have forced both the fishing industry 
and conservation groups to use the very tools that the process was 
designed to obviate, further weakening confidence in the efficacy of 
the process.
    The failure of the NMFS to meet its statutory obligations leads to 
a waste of resources that must be consumed by legal fees, lobbying 
efforts and oversight hearings. More importantly, the failure to meet 
statutory obligations under the MMPA has lead to a needless waste of 
animals' lives.
                     Abundant Pinniped Populations
    While we understand that this issue is to be addressed in another 
Panel before the Subcommittee, The HSUS would like to take this 
opportunity to state that we believe that existing provisions in the 
MMPA are adequate to address situations of perceived conflict between 
humans and pinnipeds and concerns that pinnipeds are eating endangered 
fish species. Specifically, Section 109 and Section 120 were enacted to 
provide a forum for addressing these concerns and are a precautionary 
means of addressing conflicts. The HSUS has some grave concerns with 
portions of Section 120 and its implementation, but at the very least, 
it provides some checks and balances. We believe that there is no need 
to amend the MMPA to allow additional authorizations for the 
intentional lethal removal of pinnipeds by state and federal resource 
agencies or by private citizens. In particular, we are concerned that 
if private citizens, including fishermen, are provided with any 
authority to intentionally kill marine mammals, we will merely see a 
dramatic increase in the wounding and maiming of hundreds of marine 
mammals.
    In May 1999, Yale University completed a survey entitled ``American 
Perceptions of Marine Mammals and their Management.'' In this, they 
found that three fifths of Americans disapproved of reducing 
populations of seals and sea lions and more than ninety percent opposed 
the use of lethal practices such as shooting or poisoning seals and sea 
lions as a means of reducing conflicts even though these methods were 
described as being the least expensive option. Clearly the American 
people would not support any changes to the MMPA that would broaden the 
use of lethal forms of managing conflicts. We agree with many of the 
comments made by the Ocean Conservancy in their testimony, particularly 
the need for innovative and targeted research to develop non-lethal 
deterrents that can prevent interactions while posing little risk to 
the pinnipeds or non-target organisms.
                          Native Co-Management
    The 1994 Amendments to the MMPA provided greater authority for the 
NMFS to enter into agreements with native tribes and Alaskan natives to 
co-manage stocks of marine mammals, particularly those in Alaska. The 
HSUS has always supported the involvement of stakeholders in the 
process of determining management programs. We are, however, concerned 
that the co-management process is NOT an inclusive process. Meetings 
between native groups and the US government are not open to attendance 
by members of the public, nor is the public allowed to comment on the 
agreements prior to their going into effect. The NMFS, as can be seen 
in our testimony about take reduction teams, clearly does not always 
represent the public's interests and opinions. Problems have arisen in 
the co-management of marine mammal stocks. We note a number of examples 
from the 2001 Alaska Marine Mammal Stock Assessments, published by the 
NMFS.
    Endangered Steller Sea Lions have a PBR of 208. This stock 
continues to decline. There are no data on native subsistence hunting 
provided since 1997. In that year, natives killed 353 animals from this 
declining stock, and we have no way of knowing how many were killed in 
the past 4 years. This is simply unacceptable. Similarly, spotted seals 
are hunted by natives with no harvest data available since 1995. 
Another example, of which Congress is no doubt aware, is the crisis 
that arose for beluga whales in the Cook Inlet in Alaska, whose 
population was decimated by native hunting. While this situation has 
received a great deal of attention, and management actions have halted 
the heavy hunting; beluga whales in the Eastern Bering sea stock are 
also hunted in levels above their PBR. These belugas have a PBR of 129, 
with an estimated annual average of 121 killed by native hunters. This 
is perilously close to the PBR and, in fact, in four of the five years 
between 1993 and 1997 (the standard period used by NMFS to obtain 
annual averages), PBR was exceeded by native hunting. We do not know 
how many may have been killed since 1997. The stock assessments state 
that for virtually all marine mammal stocks hunted by natives, 
estimates of native hunting are underestimates.
    Without outside input to and review of the co-management process, 
we cannot hope to ensure that management agreements between the hunters 
and the government are adequately protective of marine mammals stocks. 
The HSUS strongly supports the inclusion of conservation interests in 
meetings and discussions pertaining to co-management agreements and 
believes that the public should have a right to comment on these 
agreements before they are enacted.
                             Public Display
Export Permits
    The MMPA should be amended to restore the requirement for a permit 
to export marine mammals for the purpose of public display, scientific 
research, and enhancing the survival or recovery of a species or stock. 
The 1994 Amendments removed this requirement and required only a 15-day 
notification to the NMFS or Fish and Wildlife Service (FWS) and a 
determination that a receiving facility meets standards comparable to 
those required under the Animal Welfare Act (AWA) and MMPA. The HSUS 
opposed these amendments, as we had serious concerns about the ability 
of the agencies under such a short-notice regime and without public 
input to ensure the well-being of marine mammals leaving this country 
for foreign facilities not under the jurisdiction of U.S. law.
    In several instances since 1994, captive cetaceans, pinnipeds, and 
sea otters have been exported to countries such as China and Japan to 
literally unknown fates. One of the most well-known exports under the 
new provisions was that of Keiko, the killer whale of ``Free Willy'' 
fame. Ironically, the Alliance of Marine Mammal Parks and Aquariums 
(Alliance) vigorously protested this export, when in fact the Alliance 
was instrumental in fashioning the minimal export provisions under 
which Keiko was sent to Iceland from Oregon. While The HSUS believes 
this export would have qualified for a permit under the pre-1994 
provisions, we point to this example in order to demonstrate that it is 
precisely because the law should be equally applied to all, that the 
law must be strong.
    The current export requirements, which include the 15-day 
notification and a letter of comity from the receiving nation, have 
proven woefully inadequate in protecting captive marine mammals leaving 
U.S. jurisdiction. National agencies all too frequently provide letters 
of comity with no substance underlying them, yet as a diplomatic 
matter, the U.S. agencies must accept these letters. The permit 
process, which includes public notice and public input through 
comments, allows a greater - and more protective - degree of scrutiny 
of a receiving facility and the laws to which it is subject.
On-Site Inspections to Determine Comparability
    Under the 1994 Amendments, foreign receiving facilities must 
demonstrate that they meet standards that are comparable to those under 
the AWA. However, the Animal and Plant Health Inspection Service 
(APHIS) has concluded that facilities may demonstrate this solely 
through providing the agency documentation - affidavits and photographs 
- rather than by the agency conducting an on-site inspection. APHIS has 
on a number of occasions stated that it does not have the authority or 
budget to conduct such on-site inspections nor the authority to require 
foreign receiving facilities to cover the expense of an on-site 
inspection. This authority or lack thereof is not clear from the 
language of the AWA or its regulations or from the language of the 
MMPA. Therefore, the MMPA should be amended to clarify in Section 
104(c)(9) that the determination of comparability must be made through 
first-hand knowledge - that is, on-site inspections - by the relevant 
U.S. agency. Otherwise the determination is in essence being made by 
the receiving facility itself, through the documentation it chooses to 
provide to APHIS, which is a clear conflict of interest.
The Marine Mammal Inventory Report (MMIR)
    The U.S. is one of the only countries in the world with legislation 
requiring the maintenance of an inventory of marine mammals held in 
captivity. Other nations without such a requirement sorely feel the 
lack. Until recently, for example, Mexican public interest groups and 
the Mexican government had no idea how many captive dolphins were held 
in their country. They had no idea what the mortality, birth, or 
survivorship rates were. Through the efforts of non-governmental 
organizations, an inventory was painstakingly put together that 
demonstrated that the situation for captive dolphins in Mexico is 
relatively grave. There are a far greater number than interest groups 
or the government were aware of (over 90 bottlenose dolphins) and the 
origins of many were controversial (e.g., wild-caught from unstudied 
populations, traded from other countries without adequate paperwork). 
Mortality rates in some facilities were excessive. Without an 
inventory, the status of captive marine mammals can be impossible to 
determine.
    Again, Congress specifically recognized the specialized nature and 
needs of marine mammals when it passed the MMPA in 1972. This nature 
and these needs have not changed in 30 years - marine mammals are 
particularly vulnerable when removed from their natural, marine habitat 
and placed in captivity. The example of other countries emphasizes why 
inventories are not only precautionary but also necessary to ensure the 
humane treatment of these animals in captivity. Government biologists 
used the data found in the MMIR in 1995 to determine the survivorship 
rates of various species commonly found in marine parks and aquariums - 
this analysis determined that while pinnipeds survived well in 
captivity, captive bottlenose dolphins at best matched the survivorship 
of their free-ranging counterparts and captive orca survivorship rates 
were depressed compared to those of their wild cousins. This begs the 
question of what causes mortality in captive dolphins and why these 
mortality sources prevent their survivorship from surpassing that of 
free-ranging dolphins - it certainly begs the question of why captive 
orcas do not survive as well as or better than wild orcas. These 
inventory data are vital to our understanding of the trade in marine 
mammals as well.
    There is no good argument for abandoning the MMIR.
Traveling Marine Mammal Shows
    The MMPA should be specifically amended to prohibit traveling shows 
(e.g., circuses, portable performances) featuring marine mammals. 
Recently, Mundo Marino, a traveling dolphin show based in Colombia, and 
the Mexican Suarez Brothers Circus, featuring performing polar bears, 
have sought entry into Puerto Rico. NMFS disallowed the entry of Mundo 
Marino but the FWS issued an import permit to the Suarez Brothers 
Circus earlier this year, after APHIS approved the circus' facilities. 
APHIS has cited the circus multiple times since June for violations of 
AWA regulations and Puerto Rican authorities charged it with cruelty to 
the bears in August. The cruelty case hearing is now scheduled for 
early December.
    Marine mammals are not suited to traveling shows. Their care and 
maintenance requirements, as evidenced by the separate and detailed 
regulations in 9 CFR Subpart E, are highly specialized. Providing 
adequately for them ``on the road'' is impossible. The agencies clearly 
believe that the current provisions of the law provide them with 
inadequate authority to prohibit such shows. Therefore, the law should 
be amended to make this authority clear. Traveling shows featuring 
marine mammals clearly violate the spirit of the MMPA, which is 
designed to conserve species and stocks and ensure humane treatment of 
these animals. It is time for the letter of the MMPA to match this 
spirit when it comes to traveling marine mammal shows.
Captive Marine Mammals and the National Marine Fisheries Service
    APHIS, under the AWA, has not demonstrated that it can adequately 
ensure the humane treatment and welfare of marine mammals on public 
display. For example, APHIS, after taking more than three years to 
finalize the regulations for the operation of swim-with-the-dolphin 
(SWTD) facilities, suspended its enforcement only six months later, in 
April 1999. It is now October 2001 and regulations for these 
specialized facilities are still not in place. The special aspects of 
SWTD interactions, which add an additional element of stress to animals 
already stressed by confinement, remain unregulated in the United 
States, putting this country on a par with such developing nations as 
the Dominican Republic and Anguilla in the Caribbean and Palau in the 
South Pacific, which have unregulated SWTD facilities. The failure of 
APHIS to expedite the review and reinstatement of these regulations 
(let alone its failure to finalize them promptly in the first place) 
emphasizes its inability to address the specialized needs of captive 
marine mammals.
    As another example, APHIS approved and licensed the Suarez Brothers 
Circus, even though a number of problems were evident in the 
documentation that the circus provided the agency. Once the circus was 
on U.S. territorial soil, some of these same problems led APHIS to 
issue citations for violations of AWA regulations, some of which were 
apparently never corrected and led to the filing of cruelty charges by 
Puerto Rican authorities. Given that some of these violations were 
evident in the circus' documentation prior to licensing, it is 
difficult to understand why APHIS licensed the circus in the first 
place, at least unless and until these violations were corrected.
    APHIS has limited expertise among its staff in the biology and 
handling of marine mammals. Its veterinary inspectors receive some 
training regarding the specialized needs and regulations for these 
animals, but this training is sometimes neglected entirely and is often 
inadequate. Facilities are allowed numerous opportunities to correct 
violations and in some instances, violations are never corrected. APHIS 
is responsible for implementing and enforcing the AWA for a broad range 
of species, both exotic and domesticated. The specialized biology and 
ecology (and captive maintenance requirements) of marine mammals, 
specifically recognized by Congress when it passed the MMPA, overburden 
this already overburdened agency.
    In 1993, The HSUS testified before the Senate Committee on 
Commerce, Science and Transportation that NMFS, in contrast to APHIS, 
has the expertise and infrastructure to ensure the humane treatment of 
captive marine mammals. What NMFS lacks in veterinary staffing, it can 
acquire. It merely makes sense that marine mammal species, under the 
jurisdiction of NMFS (and the FWS for polar bears, walruses, manatees, 
and sea otters) when wild, should continue to be under the jurisdiction 
of NMFS when captive - they do not transform into livestock merely by 
virtue of entering a tank, pen, or cage. It seems abundantly clear that 
APHIS is stretched very thin already. It also seems clear that the 
public display industry's confidence, expressed during the 1993/1994 
reauthorization, that APHIS and the AWA could adequately protect 
captive marine mammals was misplaced. We therefore maintain our 
original position that jurisdiction over captive marine mammals should 
be transferred to NMFS (and FWS for the four species under its 
authority), with an appropriate addition of marine mammal veterinarians 
to its staff (and the funding necessary to hire them).
Prohibit the Capture From the Wild of Marine Mammals For Public Display
    The U.S. public display industry frequently points out to the 
public that it has not captured any cetaceans from the wild since 1993. 
It has not captured certain cetacean species for far longer than that. 
Other species' collection numbers have also been maintained for years 
(and in some cases, decades) through captive breeding, imports/
transfers, or the retention of unreleasable stranded animals, rather 
than through wild captures. Given this successful maintenance of 
captive populations without removing animals from the wild, The HSUS 
believes it is time for the MMPA to be amended to prohibit this 
extraordinarily disruptive, traumatic practice.
                      Sport Hunting of Polar Bears
    The HSUS requests Congress to maintain the strict prohibition on 
the sport/trophy hunting of polar bears in Alaska. The entire MMPA is 
based on the understanding that marine mammals belong to the nation as 
a whole - that they are held in public trust. The prohibition against 
take is universal, as it should be - the exemptions are for purposes 
that serve the public good. To allow exemptions for personal use is 
counter to the spirit of this ground-breaking legislation. In addition, 
The HSUS believes commercial sport hunts provide a dangerous incentive 
to over-exploit this vulnerable and naturally rare species, as was 
historically the case. Sport hunting and its negative impacts on polar 
bear populations were among the primary reasons the five polar bear 
nations (Denmark [for Greenland], the Russian Federation [then the 
USSR], Norway, Canada, and the U.S.) originally negotiated and signed 
the 1973 Agreement on the Conservation of Polar Bears.
    At this time, Canada continues to be the only country that allows 
the sport hunting of polar bears under the 1973 Agreement. In 1994, 
Congress agreed to an amendment that allowed the import into the U.S. 
of trophies legally taken in Canada. The HSUS opposed this amendment, 
partially because we believe the hunt in several populations of 
Canadian polar bears was (and continues to be) unsustainable - allowing 
the import of trophies would provide a strong incentive for Canada to 
maintain or increase already unsustainable quotas because more American 
hunters would seek to purchase subsistence hunt tags from Canadian 
Inuit.
    Demonstrating our concerns, the FWS approved the M'Clintock Channel 
polar bear population for imports under the 1994 Amendments. Earlier 
this year, the agency published an emergency rule disapproving 
M'Clintock Channel because a recent study by the Canadian authorities 
indicated that there were far fewer bears than originally estimated, 
making the quota not only unsustainable, but actually an extirpation 
risk for the population. Some of the population data used to calculate 
this new population estimate were apparently available to the Canadian 
authorities as early as 1978. In addition, the population estimate was 
always rated as ``poor'' and even after the results of the first two 
years of a three-year study (1998, 1999, and 2000) showed that there 
were almost certainly far fewer bears in the population than previously 
estimated, Canada did not change the quota until the study's final year 
of results was analyzed. (The 1998/1999 hunting season, therefore, 
removed nearly 10% of the population and the unfulfilled quota was for 
more than 10% of the population.) In short, managers could have and 
should have foreseen the actual status of the population as early as 20 
years ago and certainly two years ago.
    The HSUS has always been critical of the potential for 
mismanagement under Canada's management regime. The situation in 
M'Clintock Channel is a classic example of a worst-case scenario under 
this regime, which, inter alia, relies on population estimates that are 
qualitatively rather than quantitatively characterized. The quota for 
this population was driving the M'Clintock Channel bear population 
inexorably toward extirpation for several years before the regime was 
able to detect this trend.
    It is impossible to know whether those populations that the FWS has 
not approved for import but which are still subject to legal hunts 
under Canadian law are experiencing similar negative impacts because of 
hunting under Canada's management regime. If they are, this reflects on 
Canada's entire management program. As for those six populations 
currently with full FWS approval for import, their status is arguably 
just as questionable, as they are being managed under the same regime. 
Given how long M'Clintock Channel's dire situation escaped Canada's 
notice, and given the uncertain quality of some of the population data 
from the other approved populations, there is simply no assurance that 
any polar bear population in Canada is being managed sustainably.
    The HSUS believes strongly that the amendment allowing trophies to 
be imported should be repealed. Polar bears are uniquely unsuited to 
being sport-hunted. Establishing accurate population estimates and life 
history parameters upon which commercially-driven hunts can be 
sustainably based is extremely difficult, given their remote and 
marginal habitat.
      ADDITIONAL RECOMMENDATIONS TO IMPROVE PROVISIONS OF THE MMPA
    Up to this point in our testimony, we have dealt with the 
implementation of provisions put in place in the 1994 Amendments. There 
are a number of issues, not considered in the amendments that affect 
their implementation.
Recreational Fisheries
    Meetings of the mid-Atlantic Take Reduction Team have brought to 
light the issue of recreational fisheries interacting with marine 
mammals. Section 118, which focuses on commercial fisheries, does not 
provide jurisdiction over recreational fisheries. Gillnets that are 
used to catch bait for personal use are similar in design and method of 
operation to that of commercial gillnets. Both commercial fishermen and 
scientists working in the area have observed dolphins and porpoises 
caught in these nets that are not under the jurisdiction of Section 118 
of the MMPA. Recreational lobster gear poses a risk to whales that is 
no less than that posed by commercial lobster pots, yet may not receive 
the same degree of oversight.
    We believe that there should be a mechanism for quantifying the 
nature and extent to which recreational fisheries interact with marine 
mammals when they use gear that is similar in type to that of 
commercial gear known to kill or injure marine mammals. Furthermore, we 
believe that recreational fisheries utilizing gear types similar to 
those used by commercial fisheries, and known to interact with marine 
mammals, should be subject to the same restrictions required of 
commercial fisheries.
Quantifying the Impact of Fishery Interactions
    The funding for the observer program is insufficient to provide 
anything but rudimentary observer coverage in many fisheries. Stock 
assessment surveys, which appear to be mandated by the MMPA, are simply 
not done. The HSUS believes that this is a significant problem that 
results in an underestimate of the number or impact of mortalities in 
fisheries that may interact with marine mammals. It can be addressed by 
designating appropriations for this purpose. For example, since the 
1994 Amendments, stock assessments for marine mammals in and around the 
Hawaiian Islands acknowledge that there has been no effort directed to 
determining the population abundance of most stocks and there is no 
observer coverage on most fisheries in this area. We have no way of 
knowing how many animals there are, let alone whether commercial 
fisheries may be having a negative impact on their populations. 
Resources must be directed to assess stocks and fisheries interactions 
in this area. Additionally, many gillnet fisheries in Alaska have 
little or no observer coverage. The extensive Atlantic longline fleet, 
which is known to seriously injure hundreds of animals each year, has 
less than 5% observer coverage to monitor its operations and, in some 
areas or times when interactions may occur, there is virtually no 
observer coverage. Because of a lack of resources there are a number of 
fisheries with a likelihood of killing marine mammals but about which 
we know little. Until we can provide additional and more uniform 
observer coverage, we are unlikely to be able to understand the extent 
of fishery interactions with marine mammals. This results in an 
underestimate of mortality and an inability to track the efficacy of 
take reduction measures.
    The NMFS needs to request, and Congress needs to appropriate, 
sufficient funding to ensure an adequate observer program that will be 
able to detect sources, levels and trends in marine mammal mortality.
Enforcement of Provisions of Take Reduction Plans
    Although we have focused much of our testimony on the glacial speed 
of the NMFS response to MMPA mandates to convene take reduction teams 
and publish take reduction plans, there is also a problem that arises 
with enforcement of the plans once they are published.
    Fishermen in parts of North Carolina have routinely refused to take 
federal observers on board, with absolutely no consequence resulting 
from their having violated the law. This provides disincentive to other 
fishermen who are law abiding and it means that the data that are 
gathered do not provide a random and representative look at the 
fishery's interactions with marine mammals. The result of this skewed 
picture is that we may either underestimate the number of animals 
killed, to the detriment of the marine mammal population; or we may 
overestimate the number of animals killed, to the detriment of the 
fishery. Additionally, in a number of fisheries, fishermen have been 
documented by federal observers to be fishing in closed areas, and 
killing marine mammals. No enforcement action has been taken against 
them. Again, this is a disincentive to those fishermen who are obeying 
the law and it undermines the effectiveness of the take reduction plan. 
These are but two examples of a broader problem.
    It is paramount that the NMFS examine the compliance issues that 
have come to light in these teams and take action against violators. 
Where implementing regulations are unclear or other internal 
administrative policies prevent action, these situations must be 
remedied. Furthermore, it is urgent that Congress provide adequate 
funds to both the NMFS and Coast Guard to ensure that their resources 
are sufficient to enforce compliance with laws and regulations.
Additional Funding Issues
    In earlier hearings, The HSUS has pointed out that MMPA 
implementation funds are routinely robbed for so called ``base 
funding'' shortfalls. That is, the NMFS has insufficient funds to pay 
for operating costs and permanent staff positions and, rather than fund 
recommendations by take reduction teams for additional research or 
personnel, uses these funds to pay for general operating budgets. This 
is an unacceptable practice.
    We urge the NMFS to clearly and accurately depict its needs for on-
going operating costs and we further urge that Congress appropriate 
sufficient base funding to meet these needs. Funds identified for 
implementing Take Reduction Team recommendations and for conducting 
research that helps us understand and reduce levels of mortality in 
marine mammals must be used for their intended purpose.
                                SUMMARY
    In summary, the 1994 Amendments put in place a means of obtaining 
many of the goals outlined in the MMPA when it was passed in1972. We 
can now gauge the impact of human-related actions on marine mammal 
populations and we have a process to help mitigate adverse impacts. In 
particular the approaches taken in the use of PBR and the zero 
mortality rate goal, should stand as a measuring stick to the MMPA's 
commitment to reduce or eliminate threats to marine mammal populations. 
Stakeholders are now assured a role in management decisions. In some 
cases there are ongoing adverse impacts, as is the case in some stocks 
hunted by natives or sport hunters, marine mammals killed in 
recreational fisheries, and where marine mammals in captivity have lost 
important protections; however, clarifications to the MMPA would 
address many of these problems. We also believe that the federal 
government should maintain management authority for marine mammals, 
rather than abrogating to states or user groups. Lethal taking of 
marine mammals should remain prohibited. Additional problems in the 
implementation of the MMPA can be addressed by careful attention to 
enforcement of existing requirements; by demanding Agency compliance 
with existing provisions of the MMPA, including deadlines for action; 
by ensuring participation of multiple stakeholders in all decision 
making fora; and by ensuring adequate funding to carry out the intent 
of the provisions of the MMPA.
    The HSUS would not oppose a straight reauthorization of the MMPA. 
The HSUS would also support extremely limited and non-controversial 
changes that are intended to clarify the MMPA's obvious conservation 
intent. Many of the concerns we have expressed can be addressed through 
the allocation of sufficient resources; by agencies taking overdue 
regulatory actions or making interpretations of the MMPA that allow 
stricter enforcement of its provisions; and by ensuring support by the 
agencies and this Congress for action by inclusive bodies of 
stakeholders acting to resolve or prevent problems.
    The 1999 Yale University study of ``American Perceptions of Marine 
Mammals and their Management'' by Stephen Kellert and colleagues 
concludes:

        ``The results of this study largely revealed strong support for 
        marine mammal protection among the great majority of 
        Americans... Most Americans indicate a willingness to render 
        significant sacrifices to sustain and enhance marine mammal 
        populations and species. Despite concern for various 
        commercially important ocean activities, including commercial 
        fishing and oil and gas extraction, these interests did not 
        supercede the public's inclination to protect marine mammals. 
        Most Americans consistently indicated a desire to modify or 
        alter these and other human activities in the marine 
        environment to protect marine mammal populations and species, 
        even it if necessitated sacrifices on society's part. Americans 
        further affirmed the importance of maintaining the Marine 
        Mammal Protection Act.

    With the passage of the MMPA in 1972, Congress granted marine 
mammals a special protection and status that was, and still remains, 
the desire of the American people. The 1994 Amendments helped objectify 
many of its lofty goals. The HSUS urges you to keep the MMPA strong in 
its protection of marine mammals.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Ms. Young.
    Mr. Mannina?

    STATEMENT OF GEORGE MANNINA, AMERICAN ZOO AND AQUARIUM 
    ASSOCIATION AND THE ALLIANCE OF MARINE MAMMAL PARKS AND 
                           AQUARIUMS

    Mr. Mannina. Mr. Chairman, Mr. Underwood, in 1993 NMFS 
proposed replacing five pages of marine mammal public display 
regulations with 234 pages of what NMFS called a simplification 
and what we lawyers called a retirement plan. In 1994 Congress 
rejected that so-called simplification. Now, 7 years later, 
NMFS is proposing regulations which resurrect many of the same 
proposals Congress rejected in 1994.
    For example, in the 1993 simplification, NMFS proposed that 
it and APHIS have separate and equal authority to establish and 
enforce marine mammal care and maintenance standards. Congress, 
however, decided it was wasteful to have two agencies 
performing the same responsibilities, and gave APHIS the job.
    Nevertheless, in its 2001 proposal, NMFS now claims it has 
joint responsibility with APHIS to enforce APHIS's care and 
maintenance standards. This creates the awkward circumstance in 
which an APHIS inspector finds a facility in compliance with 
APHIS's regulations, but NMFS says the APHIS inspector is 
wrong. After NMFS finds the facility in violation of APHIS's 
regulations, NMFS can then revoke the facility's right to 
display marine mammals.
    This latest NMFS proposal again creates good government, 
legal, and budgetary questions as to why two different agencies 
should be enforcing the same statute. NMFS then compounds the 
problem by allowing NMFS to deputize any person to inspect a 
public display facility for compliance with APHIS's 
regulations, and to then inspect and copy any and all facility 
records. Allowing NMFS to designate any member of the public as 
an APHIS inspector, and requiring public display facilities to 
turn over all of their records to that person, raises very 
significant public policy and privacy issues.
    In 1994 Congress also rejected the cumbersome process NMFS 
had proposed to regulate the transfer of marine mammals between 
facilities. The 1994 amendments stated NMFS was to receive a 
simple 15-day notification of that transport. But the 2001 
proposed regulations resurrect much of the 1993 proposed 
simplification, replacing Congress's one notification with six 
forms. Three of those forms cover the exact same information 
already contained in the NMFS Marine Mammal Inventory.
    The 1993 simplification also codified NMFS's practice of 
prohibiting marine mammal exports unless the receiving foreign 
nation agreed to enforce NMFS's regulations. Not surprisingly, 
foreign nations were somewhat less than enthusiastic about 
subordinating their sovereign authority to NMFS's regulations, 
and Congress rejected NMFS's idea. The 2001 NMFS proposal 
resurrects that idea.
    To understand the problem, a case example may be helpful. 
Assume for a moment an animal is to be exported from the United 
States to France. Under NMFS's proposal, the French Government 
must agree to give comity to NMFS's regulations and APHIS's 
care and maintenance standards.
    If 10 years later the animal is exported to Germany, and 10 
years after that to Spain, under NMFS's proposal each of those 
governments must agree to enforce NMFS's regulations and 
APHIS's care and maintenance standards, and for each transfer 
NMFS is to receive six inventory and transport notification 
forms.
    And if the animal gives birth, the NMFS proposal would 
require that the NMFS regulations would apply to the care and 
transfer of that progeny. And if that progeny dies, we may now 
be 60 years after the transfer, NMFS is to receive an inventory 
notice and an explanation of the cause of death.
    NMFS's plan raises some very significant international 
relations issues and very serious questions about whether NMFS 
should be using its limited resources to transform itself into 
an international regulatory agency.
    Although I have highlighted just a few problems, the 2001 
NMFS proposal essentially repeals large segments of the 1994 
MMPA amendments. While we very much would like to work with 
NMFS to resolve these issues, NMFS appears intent upon pursuing 
its same old regulatory agenda, and it may well be necessary 
for Congress to speak with even greater clarity to these 
issues.
    Thank you.
    [The prepared statement of Mr. Mannina follows:]

Statement of George Mannina, on behalf of the American Zoo and Aquarium 
   Association and the Alliance of Marine Mammal Parks and Aquariums

    Mr. Chairman and Members of the Subcommittee, I am representing the 
American Zoo and Aquarium Association (AZA) and the Alliance of Marine 
Mammal Parks and Aquariums (Alliance). The members of these two 
organizations include marine life parks, aquariums, and zoos whose 
expertise is the public display of animals including marine mammals. 
These zoological institutions are dedicated to the highest standards of 
care for marine mammals and to their conservation in the wild through 
public education, scientific study, and wildlife presentations. 
Collectively, the members of AZA and the Alliance represent the 
greatest body of experience and knowledge with respect to marine mammal 
husbandry.
    AZA represents over 200 accredited zoo and aquarium institutions 
that draw over 135 million visitors annually and have more than 5 
million zoo and aquarium members. The Alliance has 40 members that host 
over 36 million visitors each year. Collectively, these institutions 
teach more than 12 million people each year in living classrooms, 
dedicate over $50 million annually to education programs, invest over 
$50 million annually to scientific research and support over 1300 field 
conservation and research projects in 80 countries.
    AZA and the Alliance are uniquely qualified to comment on the 
Marine Mammal Protection Act (MMPA). Both organizations are very 
knowledgeable about the MMPA as it pertains to the public display of 
marine mammals and the rescue of stranded animals. And, both were 
actively involved in the process of amending the MMPA in 1994.
                I. The Role of Public Display Facilities
    The House Resources Committee and its Subcommittee on Fisheries 
Conservation, Wildlife and Oceans have long understood the important 
role of public display. Indeed, a Congressional report on the passage 
of Marine Mammal Protection Act in 1972 observed ``...without observing 
marine mammals in oceanaria the 'magnificent interest' in marine 
mammals will be lost and 'none will ever see them and none will care 
about them and they will be extinct. If it were not for these 
organizations and the public exposure you have on these animals in the 
first place, these matters wouldn't be brought to the attention of the 
public.' ''
A. Education
    The conservation of marine mammals requires public education, the 
practice of conservation behaviors by every individual, and the 
development of effective public policy. The public display of marine 
mammals plays an integral role in this conservation effort, helping to 
preserve these magnificent animals for present and future generations. 
With public display comes marine mammal education and conservation 
programs unique in their ability to establish a personal connection 
between visitors and the animals. This personal connection fosters 
learning about how the behaviors of each and every one of us affect 
marine mammals and the habitats in which they dwell.
    Congress has entrusted zoological parks and aquariums with great 
responsibility and they strive daily to live up to that responsibility. 
Each and every year, members of the American Zoo and Aquarium 
Association and the Alliance of Marine Mammal Parks and Aquariums 
proudly communicate their educational messages to an ever-expanding and 
diverse audience, reaching more and more children and adults about the 
importance of conserving marine mammals and their habitats. Members 
provide an enthusiastic, imaginative, and intellectually stimulating 
environment to the approximately 140 million people who visit AZA and 
Alliance member marine life parks, aquariums, and zoos annually. 
Additionally, each year over 12 million young people participate in 
programs for school children. With the growth of the Internet, along 
with more traditional forms of communication, AZA and Alliance members 
reach nearly one hundred and fifty million children and adults each 
year.
    Recognizing this responsibility, both AZA and the Alliance 
established standards for education programs offered by public display 
facilities in the United States. The standards have been acknowledged 
by the National Marine Fisheries Service (NMFS) as the two 
``professionally accepted standards'' on which a public display 
facility must base its education and conservation programs. NMFS 
published these standards in the Federal Register October 6, 1994, 
(Vol.59, No.193, Pgs. 50900-2).
    The mission of educational exhibits and programming at AZA and 
Alliance member facilities is to enhance the appreciation and 
understanding of marine mammals and their ecosystems. Members of these 
zoological institutions instill in those who visit an awareness of 
ecological and conservation issues and a respect and caring for these 
animals and their environments. Our members believe this respect 
engenders a strong, active commitment to marine mammal conservation and 
an understanding that each and every person can make a difference. 
Generally, the goals of AZA and Alliance member education programs are 
to:
     Lprovide opportunities for visitors to expand their 
knowledge about marine mammal biology and natural history;
     Lpromote awareness of and sensitivity toward the marine 
environment;
     Lpresent information on marine conservation issues;
     Lbe marine science and environmental information resources 
to interested citizens, local schools, community groups, and educators, 
and
     Linspire visitors to embrace conservation behavior.
    Education programs and courses are diverse and age relevant. 
Programs for children ages three to five provide an excellent 
opportunity for preschoolers to see and begin to gain an appreciation 
and understanding of other living creatures. Interspersed amidst the 
singing, role-playing, and other activities designed to teach young 
children about marine mammal characteristics and behavior is a strong 
conservation message of respect for all life forms. Programs emphasize 
learning through sight, touch, sound, and movement.
    Education courses for school-age children teach the importance of 
conservation, responsible human behavior, and the principles of 
ecology. The courses also promote basic competencies in science and 
other related disciplines. AZA and Alliance members typically use 
county and state science curriculum standards when developing programs. 
Many institutions have curriculum advisory committees made up of local 
educators who review curriculum and programs to assure that they meet 
the needs of teachers, the community and the state.
    Elementary and secondary school teachers who are interested in 
incorporating new, exciting programs into their teaching plans have the 
opportunity to learn to teach curriculums developed by AZA and Alliance 
members. The focus on the environment and conservation includes 
activities in both field and laboratory settings. Courses reflect state 
frameworks and nationally recognized standards in science and 
mathematics. Some of the courses are designed to help teachers receive 
academic credits toward re-certification.
    In its statement on complementary sources of science education, the 
National Science Teachers Association (NSTA) specifically recognizes 
the educational role of zoos and aquaria, museums, cultural 
attractions, and other community resources. According to NSTA, there is 
a growing body of research that documents the power of learning 
experiences outside the classroom to spark curiosity and engage 
interest in the sciences during the school years and throughout a 
lifetime. NSTA points out that these complementary science institutions 
have a long history of providing staff development for teachers and 
enriching experiences for students and the public. NSTA recognizes that 
science education and resources at zoological parks and aquariums are 
``often the only means for continuing science learning in the general 
public beyond the school years.''
    A 1998 Roper Starch poll provides clear evidence that programs at 
marine life parks, aquariums, and zoos are educational and provide the 
public with a heightened appreciation of the importance of conserving 
and preserving marine mammals. Responses to the Roper Starch poll 
indicate that seeing live marine mammals enhances the educational 
experience for the visitors to marine life parks, aquariums, and zoos.
     LAlmost everyone (97%) who visited Alliance member marine 
life parks, aquariums, and zoos said their experience with live marine 
mammals had an impact on their appreciation and knowledge of the 
animals. The impact was greater for those visiting facilities where 
they actually had an opportunity to interact with marine mammals.
     LNinety-six percent (96%) of the parks' visitors agreed 
that ``seeing marine mammals engaged in their daily behavior as I did 
here today is the best way to understand and learn about them.''
     LNinety-four percent (94%) of the visitors agreed with the 
statement, ``I learned a great deal about marine mammals today.''
     LNine in ten visitors agreed that they ``have become more 
concerned about the importance of preservation/conservation of marine 
mammals as a result of my visit here today.''
B. Research
    Knowledge acquired through research with animals in public display 
facilities, in tandem with field research, is another fundamental 
contribution to marine mammal conservation. Communicating this 
knowledge is one of the most effective means of ensuring the health of 
wild marine mammals in the 21st century. Much of this research simply 
cannot be accomplished in ocean conditions.
    Tens of millions of dollars are being spent on research at and by 
AZA and Alliance member facilities that is essential in understanding 
the anatomy and physiology of marine mammals, in treating sick and 
injured animals from the wild, and in learning to better manage and 
assist endangered species. Additionally, many AZA and Alliance 
facilities collaborate with marine mammal researchers from colleges, 
universities, and other scientific institutions that conduct studies 
important to wild species' conservation and health. Over the years, 
this body of work has contributed significantly to the present 
knowledge about marine mammal biology, physiology, reproduction, 
behavior and conservation. These studies have led to improvements in 
diagnosing and treating diseases; techniques for anesthesia and 
surgery; tests for toxic substances and their effects on wild marine 
mammals; and advancements in diet, vitamin supplementation, and 
neonatal feeding.
    There is still a tremendous amount scientists do not yet know about 
the marine mammals in our oceans and rivers. And we desperately need 
greater knowledge and understanding if we are going to make informed, 
intelligent decisions regarding the increasingly complex pressures on 
these wild animals. The long-term studies of in-shore, wild marine 
mammal populations, which provide scientists opportunities to measure 
contaminant exposure, monitor health and immune responses of individual 
animals, and to study population-level trends, are extremely important. 
Alliance and AZA members play a strong role in these efforts as 
evidenced by the following examples of both in situ and ex situ 
research projects:
     Lthe Sarasota Dolphin Research Program, begun in 1970 and 
supported by the Brookfield Zoo - Chicago Zoological Society since 
1989. Efforts over these 30 years have resulted in the development of a 
natural laboratory for detailed, long-term studies of the behavior, 
population biology, health, and ecological relationships of resident 
communities of bottlenose dolphins along the central west coast of 
Florida;
     Lresearch by Six Flags Marine World on killer whales in 
northern Washington State, British Columbia, and southern Alaska, which 
has led to numerous publications since it started in 1981;
     Lcooperative work by Shedd Aquarium and the University of 
Quebec on cancer in beluga whales in the St. Lawrence River, animals 
that have high levels of PCBs, pesticides, mercury, and other mutagenic 
compounds in their systems, which will help scientists understand the 
influence of environmental contaminants on the health of these animals;
     La collaborative study of endangered manatees and their 
exposure to bacterial and viral pathogens conducted by the National 
Aquarium in Baltimore and supported by Florida Department of Natural 
Resources and SeaWorld, which will help scientists better understand 
the diseases these animals are exposed to in the wild;
     La wide range of studies on the natural history of marine 
mammals stranded in Florida by SeaWorld, focusing on food habits, 
parasites, growth, development, and mortality patterns;
     Lan assessment of the immune function of seals, sea lions, 
whales, and dolphins that will greatly add to the current body of 
knowledge also by SeaWorld; and
     Lthe first ecology and biology study of rough-toothed 
dolphins by Dolphin Quest at their French Polynesian facility, with 
support from SeaWorld;
     Ldolphins' communication systems researching by The Walt 
Disney Company's Living Seas;
     Lmicrosatellite DNA markers to look at genetic diversity 
of dolphins in public display facilities by the Indianapolis Zoo, along 
with Texas A&M University; and
     Lradiation therapy techniques for treating corneal 
opacities in beluga whales by the New York Aquarium.
C. Stranded Marine Mammals
    For centuries, experts have long been frustrated in their attempt 
to restore to health the millions of stranded marine mammals found sick 
and dying on beaches throughout the world. Today, members of AZA and 
the Alliance have the expertise and ability to offer much needed, 
practical assistance to these animals. The accumulated knowledge, 
collective experience, and resources of these facilities are the 
primary factors in these successful rehabilitation efforts. Indeed, AZA 
and Alliance members provide millions of dollars in direct expenditures 
and in-kind contributions annually to support stranding programs.
    Though there are hundreds of unspoken heroes who strive to save 
stranded marine mammals, one recent event was highlighted in a 
documentary by National Public Television. It featured Mystic 
Aquarium's successful rehabilitation of a pair of young pilot whales. 
The show was titled Whale Rescue: Stranded Friends. The pair of whales 
were rescued from a Cape Cod beach and, after being nursed back to 
health for nearly four months, were released off the coast of Rhode 
Island. It was the first release of pilot whales by any U.S. aquarium 
in nearly 14 years. The whales were fitted with satellite-linked 
transmitters that operated for approximately three months and provided 
aquarium scientists with important information about the animals' range 
and diving patterns.
    Also, Animal Planet's Wild Rescues last year featured a segment on 
Dually, an injured manatee rescued in the Florida Keys. The show 
contains dramatic footage of Dually's initial rescue by the Dolphin 
Research Center and her surgery at Miami Seaquarium to remove fishing 
line embedded in her flippers.
    The U.S. Coast Guard flew a melon-headed whale calf to Sea Life 
Park Hawaii after it was found floundering in the ocean two years ago. 
These whales are not found in public display facilities and scientists 
from the University of Hawaii are using this unique opportunity to 
learn more about the species and its acoustic behavior.
    Mass strandings are becoming more common. Over 100 dolphins died in 
bays along the Florida panhandle in late 1999 and early 2000. Another 
100 dolphins stranded and 28 died last year in the Florida Keys. AZA 
and Alliance members located throughout Florida cooperated with 
government officials in efforts to save the animals involved in the 
mass strandings in their state waters. The U.S. government also is 
concerned about a die-off of gray whales along the Pacific coast.
               II. The 2001 Regulations Proposed by NMFS
    The 1994 Amendments (1994 Amendments) to the Marine Mammal 
Protection Act were a reaction to, and rejection of, regulations 
proposed by NMFS. In 1993, NMFS proposed replacing 5 pages of public 
display regulations with a 234-page ``simplification.'' The 1994 
Amendments rejected that ``simplification.''
    On July 3, 2001, more than seven years after passage of the 1994 
Amendments, NMFS published proposed regulations (``Proposed 
Regulations'') to implement the 1994 Amendments. 66 Fed. Reg. 35209 
(July 3, 2001). The Proposed Regulations are inconsistent with, and 
contradict, the 1994 Amendments, resurrecting many of the same sweeping 
and costly proposals Congress rejected in 1994. The following are the 
principal issues.
A. Care and Maintenance Standards for Marine Mammals
    Before the 1994 Amendments, NMFS claimed it had equal authority 
with the Animal and Plant Health Inspection Service (APHIS) to 
establish and enforce care and maintenance standards for marine mammals 
at public display facilities. The 1993 proposed regulations made clear 
that NMFS intended to exercise its claimed authority in significant 
ways. However, in the 1994 Amendments, Congress decided it was wasteful 
for two agencies to have identical responsibilities and that the public 
display community should not be subjected to double jeopardy by having 
two different agencies enforcing care and maintenance standards. 
Therefore, Congress determined that APHIS would have sole authority 
over the care and maintenance of animals at public display facilities. 
Nevertheless, the Proposed Regulations resurrect the rejected 1993 
approach by giving NMFS joint responsibility to enforce APHIS' care and 
maintenance standards.
    Reflecting Congressional intent to have only one agency issuing and 
enforcing care and maintenance standards, the 1994 Amendments provided 
that when NMFS issues a public display permit, NMFS' responsibility is 
restricted to determining whether the public display facility ``is 
registered or holds a license'' issued by APHIS pursuant to the Animal 
Welfare Act (``AWA''). 16 U.S.C. Sec. 1374(c)(2)(A)(ii). Indeed, the 
preamble to the Proposed Regulations admits that the ``Captive care and 
maintenance of marine mammals held for public display are now under the 
sole jurisdiction'' of APHIS. 66 Fed. Reg. at 35211. The preamble also 
admits that the 1994 Amendments had the specific effect of ``removing 
the jurisdiction of NMFS over public display captive animal care . . 
.'' Id. Thus, Congress clearly provided that the establishment and 
enforcement of marine mammal care and maintenance standards is APHIS' 
responsibility.
    Nevertheless, the Proposed Regulations attempt to overturn the 1994 
Amendments by stating that NMFS' authority is not limited to 
determining if a public display facility has an APHIS registration or 
license. Instead, the Proposed Regulations state NMFS must also 
independently determine that the facility complies with all of APHIS' 
care and maintenance standards. Proposed Sec. 216.43(b)(3)(ii), 66 Fed. 
Reg. at 35216. As in 1993, NMFS is claiming it has joint responsibility 
with APHIS to enforce APHIS' care and maintenance standards.
    This intent becomes very clear in Sec. 216.43(a)(4) of the Proposed 
Regulations which states that public display facilities must allow any 
National Oceanic and Atmospheric Administration employee to examine any 
marine mammal, to inspect all public display facilities and operations, 
and to review and copy all records concerning any marine mammal. 66 
Fed. Reg. at 35216. Compounding the problem of having two agencies 
enforcing the same regulations, the Proposed Regulations state that 
``any person'' designated by NMFS will also have the right to examine 
any marine mammal held for public display, to inspect any public 
display facility, and to review and copy all records. [Emphasis added.] 
Proposed Sec. 216.43(a)(4), 66 Fed. Reg. at 35216.
    Simply put, the Proposed Regulations could create the situation in 
which APHIS finds a facility in compliance with APHIS' standards, but 
NMFS, or some private person designated by NMFS, says that APHIS is 
wrong about APHIS' own regulations-- and NMFS can then either deny the 
facility the right to display animals or seize the animals.
    This was the specific result Congress rejected in 1994. Not only do 
the Proposed Regulations create budgetary questions regarding why 
Congress would want two agencies enforcing the same statute, 
particularly when the AWA vests sole enforcement authority with APHIS, 
but they also raise public policy and significant privacy issues 
regarding why any member of the public designated by NMFS should have 
the right to inspect facilities for compliance with APHIS standards and 
to require public display facilities to turn over all of their records.
B. Export of Marine Mammals
    Although Congress and the courts have rejected NMFS' effort to 
apply the MMPA in foreign nations, the Proposed Regulations 
specifically attempt to make foreign citizens subject to NMFS' 
regulations. Not surprisingly, foreign nations are not enthusiastic 
about subordinating their sovereign authority to NMFS' regulations.
    Prior to the 1994 Amendments, NMFS required that marine mammals 
could be exported for public display only if the foreign nation agreed 
it would afford comity to any decision by NMFS to modify, suspend or 
revoke that permit. 66 Fed. Reg. at 35213. The 1994 Amendments rejected 
the NMFS requirement. The 1994 Amendments provided that any person 
properly holding marine mammals for public display in the United States 
could export the animals ``without obtaining any additional permit or 
authorization.'' 16 U.S.C. Sec. 1374(c)(2)(B). However, the 1994 
Amendments did effectively address the export issue by stating that a 
marine mammal could be exported for public display only if the 
receiving facility met ``standards that are comparable to the 
requirements that a person must meet to receive a permit'' under the 
MMPA for public display. 16 U.S.C. Sec. 1374(c)(9). There are three 
such standards: the facility must (1) offer a program for education or 
conservation based on professionally recognized standards of the public 
display community; (2) have an APHIS registration or 
license1; and (3) be open to the public on a regularly 
scheduled basis with access not limited except by an admission fee. 16 
U.S.C. 1374(c)(2)(A). Significantly, Congress applied this 
comparability test only to the facility which receives the animals from 
the United States and not to subsequent transfers between foreign 
facilities.
---------------------------------------------------------------------------
    \1\ This standard is met through a comparability review by APHIS.
---------------------------------------------------------------------------
    In the 1994 Amendments, Congress clearly recognized the continuing 
validity of the decision in United States v. Mitchell, 553 F.2d 996, 
1003, 1005 (5th Cir. 1977), where the Court held the MMPA does not 
apply within the territory of a foreign sovereign. Indeed, a December 
10, 1996, opinion from the Office of General Counsel, NOAA, stated the 
MMPA ``does not confer U.S. jurisdiction over marine mammals in the 
territory of other sovereign states.''
    The Proposed Regulations offer a different interpretation of the 
1994 Amendments. The Proposed Regulations amend the statute by 
replacing the comparability test with the requirement that the foreign 
facility ``must meet the public display criteria at Sec. 
216.43(b)(3)(i) through (iii). . .'' [Emphasis added.] Proposed 
Sec. 215.43(f)(2), 66 Fed. Reg. 35219. However, the requirements of 
section 216.43(b)(3)(i)-(iii) include not only the three statutory 
requirements that a facility offer an education or conservation program 
based on professionally recognized standards, be registered or hold on 
APHIS license, and be open to the public, but section 216.43(b)(3)(ii) 
adds NMFS' newly minted requirement that NMFS independently determine 
that the facility complies with APHIS' care and maintenance 
standards.2
---------------------------------------------------------------------------
    \2\ After requiring absolute compliance, the Proposed Regulations 
state that the receiving facility must also submit to NMFS a letter 
from APHIS certifying that the receiving facility meets standards 
comparable to those of APHIS. Proposed sections 216.43(f)(2), 66 Fed. 
Reg. at 35219.
---------------------------------------------------------------------------
    But the Proposed Regulations do not stop here. NMFS interprets the 
MMPA provision requiring NMFS to maintain an inventory of marine 
mammals held under MMPA permits, 16 U.S.C. Sec. 1374(c)(10), to mean 
that NMFS must maintain an inventory of those animals and their progeny 
even if the animals are no longer in the U.S. 66 Fed. Reg. 35213. Since 
everyone agrees the MMPA does not apply outside the U.S., it is hard to 
see how NMFS reaches the conclusion that NMFS is to apply the inventory 
reporting requirements to foreign citizens. Nevertheless, NMFS combines 
that interpretation with its new version of the comparability standard 
to conclude that NMFS can prohibit the export of a marine mammal until 
the government of the country in which the receiving facility is 
located signs a letter of comity agreeing ``to enforce requirements 
equivalent to the U.S. Marine Mammal Protection Act. . .'' Proposed 
Sec. 216.43(f)(4), 66 Fed. Reg. 35219, see 66 Fed. Reg. 35213. The 
regulatory preamble makes it quite clear that equivalency means all of 
NMFS' regulatory requirements. 66 Fed. Reg. at 35213. Thus, the 
preamble states that NMFS' regulatory requirements apply ``to all 
holders of animals exported from the United States . . .'' Id.
    To understand the problem, a case example may be helpful. The 
Proposed Regulations, including the letter of comity, have the effect 
of providing that if an animal is exported from the United States to a 
French facility in 2001, and the French facility decides in 2011 to 
transfer the animal to a public display facility in Spain, then the 
French government and the French facility must determine that the 
Spanish facility meets the MMPA standards as interpreted by NMFS, 
including the requirement that the facility meets APHIS requirements 
and has an acceptable education or conservation program--- and NMFS 
must receive a transport notification and inventory report from both 
the Spanish and French facilities. If the animal at the Spanish 
facility gives birth 5 years later, the Spanish facility must file an 
inventory report with NMFS reporting the birth. If that progeny is 
transferred to a public display facility in Germany 10 years later, the 
Spanish government and the Spanish facility are to ensure that the 
German facility meets the requirements of the U.S. MMPA as interpreted 
by NMFS, including the requirement that the facility meets APHIS 
standards and has an acceptable education or conservation program--- 
and NMFS is to receive a transport notification and inventory report 
from both the Spanish and the German facilities. If 15 years later, now 
40 years after the original 2001 export from the U.S., the marine 
mammal originally transferred, now in a Spanish facility, dies, NMFS is 
to receive an inventory notice of that event together with an 
explanation of the cause of death. And if the progeny, now in Germany, 
dies in 2061, 60 years after the parent left the United States, NMFS is 
to receive an inventory notification including the cause of death.
    These ``comity'' requirements are nothing more than an effort by 
NMFS to apply the MMPA internationally, something neither Congress nor 
the courts allow. The Proposed Regulations not only raise very serious 
international relations issues, but they also raise serious questions 
about whether NMFS should be using its limited resources to transform 
itself into an international regulatory agency.
C. The Removal of Animals from the Wild
    Although no public display facility has taken marine mammals from 
the wild since 1992, and there are no plans to do so, it may some day 
be necessary to do so to maintain genetic diversity. The Proposed 
Regulations make that impossible.
    With respect to non-depleted species, the Proposed Regulations 
provide that unless NMFS has established a removal quota, the applicant 
for a take permit must demonstrate that the taking ``will not have, by 
itself or in combination with all other known takes and sources of 
mortality, a significant direct or indirect adverse effect'' on the 
species. Proposed Sec. 216.43(b)(3)(v)(B), 66 Fed. Reg. at 35216. 
However, existing regulations already require a permit applicant to 
demonstrate that any taking ``by itself or in combination with other 
activities, will not likely have a significant adverse impact on the 
species or stock . . .'' 50 C.F.R. 216.34(a)(4).
    The public display community does not object to the existing 
regulations. But the Proposed Regulations significantly change the 
existing standard and create an impossible burden to meet. Unlike the 
existing regulations which require a showing that the taking is not 
``likely'' to have a significant adverse effect on the species, the 
Proposed Regulations require that the public display community prove a 
negative i.e., that the taking ``will not have'' a significant adverse 
effect. Moreover, the Proposed Regulations now require that you prove a 
negative not only with respect to ``direct'' effects but also with 
respect to what NMFS calls ``indirect'' effects.
    Not only do the Proposed Regulations establish standards which are 
virtually impossible to meet, but if a person tries to meet the 
standard, NMFS creates still more obstacles because the Proposed 
Regulations allow NMFS to require public display facilities to 
undertake extensive, expensive and time consuming research to gather 
and analyze population level information and to evaluate every other 
direct or indirect take or source of mortality. The Proposed 
Regulations are quite specific that NMFS' decision on whether to allow 
the taking is to be based on the best available information ``including 
information gathered by the applicant.'' This last clause allows NMFS 
to require an unending gathering of new information in order to satisfy 
whatever information thresholds NMFS may establish.
    The public display community does not object to the existing 
requirement that it demonstrate that any removal from the wild is not 
likely to adversely affect the population at issue. The community does 
object to the wording in the Proposed Regulations moving the goalposts 
and permitting NMFS to insist on information gathering which allows 
NMFS to move the goalposts again by requiring new studies before NMFS 
can make a decision.
    A clear example of NMFS' moving the goalposts is found with respect 
to depleted species. The MMPA prohibits the taking of any depleted 
species. 16 U.S.C. Sec. 1372(b)(3). The Proposed Regulations, include 
the statutory prohibition but then go on to amend the MMPA by also 
prohibiting the taking of animals from a species which is ``proposed by 
NMFS to be designated as depleted. . .'' Proposed 
Sec. 216.43(b)(4)(iii)(A), 66 Fed. Reg. at 35216. Even the Endangered 
Species Act does not have a provision like that which NMFS is trying to 
insert into the MMPA. Significantly, NMFS does not impose upon itself 
any time limit for reaching a final decision on its proposal to 
designate a species as depleted.
D. Transfer, Reporting and Other Requirements
    The 1994 Amendments provide that a person issued a permit to take 
or import marine mammals for public display shall have the right 
``without obtaining any additional permit or authorization'' to sell, 
transport, transfer, etc. the marine mammal to persons who meet the 
MMPA requirements. 16 U.S.C. Sec. 1374(c)(2)(B). The MMPA also provides 
that a person exercising these permit rights must notify the Secretary 
of Commerce no later than 15 days before any sale, transport, etc. 16 
U.S.C. Sec. 1374(c)(2)(E). However, the Proposed Regulations ignore the 
simple and direct process contained in the statute and resurrect 
elements of the 1993 proposed ``simplification'' that Congress 
rejected.
    Not only do the Proposed Regulations require that the shipping 
facility provide the statutorily required 15-day transport notice, but 
the shipping facility must also submit a complete Marine Mammal Data 
Sheet (``MMDS'') for each mammal to be transferred. Proposed 
Sec. 216.43(e)(1)(i), 66 Fed. Reg. 35217. The MMDS gives the animal's 
official NMFS identification number, name, sex, age, origin, etc.--- 
information already held in the NMFS inventory. The Proposed 
Regulations go on to state that in addition to receiving a transport 
notification and MMDS from the shipping facility, NMFS must also 
receive a transport notification and another MMDS for the marine mammal 
from the receiving facility. Id. After the transfer occurs, the 
receiving facility must confirm the transport and submit yet another 
MMDS. Proposed Sec. 216.43(e)(2), 66 Fed. Reg. at 35218. Thus, a single 
15-day notification required by the statute has been transformed into 
the submission of three transport notifications for the same 
transaction and three MMDS forms restating the information already in 
the inventory.3
---------------------------------------------------------------------------
    \3\ Many observers have questioned the need for the inventory since 
there is no apparent use of the inventory by NMFS. Given that, the 
question becomes whether the inventory requirements should be deleted 
from the Act.
---------------------------------------------------------------------------
    Moreover, the Proposed Regulations require that before a transport 
can occur, both the holder and the receiver must provide NMFS with a 
certification that the receiver meets the requirements of 
Sec. 216.43(b)(3)(i)-(iii) of the Proposed Regulations. Proposed 
Sec. 216.43(e)(1)(i), 66 Fed. Reg. at 35217-18. As noted above, these 
provisions include requirements that a facility have a conservation or 
education program, have an APHIS license or registration, be open to 
the public and be in compliance with all APHIS requirements. However, 
the Proposed Regulations make persons subject to civil or criminal 
penalties for submitting false information. Proposed Sec. 216.13(g), 66 
Fed. Reg. at 35215.
    Read together, these provisions mean that a shipping facility is 
now subject to penalties if NMFS finds, for example, that the receiving 
facility is not in full compliance with APHIS standards. It is not 
clear why an APHIS determination of compliance with APHIS requirements 
is not adequate and why the shipper and receiver must provide an 
independent certification, particularly when the MMPA says the transfer 
may occur without further permit or authorization.
    Finally, after erecting the regulatory regime described above, the 
Proposed Regulations state that any public display permit issued by 
NMFS shall ``contain other conditions deemed appropriate'' by NMFS, a 
catchall provision apparently authorizing NMFS to issue any additional 
requirements it might think appropriate. Proposed Sec. 216.43(b)(5), 66 
Fed. Reg. 35216. Although such a provision might seem a reasonable 
contingency for most agencies, given NMFS' history, it is a provision 
about which significant questions must be raised because, in the past, 
NMFS has not exercised its authority judiciously.
    In summary, NMFS has taken the simple process provided for in the 
statute and converted it into a needlessly cumbersome process.
E. Other Issues
    Although the preceding are the major issues, there are a number of 
other issues in the Proposed Regulations which are of concern. For 
example, Congress intended that the marine mammal inventory be a record 
of animals actually held at public display facilities. As noted above, 
there are serious questions about whether the inventory serves any 
regulatory purpose. That said, if the inventory is to be a record of 
marine mammals held at public display facilities, its only valid 
purpose can be with respect to living marine mammals. It is neither 
appropriate nor necessary that the Proposed Regulations require 
facilities to report stillbirths since such animals will not become 
part of the inventory of animals at public display facilities. See 
Proposed Sec. 216.43(e)(4)(vii), 66 Fed. Reg. at 35218. The issue 
regarding stillbirths is with respect to genetics and public display 
facilities already report stillbirths to these persons who maintain 
these genetic records.
F. Congressional Assistance May Be Needed
    A review of the Proposed Regulations shows NMFS is attempting to 
resurrect regulatory proposals already rejected by Congress. NMFS is 
also attempting to amend the MMPA by inserting provisions nowhere found 
in the statute. Further, NMFS is adopting new legal interpretations 
which are not even in the Proposed Regulations but which reverse 
longstanding understandings of the MMPA. An example of the latter is a 
July 31, 2001, Marine Mammal Commission (Commission) letter stating 
that NMFS and the Commission have now determined that the MMPA 
prohibits NMFS from allowing foreign nationals to take marine mammals 
in U.S. waters and to export them to a foreign facility, although NMFS 
could permit U.S. nationals to do so. Since 1972, NMFS and the 
Commission have read the MMPA to allow for the issuance of such permits 
to foreign nationals and the letter admits that since the 1994 
Amendments six such permits have been issued. Nevertheless, NMFS and 
the Commission have now decided that the legal authority they found in 
the MMPA somehow is no longer there. To reach that conclusion, they 
have discovered words and concepts nowhere found in the MMPA.
    We hope that we will be successful working with the agency through 
the normal administrative process to have this proposed rule 
drastically modified in a way that reflects Congressional intent. And 
we may need to look to Congress for support in that endeavor. Should 
our efforts be unsuccessful, we may have to request further legislative 
changes that will clearly and precisely limit NMFS' ability to continue 
to ``interpret'' the MMPA to insert provisions nowhere found in the law 
and to impose regulatory interpretations and reinterpretations that are 
duplicative, unnecessarily burdensome and contrary to Congressional 
intent.
                 III. Prescott Stranding Grant Program
    AZA and the Alliance are very grateful for the help this 
Subcommittee has provided with the John H. Prescott Marine Mammal 
Rescue Assistance Grant Program. Vice Chair Saxton was the principal 
author of the Prescott bill when he was chair of the Subcommittee. The 
grant program was initially conceived as a means of providing financial 
support for the largely volunteer efforts of stranding network 
participants. This was reflected in the three priorities listed in the 
law for which grants should be approved treatment of stranded marine 
mammals, data collection for scientific research, and facility 
operating costs. However, when NMFS published its criteria for the 
program's implementation plan, these priorities were ignored.
    Instead, the agency's listed priorities would impose additional 
work on long-time volunteer stranding network participants rather than 
help them with their struggle to fund current activities related to 
their already significant responsibilities. To meet many agency 
priorities, network participants would have to formulate proposals for 
new research in order to obtain grant funds. Additionally, it appears 
that the agency's priorities are geared more towards incidents of live 
marine mammal strandings. While these situations are very important and 
warrant great concern, the majority of stranding activities relate to 
dead marine mammal strandings. Also, the agency's priorities include a 
number of outstanding and much needed endeavors, such as a national 
stranding workshop and meeting, but these are items more appropriately 
undertaken by the agency.
    AZA and the Alliance were also very concerned that NMFS had capped 
grants at $75,000 rather than the $100,000 limit Congress had intended. 
These issues reportedly have been resolved through discussions between 
the Congress and the agency. But our two organizations may have to 
again request help if NMFS continues to use the grant program to fund 
agency priorities rather than the needs of stranding participants.
                             IV. Conclusion
    Both AZA and the Alliance very much appreciate the opportunity to 
testify before the Subcommittee today and hope our comments have been 
helpful. We look forward to working with the Subcommittee on the 
upcoming reauthorization of the Marine Mammal Protection Act.
                                 ______
                                 
    [An attachment to Mr. Mannina's statement follows:]

VIA fax and mail
301/713-0376

November 1, 2001

Ann Terbush
National Marine Fisheries Service
Office of Protected Resources F/PR1
Permits Division
1315 East-West Highway, Room 13705
Silver Spring, MD 20910

RE: Protected Species Special Exemption Permits;
Docket No. 001031304-0304-01

    On behalf of the 201 accredited institutional members of the 
American Zoo and Aquarium Association (AZA), I respectfully submit the 
following comments with regard to the National Marine Fisheries 
Service's (NMFS) proposed regulations for implementation of the Marine 
Mammal Protection Act (MMPA) Amendments of 1994 (1994 Amendments) 
affecting marine mammals in public display facilities.
    AZA institutions draw over 135 million visitors annually and have 
more than 5 million zoo and aquarium members who provide almost $100 
million in support. These institutions teach more than 12 million 
people each year in living classrooms, dedicate over $50 million 
annually to education programs, invest over $50 million annually to 
scientific research and support over 1300 field conservation and 
research projects in 80 countries.
                          aza general comments
    Collectively, AZA members represent the foremost authorities on 
marine mammal care, husbandry, and behavior. AZA member institutions 
also play a critical role in the conservation of marine mammals in the 
wild through the broad-based education, research, and stranding/
recovery/rehabilitation programs briefly outlined below:
Education
    The conservation of marine mammals requires public education, the 
practice of conservation behaviors by every individual, and the 
development of effective public policy. The public display of marine 
mammals plays an integral role in this conservation effort, helping to 
preserve these magnificent animals for present and future generations. 
With public display comes marine mammal education and conservation 
programs unique in their ability to establish a personal connection 
between visitors and the animals. This personal connection fosters 
learning about how the behaviors of each and every one of us affect 
marine mammals and the habitats in which they dwell.
    The mission of educational exhibits and programming at AZA member 
facilities is to enhance the appreciation and understanding of marine 
mammals and their ecosystems. Members of these zoological institutions 
instill in those who visit an awareness of ecological and conservation 
issues and a respect and caring for these animals and their 
environments. Our members believe this respect engenders a strong, 
active commitment to marine mammal conservation and an understanding 
that each and every person can make a difference. Generally, the goals 
of AZA member education programs are to:
     Lprovide opportunities for visitors to expand their 
knowledge about marine mammal biology and natural history;
     Lpromote awareness of and sensitivity toward the marine 
environment;
     Lpresent information on marine conservation issues;
     Lbe marine science and environmental information resources 
to interested citizens, local schools, community groups, and educators, 
and
     Linspire visitors to embrace conservation behavior.
Research
    Knowledge acquired through research with animals in public display 
facilities, in tandem with field research, is another fundamental 
contribution to marine mammal conservation. Communicating this 
knowledge is one of the most effective means of ensuring the health of 
wild marine mammals in the 21st century. Much of this research simply 
cannot be accomplished in ocean conditions.
    Tens of millions of dollars are being spent on research at and by 
AZA member facilities that is essential in understanding the anatomy 
and physiology of marine mammals, in treating sick and injured animals 
from the wild, and in learning to better manage and assist endangered 
species. Additionally, many AZA facilities collaborate with marine 
mammal researchers from colleges, universities, and other scientific 
institutions that conduct studies important to wild species' 
conservation and health. Over the years, this body of work has 
contributed significantly to the present knowledge about marine mammal 
biology, physiology, reproduction, behavior and conservation. These 
studies have led to improvements in diagnosing and treating diseases; 
techniques for anesthesia and surgery; tests for toxic substances and 
their effects on wild marine mammals; and advancements in diet, vitamin 
supplementation, and neonatal feeding.
Stranded Marine Mammals
    For centuries, experts have long been frustrated in their attempt 
to restore to health the millions of stranded marine mammals found sick 
and dying on beaches throughout the world. Today, members of AZA have 
the expertise and ability to offer much needed, practical assistance to 
these animals. The accumulated knowledge, collective experience, and 
resources of these facilities are the primary factors in these 
successful rehabilitation efforts. Indeed, AZA members provide millions 
of dollars in direct expenditures and in-kind contributions annually to 
support stranding programs.
                       2001 proposed regulations
A. Care and Maintenance Standards for Marine Mammals
    In the 1994 Amendments, Congress decided it was wasteful for two 
agencies to have identical responsibilities and that the public display 
community should not be subjected to double jeopardy by having two 
different agencies enforcing care and maintenance standards. Therefore, 
Congress determined that APHIS would have sole authority over the care 
and maintenance of animals at public display facilities. We believe the 
Proposed Regulations reject this Congressional mandate by giving NMFS 
joint responsibility to enforce APHIS' care and maintenance standards.
    Reflecting Congressional intent to have only one agency issuing and 
enforcing care and maintenance standards, the 1994 Amendments provided 
that when NMFS issues a public display permit, NMFS' responsibility is 
restricted to determining whether the public display facility ``is 
registered or holds a license'' issued by APHIS pursuant to the Animal 
Welfare Act (``AWA''). 16 U.S.C. Sec. 1374(c)(2)(A)(ii). The preamble 
to the Proposed Regulations admits that the ``Captive care and 
maintenance of marine mammals held for public display are now under the 
sole jurisdiction'' of APHIS. 66 Fed. Reg. at 35211. The preamble also 
states that the 1994 Amendments had the specific effect of ``removing 
the jurisdiction of NMFS over public display captive animal care...'' 
Id. Thus, Congress clearly provided that the establishment and 
enforcement of marine mammal care and maintenance standards is APHIS' 
responsibility.
    The Proposed Regulations attempt to overturn the 1994 Amendments by 
stating that NMFS' authority is not limited solely to determining if a 
public display facility has an APHIS registration or license.

    Proposed Sec. 216.43(b)(3)(ii), at 35216: For the Office Director 
to issue a public display permit, the applicant must be registered or 
hold an exhibitor's license and comply with all applicable Animal and 
Plant Health Inspection Service standards at 9 CFR subpart E (emphasis 
added)
    AZA Response: The Proposed Regulations can be interpreted to read 
that NMFS must also independently determine that the facility complies 
with all of APHIS' care and maintenance standards. Thus, NMFS is 
claiming it has joint responsibility with APHIS to enforce APHIS' care 
and maintenance standards.
    The1994 Amendments provides no statutory authority, nor does the 
legislative history of the 1994 Amendments express the will of the 
Congress to provide for the National Marine Fisheries Service to carry 
out this responsibility.

    Proposed Sec. 216.43(a)(4)(i) at 35216: To facilitate compliance 
with Sec. 216.43: (i) The holder shall allow any designated employee of 
NOAA or any person designated by the Office Director to: (A) Examine 
any marine mammal held for public display; (B) Inspect all facilities 
and operations which support any marine mammal held for public display; 
and (C) Review and copy all records concerning any marine mammal held 
for public display (emphasis added)
    AZA Response: The1994 Amendments provides no statutory authority, 
nor does the legislative history of the 1994 Amendments express the 
will of the Congress to provide for the National Marine Fisheries 
Service to carry out the responsibilities outlined under Sec. 216.43 
(a)(4) or to assign a designee said responsibilities.
    The Proposed Regulations under Sec. 216.43 could create the 
situation whereby APHIS finds a facility in compliance with APHIS' 
standards, but NMFS, or some private person designated by NMFS, says 
that APHIS is wrong about APHIS' own regulations--- and NMFS can then 
either deny the facility the right to display animals or seize the 
animals.
    This was the specific result Congress rejected through the 1994 
Amendments. The Proposed Regulations under Sec. 216.43 create budgetary 
questions regarding why Congress would want two agencies enforcing the 
same statute, particularly when the AWA vests sole enforcement 
authority with APHIS. They also raise public policy and significant 
privacy issues regarding why any member of the public designated by 
NMFS should have the right to inspect facilities for compliance with 
APHIS standards and to require public display facilities to turn over 
all of their records.
B. Export of Marine Mammals
    Prior to the 1994 Amendments, NMFS required that marine mammals 
could be exported for public display only if the foreign nation agreed 
it would afford comity to any decision by NMFS to modify, suspend or 
revoke said permit. 66 Fed. Reg. at 35213. The 1994 Amendments rejected 
the NMFS requirement. The 1994 Amendments provided that any person 
properly holding marine mammals for public display in the United States 
could export the animals ``without obtaining any additional permit or 
authorization.'' 16 U.S.C. Sec. 1374(c)(2)(B). However, the 1994 
Amendments did address the export issue by stating that a marine mammal 
could be exported for public display only if the receiving facility met 
``standards that are comparable to the requirements that a person must 
meet to receive a permit'' under the MMPA for public display. 16 U.S.C. 
Sec. 1374(c)(9). There are three such standards: the facility must (1) 
offer a program for education or conservation based on professionally 
recognized standards of the public display community; (2) have an APHIS 
registration or license 1; and (3) be open to the public on 
a regularly scheduled basis with access not limited except by an 
admission fee. 16 U.S.C. Sec. 1374(c)(2)(A). Congress applied this 
comparability test only to the facility which receives the animals from 
the United States and not to subsequent transfers between foreign 
facilities.
---------------------------------------------------------------------------
    \1\ This standard is met through a comparability review by APHIS.
---------------------------------------------------------------------------
    In the 1994 Amendments, Congress recognized the continuing validity 
of the decision in United States v. Mitchell, 553 F.2d 996, 1003, 1005 
(5th Cir. 1977), where the Court held the MMPA does not apply within 
the territory of a foreign sovereign. A December 10, 1996, opinion from 
the Office of General Counsel, NOAA, stated the MMPA ``does not confer 
U.S. jurisdiction over marine mammals in the territory of other 
sovereign states.''

    Proposed Sec. 216.43(f)(2) at 35219: Persons intending to receive 
marine mammals for public display by export from the United States must 
meet the public display criteria at Sec. 216.43(b)(3)(i) through (iii).
    AZA Response: The Proposed Regulations under Sec. 216.43(f)(2) 
amend the statute by replacing the comparability test with the 
requirement that the foreign facility ``must meet the public display 
criteria at Sec. 216.43(b)(3)(i) through (iii): . . .'' (emphasis 
added). However, the requirements of section 216.43(b)(3)(i)-(iii) 
include not only the three statutory requirements that a facility offer 
an education or conservation program based on professionally recognized 
standards, be registered or hold on APHIS license, and be open to the 
public, but section 216.43(b)(3)(ii) adds NMFS' newly created 
requirement that NMFS independently determine that the facility 
complies with APHIS' care and maintenance standards. 2 
The1994 Amendments provides no statutory authority, nor does the 
legislative history of the 1994 Amendments express the will of the 
Congress to provide for the National Marine Fisheries Service to carry 
out this responsibility.
---------------------------------------------------------------------------
    \2\ After requiring absolute compliance, the Proposed Regulations 
state that the receiving facility must also submit to NMFS a letter 
from APHIS certifying that the receiving facility meets standards 
comparable to those of APHIS. Proposed Sec. 216.43(f)(2), 66 Fed. Reg. 
at 35219.
---------------------------------------------------------------------------

    Proposed Sec. 216.43(f)(4)(ii), 66 Fed. Reg. 35219: ...the Office 
Director must receive a statement from the appropriate agency of the 
government of the country where is foreign receiver/facility is located 
certifying that the laws and regulations of the foreign government 
involved permit that government to enforce requirements equivalent to 
the requirements of the US Marine Mammal Protection Act and Animal 
Welfare Act.
    AZA Response: NMFS employs its newly-created version of the 
comparability standard to conclude that the agency can prohibit the 
export of a marine mammal until the government of the country in which 
the receiving facility is located signs a letter of comity agreeing 
``to enforce requirements equivalent to the U.S. Marine Mammal 
Protection Act. . .''
    These ``comity'' requirements appear to represent an effort by NMFS 
to apply the MMPA internationally, something neither Congress nor the 
courts allow. The Proposed Regulations raise very serious questions 
about whether NMFS should be using its limited resources to transform 
itself into an international regulatory agency.
C. The Removal of Animals from the Wild
    Although no AZA facility has taken marine mammals from the wild 
since 1992, it may be necessary to do so in the future in order to 
maintain genetic diversity among marine mammals within the public 
display community. The 1994 Amendments provide for this possibility, 
however the Proposed Regulations would make the removal of marine 
mammals from the wild extremely difficult, if not impossible.

    Proposed Sec. 216.43(b)(3)(v)(B), 66 Fed. Reg. at 35216: For the 
Office Director to issue a public display permit, the applicant must 
demonstrate that any proposed permanent removal from the wild is 
consistent with any applicable quota established by NMFS, or where 
there is no quota in effect, will not have, by itself or in combination 
with all other known takes and sources of mortality, a significant 
direct or indirect adverse effect on the protected species or stock, as 
determined on the basis of the best available information on cumulative 
take for the species or stock, including information gathered by the 
applicant concerning the status of the species or stock.
    AZA Response: Existing regulations, at 50 C.F.R. 216.34(a)(4) 
already require a permit applicant to demonstrate that any taking ``by 
itself or in combination with other activities, will not likely have a 
significant adverse impact on the species or stock . . .'' The Proposed 
Regulations significantly change the existing standard and create an 
impossible burden to meet. Unlike the existing regulations which 
require a showing that the taking is not ``likely'' to have a 
significant adverse effect on the species, the Proposed Regulations 
require that the public display community prove a negative--i.e., that 
the taking ``will not have'' a significant adverse effect. Moreover, 
the Proposed Regulations now require that an applicant prove a negative 
not only with respect to ``direct'' effects but also with respect to 
what NMFS calls ``indirect'' effects.
    The Proposed Regulations establish standards that are virtually 
impossible to meet. If an applicant attempts to meet the standard, NMFS 
creates still more obstacles because the Proposed Regulations allow 
NMFS to require public display facilities to undertake extensive, 
expensive and time consuming research to gather and analyze population 
level information and to evaluate every other direct or indirect take 
or source of mortality. The Proposed Regulations are quite specific 
that NMFS' decision on whether to allow the taking is to be based on 
the best available information ``including information gathered by the 
applicant.'' This last clause allows NMFS to require an unending 
gathering of new information in order to satisfy whatever information 
thresholds NMFS may establish.
    AZA does not object to the existing requirement that its members 
demonstrate that any removal from the wild is not likely to adversely 
affect the population at issue. We do, however, object to the wording 
in the Proposed Regulations that permits NMFS to insist on information 
gathering that allows the agency to unilaterally alter permit 
requirements by requesting additional studies before NMFS can make a 
decision.

    Proposed Sec. 216.43(b)(4)(iii)(A) at 35216: Permit holders may not 
capture or import a marine mammal that is from a species or stock 
designated as depleted or proposed by NMFS to be designated as depleted 
(emphasis added).
    The MMPA prohibits the taking of any depleted species. 16 U.S.C. 
Sec. 1372(b)(3). The Proposed Regulations include this statutory 
prohibition but then proceed to amend the MMPA by also prohibiting the 
taking of animals from a species which is ``proposed by NMFS to be 
designated as depleted. . .'' In addition, NMFS does not impose upon 
itself any time limit for reaching a final decision on its proposal to 
designate a species as depleted.
    The1994 Amendments provides no statutory authority, nor does the 
legislative history of the 1994 Amendments express the will of the 
Congress to allow the National Marine Fisheries Service to regulate the 
take of species or stocks proposed by NMFS to be designated as depleted 
for public display purposes.
D. Transfer, Reporting and Other Requirements
    The 1994 Amendment provide that a person issued a permit to take or 
import marine mammals for public display shall have the right ``without 
obtaining any additional permit or authorization'' to sell, transport, 
transfer, etc. the marine mammal to persons who meet the MMPA 
requirements. 16 U.S.C. Sec. 1374(c)(2)(B). The MMPA also provides that 
a person exercising these permit rights must notify the Secretary of 
Commerce no later than 15 days before any sale, transport, etc. 16 
U.S.C. Sec. 1374(c)(2)(E).

    Proposed Sec. 216.43(e)(1)(i) at 35217: The holder and receiver 
must submit a completed Marine Mammal Transport Notification (MMTN) 
together with a supporting Marine Mammal Data Sheet (MMDS) for each 
marine mammal to be transferred. A completed MMTN includes a MMDS for 
each animal proposed for transfer and/or transport and a certification 
signed by both the holder and the receiver which provides that the 
receiver and/or receiving facility meets the requirements of paragraphs 
Sec. 216.43(b)(3)(i) through (iii).
    Proposed Sec. 216.43(e)(2), 66 Fed. Reg. at 35218: Receivers must 
provide verification within 30 days of the date of transfer and/or 
transport. Verifications must include a revised MMDS for each marine 
mammal...
    AZA Response: The Proposed Regulations require that the shipping 
facility provide the statutorily required 15-day transport notice and 
submit a complete Marine Mammal Data Sheet (``MMDS'') for each mammal 
to be transferred. The MMDS gives the animal's official NMFS 
identification number, name, sex, age, origin, etc.--- information 
already held in the NMFS inventory. The Proposed Regulations go on to 
state that in addition to receiving a transport notification and MMDS 
from the shipping facility, NMFS must also receive a transport 
notification and another MMDS for the marine mammal from the receiving 
facility. After the transfer occurs, the receiving facility must 
confirm the transport and submit yet another MMDS.
    Moreover, the Proposed Regulations require that before a transport 
can occur, both the holder and the receiver must provide NMFS with a 
certification that the receiver meets the requirements of 
Sec. 216.43(b)(3)(i)-(iii) of the Proposed Regulations. As noted above, 
these provisions include requirements that a facility have a 
conservation or education program, have an APHIS license or 
registration, be open to the public and be in compliance with all APHIS 
requirements.
    Read together, these provisions mean that a shipping facility is 
now subject to penalties if NMFS finds, for example, that the receiving 
facility is not in full compliance with APHIS standards. An APHIS 
determination of compliance with APHIS requirements should be adequate. 
It is also unnecessary for the shipper and receiver to provide an 
independent certification, particularly when the MMPA says the transfer 
may occur without further permit or authorization.

    Proposed Sec. 216.43(b)(5) at 35216: All public display permits 
issued under this subpart shall, in addition to the specific conditions 
set forth..., contain other conditions deemed appropriate by the Office 
Director.
    AZA Response: The Proposed Regulations state that any public 
display permit issued by NMFS shall ``contain other conditions deemed 
appropriate'' by NMFS--a catchall provision apparently authorizing NMFS 
to issue any additional requirements it might think appropriate. AZA 
believes that all public display permit conditions should be fully 
disclosed in the regulations in order to provide for consistency and 
objectivity in the permit process.
E. Other Issues
    Proposed Sec. 216.43(e)(4)(vii) at 35218: ...holders of captive 
marine mammals must provide an updated MMDS to the Office Director 
whenever a change in inventory occurs. This updated MMDS must include: 
If a marine mammal dies, including stillbirths and animals that undergo 
euthanasia, the holder must notify the Office Director within 30 days 
of the date of death (emphasis added).
    AZA Response: Congress specifically intended that the marine mammal 
inventory be a record of animals actually held at public display 
facilities. If the inventory is to be a record of marine mammals held 
at public display facilities, its only valid purpose should be with 
respect to living marine mammals. AZA believes that it is neither 
appropriate nor necessary that the Proposed Regulations require 
facilities to report stillbirths since such animals will not become 
part of the inventory of animals at public display facilities. The 
issue regarding stillbirths is with respect to genetics and public 
display facilities already report stillbirths to those entities which 
maintain these genetic records. This section should be deleted as there 
is no statutory authority to collect stillbirth data.

    Thank you for the opportunity to comment on these important 
proposals. If you require any further information, please contact me at 
301/562-0777 ext. 249.

Regards,

Steven G. Olson
Director, Government Affairs
American Zoo and Aquarium Association
                                 ______
                                 
    Mr. Gilchrest. Thank you, Mr. Mannina.
    Mr. Marks?

   STATEMENT OF RICK E. MARKS, MEMBER, TAKE REDUCTION TEAMS, 
                GARDEN STATE SEAFOOD ASSOCIATION

    Mr. Marks. Mr. Chairman, Mr. Underwood, I serve on three 
take reduction teams, and I represent the New Jersey commercial 
fishermen as the Garden State Seafood Association. I also work 
very closely with commercial fishermen from New England, the 
Mid-Atlantic, North Carolina, Florida Keys, the West Coast, and 
Alaska. I think you will find that my comments will resonate 
with fishermen from those areas as well.
    First, for the take reduction team process to continue to 
work, it must be perceived by all parties as a level playing 
field for consensus-based negotiations. The facilitator is 
critical to that process. They must be perceived as impartial 
by all parties if the process is to work. To NMFS's credit, all 
the TRTs to date involve facilitators with no overt interest in 
marine mammals.
    We are about to convene a new take reduction team in the 
Mid-Atlantic, and fishermen already believe they are not 
entering a fair negotiation. This is not personal. The 
facilitating agency and its staff are unknown to us, but the 
fact remains that the Office of Protected Resources has allowed 
the selection of a facilitating agent that has served as a 
stakeholder on a previous take reduction team, that publishes a 
whale conservation newsletter, that is funded in part by the 
Massachusetts Environmental Trust and the Office of Protected 
Resources. This process has become tainted before it has even 
started, and that is not, Mr. Chairman, what we bargained for 
in 1994.
    My second point is that the lack of information 
disadvantages fishermen. Mr. Chairman, unless you experience 
firsthand the problems we are all having in the take reduction 
team process with the lack of information, you just can't 
really understand it.
    This is not to mean any disrespect to the agency, because 
the demands on them are huge, but the fact still remains that 
if we are going to require a high level of detail to implement 
the MMPA, we ought to have the requisite data to do it. The 
temporal and spatial limited information is forcing 
precautionary decisionmaking on the process, and because of 
that, fishermen in our economy are suffering.
    I would like to make note of Dr. Hogarth's leadership in 
moving forward with NMFS's request in the CJS appropriations 
process for funds to conduct bottlenose dolphin research. We 
support that request, and ask that this Subcommittee would do 
the same.
    Point number three: The act lacks national standards. The 
act has no effective provision currently to allow for the 
consideration of socioeconomic impacts of marine mammal 
protection measures on fishermen, on their families, and on 
their communities.
    We currently operate under a regime where our own fishermen 
are afforded less consideration than a porpoise. Mr. Chairman, 
I see fishermen struggling to make their next month's boat 
payment at the very same time they are kept tied to the dock 
for one of the most productive fishing months in their year, 
just because we need to have a 95 percent certainty that a 
particular population of mammals has to be at its optimum level 
in either 20 or 100 years, and we just can no longer stand this 
level of inequity.
    Point number four: The act is flawed because it protects 
but it does not manage. The MMPA is intensely protectionistic, 
with stiff civil and criminal penalties for offenders. The net 
effect of such extreme protectionism on any species would be 
that there would be more of them. But, you might ask, how does 
the act handle increasing numbers of marine mammals, some to 
the point of becoming a public nuisance?
    The answer is simple: The act does not at all. If you are a 
fisherman using crab pots, gillnets, baited hooks, or if you 
set ocean net pens to raise fish for food, the laws of 
probability dictate you are going to have more problems with 
marine mammals because there will be more of them to have 
problems with. The act is dysfunctional because it does not 
address the very problem it creates.
    Our fifth and final point is that the act is overly 
conservative. Mr. Chairman, two elements come to mind in the 
MMPA, PBR and ZMRG, and I believe both of them would do nicely 
as poster children for the precautionary approach. PBR is 
calculated as the product of three variables: stock size, stock 
productivity, and a safety factor.
    The best scientific estimates of stock size and stock 
productivity are calculated, and then they are reasonably 
reduced to account for uncertainty in the data. And I note here 
that the act conveniently does not contain a definition of what 
``reasonable'' actually is.
    Clearly, then, we understand it is NMFS's intention that 
the values of these variables are less than what is considered 
the best scientific information. A safety factor is then tossed 
in for good measure, also reportedly to account for 
uncertainty.
    The effect that these assumptions have on population size 
and PBR calculations can be astounding. In the case of harbor 
porpoise, the population was reduced 35 percent on paper from 
recent survey estimates. In numbers, that is a reduction of 
74,000 animals to 48,000 animals, counted, then discounted. PBR 
was reduced 257 animals based on that reduction. These huge 
reductions from the best scientific estimates represent 
multiple layers of precaution.
    ZMRG, the level of incidental mammal takes by commercial 
fishing interactions is defined as the insignificant levels 
approaching a zero mortality and serious injury rate. It is not 
based on biology, common sense. It has not been quantified and 
it has not been codified in regulation. Mr. Chairman, if you 
allow this to happen, you will expose the Departments of 
Commerce and Interior to intense litigious activity. Please 
remove that provision from the act.
    I know these are difficult issues, Mr. Chairman. My 
fishermen know it as well. That is why we need your direction. 
That is why we need Congress to step in, help craft and 
implement a much more reasonable law.
    I see that I am out of time. I will merely quickly 
summarize by giving you just 4 of the short recommendations of 
the 10 that we have in our written testimony:
    Incorporate objective facilitator selection criteria; 
create a formal set of national standards to ensure adequate 
science and socioeconomic informations are considered; minimize 
the precautionary layering in the PBR by directing scientists 
to provide a range of PBR rather than an ultra-conservative 
point estimate; and require NMFS to take a multidisciplinary, 
multi-agency, multidepartmental approach to mammal management, 
rather than just relying on the Office of Protected Resources; 
and please provide the necessary authorization for research and 
stock assessment work.
    Mr. Chairman, please accept my written testimony for the 
record. On behalf of the fishermen in New Jersey and like-
minded fishermen from around the Nation, we appreciate your 
time and the time of the members to share our thoughts with you 
today.
    [The prepared statement of Mr. Marks follows:]

 Statement of Rick E. Marks, Robertson, Monagle & Eastaugh, Arlington, 
                                Virginia

    Mr. Chairman and Members of the House Subcommittee on Fisheries, 
Conservation, Wildlife and Oceans, on behalf of the members of the 
Garden State Seafood Association, I thank you for the opportunity to 
appear before you to discuss the reauthorization of the Marine Mammal 
Protection Act.
    The membership of the Garden State Seafood Association (GSSA) is 
comprised of shore-based and at-sea commercial fishing interests and 
fishing-dependent businesses located throughout the State of New 
Jersey. The various members of the GSSA have a long history of 
participation, investment, employment, and cooperative scientific data 
collection and gear mitigation efforts involving numerous mid-Atlantic 
commercial fisheries, including but not limited to, Atlantic mackerel, 
long and shortfin squid, Atlantic monkfish, Atlantic scallop, blue 
crab, summer flounder, scup, black sea bass, American shad, surf clam 
and ocean quahog, Atlantic menhaden, bluefish, and spiny dogfish.
    Traditionally, commercial fishing ports in the State of New Jersey, 
including Cape May and Point Pleasant among others, are considered 
major national fishing ports accounting annually for 150 to 200 million 
pounds of seafood products. GSSA members utilize a vast number of 
available fishing gears to harvest these marine resources including 
various gillnet designs, mid-water and bottom trawls, scallop and clam 
dredges, and crab pots.
    Mr. Chairman, New Jersey fishermen and their counterparts from 
around the country are reporting increasing problems with protected 
species management issues, chief among them the MMPA. Fishermen 
continue to forgo fishing time and income in an effort to address these 
growing problems. Unfortunately, the situation is out of control, and 
the federal government is placing the needs of mammals far above that 
of fishing families, and fishermen are now in an untenable position. It 
is for these reasons that we appear before this Subcommittee. We 
provide oral comments, submit written testimony for the record with 
your approval, and ask for your leadership in helping us resolve these 
difficult issues.
THE MMPA: PROTECTIONISM VERSUS RESOURCE MANAGEMENT
    The main objectives of the MMPA are ``to protect and encourage 
marine mammals to develop to the greatest extent feasible commensurate 
with sound policies of resource management'' such that they do not 
``cease to be a significant functioning element of the ecosystem of 
which they are a part'' and that they do not diminish below their 
optimum sustainable population (OSP).'' U.S.C. 1361(2);(6). In theory, 
this represents a somewhat balanced approach to wildlife management, 
making sense both biologically and philosophically.
    It is with the federal government's subsequent implementation of 
the Act that we begin to experience a distinct shift from ``sound 
policies of resource management'' toward outright protectionism. It is 
readily acknowledged that the original law was crafted in an effort to 
atone for the consequences of ``man's impact upon marine mammals 
[which] has ranged from what might be termed malign neglect to virtual 
genocide.'' H.R. Rept. No. 92-707. This philosophical shift comes at 
the expense of working men and women involved in commercial fishing 
around the nation.
    The 1994 MMPA reauthorization (P.L. 103-238) provided, among other 
things, for the accidental harm of mammals in the normal course of 
commercial fish harvesting. But the law also requires fishing 
operations to take steps to reduce interactions with populations that 
NMFS determines to be in decline via a take reduction team, or the 
``TRT'' approach. Here again, in theory this appears to be a reasonable 
methodology for purposes of marine mammal management.
    In reality however, the MMPA will continue to be perceived as 
controversial and flawed legislation because it: (A) applies overly 
extreme levels of precautionary management in the absence of sound 
scientific information; (B) fails to address the paradox of protecting 
& managing population increases that inevitably follow complete and 
total protection; (C) prioritizes the interests of marine mammals 
disproportionately above that of mankind by failing to balance marine 
mammal protection measures with socio-economic concerns; and (D) has 
the unattainable goal of maintaining stocks at OSP at least 95 percent 
of the time.
PBR: AN EXERCISE IN PRECAUTIONARY MANAGEMENT
    The 1994 MMPA reauthorization added a new requirement that NMFS 
develop estimates of Potential Biological Removal (``PBR''). PBR is the 
maximum number of animals, not including natural mortalities, which may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population.
    PBR is the product of three components: (1) the minimum population 
estimate (Nmin); half the maximum net productivity rate (0.5 Rmax); and 
a recovery factor (Fr) and is expressed by the formula:

                       PBR = Nmin * 1/2 Rmax * Fr

    PBR is not based on or derived from any specific wildlife 
management population model. It was apparently developed by NMFS solely 
for implementing the 1994 MMPA amendments. NMFS scientists freely 
incorporated several layers of precautionary assumptions into the only 
formula that would serve as a nationwide standard for calculating PBR.
    The Minimum Population Estimate (Nmin) is defined as the number of 
animals in a stock, which is supposed to be based on the best available 
information and provides reasonable assurance that the stock size is 
equal to or greater than the estimate. However, the Act contains no 
specific reference to what is ``a reasonable assurance'' that the 
population is equal to or greater than that estimate. This means that 
NMFS intends for the values to be less than the best estimate. Indeed, 
the best available population survey numbers are adjusted downward as 
the NMFS deems fit to account for ``uncertainty.''
    ``Rmax'' is defined as one half of the maximum theoretical or 
estimated net productivity rate of the stock at a small population 
size. Net productivity rate is considered to be the annual per capita 
rate of increase in a stock due to reproduction. In most instances 
conservative default values are used, 0.04 (cetaceans) and 0.12 
(pinnipeds). Hence, not only are conservative values employed as a 
starting point, but the Rmax values are reduced again by half to 
account for possible ``uncertainty.''
    Finally, a recovery factor termed ``Fr'' is applied to the PBR 
calculation. The intent of the recovery factor is to compensate for 
uncertainty and possible unknown estimation errors. Though the 1994 
amendments provided no specific guidance for values of Fr, values of 
0.1 to 1.0 are arbitrarily used to reduce the value of PBR. The value 
of Fr used in a given PBR formula may vary, such that Fr = 0.1 for 
endangered stocks; Fr = 0.50 for stocks of unknown status or listed as 
depleted or threatened; and Fr = 1.0 for stocks thought to be at OSP.
    Thus, a multi-tiered precautionary approach is incorporated into 
each and every PBR calculation, all reportedly for the same reason to 
account for ``uncertainty'' which remains undefined, to ensure that 
marine mammal populations are at OSP levels at least 95 percent of the 
time. The impact of such conservative assumptions on the estimate of 
PBR can be significant and is elucidated in the following harbor 
porpoise example.
HARBOR PORPOISE PBR: A PRECAUTIONARY MANAGEMENT EXAMPLE
    Harbor porpoise is a small, coastal, migratory cetacean found along 
the east coast from Canada to North Carolina. Harbor porpoise are 
currently managed in the Mid-Atlantic region under a plan developed 
jointly by NMFS and the Mid-Atlantic Harbor Porpoise Take Reduction 
(HPTRT). The final plan became effective in December, 1999. There is 
also a separate but closely related New England harbor porpoise 
management plan.
    Table 1 contains harbor porpoise abundance information available 
during 1991 to 1997. The HPTRT had only three years of survey data 
(1991, 1992, 1995) available to calculate PBR in 1997. NMFS chose not 
to utilize the most ``recent'' 1995 survey of 74,000 by itself, nor did 
they use the moving average of the most recent three surveys, nor did 
they drop the oldest and therefore, most dubious survey from 1991.
    Instead, NMFS reduced the population estimate to 54,300, using the 
inverse variance-weighted average of the three surveys. This 
effectively reduced the stock of harbor porpoise by 26 percent. The 
agency then reduced the population estimate by 8.7 percent more (taking 
the 20th percentile of the log-normal distribution) to arrive at 
48,289, the final Nmin.
    This winnowing down of the population estimates represents a heavy-
handed use of the precautionary approach and more importantly, a total 
reduction in population size equal to 34.7 percent (74,000 to 48,289) 
from the most recent survey count. This corresponds to a reduction in 
PBR from 740 to 483, significant numbers for fishermen required to meet 
the PBR number via the TRT process within just six months.
[GRAPHIC] [TIFF OMITTED] 75640.001

    Finally, the application of Rmax and Fr to the reduced value for 
Nmin forces a further low-balling of harbor porpoise PBR estimates. 
This is not a valid or necessary approach for a species such as harbor 
porpoise. These small cetaceans are reported in the scientific 
literature to have extremely short life spans, early maturity and very 
high reproductive rates, comparing favorably with those of pinniped 
species (See Read, A. & A. Hohn, 1995. Life in the Fast Lane: Life 
History of Harbor Porpoise from the Gulf of Maine).
    Arguably, applying one-half of a default Rmax value (i.e. Rmax = 
0.02 ; noting that 0.04 it is the exact same value used for large, 
slower growing whales) and the Fr default value (0.5) for a species 
with such r-selected life history characteristics may be 
philosophically justifiable, but not necessary from a scientific 
standpoint. Alternatively, calculating PBR using N = 59,667; Rmax = 
0.04 and Fr = 1.0, leads to an estimation of PBR for harbor porpoise 
equal to at least 1,629 animals.
    This approach is valid when one considers that prior to 
implementing harbor porpoise protective measures, the NMFS 1999 
population estimate for harbor porpoise totaled 89,700 animals, up from 
74,000 reported in 1995 and 37,500 in 1991 (Table 1: See also Palka, 
D., 2000. Abundance of the Gulf of Maine/Bay of Fundy Harbor Porpoise 
Based on Shipboard and Aerial Surveys during 1999).
    Clearly, in the process of developing the harbor porpoise plan, 
NMFS required an overly precautionary approach with little or no regard 
for the social and economic impacts of such a plan on fishermen.
    In the final analysis, despite evidence of increasing population 
numbers prior to the implementation of a single TRT-authored management 
measure, protecting harbor porpoise has come totally at the expense of 
commercial fishermen along the east coast. Eric Anderson, a gillnet 
fishermen from New Hampshire recently commented on the harbor porpoise 
process, stating that
        It's pleasant enough to know that we avoided an ESA listing, 
        but I'm sorry it resulted in people leaving the fishery .I 
        wonder if society recognizes and understands what these costs 
        are and I sometimes question if these natural resource policies 
        are in the best interest of society. (See National Fishermen, 
        September 2001)
ROBUST POPULATIONS
    A direct result of the narrow-minded focus on protectionism is that 
the law does not contemplate the actual ``management'' of growing 
marine mammal species. This dysfunction is readily apparent along the 
coast of California where robust populations of marauding sea lions are 
presently consuming endangered runs of salmon, wreaking economic havoc 
in numerous fisheries, injuring humans, preventing access to private 
property, and fouling public breaches and marinas with fecal waste. In 
Maine, abundant seals are reportedly tearing into ocean net pens used 
to raise salmon, causing damage and product loss. Though presently 
confined to these two regions, increasing mammal populations may well 
force us to deal with this kind of problem in many other areas, 
including the mid-Atlantic.
    Unfortunately, the law provides no management tools to treat marine 
mammals as we treat other mammal species that expand to the level of 
becoming pests. To its credit, the NMFS published a 1999 Report to 
Congress titled ``Impacts of California Sea Lions and Pacific Harbor 
Seals on Salmonids and West Coast Ecosystems''.
    In this document NMFS reports that uncontrolled mammal populations 
are negatively impacting human healthy, safety, property use, 
recreational and commercial fishing businesses, and preventing the 
recovery of depressed fish populations. NMFS outlines possible methods 
to address the growing social and economic problems resulting from 
robust mammal populations and nuisance animals in their report 
recommendations. To date, NMFS has not seen fit to effectively 
implement the recommendations contained in this report.
    The difficult and sensitive nature of this issue notwithstanding, 
the NMFS Office of Protected Resources has clearly shown it is either 
unwilling or incapable of handling this aspect of the management 
equation. Congress must now provide the leadership and direction by 
forcing the agency to take a responsible, practical approach to 
resolving the issue.
    There are really just two choices to consider regarding robust 
species, either the Act provides for a science-based wildlife 
management regime which attempts population control, or it promotes 
efforts to develop non-lethal deterrent technology and streamlines the 
lethal removal process to address disruptive nuisance animals. The Act 
does not necessarily have to provide for both, but it must allow for 
management alternatives - the federal government cannot have it both 
ways.
ZMRG: PHILOSOPHY VERUS SCIENCE
    The zero mortality rate goal (``ZMRG'') included in the 1994 
amendments mandated reductions for incidental mammal takes to 
``insignificant levels approaching a zero mortality and serious injury 
rate.'' 1916 U.S.C. Sec. 1371(a)(2). As defined here, the Act requires 
that commercial fisheries attain this goal within seven years from 
passage of the 1994 amendments (i.e. April 2001).
    Widely controversial, ZMRG is considered by some to be 
unattainable, and by others as a tool to stop commercial fishing. As 
such, it remains undefined in the regulations. However, the fact that 
it remains undefined does not mean it does not negatively impact 
fishermen during the TRT process.
    Though there is no biological justification for ZMRG, there is a 
tacit understanding among interested parties, fostered by NMFS, that 
ZMRG is considered to be less than or equal to 10 percent of PBR. From 
our experience, the existence of ZMRG, even conceptually, is used to 
generate pressure for increasing restrictions on commercial fishermen 
during the TRT process.
    Regardless of whether ZMRG is ultimately tied to some percentage of 
a stock's biological removal, or some other yet-to-be-determined 
numerical value, it remains an arbitrary limitation based solely on the 
fact that animals may still inadvertently be removed from a population 
during the process of harvesting food from the sea. Nonetheless, it 
remains patently unfair to allow constituents to be pressured to 
achieve arbitrary, philosophical objectives as part of a federal 
management process.
    Furthermore, the existence of ZMRG serves only as potential 
litigation bait it is ``Trojan Horse'' in the truest sense and must be 
removed from the Act. The resource management process is replete with 
litigation and threats of litigation which impact numerous mammal 
stocks and fisheries.
    If ZMRG is codified by regulation, the Departments of Commerce and 
Interior will be defenseless against near certain legal action from 
extremists within the conservation industry. It will be of no 
consequence how much fishermen have already sacrificed to achieve 
highly conservative PBR levels, they will be required to sacrifice even 
more of their ability to operate as efficient businessmen and raise 
their families.
THE TRT EXPERIENCE: THE GOOD, THE BAD, AND BOTTLENOSE DOLPHIN
    Commercial fishermen from New Jersey and around the country were 
generally supportive of including the TRT component in the 1994 
reauthorization. Prior to the existence of TRT's, there was no open 
public process to address mammal issues. Decision-making was at the 
discretion of the NMFS Office of Protected Resources, which was cause 
for concern among many resource-use constituencies.
    We have openly supported those positive elements of the TRT process 
including the chance for free and open exchange of information, 
opportunities to provide experienced on-the-water observations, the 
ability to jointly develop gear mitigation ideas and to engage in 
proactive efforts to address difficult issues. For these elements of 
the TRT process we are thankful to Congress and the NMFS.
    However, problems continue to plague the MMPA TRT process. Several 
of those issues were raised during this Subcommittee's last MMPA 
oversight hearing on April 6, 2000. These included, but were not 
limited to, the protocol for NMFS staff during TRT negotiations, 
funding problems, unreasonable deadlines, lack of sound scientific 
information, litigation problems, and budget shortfalls.
    From a commercial fishing industry perspective, there are 
additional ongoing TRT problems: (1) the overwhelming lack of good 
scientific information; (2) poor inter- & intra-agency/departmental 
communication and reconciliation of fishery and mammal management 
plans; (3) lack of standards to require consideration of the 
socioeconomic impacts of proposed management measures; and (4) exposure 
of the Departments of Commerce and Interior to litigation or threats of 
litigation, forcing them to prematurely convene TRT's.
    By way of example, all of the aforementioned TRT problems are 
strongly implicated in the brewing east coast bottlenose dolphin 
management controversy. Under the current scenario, this TRT process 
will result in catastrophic effects on gillnet fishermen from New 
Jersey, Maryland, Virginia, North Carolina and potentially south to the 
coast of central Florida.
    The bottlenose dolphin TRT process is scheduled to convene on 
November 6-8, 2001 with the following problems:
    (1) LPopulation estimate is severely outdated (1995) and restricted 
both temporally & spatially;
    (2) LHumane Society of the U.S. has threatened to file a ``notice 
of intent to sue'' the Secretary of Commerce for failure to convene a 
TRT to protect bottlenose dolphins pursuant to the MMPA;
    (3) LNo substantive coordination exists between the NMFS Offices of 
Sustainable Fisheries and Protected Resources and the Atlantic States 
Marine Fisheries Commission to determine the impacts of State and 
Federal Fishery Management Plan provisions on fisheries and bottlenose 
dolphins;
    (4) LDolphin stock was judged ``depleted'' due to large scale 
viral-related mortality event during 1987-88. Since then, no 
reconsideration of the ``depleted'' status or review of the genetic and 
assessment assumptions has been conducted;
    (5) LBefore the TRT has convened the OPR staff has already 
suggested the TRT consider an alternative which would remove commercial 
gillnets within 3 km of the east coast;
    (6) LEfforts by commercial fishing interests to work cooperatively 
with the NMFS OPR to examine reflective gillnet material as a form of 
gear mitigation in the mid-Atlantic region remains frustrated and 
stalled since December 2000;
    (7) LEstimates of annual dolphin mortality attributed to commercial 
fishing are not defensible nor are they supported by the survey data;
    (8) LZMRG is already influencing group discussions; and
    (9) LNMFS OPR has allowed the selection of a former TRT stakeholder 
as a facilitator who publishes a whale conservation newsletter that is 
funded and edited by the Massachusetts Environmental Trust and the NMFS 
OPR.
MMPA REAUTHORIZATION RECOMMENDATIONS
    (1) LApply a set of formal standards to the decision-making process 
to ensure that adequate scientific information is available & utilized 
and that relevant social and economic factors are given due 
consideration
    (2) LRemove the Zero Mortality Rate Goal from the Act to insulate 
the Departments of Commerce and Interior from proactive and frivolous 
litigious activities
    (3) LIncorporate a provision into the Act which provides for 
effective management of robust stocks and nuisance animals through the 
development of non-lethal deterrent devices
    (4) LProvide specific guidance and increased authorization for 
cooperative research funding to encourage the development and testing 
of gear mitigation alternatives
    (5) LDirect the Ocean Studies Board of the National Academy of 
Sciences to provide Congress with an independent, objective assessment 
of all MMPA goals, including how the Act is currently implemented 
``commensurate with sound policies of wildlife management'', the 
realities of achieving OSP at least 95% of the time for all stocks, the 
necessity of such a conservative approach as it relates to ensuring 
that mammals remain ``a significant functioning element of the 
ecosystem'', and finally, an estimate of the cost this Act is having on 
our nation's commerce
    (6) LRedefine, clarify, and provide specific guidance for each 
element of the PBR calculation to minimize repetitive layering of 
overly precautionary decision-making; direct NMFS to provide the TRT 
with a full range of possible PBR values, rather than a single 
conservative point estimate; and require NMFS to take an inter-
disciplinary, coordinated approach to mammal management using all 
available resources in different departments, the regional management 
councils and state commissions, rather than relying solely on OPR
    (7) LAmend the Act to include a provision which allows for TRT's to 
convene proactively for purposes of identifying scientific data gaps, 
research and observer needs, and gear mitigation proposals while being 
held harmless under 16 U.S.C.1387(6)(f)(2) which triggers a 6-month 
requirement for the TRT, once convened, to achieve PBR
    (8) LIncorporate objective selection criteria into the Act which 
ensures that TRT facilitators have no previous history of stakeholder 
participation in marine mammal issues
    (9) LProvide the appropriate authorization levels for NMFS to 
conduct necessary research and stock assessment work
    (10) LChange the name of the Act to the ``Marine Mammal Management 
and Conservation Act'' to reflect the commitment of Congress to achieve 
a more balanced law

    Mr. Chairman, I ask that you kindly accept my written testimony for 
the record, and on behalf of the GSSA and like-minded commercial 
fishermen from around the nation, I thank you for the opportunity to 
share our concerns and ideas with your Subcommittee.
                                 ______
                                 
    [Attachments to Mr. Marks' statement follow:]
    [GRAPHIC] [TIFF OMITTED] 75640.002
    
    [GRAPHIC] [TIFF OMITTED] 75640.003
    
                                ------                                

    Mr. Gilchrest. Yes, sir. Thank you very much, Mr. Marks.
    Mr. Johnson--actually I will ask this question to the panel 
in a broad sense. Do any of you feel that the Marine Mammal 
Protection Act should have a new definition for ``harassment,'' 
in particular to look at, instead of the short-term problems 
with harassing marine mammals, which could be anything from 
somebody taking a photograph to recreational activity, to the 
long-term view insofar as what the interface between humans and 
marine mammals might do in the long term? Mr. Johnson?
    Mr. Johnson. Yes, Mr. Chairman, I think the answer to that 
would be yes, because we have seen the effects of tour ships, 
for example, on seal pups and seals and whales in Alaska. We 
have seen the effects of--
    Mr. Gilchrest. What have those effects been?
    Mr. Johnson. Well, for example, when there are certain--
when the cruise ships come into areas like Glacier Bay, they 
affect the pupping of the seals and force them to move to pup 
in different areas, and we think that is a very negative 
effect. We see the effects of these ships on whales up there. 
In fact, a week ago they found a whale that had been killed by 
a cruise ship. So I think in response to your answer there 
needs to be tighter regulations, particularly affecting cruise 
ships, where there are marine mammals.
    Mr. Gilchrest. So it is your understanding right now, Mr. 
Johnson, that the effect of cruise ships on certain populations 
of marine mammals in certain areas of Alaska is acceptable by 
the National Marine Fisheries Service?
    Mr. Johnson. There might be where there is no effects, but 
what I am saying is, there is instances where we feel very 
strongly that the actions of these ships has a very negative 
effect on the health of the marine mammals.
    Mr. Gilchrest. Does the National Marine Fisheries Service 
share that view?
    Mr. Johnson. I am not--I don't know that.
    Mr. Gilchrest. We will ask Dr. Hogarth later. Thank you 
very much, sir.
    Ms. Young?
    Ms. Young. I think that there is--the definition within the 
act is fairly broad and it can be interpreted in a number of 
different manners. I think there is some scrutiny and there may 
be some tightening of the language that is warranted. However, 
harassment is a very nebulous concept at best, and one person's 
harassment is somebody else's good look.
    I think that there has been some discussion about defining 
harassment in behavioral terms, you know, if it displaces the 
animals from breeding habitat, if it stops their feeding, if it 
compromises their long-term viability. And I think we would 
oppose those sorts of changes because I think there are ample 
demonstrations, certainly in a number of other wildlife species 
but certainly in humans as well, where significant impacts 
occur without obvious changes in behavior.
    For example, workers in factories for years went deaf with 
machine noise so loud, but they were trying to make a living 
and they didn't realize how detrimental it was until it was too 
late to do anything about it. Similarly, marine mammals we know 
will feed sometimes up until the moment of death. That doesn't 
mean that they are not dying. It doesn't mean they are not 
harmed, they are not being harassed.
    So I think so put a behavioral definition on it would be a 
very difficult thing, because you may well see marine mammals 
continuing to feed in an area, to breed in an area, to bring 
their young to an area because that is the only optimal habitat 
in which they can live and make a living, but that doesn't mean 
that their lack of behavioral response is indicative of a lack 
of harm to the species.
    Mr. Gilchrest. Thank you. Anyone else? Mr. Mannina?
    Mr. Mannina. Mr. Chairman, representing the public display 
community, the question you are driving at is beyond something 
that we normally are involved with. That said, if you are 
contemplating changes to the harassment definition, we would 
only ask that you be cognizant of the medical work that we do 
with animals, that harassment not be so defined as that our 
work with stranded animals to help them would be inhibited.
    Mr. Gilchrest. Thank you.
    Mr. Marks. Mr. Chairman, if I may just add quickly, we 
certainly feel--we operate under Section 118, which has a 
little bit of a different approach, but we certainly feel that 
the definition is extremely broad and extremely subjective, and 
it could basically disrupt typical, normal human activity.
    And it also transcends down to people that are trying to 
make improvements, whether they might be trying to improve a 
boat harbor or maintain a marina to protect their vessels, that 
any of the work done to that could be considered harassment, 
even if it is just slightly temporary. So we certainly believe 
that needs a very hard look by Congress, and because it is so 
extreme, perhaps it could be somewhat limited, certainly 
temporally, anyway. That would probably help us.
    But one aspect I would like to add here in terms of 
harassment, and it is somewhat related, is this issue of 
providing some sort of relief from growing populations in terms 
of nuisance animals. And it could possibly fall under some 
change in harassment, but certainly a separate provision which 
would help us at least do nonlethal deterrence, try and find a 
way which would acoustically harass these animals technically 
but perhaps chase them away from our operations, would be 
something that we would certainly ask Congress to consider. 
Thank you.
    Mr. Gilchrest. Thank you very much, Mr. Marks.
    My time has been used up. I will come back with some 
further questions, but when I think of harassment, I think of 
polar bears and seals, not to be insensitive to the fact that 
we need to avoid unnecessary human harassment to these animals. 
But once again I think we can probably--I understand that the 
essence of the broad definition of harassment in some ways is 
arbitrarily applied on both sides of the issue, but we will 
pursue a fine-tuning to that to protect the socioeconomic 
concerns of people but also to protect the integrity of the 
mammals and the ecosystem upon which we as humans also depend.
    I yield now to Mr. Underwood.
    Mr. Underwood. Thank you, Mr. Chairman, and certainly this 
panel indicates some of the complexities of the issues that we 
deal with and the various stakeholders that are involved.
    Mr. Johnson, I know that in your testimony you also added 
an addendum on the issue of the preemption of State law 
regarding subsistence takes. Is there a real concern by the 
Alaska Federation of Natives that--is there an ongoing issue 
with the State law trying to inhibit, dare I say harass, your 
ability to engage in subsistence activities?
    Mr. Johnson. Yes. In fact, subsistence priority was the 
State law and it was in compliance with Title VIII or Section 8 
of ANILCA, which gives a rural preference for subsistence 
activities if there is a shortage of animals, only if there is 
a shortage. And the State law now prohibits that, even though 
the polls have shown that there is very broad, in some cases by 
some polls up to 85 percent of the State, including the urban 
population, that would support a subsistence priority, there 
are a few politicians that will not allow it to even be voted 
on by the Alaska public.
    And we look on MMPA as one of the only legislations that 
recognizes our rights to subsistence, to harvest marine mammals 
for subsistence purposes. We don't say that we live on the 
animals, we say we live with them. In fact, as far as I know, 
in our language it has no word for ``kill.'' We look at the 
taking of marine mammals for subsistence and for food and 
handicrafts as the animal is giving himself to you, or herself. 
So MMPA to Alaska natives is a very vital and critical 
legislation.
    Mr. Underwood. Well, thank you for that.
    In the earlier, in the previous panel there was a point 
raised by Marshall Jones regarding the active co-management 
between native organizations and Fish and Wildlife in advance 
of depletion of the resources. Does your organization take a 
position on that?
    Mr. Johnson. Yes. In fact we are very supportive of that 
idea because we feel that the native organizations, the tribes, 
all want to be involved in co-management, and in fact there are 
some tribes that are drafting limitations, for example, on the 
take of walrus. Even though walrus are not a depleted or not 
even a threatened or endangered species, there is recognition 
from the native community that we must ourselves limit our take 
and our use sometimes. So most tribes that I know of, and in 
fact all the tribes that I work with all are supportive of the 
co-management idea, that we need to manage before depletion.
    Mr. Underwood. Thank you for that, and I think, at least 
speaking for myself, I take a very strong interest in that and 
in the maintenance of native rights regarding subsistence 
takes.
    Mr. Mannina, if I could just ask a question, are you 
familiar at all with the controversy in Puerto Rico regarding 
the Suarez Circus?
    Mr. Mannina. Only, Mr. Underwood, what we have read in the 
press.
    Mr. Underwood. Okay. Do you have any--would you care to 
characterize that the Suarez Circus is in compliance with 
anything? You know, I know that there is an issue with the 
APHIS regulations, but what about your own organization's 
standards? Do you have standards?
    Mr. Mannina. They are not a member of either of our 
organizations, Mr. Underwood. In fact, they would not meet the 
standards for our organization, to be a member. In AZA we do 
not have any traveling circuses or traveling exhibits members.
    Mr. Underwood. So how would you propose, I mean, do you 
think that the current approach that is utilized in order to 
regulate traveling circuses--are you in support of those?
    Mr. Mannina. Mr. Underwood, we have not taken a position on 
traveling exhibits. What I can do perhaps is turn the focus a 
little bit to the APHIS regulations themselves, and to note for 
the Committee that beginning in 19, I think it was 94, APHIS 
began a process of updating its regulations, improving them 
through a consensus procedure, and there were 18 topics that 
discussed.
    It included representatives, these discussions included 
representatives of the public, the public display community, 
the environmental community, and government agencies. And 7 of 
those, I think 13 of those have now been published, and there 
are 5 yet to be published. Consensus was achieved.
    I think the issue you are really raising is what should be 
the appropriate standards, and that can be addressed through 
another consensus procedure or through the Animal Welfare Act.
    Mr. Underwood. Very good. Thank you very much.
    Mr. Gilchrest. Thank you, Mr. Underwood.
    Mr. Johnson, do you see any obstacles, hurdles, problems, 
as you may proceed with co-management?
    Mr. Johnson. Well, as I mentioned in my testimony, we are 
moving from a system where we have no limits on our hunting, as 
long as it is done nonwastefully, to where if we are going to 
co-manage the species with the U.S. Fish and Wildlife, that we 
are moving into quotas. If we are going to share the harvest 
with Russia, it means numbers, if we are going to equally 
share. If we are going to share, it means quotas. One of the 
difficulties that is going to be facing us is--
    Mr. Gilchrest. What does that mean, Mr. Johnson, you are 
going to share in the quotas?
    Mr. Johnson. Well, if we are both taking polar bears out of 
the Alaska-Chukotka population, the treaty says that we have 
the right to take an equal part of the harvest. So if we are 
going to set a quota, for example, say of 40 or 80 for that 
entire population, that means that we will be limiting--we will 
take half of that in Alaska, and how we divide that up between 
the villages is work that the Alaska Nanuuq Commission is going 
to have to do and get village concurrence on. So we are moving 
from an unlimited hunt to a limited hunt.
    Mr. Gilchrest. Do you have any opinion on polar bear 
hunting in Canada, the way it is managed and the agreement that 
the United States has with the Canadian Government?
    Mr. Johnson. Well, I think the Canadian management has been 
much closer a co-management situation than we have had in 
Alaska. In fact, what we are doing with the natives of Chukotka 
is based on a voluntary agreement that is between the Inupiat 
of the North Slope Borough and the Inuvialuit of Canada, in 
where they have voluntarily placed limits on themselves, and in 
fact it has been so successful that it has reduced the annual 
take and they have never--they haven't exceeded the take.
    For example, the last 10 years, the total number was 800 
bears that were on the quotas. Of that, only like 680 have been 
taken. And the important thing is, it has reduced the take of 
females. In the western part of the State, the take of females 
is approximately 40 percent of the hunt, and the Canadian-
Alaska agreement, and that is a voluntary agreement, the take 
is only like 25 percent, so it has been very successful with 
that.
    Mr. Gilchrest. So you don't feel that the apparent 
worldwide reduction in polar bear population is related to 
polar bear hunting?
    Mr. Johnson. No. In fact, I just returned from an 
international polar bear meeting in Greenland that the United 
States, Denmark, Greenland, Russia, Canada, and Norway all took 
part in, and the general consensus--and these are all the polar 
bear experts, the biologists--their feeling that came out of 
that meeting was that the polar bear population worldwide is 
very healthy.
    Mr. Gilchrest. Oh, the polar bear population is healthy?
    Mr. Johnson. Correct.
    Mr. Gilchrest. That is interesting. Did they say it is 
healthy compared to something?
    Mr. Johnson. No. In fact, all the indications in all the 
reports, including most of Canada, indicate that based on the 
age/sex structure, the number of large males, those are all 
indicators of a healthy population.
    Mr. Gilchrest. I see. So, Ms. Young, would you agree with 
the fact that this group said that that polar bear population 
is healthy?
    Ms. Young. I want to start by providing a caveat to my 
answer, and that is, much as Congress establishes Committees to 
assure that everybody doesn't have to know everything about 
everything, we in the HSUS have people who specialize, and Dr. 
Naomi Rose is the person who works largely on this. I will 
attempt a general answer, and if you want to be more specific, 
I will ask if I could defer to her.
    But I think my belief is that you can't make a statement 
like ``Polar bear populations worldwide are healthy.'' That is 
like saying ``Large cat populations worldwide are healthy.'' It 
depends on what you are looking at. Some areas--well, wolves 
would be a better example. You know, in some areas wolf 
populations are doing very well; in other areas they are doing 
very badly.
    So a general statement that the overall population is 
looking good is not necessarily informative. There are smaller 
populations that may be doing quite poorly and that may not be 
seen in the overall picture.
    I think the importation provisions in the act for polar 
bear sport hunting, as I said to a greater extent in our 
written comments, there have been a number of instances in 
which Canadian officials allowed hunting with the imprimatur 
that in fact the population was healthy, only to later admit 
that, well perhaps it wasn't after all; and that although 
outsiders could see those data and say, ``Well, you know, we 
think you are not taking a thorough look at an analysis of the 
situation,'' M'Clintock Channel being one of them, it was only 
after animals had been removed from the population that 
reconsideration was given to the granting of the authority to 
remove them. So it is not precautionary as it is, and I think 
it is a bit broad to state ``Polar bear populations are doing 
fine.'' Polar bears ain't always polar bears.
    Mr. Gilchrest. Thank you. I guess we might want to consider 
what the polar bear population was 500 years ago, and what the 
polar bear population is today, and if there is no further 
degradation of the environment or loss of habitat, maybe the 
existing population can be maintained and sustained with proper 
management.
    My time has expired again, but I will ask the gentleman 
from Guam for his indulgence, if I can, unless you have a 
question, Mr. Underwood.
    Just very briefly, Ms. Young and Mr. Marks, you both feel 
that the take reduction teams have not been very effective. I 
would suspect that you have different reasons for that.
    Ms. Young, you gave some examples that the take reduction 
teams might have solved some problems with the commercial gear 
used but have not carried that over for recreational gear. You 
say the enforcement is not there and reporting always seems to 
be behind, among some other things.
    And Mr. Marks, you said that the TRTs are under-represented 
as far as the stakeholders are concerned, unless I 
misunderstood your comment.
    Mr. Marks. I think you may have misunderstood my comments, 
but I can expand on those when you are done, sir.
    Mr. Gilchrest. And lack of information disadvantages to 
fishermen, and there need to be natural standards where there 
are none now, to take into consideration economic conditions to 
fishermen, and there is ample enforcement of protection but not 
enough for management, among some other things.
    Well, when we break for lunch, maybe the two of you can get 
together over lunch and resolve some of those issues.
    [Laughter.]
    We certainly will make the attempt on our side. But if you 
just wanted to make a comment briefly, Ms. Young, directed 
toward the people that Mr. Marks represents, and then Mr. 
Marks, if you could make comment toward Ms. Young concerning 
the people that you represent, in sort of a broad response to 
that inquiry.
    Ms. Young. Certainly there is a lack of information. I 
think we are all equally disadvantaged by it. I don't think it 
is unique to the fishermen.
    Mr. Gilchrest. Could I just interrupt, just for a second, 
and I apologize for that. But, Ms. Young, when you said the 
take reduction teams have not worked well because, and you gave 
a list of those, the commercial gear restrictions are not 
carried over to the recreational fishermen?
    Ms. Young. In some areas, for example, theMid-Atlantic, 
there is recreational gillnetting going on side-by-side with 
commercial gillnets. They both have the same general gear. They 
both are prone to catching marine mammals. However, only the 
commercial fishers are impacted by take reduction mandates, so 
they may have to do certain things to modify their gear or--
    Mr. Gilchrest. But the recreational people don't?
    Ms. Young. Exactly.
    Mr. Gilchrest. Mr. Marks, do you want to respond to that?
    Mr. Marks. Well, that is exactly correct. They apply to 
commercial gear, but not to recreational gear, and oftentimes 
there is recreational fishermen that use commercial gear for 
recreational purposes. So we have a complicated system, and 
what happens at times is, mortality that should be attributed 
to the recreational sector is being tagged onto my fishermen, 
and then we are responsible to reduce down to PBR from there. 
So it is a very, very difficult problem, hard for us to tease 
out right now, sir.
    Mr. Gilchrest. So I guess what you are saying is, there 
are, between The Humane Society and the Garden State Seafood 
Association, there is some agreement?
    [Laughter.]
    Mr. Marks. You have to define ``some'' for me.
    [Laughter.]
    Mr. Marks. Mr. Chairman, I could make just a very brief 
statement, if I may.
    Mr. Gilchrest. Yes, sir.
    Mr. Marks. You know, the take reduction team process, we 
are actually thankful to Congress for providing that, because 
before that, Mr. Chairman, we didn't have any interaction or 
any impact into that process. It was basically done by the 
Office of Protected Resources and the National Marine Fisheries 
Service, and there was no genuine public process.
    So for that we are quite thankful, but I think the problem 
is that the TRT process is laid on the backdrop of the MMPA, 
which we find to be overly conservative. We can come to the 
table, we can provide our information, we can talk about gear, 
we can do those kinds of things, but when it comes down to it, 
it is so restrictive, we are hamstrung by a lack of 
information, and we have a very tight time frame to meet.
    What would be helpful for us, sir, if we could change a 
provision in the law which would allow a TRT to convene but not 
be subject to the 6-month deadline to reach PBR, because there 
is lots of work to be done. We have to design surveys. We are 
trying to work with reflective net material for commercial 
fishermen to use, so the animals can echo locate off of it 
better. We don't even have time to get those kinds of research 
things sorted out and done before we have to reach a certain 
level of conservative PBR.
    Those are problems that we just can't get our arms around 
right now. But the basic TRT process, believe it or not, I 
think we are probably in agreement that it has been an avenue 
for us that is much better than what we had before. It is just 
not so good yet.
    Mr. Gilchrest. Thank you very much. Your testimony has been 
vibrant and helpful, without a doubt.
    Mr. Mannina, we will certainly pursue your concerns dealing 
with the excess paperwork by NMFS versus the ability for APHIS 
to take concern and care for marine mammals on display. Unless 
you wanted to make a comment--
    Mr. Mannina. I was just going to say thank you.
    Mr. Gilchrest. We will certainly stay in touch with all of 
you. We have another opportunity, Mr. Johnson, for Mr. 
Underwood and myself to visit Alaska to look at some of your 
concerns and some of your successes. But your testimony will be 
considered. We appreciate it, and we would also like to 
continue to communicate with all of you as we move down the 
road, we hope in this Congress, to reauthorize the Marine 
Mammal Protection Act.
    As we continue to communicate with you, we would also like 
to send written questions to you for the record, so that we can 
make sure this becomes a part of the process. But thank you all 
very much. We appreciate your attendance here this morning.
    I now want to ask unanimous consent to insert a statement 
into the record from Congressman Cunningham.
    Without objection, so ordered.
    [The prepared statement of Mr. Cunningham follows:]

 Statement of Randy ``Duke'' Cunningham, a Representative in Congress 
                      from the State of California

    Mr. Chairman, I want to thank you for the brief opportunity to 
submit a statement for this hearing today.
    I want to thank to Committee for accepting testimony from my friend 
and constituent, Bob Fletcher from the Sport fishing Association of 
California. Bob is a dear friend and an expert on dealing with marine 
mammal problems in San Diego and all along the Pacific Coast.
    I would also like to submit for the hearing record a Dear Colleague 
circulated by Rep. Chris Cannon and myself. The Committee is accepting 
testimony today from Earth Island Institute, an organization with 
strong feelings on the environment and misguided views of Americans. I 
submit for the record an article from the September 13, 2001 Earth 
Island Journal. Written by the Editor, Gar Smith, this article calls 
``Terrorism the negotiating tactic of the powerless'' and blames US 
foreign and environmental policies for the horrific acts of September 1 
1th If the Committee is going to accept testimony from a group like 
this, I want the members to know the entire agenda of this 
organization.
    Thank you for accepting my statement today.
                                 ______
                                 
    [An attachment to Mr. Cunningham's statement follows:]
    [GRAPHIC] [TIFF OMITTED] 75640.010
    
    [GRAPHIC] [TIFF OMITTED] 75640.011
    
    Mr. Gilchrest. Thank you all very much. I think, unless 
there is an objection, I don't know if I have to ask unanimous 
consent to break for lunch, but let's reconvene at 1:30. Thank 
you very much.
    [Whereupon, at 12:24 p.m., the Subcommittee recessed, to 
reconvene at 1:30 p.m. the same day.]
    [Afternoon Session - 1:41 p.m.]
    Mr. Gilchrest. The hearing will come to order. Apparently 
some of us up here got ``used to lunch.'' That was the phrase 
that was just quoted to me. The next time we have a long 
hearing, we will make it an hour and a half.
    Anyway, we appreciate you coming this afternoon to give us 
your testimony on this long, arduous, but certainly interesting 
road to reauthorizing the Marine Mammal Protection Act, and all 
the various nuances, complexities and dimensions thereof. But 
at this point we have testifying Dr. Joe Scordino, Deputy 
Director, Northwest Region, National Marine Fisheries Service; 
Mr. Bob Fletcher, President, Sports Fishing Association of 
California; Mr. Steve Rebuck, Member of Sea Otter Technical 
Consultant Group, Southern Sea Otter Recovery Team, nice to 
meet you; Mr. Steve Thompson, Acting Manager, California-Nevada 
Operations, U.S. Fish and Wildlife Service; Ms. Kaitilin 
Gaffney, California Central Coast Program Manager, The Ocean 
Conservancy.
    Welcome. Dr. Scordino, you may begin.

  STATEMENTS OF JOE SCORDINO, DEPUTY REGIONAL ADMINISTRATOR, 
      NORTHWEST REGION, NATIONAL MARINE FISHERIES SERVICE

    Mr. Scordino. Thank you, Mr. Chairman, members of the 
Subcommittee. In my testimony today I will follow the format of 
the report to Congress that we provided in 1999. It was one of 
those actions requested in the 1994 amendments to the Marine 
Mammal Protection Act. I also will describe some of the new 
information we have collected since 1998 in conjunction with 
the States, using the funding that Congress provided 
specifically for us to look at the issues of sea and sea lion 
impacts on salmon and West Coast ecosystems.
    So I will start with the current status of the California 
sea lions and Pacific harbor seals, which we collectively call 
pinnipeds, in Washington, Oregon and California. Both of these 
species have increased at an annual rate of about 5 to 8 
percent since passage of the Marine Mammal Protection Act in 
1972.
    The current population estimate for California sea lions is 
now well over 200,000 in the U.S. waters alone. Harbor seals 
are currently estimated at over 72,000 seals in Washington, 
Oregon and California. Both those numbers are pretty much 
record high numbers for those species since we began counts off 
and on from the '40's, '50's, and then more dedicated surveys 
starting in the mid and late '70's.
    Recent analyses now indicate that harbor seals in 
Washington and Oregon are at their optimum sustainable 
population level. This is something we have struggled with for 
several or many years, trying to determine OSP for these 
species, and with the harbor seals then in Washington and 
Oregon they have clearly reached their OSP level.
    Attached to my testimony there are some figures, and one of 
those shows the population trend with harbor seals. And you can 
see, looking at the figure, they have leveled off in the last 5 
to 6 years, so clearly we have reached the top of the curve in 
Washington and Oregon. Unfortunately, in California we have not 
had complete surveys in recent years, so we can't make the same 
determination for California harbor seals.
    In the case of California sea lions, they are continuing an 
increasing trend and are not clearly showing signs of leveling 
off. One thing we see with California sea lions is that 
whenever there is an El Nino condition, the populations 
fluctuate pretty dramatically.
    And again, if you look at the figure attached to my 
testimony, Figure 4, you will see some pretty dramatic 
fluctuations in California sea lion pup counts, and those 
fluctuations are those years when we had the severe El Nino 
conditions. So the populations drop down, but they rebound 
right back up again.
    So that is the current status of the two populations of 
concern on the West Coast. I will now turn to pinniped impacts 
on salmon and steelhead, which was a significant component in 
the report to Congress.
    Over the period that pinniped populations have expanded, we 
have also seen salmon and steelhead populations on the West 
Coast declining. Although the pinniped predation was not the 
cause of the decline, it raises concerns now. With these large 
populations of seals and sea lions, small populations of 
salmon, there is real concern that the recovery of these 
already depressed populations may be affected, especially with 
those listed under the Endangered Species Act.
    Limited studies we conducted prior to when we submitted the 
report to Congress clearly showed that pinniped predation on 
small salmon populations, especially in areas of restricted 
passage, clearly can have an impact on the salmon population. A 
case on that was the California sea lion predation on a 
steelhead run that migrated through the Ballard Locks in 
Seattle, Washington, where we saw that run pretty much crash 
because of constant annual high rates of predation by 
California sea lions.
    In the report to Congress, we note there are many sites on 
the West Coast where pinnipeds co-occur with ESA listed salmon, 
and we have been using the funding provided to investigate as 
many of those sites as we could and get good studies through 
the State-Federal cooperative program I mentioned previously.
    Preliminary results from these studies indicate that 
predation is definitely not having an impact in some systems, 
so we looked in the Umpqua River and looked at predation on 
cutthroat trout, sea run cutthroat, and clearly found no 
predation was occurring at all. But the flip side, we also had 
a study or have ongoing a study in Hood Canal in Washington, 
where clearly the predation by harbor seals on a listed chum 
salmon run, that level of predation we are seeing which exceeds 
25 percent could be impairing recovery of those runs.
    Most of these situations appear to involve a small number 
of animals. It is not the whole population. So you might see 
100 to 300 animals right at the mouth of the river, but it 
appears when you start moving up the river and take a close 
look, it is usually a handful of animals or less that actually 
move upriver and target their foraging on the salmon species.
    We don't have conclusive results yet from these studies. We 
are applying new technology like night vision equipment, and 
expect to have more conclusive results within the next year.
    In regard to pinniped conflicts with commercial and 
recreational fisheries, we noted in the report we submitted 
that interactions and conflicts between pinnipeds and fisheries 
were increasing, and the situation has not changed. Fishermen 
are continuing to report economic impacts from interactions 
with these animals.
    We have conducted some recent studies in salmon fisheries 
off Monterey, California, as well as in the recreational 
fisheries in southern California, and both those studies 
substantiate continued, in some cases severe, conflicts with 
especially California sea lions. In one time frame off Monterey 
we were seeing where the sea lions were taking 70 percent of 
the catch during the peak of a run from fishermen's lines.
    Many fishermen use a number of nonlethal methods to try to 
keep these animals away from their gear, but most of the time 
there is limited or no success, and when there is success, it 
is short term. It might work 1 day but not the next day, or 
part of a day and later the animals will come back and cause 
problems.
    I would like to now turn to the four recommendations in the 
report and quickly go over those and give you a status update. 
The first recommendation is to implement site-specific 
management authority that would allow State and Federal 
officials authorization to lethally remove pinnipeds where 
necessary to protect ESA-listed salmon.
    This recommendation is more of a framework, and it sets up 
different tiers for different situations. So in the case of a 
system where you have ESA-listed species, the recommendation, 
the framework provides for immediate removal of animals if it 
is consistent with a recovery plan, and then steps down from 
there to actions in, let's say, fishery situations where 
nonlethal approaches would be used first, but then recommends 
that a lethal approach be authorized for State and Federal 
officials as a last resort.
    In all of these cases we are looking at lethal removal of 
small numbers of animals. Our studies are clearly showing it is 
usually a few animals that cause most of the problems, and so 
this recommendation is specific to those small numbers of 
individual animals. It is not a recommendation to go out and 
remove animals from haul-outs, or any kind of culling 
operation.
    The second recommendation is to develop safe and effective 
nonlethal deterrent technologies. At the time the report was 
prepared, we were seeing that there may be some promise in some 
acoustic devices that were being tested and were being used. 
For example, at the Ballard Locks we found that these high-
intensity acoustic devices in the confined situation there did 
keep sea lions away, but only after we removed the animals that 
were habituated to the area.
    So we moved forward from there, working with the fishing 
industry and working with Bob's group, to test more powerful 
acoustic devices in open ocean waters that could be applied on 
fishing boats. One of these devices, called the pulse power 
device, appeared to have promise.
    Unfortunately, we ran into problems with field testing the 
device because of environmental concerns of effects on other 
species. Cetaceans, whales, dolphins, etcetera, were also 
affected by these devices, so it was more than just the target 
animals that would be affected.
    And then further, more recently some laboratory studies 
have shown that these devices may not be as effective as we 
thought on California sea lions, where it was tested on a 
couple of animals and one animal showed no reaction. So we are 
seeing some of the unpredictability with acoustic technology.
    We are moving to still try and study other approaches, 
looking at behavioral studies, what attracts an animal to 
fishing gear, and hopefully that will give us some insights on 
where to go in the future. But I think right now it is safe to 
say we are at the bottom of our bag of tricks and we are not 
sure where to turn in the nonlethal arena.
    The third recommendation was for Congress to reconsider 
authorizing intentional lethal taking by fishermen. Prior to 
the 1994 amendments, commercial fishermen were allowed to shoot 
animals as a last resort, if they couldn't remove them by other 
methods from their gear. We recommended Congress reconsider 
that, given the continued interactions with animals.
    This recommendation was the subject of most of the negative 
comments we received from the public, and we kept it in the 
report more to provide the background information, the science 
base for what could occur. That recommendation was predicated 
on optimism that we would be finding some acoustic way to 
remove animals nonlethally, and as I mentioned previously, we 
are not seeing that, so we no longer are supporting this third 
recommendation.
    And the fourth recommendation was to collect additional 
information, and we have done that with the funding you have 
provided.
    That concludes my testimony, and I will note that, as Bill 
Hogarth mentioned earlier today, the administration is 
currently developing a proposal to reauthorize the MMPA, and 
this report to Congress that I have discussed will be included 
in their consideration. Thank you.
    [The prepared statement of Mr. Scordino follows:]

  Statement of Joe Scordino, Deputy Regional Administrator, Northwest 
    Region, National Marine Fisheries Service, National Oceanic and 
        Atmospheric Administration, U.S. Department of Commerce

    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to testify today. My name is Joe Scordino, and I am the 
Deputy Regional Administrator of the Northwest Region, National Marine 
Fisheries Service (NMFS) in the National Oceanic and Atmospheric 
Administration, Department of Commerce. Among many other aspects of 
conserving marine resources along the U.S. west coast, I have had an 
active role in marine mammal issues in the Northwest for more than 20 
years. I was one of two principal authors of the Report to Congress: 
Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids 
and West Coast Ecosystems, which was submitted to the Committee on 
Resources and the Committee on Commerce, Science and Transportation in 
February 1999.
    In my testimony today, I will generally follow the format of the 
Report to Congress and will emphasize new information that has become 
available since the Report was completed. This new information is the 
result of a cooperative west coast pinniped research and monitoring 
effort by NMFS and the Pacific States Marine Fisheries Commission 
(PSMFC) that commenced in Fiscal Year 1998 with Congress increasing 
NMFS base funding specifically for studies on pinniped impacts on 
salmonids and West Coast ecosystems. The state fish and wildlife 
agencies in California, Oregon, and Washington as well as university 
and tribal entities participate in this cooperative program. Recent 
studies funded by the states, tribes, and academia as well as other 
funding sources such as the fishing industry and Saltonstall-Kennedy 
Grants have contributed to this cooperative program.
    The coordinated state/federal coastwide program to study and 
monitor the effects of expanding populations of Pacific harbor seals 
and California sea lions on the west coast focuses on the following 
five areas:
     LPinniped effects on depressed salmon and steelhead 
populations
     LPinniped conflicts with commercial and recreational 
fisheries
     LNon-lethal methods to mitigate pinniped conflicts with 
people and other resources
     LPinniped population assessments
     LOther coastal ecosystem pinniped impacts.
Status of California Sea Lions and Pacific Harbor Seals in Washington, 
        Oregon and California
    Populations of California sea lions and Pacific harbor seals have 
increased at an annual rate of five to eight percent since the early 
1970s concurrent with passage of the Marine Mammal Protection Act in 
1972 (see Figures 1-4). Although some pinniped populations in the 
Pacific Ocean have declined and have been listed under the Endangered 
Species Act (e.g., Steller sea lions and Hawaiian Monk seals), the 
opposite has occurred with harbor seals and California sea lions off 
the west coast of Washington, Oregon and California. The expanding 
populations of these two species has caused concurrent increased 
reports of conflicts with fisheries, fishery resources (especially 
salmon), and human activities. Elephant seals on the west coast also 
have increased at about 8% per year, but their interaction issues are 
currently limited to human contact on coastal beaches. Thus, as 
requested in the 1994 Amendments to the MMPA, the Report to Congress 
and my testimony focus on expanding populations of California sea lions 
and Pacific harbor seals (collectively called ``pinnipeds'') in 
Washington, Oregon and California.
    The Report summarized the status of California sea lions and 
Pacific harbor seals as healthy, robust populations--their status has 
not changed. The recent NMFS Stock Assessment Report estimates the 
California sea lion population at over 200,000 animals in U.S. waters, 
the harbor seal populations in Washington and Oregon at over 42,000 
seals, and the California harbor seal population at over 30,000 seals. 
Individuals from both species are increasingly found in inland waters 
and upriver in freshwater in many West Coast river systems.
    The information available at the time the Report was completed 
indicated that despite current high abundance levels, there was 
insufficient evidence that either of these pinniped populations had 
reached its optimum sustainable population (OSP) level. Such a 
determination requires evidence that the affected population has 
exceeded its Maximum Net Productivity Level (MNPL), which is the lower 
limit of a population=s OSP. However, recent analyses by NMFS and State 
scientists on current abundance and life history parameters of harbor 
seals in Washington and Oregon indicate that these populations are 
experiencing the reduced rates of increase that accompany population 
levels exceeding MNPL (see Figures 1 and 2). These OSP determination 
manuscripts are currently under scientific peer review, and I expect 
NMFS will formally announce that these stocks as having reached their 
OSP as soon as the scientific papers are published.
    The recent data history for harbor seals in California is not as 
clear as in Washington and Oregon because the last completed survey was 
in 1995. The last two survey efforts for harbor seals by the California 
Department of Fish and Game were incomplete, and did not result in 
abundance estimates. Although there is some preliminary evidence from 
continuous counts in portions of California that would indicate harbor 
seals are experiencing a reduced rate of increase, this evidence is not 
conclusive without complete data for the State. Therefore, I do not 
anticipate that an OSP determination can be made for this stock of 
harbor seals until we have several completed annual surveys.
    California sea lions are continuing an increasing trend; the 
population growth data based on pup counts has not shown a reduced rate 
of increase which would indicate that the MNPL has been exceeded. As 
shown in Figure 4, pup production is affected dramatically by El NiZo 
events; pup counts decreased by 35% in 1983, 27% in 1992, and 64% in 
1998. El NiZo events do cause declines in the California sea lion 
population, but do not appear to affect overall long-term increasing 
trends. NMFS scientists are examining other population and life history 
indices that may be used in an OSP determination for this species. 
Therefore, I do not anticipate that an OSP determination will be made 
for California sea lions in the near term.
Pinniped Impacts on Salmon and Steelhead
    Over the period that these pinniped populations have expanded, 
salmon and steelhead populations along the west coast have declined 
raising serious concerns about resource conflicts and impacts of 
pinnipeds on salmon listed under the Endangered Species Act (ESA). As 
noted in the Report to Congress, although seal and sea lion predation 
did not cause the decline of salmonids, it may be affecting the 
recovery of already depressed populations. Limited studies conducted 
prior to the Report to Congress showed that pinniped predation on small 
salmonid populations especially at areas of restricted fish passage, 
such as the California sea lion predation on a steelhead run that 
migrates through the Ballard Locks, can have negative impacts on the 
recovery of depressed or declining salmonids. The Report noted that 
there are many sites on the west coast where pinnipeds co-occur in 
estuaries and rivers with ESA listed salmon runs. As described earlier 
in my testimony, NMFS, PSMFC, Washington Department of Fish and 
Wildlife, Oregon Department of Fish and Wildlife, and California 
Department of Fish and Game began a coordinated coastwide program in 
1998 to investigate and evaluate potential pinniped impacts on ESA 
listed salmonids.
    The cooperative state/federal program commenced with workshops to 
review and assess the sampling design and approach to 1) food habits 
studies that involve collecting pinniped scats at haul-out sites and 
determining diet from prey remains in the scat, and 2) surface 
observations from selected vantage points at sites where pinniped 
foraging and predation on salmonids could be observed. State/federal 
cooperators agreed to common protocols for data collection, analyses, 
and reporting to ensure consistency in studies at all sites coastwide.
    Pinniped-salmon predation study sites include the lower Columbia 
River; Willamette Falls, OR; Rogue River, OR; Alsea Bay, OR; Umpqua 
River, OR; Ozette River, WA; Hood Canal, WA; Duamish River, WA; Ballard 
Locks, WA; Snohomish River, WA; Klamath River, CA; Eel River, CA; Madd 
River, CA; Smith River, CA; Scott Creek, CA; and San Lorenzo River, CA. 
In addition to field work, the cooperative program includes 1) captive 
pinniped studies to determine food passage rates so that data from 
scats can be quantified and extrapolated, and 2) laboratory studies on 
development of genetic identification of material in scats so salmon 
species/stocks can be determined. Initial reports from the first two 
years of studies are available from NMFS. Preliminary results from 
these studies indicate pinniped predation is definitely not having an 
impact on some salmonid runs (for example, studies have shown no 
pinniped predation on cutthroat trout in the Umpqua River ) and may be 
impairing recovery in other areas (for example, pinniped predation 
rates exceeding 25 percent of spawning summer chum salmon in Hood 
Canal). Because of interannual variability, studies need to be 
conducted for at least three seasons in most areas before conclusive 
results are available. Some studies have been expanded to incorporate 
night vision technologies in an attempt to quantify the incidence of 
predation at night, so that a complete assessment of impacts can be 
made. Since night observations are limited and some sites have 
extensive reaches of river that cannot be observed, there will be some 
uncertainty in some of the predation estimates from some sites. 
Nonetheless, I expect that state/federal program will have completed 
salmonid predation assessments for many of the study sites within the 
next year.
Pinniped conflicts with commercial and recreational fisheries
    Increasing California sea lion and Pacific harbor seal populations 
and their expanding distribution have resulted in increased reports of 
interactions with both commercial and recreational fisheries. Fishers 
are reporting economic impacts from the interactions. In the commercial 
fisheries, California sea lions and Pacific harbor seals remove catch 
and damage gear in the salmon troll and gillnet fisheries; nearshore 
gillnet fisheries; herring, squid, and bait purse seine and round-haul 
fisheries; and trap and live bait fisheries. Commercial fishers lose 
income because they are unable to catch, land, and sell fish. 
California sea lion interactions with salmon troll fisheries off 
California are especially severe. Recent studies showed that California 
sea lions took from eight percent to 28 percent of the hooked salmon in 
the salmon troll fishery off Monterrey Bay from 1997 to 1999. 
Interaction rates were highest in 1998 during El NiZo conditions, when 
sea lions appeared to target fishing vessels due to lack of other prey 
resources.
    Both California sea lions and Pacific harbor seals are involved in 
interactions with recreational fisheries coastwide, but most conflicts 
are attributable to California sea lions. Sea lions interact by 
consuming bait and chum, and removing hooked fish that are being reeled 
in. Fish also may stop feeding or may be scared away by the presence of 
sea lions. In addition, when sea lions are present, skippers frequently 
have to move their boats to other, sometimes less productive, fishing 
areas, incurring additional fuel costs and loss of fishing time. 
Despite these efforts, sea lions often follow the boats to these new 
locations. Interactions with the southern California partyboat fishery 
are reported to be especially severe. Recent studies by the California 
Department of Fish and Game and Moss Landing Marine Laboratory continue 
to substantiate the common occurrence of California sea lion 
interactions with Commercial Passenger Fishing Vessels in southern 
California and Monterrey areas. Many fishers use an array of non-lethal 
deterrence measures to minimize or avoid interactions, but as noted in 
the Report to Congress, most of these measures have limited success an 
usually of short term duration. High powered acoustic devices have 
shown success in some limited areas such as at the Ballard Locks, but 
their applicability to fishing vessels and open ocean conditions limit 
their use. NMFS has worked with the fishing industry to develop a more 
powerful acoustic deterrence device, called Pulsed Power, that 
generates a high intensity pulse that could be effective in open 
waters. However, this device could affect other species and its testing 
has been constrained due to environmental concerns about such devices. 
More recent laboratory studies also indicate it may not be as effective 
in deterring California sea lions as initially hoped.
               Recommendations in the Report to Congress
    The 1999 Report is the result of a Congressional request that NMFS 
conduct a scientific investigation on the expanding populations of 
California sea lions and Pacific harbor seals off Washington, Oregon 
and California, and develop recommendations for addressing problems and 
issues identified as a result of the investigation. NMFS developed the 
recommendations in the Report with the assistance and concurrence of 
the Pacific States Marine Fisheries Commission, Washington Department 
of Fish and Wildlife, Oregon Department of Fish and Wildlife and 
California Department of Fish and Game. The Report includes specific 
recommendations to Congress for management measures to address pinniped 
(seal and sea lion) conflicts with salmon and human activities. The 
four recommendations are: 1) Implement site-specific management 
authority that would allow state and federal officials to lethally 
remove pinnipeds where necessary to protect ESA listed salmon and other 
marine resources; 2) Develop safe and effective non-lethal deterrent 
technologies; 3) Reconsider the prior MMPA authorization that allowed 
commercial fishers to lethally take pinnipeds as a last resort to 
protect their catch and gear in specific fishery areas where economic 
impacts are occurring; and 4) Implement the studies necessary to obtain 
additional information on the expanding pinniped populations and their 
impacts on other resources, especially ESA listed salmonids.
1. Implement Site Specific Management for California Sea Lions and 
        Pacific Harbor Seals
    The Report to Congress recommends a framework for site specific 
management measures, including lethal removal of pinnipeds, if and when 
necessary under specified circumstances, to address conflicts involving 
California sea lions and Pacific harbor seals on the west coast. The 
three components of the framework are:
    1. LIn situations where California sea lions or Pacific harbor 
seals are preying on salmonids that are listed or are proposed or are 
candidates for listing under the ESA, immediate use of lethal removal 
by state or federal resource agency officials would be authorized.
    2. LIn situations where California sea lions or Pacific harbor 
seals are preying on salmonid populations of concern or are impeding 
passage of these populations during migration as adults or smolts, 
lethal takes by state or federal resource agency officials would be 
authorized if (a) non-lethal deterrence methods are underway and are 
not fully effective, or (b) non-lethal methods are not feasible in the 
particular situation or have proven ineffective in the past.
    3. LIn situations where California sea lions or Pacific harbor 
seals conflict with human activities, such as at fishery sites and 
marinas, lethal removal by state or federal resource agency officials 
would be authorized after non-lethal deterrence has been ineffective.
    The Report noted that a precautionary approach would favor the 
protection of ESA listed species (e.g., salmon) over absolute 
protection of healthy, robust and expanding pinniped populations. This 
recommendation includes a number of safe-guards to prevent unwarranted 
lethal takes of pinnipeds. Only in situations where pinnipeds are 
preying on ESA listed salmonids would lethal removal be authorized 
without considering non-lethal means first, and only in cases where 
such removal is within the context of salmon recovery actions. In all 
cases, lethal removal of pinnipeds is an action of last resort by state 
or federal resource managers. This recommendation only addresses the 
individual problem animals, which cause most of the conflicts; it is 
not intended to reduce or cull local pinniped populations. Additional 
details and specifics of this framework can be found in the Report. As 
described earlier in my testimony, recent studies have shown that the 
impacts of pinniped predation in some rivers are minimal (e.g., 
cutthroat in the Umpqua River) and would not warrant action, while in 
others the effects of pinniped predation will need to be considered in 
recovery planning (e.g., summer chum salmon in Hood Canal, WA).
2. Develop Safe, Effective Non-lethal Deterrents
    At the time the Report was completed, only one avenue of deterrence 
technologies appeared to be promising for timely development of non-
lethal techniques to deter marine mammals from interfering with human 
activities. This avenue was acoustic devices. Acoustic deterrents have 
been used with some degree of success in aquaculture operations and 
were applied with success in the confined area at the Ballard Locks in 
Seattle, WA to reduce predation on Lake Washington steelhead. I note, 
however, that non-lethal measures at Ballard Locks were not effective 
on California sea lions until NMFS had permanently removed three 
individually identifiable California sea lions that had frequented the 
area for many years.
    Concurrent with preparation and since submission of the Report to 
Congress, NMFS supported research to test acoustic deterrents. For 
example, NMFS funded through the Saltonstall-Kennedy program the 
development and preliminary testing of a pulsed-power device for 
deterring sea lions from fishing boats. Field testing of this device 
has been postponed because of environmental concerns over its effect on 
non-target marine mammals and other species. There also is concern 
about routine use of these devices by the fishing fleet because large 
portions of ocean waters could be ensonified.
    After research efforts indicated that acoustic technology would not 
provide a safe, effective approach to long-term deterrence of marine 
mammals, we were left with no alternatives for immediate development 
and application. Therefore, NMFS is currently supporting a new line of 
studies by Moss Landing Marine Laboratory to conduct basic behavioral 
studies on sea lions to determine what ``cues'' they use to find hooked 
fish. These studies would describe the ``cues'' involved in 
interactions with fishing operations and ways to possibly ``mask'' or 
eliminate those ``cues'' to avoid interactions. External sources (the 
Marine Mammal Center and fishing organizations) have expressed interest 
in supporting part of this research.
3. Consider Selectively Reinstating Authority for the Intentional 
        Lethal Taking of California Sea Lions and Pacific Harbor Seals 
        by Commercial Fishers to Protect Gear and Catch
    This recommendation is for Congress to reconsider authorizing the 
use of intentional lethal taking of California sea lions and Pacific 
harbor seals until such time as effective non-lethal methods are 
developed for specific fishery conflict situations. Prior to the 1994 
amendments to the MMPA, commercial fishers were allowed to kill certain 
pinnipeds as a last resort to protect their catch or gear. This 
recommendation was included in the Report following consultation with 
PSMFC in response to requests from some parts of the fishing industry. 
This recommendation was predicated on optimism that effective non-
lethal deterrents would be developed in the short term thus negating 
the need for fishers to use lethal means to eliminate interactions. 
However, as noted above, it does not appear that environmentally sound 
and effective deterrence methodologies are likely in the near term. 
This recommendation was the subject of most negative comments from the 
public, but it remained in the Report so that Congress would have 
background information if it chose to reconsider the 1994 amendments 
that eliminated the prior authorization that allowed commercial fishers 
to kill marine mammals as a last resort. Following the submission of 
the Report, NMFS has learned that many participants in current 
commercial and recreational fisheries do not necessarily desire to have 
this authority. Rather, these parties have expressed the need to have 
safe, effective non-lethal deterrents. Consequently, NMFS no longer 
supports this recommendation.
4. Information Needs
    With Congressional action to increase NMFS base funding in fiscal 
year 1998 for studies on pinniped impacts on salmonids and West Coast 
ecosystems, this recommendation is being addressed. The cooperative 
state/federal program is collecting the information specified in the 
Report and state and federal managers are using the data for 
management.
                               Conclusion
    Mr. Chairman, as Bill Hogarth noted earlier today, the 
Administration is currently developing a proposal to reauthorize the 
MMPA. The Report to Congress that I have discussed will be included in 
its considerations. Again, I appreciate the opportunity to testify 
today and would be pleased to answer any questions you or other members 
of the Subcommittee may have.
                                 ______
                                 
    [An attachment to Mr. Scordino's statement, ``Report to 
Congress - Impacts of California Sea Lions and Pacific Harbor 
Seals on Salmonids and West Coast Ecosystems,'' has been 
retained in the Committee's official files.]

    [Additional attachments to Mr. Scordino's statement 
follow:]
[GRAPHIC] [TIFF OMITTED] 75640.004

[GRAPHIC] [TIFF OMITTED] 75640.005

    Mr. Gilchrest. Thank you very much, Dr. Scordino.
    Mr. Bob Fletcher?

    STATEMENT OF ROBERT FLETCHER, PRESIDENT, SPORTS FISHING 
                   ASSOCIATION OF CALIFORNIA

    Mr. Fletcher. Good afternoon, Chairman Gilchrest and 
members. I am Bob Fletcher, president of the Sportfishing 
Association of California, also known as SAC, a nonprofit 
association representing the majority of the passenger 
sportfishing fleet in California.
    Twenty-nine years after the passage of the Marine Mammal 
Protection Act, the population of California sea lions has 
rebounded beyond anyone's expectations, and today probably 
exceeds historic levels. The result of this population 
explosion has been an ever-escalating battle between sport and 
commercial fishermen and pinnipeds, and the fishermen are 
losing, thanks in large part to the restrictions placed on them 
by the Marine Mammal Protection Act.
    One of the more frustrating problems for the sportfishing 
fleet involves a relatively few nuisance animals which have 
learned to meet the sportfishing boats as they depart the 
harbors and follow the boats to the fishing grounds. It makes 
no difference how many moves the captains make, the sea lions 
just follow in the wake to the next spot and then ambush the 
passengers' fish when they hook up.
    In total frustration, one skipper reported to the outdoor 
editor of a local newspaper that he had had a great day fishing 
but a poor day catching, thanks to sea lions. His report 
included a catch of 38 fish heads and two whole fish.
    Sea lions also harass the live bait harvesting boats on the 
bait grounds, and at times packs of 50 to 60 sea lions will 
jump into the nets and feast on the trapped bait, damaging the 
nets and most of the bait that they don't eat. These aggressive 
animals have also been known to lunge at crew members who were 
scooping bait on the bait receivers, and they have even 
attacked anglers in small boats.
    For the commercial fishing fleet, similar conflicts exist. 
Drift gillnet swordfishermen often lose much of their catch 
before they can even bring the nets on board. Lobstermen 
complain of having over 50 percent of their traps smashed by 
sea lions who are after the bait inside. And set gillnet 
fishermen have occasionally lost their entire catch of halibut 
and white sea bass to these marauding pinnipeds.
    Salmon troll fishermen likewise have terrible problems with 
sea lions. One experienced salmon fisherman, known to many of 
us, lost 68 consecutive salmon and then quit fishing that day 
in disgust.
    While Pacific harbor seals create less of a problem, they 
have recently started grabbing more fish off both recreational 
and commercial fishermen's lines and out of the trawl and 
gillnets.
    Mr. Chairman, you asked that I commend on the 1999 NMFS 
report to Congress on impacts of seals and sea lions, which I 
think was an outstanding treatment of what is clearly a 
controversial subject. In my mind, the most important 
recommendation in the report was that Congress should develop 
safe, nonlethal deterrent devices. You have heard from Dr. 
Scordino about our efforts. SAC itself has spent thousands of 
dollars in an effort to develop a nonlethal deterrent device, 
and even with NMFS funding and assistance, a workable device 
has yet to be developed.
    I feel sure, however, that with congressional support, a 
device capable of deterring sea lions could be available in the 
near future. Making Federal funds available would create 
incentives that I am sure would encourage private sector 
participation. I know the technology is out there. We just need 
the stimulus that Federal grants would provide.
    A second important recommendation would be to implement 
site-specific management of California sea lions and Pacific 
harbor seals. We have seen that relatively few problems animals 
are responsible for many of the interactions. If State and 
Federal resource agency officials were given general authority 
for limited removal in those areas where documented problems 
exist, the magnitude of the conflicts would decline 
dramatically.
    In 1994, when the MMPA was reauthorized and fishermen lost 
the right of last resort lethal removal of sea lions, 
commitments were made that congressional support for the 
development of nonlethal deterrents would be a top priority. We 
have yet to see that support, or a deterrent device that works. 
The simple fact is that commercial and recreational fishermen 
on the West Coast are being driven out of business by these 
robust populations of seals and sea lions, and the time for 
change in the act is now.
    One way you could show support would be to hold hearings on 
the West Coast in the near future. I heard you say you may be 
holding one in Alaska. California would welcome you with open 
arms. You need to hear from the fishermen in their own words 
describing the frustrations they feel. We can learn to coexist 
with these robust stocks of seals and sea lions, but only if we 
are able to control some of their more aggressive tendencies 
toward our fishermen and our gear.
    Thank you all for your consideration of this critical 
problem for West Coast fishermen and the industries that rely 
on and support them.
    [The prepared statement of Mr. Fletcher follows:]

 Statement of Robert Fletcher, President, Sportfishing Association of 
                               California

    Chairman Gilchrest & Members:
    My name is Robert Fletcher, and I am the President of the 
Sportfishing Association of California, (SAC), which is a non-profit 
political organization representing the interests of the commercial 
passenger fishing vessel (CPFV) fleet in southern California. SAC 
represents about 175 boats operating from 23 different Sportfishing 
landings. Member-boats operate in all major ports between Morro Bay and 
San Diego, and carry close to 750,000 passengers a year on 
sportfishing, sport diving and natural history excursions.
    29 years after passage of the MMPA, the population of California 
sea lions has rebounded beyond anyone's expectations, and today the 
population probably exceeds historic levels. The result of this 
expansion has been an ever-escalating battle between sport and 
commercial fishermen and sea lions that the fishermen are losing. These 
robust populations of sea lions are constantly learning new ways to 
interact with the boats in the SAC fleet, and over the last few years a 
small number of individual animals have learned to identify the boats 
in the fleet. They lay in wait near the harbor entrance, and then 
follow these boats to the fishing grounds. It makes no difference how 
many moves the Captain makes, the sea lions just follow in the wake and 
then ambush the passengers' fish once they hook them. In total 
frustration, one skipper reported to the outdoor editor of the local 
paper that he had had great day fishing but a poor day catching, thanks 
to the sea lions! His report included 38 fish heads and two whole fish! 
Sea lions 38 - anglers 2!
    Another escalating problem concerns the bait receivers, which are 
underwater boxes in most of the harbors along the coast where the bait 
companies hold their live bait for later sale to the commercial 
sportfishing boats, as well as the large fleet of private recreational 
boaters. A relatively few problem animals have learned that if they 
blow bubbles under these bait receivers, the bait will panic and 
scatter out through the openings in the boxes, and thus become easy 
prey. On average, the bait receiver operators indicate that less than 
50% of the bait placed into the boxes is later available for sale. This 
problem is not an isolated one, but occurs in most harbors along the 
California coast. As if these losses were not enough, the harvest of 
live bait along the coast can be seriously affected by `packs' of sea 
lions that wait until the bait is encircled in a net, then pour over 
the cork line and feast on the trapped bait fish, damaging most of it 
in the process. In other cases on these bait docks, sea lions have 
become so aggressive as to lunge at crewmembers in an attempt to get by 
them and into the nets holding bait that is being readied for sale. I 
have also included an article from this August's Western Outdoor News 
to show you just how aggressive these animals can become with 
recreational anglers on small boats.
    So far I have talked about recreational fishing problems with sea 
lions, but commercial fishermen face the same conflicts and predation. 
Drift gill net swordfish fishermen complain that in the last few years, 
sea lions have destroyed more than half the swordfish in their nets 
before they can bring the nets on board, and these nets are being 
fished at times more than 100 miles offshore. Lobstermen claim that a 
group of rogue animals have learned that they can get a free meal if 
they smash the trap apart so they can get at the bait inside. At times 
the losses by these fishermen exceed half the traps they set out.
    Set gill net fishermen fishing white seabass and halibut outside 
three miles have told me that on occasion they have lost their entire 
catch to predation by sea lions.
    Finally, the salmon troll fishery in Central California, Oregon and 
Washington continues to have severe problems with loss of catch to sea 
lions. Once again a relatively small group of sea lions have learned to 
follow in the wake of these troll fishermen, watching the activities of 
the crew on deck. When they see the crewmember go to the gurney to 
bring in a hooked salmon, they dive down, approach the hooked fish from 
behind and rip it off the hook. One long-time, highly respected 
fisherman, Dave Danbom, told of a day where he lost 68 salmon in a row 
before returning to the anchorage in disgust.
    Mr. Chairman, I would also like to comment on the 1999 NMFS Report 
to Congress on Impacts of California Sea Lions and Pacific Harbor Seals 
on Salmonids and West Coast Ecosystems, and specifically on several of 
its recommendations. I am an advisor and past Commissioner on the 
Pacific States Marine Fisheries Commission (PSMFC), and was involved in 
a cooperative effort with NMFS to develop the Report, which is an 
outstanding treatment of this controversial subject. By far and away 
the most important recommendation was that Congress, ``Develop Safe, 
Non-Lethal Deterrents''. SAC has worked for years and spent tens of 
$1,000s in an effort to find just such a device. So far we have been 
unsuccessful, although NMFS has supported our efforts through S-K 
grants, and more recently our efforts and NMFS' have stalled due to the 
environmental communities' concern for the possibility that such a 
device may accidentally cause some negative impact to the pinnipeds as 
we attempt to redirect their attention away from our catch and gear. 
These are intelligent marine mammals and don't discourage easily!
    Notwithstanding these problems, I strongly encourage this 
Subcommittee to make development of non-lethal devices a high priority, 
and within your fiscal limitations make funds available to create 
incentives for private-sector development of an effective device. I am 
sure the technology is out there; we just need the stimulus that 
federal grants would provide. Australia has similar problems and could 
also bring some expertise to the table.
    A second important recommendation would, ``Implement Site-Specific 
Management for California Sea Lions and Pacific Harbor Seals.'' A 
common thread that runs through most fisheries-pinniped interactions is 
that a relatively few animals, rogue animals if you will, are creating 
the majority of the problems. Unfortunately, over time these few are 
teaching others to, for example, lie in wait at the mouth of spawning 
streams or fish ladders and ``ambush'' listed salmonid adults as they 
return to spawn; follow along behind commercial or recreational salmon 
boats to `rip off' hooked fish; follow commercial passenger fishing 
boats as they leave the harbor and then grab and eat or damage the 
passengers' catch. If state or federal resource agency officials could 
be given general authority for limited lethal removal in those specific 
areas or in those instances where a documented nuisance animal is 
operating, the magnitude of the interactions would decline 
dramatically.
    Chairman Gilchrest and members, recreational and commercial fishing 
on the west coast provides significant economic activity for the 
coastal communities, but will continue to struggle as long as problem 
sea lions are allowed to have free rein in our coastal waters. Pacific 
harbor seals are a lesser problem but with populations on the increase 
these pinnipeds will also create difficulties, mainly in central 
California. I would again encourage you to become familiar with the 
NMFS Report on Seal and Sea Lion Impacts, as it has a wealth of timely 
information and well thought out recommendations that are even more on 
target today than when released two years ago.
    I haven't touched on the Report's final recommendation, so I would 
like to make a few remarks on the importance of `Information Needs' 
before I close. The last few years have seen a significant increase in 
the population of California Sea Lions and Pacific Harbor Seals, as 
well as reports of new levels of interactions between seals and 
fisheries, and some disturbing reports of cases where sea lions came 
close to, or did in fact, injure anglers. I had a sea lion jerk a 
yellowtail out of my hand as I was attempting to release it from a 
lure, and in the process narrowly missed being hooked myself. An angler 
in Monterey Bay was bitten in the forearm by a sea lion as he netted a 
salmon he had just brought to the boat.
    This new information is critical in order to follow the changes to 
marine mammal populations on the west coast, as well as to better 
understand how these intelligent animals are learning to more 
effectively live off the efforts of commercial and recreational 
fishermen, and how they are affecting listed salmonid stocks. As a 
result, it is of utmost importance that Congress continues funding the 
collection of timely data on the status of these robust stocks, as well 
as collecting timely information on the kinds of pinniped-fisheries 
interactions that are occurring.
    Chairman Gilchrest, thank you for the opportunity to provide 
comments to the Subcommittee on issues of such critical importance to 
my industry, and I will of course be glad to answer any questions that 
you or members may have.
                                 ______
                                 
    [An attachment to Mr. Fletchers statement follow:]
    [GRAPHIC] [TIFF OMITTED] 75640.006
    
    [GRAPHIC] [TIFF OMITTED] 75640.007
    
    Mr. Gilchrest. Thank you, Mr. Fletcher.
    Mr. Rebuck?

  STATEMENT OF STEVEN L. REBUCK, MEMBER, SEA OTTER TECHNICAL 
       CONSULTANT GROUP, SOUTHERN SEA OTTER RECOVERY TEAM

    Mr. Rebuck. Thank you, Mr. Chairman. I appreciate very much 
the opportunity to appear here today. The fishermen from my 
region of the State, which is south central California and 
southern California, echo that appreciation.
    I have been around sea otters--you have asked me to talk 
about that--I have been around sea otters since the mid-'50's. 
I watched my father lose his business in the abalone fishery in 
California between the late '50's and the early 1960's. 
Seventeen years ago I appeared down the hall here before 
another hearing on the Marine Mammal Act. In 1985 I was asked 
to appear again on the Endangered Species Act, and essentially 
covering all these same details in regards to sea otters and 
the at that time proposed translocation of sea otters to San 
Nicolas Island by the U.S. Fish and Wildlife Service.
    We are rapidly losing our fisheries in California, and 
frankly, Mr. Chairman, I don't know that the people I represent 
can hang on through another cycle of reauthorization. We really 
need your help this year, and without it I just don't know how 
we have commercial fisheries in California. The populations of 
marine mammals, in particular California sea lions, like Mr. 
Fletcher has said here, are extremely robust. It is difficult 
if not impossible many days to land a fish on a sport or 
commercial boat.
    And I think clearly Congress needs to differentiate between 
these recovered stocks and the ones that may be still critical, 
but I have heard nothing today really about the improvement in 
the stocks that has been demonstrated through the Marine Mammal 
Protection Act. It has really done its job in many ways. I 
think there needs to be some recognition of that.
    Sea lions consume a lot of fish, and I have provided to 
your staff a work that I did for our State Fish and Game 
Commission showing that California sea lions in 1995 consumed 
several times more fish by species than commercial fishermen 
caught. This is something that we can actually assess. But you 
asked me to talk about sea otters, so I will switch to that 
topic.
    When I appeared before Congress 17 years ago, I really 
thought through Public Law 99-625 that we had made a deal, and 
that deal was that fishermen would be allowed to coexist with 
sea otters. In my exhibits I have included a number of State 
documents, and one of those, for example, from the Department 
of Fish and Game, says they ``would like to see the Fish and 
Wildlife Service abide by Public Law 99-625.''
    Our Fish and Game Commission stated that there has been a 
``lack of commitment'' and that ``Fish and Wildlife Service has 
led a nonexistent recovery program.'' Our California Coast 
Commission asks that there is a need ``for a new Federal 
consistency review.'' The approval by the Coastal Commission 
was based on a containment policy, a policy now that has not 
been lived up to since 1993.
    In creating Public Law 99-625, Congress really amended the 
mandate of the Fish and Wildlife Service. The service has told 
me many times that their mandate is to recover the sea otter, 
not to protect fisheries. But you changed that mandate in 1986. 
You required the service to be involved in the conservation of 
shellfish resources and the fisheries they support.
    Sea otters are rather unique. I have been diving around 
these animals since the late '50's. I have 45 years of diving 
experience. These animals eat 25 to 35 percent of their body 
weight a day, and they don't just eat the same sizes that 
humans are allowed to harvest. They eat much smaller animals as 
well.
    Scientific research demonstrates well that sea otters and 
shellfish fisheries cannot coexist, and in recent years that 
has extended on to our set gillnet fisheries for halibut and 
other fish, and more recently to the live fish markets where 
fishermen use traps. So I think for someone say that sea otters 
and fisheries can coexist is rather naive. It is just contrary 
to the scientific literature.
    The number of sea otters in California is really little 
changed since the passage of the act in 1972. There was 
approximately 2,000 sea otters in California at that time, and 
that number is essentially the same.
    Much has been made in recent years, the last couple of 
years, about a supposed decline in the sea otter population. 
However, I think if one looks at the methodology that is used 
in counting and surveying sea otters, you find that there is a 
10 percent variable on the plus side, meaning that when the 
animals are counted, about 10 percent of the animals are 
missed. So I think there is some question about the supposed 
decline.
    When the Fish and Wildlife Service began the translocation 
experiment in 1987, there were about 1,400 sea otters in the 
population, and the service was required to demonstrate that 
there was excess in nonessential animals for them to capture 
and relocate, and they did that. Now the population is up 
around 2,100 animals, it is about a 30 percent increase since 
1986, and yet supposedly this is a crisis. They can't determine 
why the population is declining. I think it is pretty healthy, 
myself.
    The sea otters may be limiting themselves by their food 
intake. They eat a lot of shellfish. At either end of the range 
there are areas that are food poor, and that may be a limiting 
factor in their range expansion and in their population.
    I have been involved with this for a long time, and I find 
it difficult to identify anything, anything that the U.S. Fish 
and Wildlife Service has ever done to help sea otters in 
California. There was one thing a few years ago, the 
prohibition on use of gillnets in shallow water, water 
shallower than 30 fathoms or 180 feet, but that was 
accomplished through State legislation. You know, I just 
question what the Fish and Wildlife Service has really been 
accomplishing.
    One of the things that commercial fishermen did in the mid-
'60's was to investigate alternative fishing methods to reduce 
the entanglement and mortality of sea otters in gillnets. There 
was a problem during the '80's. I was a co-founder of an 
alternative gear group, and our findings were actually 
published by the Marine Mammal Commission in 1986. So fishermen 
have been working to solve problems of mortality.
    Right now fishermen are being blamed for the supposed 
decline in otters, although one finds in the scientific 
literature there is more sea otters dying annually from 
consumption of parasites related to cat feces than are dying in 
fishing gear, yet we are being singled out.
    Sea otters are an important living marine resource, and I 
think we are as fishermen concerned about their well-being, but 
right now they occupy about 30 percent of our State's near 
shore environment, and I really question why it is that we 
should be expected to give up the entire State of California 
for sea otters and eliminate all of our fisheries.
    I think that concludes my comments today, Mr. Chairman, and 
I appreciate the opportunity.
    [The prepared statement of Mr. Rebuck follows:]

 Statement of Steven L. Rebuck, Member, Sea Otter Technical Consultant 
                Group, Southern Sea Otter Recovery Team

    On March 10, 1984, it was my honor to have been selected by a 
coalition of commercial and recreational fishermen, organized as Save 
Our Shellfish (SOS) to testify on the Marine Mammal Protection Act 
(MMPA) Reauthorization, before Congressman John Breaux, Chairman of the 
Subcommittee on Fisheries and Wildlife, Conservation and the 
Environment. The panel I sat on that day, like this day, was concerned 
about the sea otter in California, Enhydra lutris.
    Those I represented, then, as now, were concerned about the 
translocation of sea otters, to San Nicolas Island, Ventura County, 
California, as planned and executed by the U.S. Fish and Wildlife 
Service (USFWS). Commercial and recreational fishermen, especially 
divers, were well aware of the impacts sea otters had in the region 
between Monterey, California and Pismo Beach, California. They were 
justifiably fearful of losing even more valuable fisheries, should 
USFWS carry out the translocation. Knowledge of the proposal had spread 
through the regional fishing fleet beginning in 1979, when commercial 
abalone divers encountered biologists, contracting to the USFWS, who 
were conducting baseline studies at San Nicolas Island. Local fishermen 
organized as SOS and initiated contact with State and Federal agencies 
and Congress.
    In a May 11, 1981 report by the Comptroller General of the United 
States, ``Congressional Guidance And Better Federal Coordination Would 
Improve Marine Mammal Management,'' CED-81-52, it was reported that 
USFWS had not informed the State of California Department of Fish and 
Game (DFG) nor the Marine Mammal Commission (MMC) of their intentions 
to translocate sea otters to San Nicolas Island. The Comptroller 
reported:
        ``After receiving the Interior's comments, we again contacted 
        MMC officials who repeated what we had been told during the 
        review--USFWS had not consulted with them before initiating 
        such studies. We also contacted the Director, California 
        Department of Fish and Game, because the State had reported in 
        a September 20, 1979 letter that F'S had unilaterally chosen a 
        transplant site in spite of the State's request to be involved 
        in the decision. The Director told us that the State had not 
        been consulted by USFWS before it had decided to proceed with 
        studies on San Nicolas Island.''
    The denial by USFWS that San Nicolas was the target would continue 
throughout many years, before Congress, the California Coastal 
Commission (CCC), DFG and including several drafts of an Environmental 
Impact Study. Ultimately, it was San Nicolas Island which was selected.
    The selection of San Nicolas Island appeared contrived. A mapping 
study prepared by James Dobbins Associates for the USFWS and MMC in 
1984, ``Compilation and Mapping of Available Biological, Ecological and 
Socio-Economic Information Bearing on the Protection, Management and 
Restoration of the Southern Sea Otter'', MMC Contract No. 14-16-0009-
81-050, identified San Nicolas Island as having very high risks of oil 
spills due to U.S. Navy activities, high fishery conflicts, and 
regional pollution problems. Although Dobbins concluded that fishing 
conflicts at San Nicolas Island appears the least of any site under 
consideration, Dobbins did report:
        ``Should dispersal take place to other islands shelves such as 
        the northern archipelago, (San Miguel, Santa Rosa, Santa Cruz, 
        Anacapa) and Santa Barbara Island, conflicts arising from the 
        selection of San Nicolas would be greater (in economic terms) 
        than conflicts arising from dispersal from other zones.''
    To quell concerns, USFWS biologists proposed they would contain sea 
otters to a ``Translocation-Zone'' around San Nicolas Island. Fishermen 
argued containment would be extremely difficult. The logistics of the 
island and common bad weather were only the beginning. Once animals 
left, it was a big ocean where finding a small animal would be very 
difficult. Ultimately, the fishermen's predictions were far more 
accurate than USFWS experts.
    To address fishermen's concerns, yet allow USFWS to get on with 
what was being called, ``the recovery effort of the century'' Congress 
passed Public Law 99-625 in 1986, creating a legal framework whereby 
the sea otter in California, listed as Threatened under the Endangered 
Species Act (ESA) in 1977, could be captured under experimental 
provisions of ESA Section 10(j) and transported to San Nicolas Island. 
This law mandated USFWS to protect sea otters and fisheries.
    Fishermen had embraced ``Zonal-Management'' of sea otters as had 
been recommended to USFWS by MMC in a letter dated December 2, 1980.
    In a July 23, 1987 letter to the California Fish and Game 
Commission (FGC) from USFWS Regional Director, Rolf Wallenstrom, 
several commitments were made to the State including: ESA Section 6 
funds and enhancement of shellfish resources.
    Containment of the experimental population became a hot debate 
during 1987, when USFWS biologist appeared before meetings of the CCC, 
DFG, FGC, Ventura County Board of Supervisors All of these State and 
agencies approved the program, but only by slim margins. What swayed 
the State of California and others was the containment program, which 
became the cornerstone of the project and project approval.
    Once the translocation experiment began in fall 1987, fishermen 
sued to stop the program, out of fear there was no long-term funding 
for containment. Unfortunately, the fishermen's suit was dismissed by 
September 1987. USFWS had already begun to translocate the first few 
dozen otters even before the legal dust had settled.
    Things began to go badly almost from the start. In the USFWS Rule 
Making, there were commitments for things like an 800 telephone numbers 
for fishermen to report wayward otters and a promised weekly survey by 
aircraft. Neither happened. Fishermen who called USFWS often reached an 
answering machine, which meant overnight, or in the case of weekend 
calls, a three or four day delay in USFWS action. USFWS also required 
``verification'' of a sighting, delaying recapture even further. Sea 
otters could move many miles before USFWS took action.
    By 1991, it was clear to fishermen that USFWS was not committed to 
the job they had taken on and promised to the State of California. DFG 
biologists who conducted most of the recaptures in the ``No Otter/ 
Management-Zone'' were frustrated by USFWS failures to have a re-
capture team available. In addition, F'S reported, ``...we expect a 
reduction in funding for sea otter research.'' ``Some sea otter 
research money is being reprogrammed into other non-otter projects.''
    When USFWS realized fishermen were receiving copies of their weekly 
reports from DFG, the USFWS stopped producing weekly reports. It should 
be pointed out that even though the recovery of sea otters in 
California was a publically funded project, USFWS had long made it very 
difficult for one segment of the public to participate--fishermen.
    Other agencies of the Interior Department also go into the act. In 
a June 28, 1991 letter to USFWS, Stanley Albright, Regional Director 
for the National Park Service (NPS) recommended to USFWS they not 
remove sea otters from the Management-Zone as required by law. Director 
Albright wrote:
        ``On May 13, 1991, during the spring survey of the Southern Sea 
        Otter population, 10 otters (including one pup) were observed 
        at San Miguel Island. San Miguel Island is a part of the 
        Channel Islands National Park. We are concerned that current 
        consideration to remove Southern Sea Otters from San Miguel 
        Island in the Channel Islands National Park are 
        counterproductive to recovery and eventual delisting of the 
        subspecies.
        We share with your agency the goal of seeing the recovery of 
        sustainable populations of Southern Sea Otters. Natural 
        expansion of the San Miguel population would go a long way 
        towards meeting the Recovery Plan goals of 1) expanding otter 
        numbers and range, and 2) reducing jeopardy to the subspecies 
        from a large-scale oil spill.
        We suggest that the U.S. Fish and Wildlife Service review and 
        revise the special regulations promulgated regarding the 
        southern sea otter.''
    By 1993, USFWS had determined that capturing sea otters and 
removing them from the ``No-Otter/ Management Zone'' was causing 
mortality and USFWS ended the containment program, even though Congress 
had made it clear that this was an experimental program with no 
jeopardy.
    Soon, the State of California demonstrated alarm. In a January 25, 
1994 letter DFG biologist, Fred Wendell estimated the multiplied values 
of commercial fishing at risk was $73,800,000 recreational fishing at 
risk was $150,400,000 and oil and gas was $4,666,000,000.
    NPS Regional Director Albright also lobbied the Director of DFG to 
close the abalone resource to fishing in order to rebuild stocks. Mr. 
Albright's recommendation was curious since sea otters forage on 
abalone at a much smaller size than is allowed by fishing regulations. 
Yielding to NPS pressure, DFG closed the commercial and recreational 
abalone fisheries, south-of San Francisco, beginning 1993, and 
concluding May 1997.
    The following year, in April 1998 more than 100 sea otters occupied 
an area in Northern Santa Barbara County, near Pt. Conception, the Cojo 
Anchorage in the northern most tip of the ``No-Otter/Management-Zone''. 
This area of low-relief reef structure had been a productive abalone, 
sea urchin, crab and lobster ground for decades. Within a few months, 
the area was virtually devoid of living invertebrate marine life. The 
otters later dispersed from the area. In 1999, nearly 200 otters swam 
south of Pt. Conception, back to Cojo, and even further south. Pt. 
Conception is the northern most range of white abalone, Haliotis 
sorenseni, an endangered species.
    Federal biologist Karl Kenyon (1969) published ``The Sea Otter in 
the Eastern Pacific Ocean,'' North American Fauna 68, Bureau of Sport 
Fisheries and Wildlife, Dept. of the Interior. Kenyon wrote:
        `` The requirement for large amounts of food by sea otters has 
        been discussed. feeding grounds are limited by depth to 
        relatively shallow waters and tag returns indicate that 
        individual sea otters do not range widely along the coast (see 
        Home Range). because of these circumstances which concentrate 
        feeding activities in rather limited areas, it appears probable 
        that a large population of sea otters could seriously deplete 
        food resources within their home range. Evidence is available 
        that this does in fact occur.''

        SEA URCHIN DEPLETION

    ``McLean (1962) presents convincing evidence that sea urchin 
Strongylocentrotus franciscanus has been nearly exterminated in a 
particular area on the California coast which is occupied by a 
considerable number of sea otters. Of the area he studied he says 
(p.101) ``the large sea urchin was totally absent, although spines and 
test fragments were present in gravel samples.''
    DFG biologists Paul Wild and Jack Ames (1974) in ``A Report on the 
sea otter, Enhydra lutris 1., in California,'' DFG, Marine Resources 
Technical Report 20 reported finding whereby 100 sea otters could 
consume 0.5 to 1.0 million pounds of abalone (whole weight) in one 
year.
    The value of this abalone, in 1997 when the fishery was closed 
would be approximately $5 million to $10 million ex-vessel or 
multiplied by 2.7 $13.5 million to $27. million. One could estimate the 
abalone lost at Cojo Anchorage and northern Management-Zone at $4.5 
million to $9 million during a four month period for each of the two 
years.
    In early 1999, USFWS released a Draft Evaluation of the Southern 
Sea Otter Translocation Program and Draft Biological Opinion (1-8-99-
FW-38R).
    On April 30, 1999, California Coastal Commission Deputy Director, 
Susan Hansch wrote the USFWS:
        ``Thus, the decision by the USFWS to no longer maintain the 
        ``no otter'' zone triggers the need for a new federal 
        consistency review to determine if the project continues to be 
        undertaken in a manner consistent with the CCMP.''
    On May 3, 1999, California Fish and Game Commission Executive 
Director, Robert Treanor wrote the USFWS:
        ``...the Commission is disappointed with the USFWS's decision 
        to recommend that the translocation program is a failure. This 
        action, in effect, will terminate the 1987 Memorandum of 
        Understand (MOU) between the USFWS and State. The MOU, among 
        other things, provides for zonal management of sea otters, 
        which is needed to protect our state's valuable shellfish 
        resource. With reassurance from the USFWS, the State agreed in 
        good faith to the translocation project and MOU, but the total 
        lack of commitment (removal of staff and funding) on the part 
        of the USFWS has led to a nonexistent recovery program.''
    The Fish and Game Commission also forwarded to USFWS a policy 
document titled: Fish and Game Commission Policy ``Shellfish and Sea 
Otter Conflicts.''
    The Fish and Game Commission declares the following:
    1. LThe management and conservation of marine resources are 
important to the State of California and fish and wildlife resources 
are held in trust for the people of the State by and through the 
Department of Fish and Game. [FGC Sec. 711.7 (a) and sec 1600]
    2. LIt is the policy of the State to encourage the conservation, 
maintenance, and utilization of marine resources for the benefit of all 
citizens and to promote the development of local fisheries, to 
encourage the growth of commercial fisheries, and to achieve the 
sustainable use of the state's fisheries. [FGC Sec. 1700 and Sec. 7055]
    3. LSignificant legislation enacted in 1998 established the State 
policy that marine living resources are to be conserved, used and 
restored for the benefit of all citizens; that the health and diversity 
of entire marine ecosystems and all marine resources are to be 
conserved; and the State actions are to recognize the importance of 
sustainable fisheries to the economy and culture of California [AB 1241 
]
    4. LThe Commission has previously adopted policies to encourage the 
development and expansion of commercial fishing and to cooperate with 
local, state and federal agencies and private persons and organizations 
to further the conservation of fish and wildlife.
    5. LIn 1986 a federal law was enacted amending the Endangered 
Species Act. The amendment specifically provides authority for the U.S. 
Fish and Wildlife Service to cooperatively undertake, with the 
Department of fish and Game, a zonal management plan for the threatened 
southern sea otter that has its primary objective to conserve both sea 
otters and local commercial fisheries. This federal law paved the way 
for a Memorandum of Understanding between two agencies and initiated an 
extraordinary effort to balance apparently competing needs and give 
assurances to both wildlife conservation and commercial fishing 
interests.
    Therefore, it is the policy of the Fish and Game Commission to:
    1. LActively encourage on its own initiative and with the 
Department of Fish and Game, consistent with state law and 
legislatively established policy, a balanced solution to minimize 
shellfish fishery and sea otter conflicts that provides assurances for 
sea otter recovery, sustainable local commercial and sport fishing, 
healthy marine ecosystems, and strong local economies.
    2. LSupport and encourage the Department in completing and 
maintaining a current comprehensive sea urchin management plan that 
considers among other issues the long-term impacts of various levels of 
fishing effort, predation, and habitat quality.
    3. LConfer with appropriate state and federal agencies, local 
governments, scientific experts, fishery participants, sea otter 
support groups, and other interests in exploring options for and 
identifying a balanced zonal management plan that protects the marine 
resources of the State and supports sustainable local commercial 
fishing industries.
    4. LPromote a healthy marine ecosystem as the single best way to 
recover sea otters and promote local fisheries and encourage 
appropriate federal and State agencies to undertake research efforts 
necessary to identify the cause or causes for the continued decline in 
the sea otter population.
    5. LPursue financial resources to match federal funds in 
undertaking research and management efforts designed to promote 
recovery of California's sea otter population while minimizing 
conflicts with shellfish fisheries and other marine resource uses. 
These funds could include general State revenues and the State's share 
of federal funds from Section 6 of the Endangered Species Act, or 
Pittman-Robertson federal aid. (Adopted April 2, 1999)
    On May 11, 1999, Department of Fish and Game Director, Robert Right 
wrote USFWS:
        ``It is the Department's opinion that the compromise reached in 
        developing P.L. 99-625 reasonably balances the needs to protect 
        sea otters with our other public trust responsibilities of 
        maintaining sufficient resources to support human uses of the 
        States renewable resource.''
    This letter was a companion to an earlier letter dated September 3, 
1998 from former DFG Director, Jacqueline Schafer, who wrote USFWS:
        ``In the short term, we expect the Service to abide by Public 
        Law 99-625 and the terms of its MOU with the Department of Fish 
        and Game.''
    The City of Santa Barbara, in an August 26, 1999 letter to 
Congresswoman Lois Capps, wrote:
        ``Both the City of Santa Barbara and California Department of 
        Fish and Game are very concerned about the inaction of the 
        United States Fish and Wildlife Service (USFWS) in upholding 
        Public Law 99-625.''
        ``To date, they have failed to honor this law and otters are 
        now extending their range into the restricted zone, causing 
        damage to invertebrate resources. Included in these resources 
        are rare species of abalone that are currently protected from 
        harvest.''
        ``In an effort to bring attention to this issue and make USFWS 
        accountable, the City of Santa Barbara is forwarding to you a 
        recently adopted resolution in support of fisheries management 
        and resource conservation which requires the zonal management 
        of the Southern Sea Otter by the USFWS per their 1987 
        Memorandum of Understanding between the State of California and 
        the USFWS.''
    Lastly, is a March 28, 1998 letter from my former Congressman, the 
Honorable Robert Lagomarsino, who writes (used with his permission):
        ``I believe it is a contempt of Congress for the U.S. Fish and 
        Wildlife Service to not carry out the law by recapture of sea 
        otters. At the very least they should have notified Congress of 
        what was going on.''
        ``I agree that it would be preferable to have Fish and Game 
        manage the otters.''
                               CONCLUSION
    It should be very apparent by now that the USFWS has done an 
extremely poor job when it comes to how they have managed their 
obligations, as identified in PL 99-625, the Final Rule Making, the 
Memorandum of Understanding with the California Department of Fish and 
Game, the California Coastal Commission, coastal communities, and 
recreational and commercial fishing.
    As a citizen who was directly involved with the creation of PL 99-
625 and implementing the ``Zonal-Management'' approach for the 
protection of sea otters and conservation of shellfish, there is only 
one word to describe what has taken place: ``BETRAYAL.''
    Mr. Lagmarsino called it ``CONTEMPT.''
    Director Schafer asked the USFWS to ``ABIDE BY PL 99-625.''
    Executive Director Treanor called it a `` LACK OF COMMITMENT'' and 
concluded ``USFWS HAS LEAD A NONEXISTANT RECOVERY PROGRAM.''
    The City of Santa Barbara states clearly, the USFWS has `` FAILED 
TO HONOR THIS LAW.''
    How is it possible for an agency to cause such disruption in so 
many coastal communities?
    The USFWS has spent millions of public dollars mismanaging the sea 
otter program in California. At a meet of the Southern Sea Otter 
Recovery Team at the Monterey Aquarium in April 1999, USFWS Sea Otter 
Coordinator, Carl Benz was asked how much money was budgeted for sea 
otter recovery in California. His answer was,'' $300,000 per year''. 
Next, Mr. Benz was asked what amount was actually spent on sea otters. 
``None,'' was his answer. The next question was what then is the money 
spent on? ``Salaries,'' was his answer. One must ask, where is the 
evidence that the USFWS has done anything which actually benefits sea 
otters in California?
    In the year 2000, the Commercial Fishermen of Santa Barbara, Inc. 
felt compelled to file a lawsuit against the U.S. Fish and Wildlife 
Service for their failure to contain sea otters to San Nicolas Island, 
to re-capture sea otters in the ``No-Otter/Management Zone'' and the 
loss of shellfish resources at Cojo Anchorage, related jobs, income and 
related economic impacts to the regional economies. It is absolutely 
shameful that working people have to sue a federal agency to do their 
job, especially with all the years of negotiation, Public Law 99-625, 
Memorandum of Understanding, supposed consistency with the Coastal Zone 
Managment Act, etc...
    We respectfully request Congress mitigate the losses caused by 
USFWS's willful neglect.
                      REQUESTS AND RECOMMENDATIONS
    1) We request Congressional no jeopardy protections afforded 
commercial fishermen, recreational fishermen, aquaculturists and oil 
companies in PL 99-625 should be continued as they were in previous 
MMPA Reauthorizations.
    2) We request USFWS live up to their obligation, as mandated in PL 
99-625 to protect sea otters, while promoting conservation of renewable 
shellfish resources for human use fisheries through zonal management of 
sea otters. USFWS should be held accountable and deliver on commitments 
made in the Memorandum of Understanding with the State of California in 
1987.
    3) We request Congress provide continuous oversight into Department 
of the Interior activities, including the activities of the USFWS and 
NPS as it relates to sea otters and fisheries in California, requiring 
annual reports to the Congress and State of California.
    4) We request Congress consider financial mitigation to the State 
of California and local economies for the losses of valuable shellfish 
resources pursuant to willful neglect by USFWS.
    5) We request Congress provide guidance for reconfiguring the ``No-
Otter/Management Zone.'' Marine Protected Areas (MPAs) are being 
designed by state and federal agencies, commercial and recreational 
fishermen, academics, environmentalists, and other interested parties 
for the enhancement and recovery of fish and shellfish stocks, in 
support of fisheries.
    6) We request Congress consider amendments to the MMPA which could 
allow for return of management to the State of California. This would 
require funding to the State. A legal opinion, and/or amendment to the 
MMPA providing for a waiver may be a useful consideration.
    7) We suggest Congress may want to consider whether recent range 
expansion by sea otters is sufficient to allow for delisting from the 
Endangered Species List.
    8) We recommend a hearing on taxonomic clarification. A petition, 
prepared by SOS in 1982, pursuant to the ESA listing of sea otters in 
California was shelved by USFWS.
    9) Although sea otters are listed as Threatened under the ESA, due 
primarily to oil spill risks, it has been fishing which has been 
sacrificed to protect sea otters from oil spills. This is an injustice.
    10) Recognize that the risks to sea otters has been significantly 
reduced since the listing in 1977.
    11) We request Congress be aware that at the time the sea otter 
translocation began, in the fall of 1987, the estimate population was 
1,367 (MMC report to Congress) and yet USFWS had ``non-essential/
excess'' animals for capture and translocation. Now, with the year 2001 
population estimated at 2,161 the USFWS claims the population is in 
crisis and they cannot recapture otters. This appears contradictory. 
Another General Accounting Office investigation may be warranted.
    INCREASED PROTECTIONS AND REDUCTIONS OF RISKS TO SEA OTTERS IN 
                         CALIFORNIA SINCE 1977
    Compiled by Steve Rebuck for the Southern Sea Otter Recovery Team 
October 1999. There has been a significant reduction in risks to sea 
otters in California since sea otters were proposed for listing in 
1977. In addition, by range expansion and translocation, separate 
colonies now exist over many hundreds of mile of coast and islands, 
further reducing risks.

    1) L$ L billion oil industry clean-up and prevention fund.
    2) LDFG Oil Spill Prevention and Response Office (OSPRO).
    3) LOSPRO Wildlife Rehabilitation Facility, Santa Cruz, California.
    4) LClosure of tanker terminals at: Moss Landing, Estero Bay, Morro 
Bay, Avila Beach.
    5) LChevron and other carriers using Doublehull Tankers.
    6) L50 nautical mile voluntary program offshore the sea otter 
range.
    7) LStationing of ocean-going tugs.
    8) LMonterey Bay National Marine Sanctuary protections and 
research.
    9) LFishermen's Oil Response Team (FORT) 50 boats and 250 trained 
fishermen.
    10) LNo offshore oil drilling north of Pt. Arguello.
    11) LIncreased use of pipelines instead of tankers.
    12) LInterior Secretary Bruce Babbit cancels four offshore leases 
(3 in Santa Maria Basin & 1 near El Capitan) August 13, 1999. 36 more 
under consideration.
    13) LCancellation of planned LPG terminal at Gaviota.
    14) LSuspension of 19 seismic survey permits in State Waters 
(inside 3 mi.) beginning 1986. 15) State laws have regulated the use of 
set-gillnets inside 20 and 30 fathoms near sea otters.
                                 ______
                                 
    [Attachments to Mr. Rebuck's statement have been retained 
in the Committee's official files.]

    Mr. Gilchrest. Yes, sir. Thank you, Mr. Rebuck.
    Mr. Thompson?

STATEMENT OF STEVE THOMPSON, ACTING DIRECTOR, CALIFORNIA-NEVADA 
OPERATIONS, U.S. FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF 
                          THE INTERIOR

    Mr. Thompson. Thank you, Mr. Chairman. Thank you for the 
opportunity to provide testimony on the administration's effort 
to recover the southern sea otter. The administration is 
committed to recovering the sea otter, and we look forward to 
working with all of you and all of the interested parties to 
identify the most effective measures to accomplish this 
recovery.
    The Department of Interior listed the southern sea otter as 
a threatened species in 1977, and that listing was based on the 
species' small population size, the greatly reduced range, and 
the potential risk to catastrophes, both natural and man-
caused. Since it was listed, the sea otter population has 
increased at a rate of about 5 percent per year. However, we 
did experience a significant decline in the years between 1995 
and 1998.
    Our recent surveys indicate that the population is stable 
at about 2,200 otters. To give you some context of that, back 
in the '30's we had perhaps 50 sea otters on the California 
coast. We are now up to about 2,200, and perhaps historically, 
although we don't know exactly, there was anywhere in the 
neighborhood from 16,000 to 20,000 sea otters.
    Our original recovery plan was finalized in 1982 and 
identified the need to translocate small numbers of sea otters 
from the existing range to unoccupied habitat. Although 
translocation was allowed under the Endangered Species Act, we 
did not have similar authorizations or provisions under the 
Marine Mammal Protection Act. As Steve just mentioned, that 
dilemma was attempted to be resolved through Public Law 99-625, 
which authorized the Secretary of Interior to develop a 
translocation plan for southern sea otters, administered in 
cooperation with the affected State, the State of California.
    Public Law 99-625 also requires specific conditions, 
including a specification of a management zone, which is from 
Point Concepcion south to the Mexican border, where sea otters 
would be removed using nonlethal means. The primary purpose of 
this management zone was to prevent, to the maximum extent 
feasible, the conflicts between the southern sea otter and 
fisheries resources.
    Between August 1987 and March 1990 we translocated 140 sea 
otters to the central coast at San Nicholas Island in southern 
California. That population now stands at about 20 individuals. 
In the management zone we captured and moved 24 sea otters 
between 1987 and 1993. In 1993 we became concerned that the 
capture and transport of sea otters found in the management 
zone could result in the death of some animals, and we 
suspended moving otters from the management zone. The number of 
sea otters in the management zone remained small until about 
1998, when about 100 sea otters rafted south into the 
management zone.
    In 1999 we prepare a draft evaluation of the translocation 
program and distributed it to all interested parties. We also 
reinitiated consultation on the management aspects of the 
program under the Endangered Species Act. As a result, we 
determined that moving sea otters from the management zone will 
likely jeopardize the continued existence of the species, and 
further evaluation of the translocation process was warranted.
    The department currently faces a conflict between the 
obligations to isolate and contain southern sea otters pursuant 
to Public Law 99-625, and our mandate to avoid jeopardizing the 
continued existence of the species. We have suspended efforts 
to capture and move southern sea otters from the management 
zone pending a complete reevaluation of the translocation 
program, including the preparation of a supplemental to the 
original Environmental Impact Statement for the program. In 
other words, we will be putting together a supplemental EIS on 
the translocation program, and we will also be finishing our 
recovery plan.
    Mr. Chairman, from the outset our efforts to recover the 
southern sea otter have been carried out under a unique set of 
circumstances. The southern sea otters are listed under the 
Endangered Species Act, considered a depleted species under the 
Marine Mammal Protection Act, and required passage of a special 
law, 99-625, to authorization the translocation program.
    Clearly the department's expectations for the southern sea 
otter translocation have yet to be achieved, and we intend to 
examine these circumstances in significant detail through an 
ongoing National Environmental Policy Act process and a wide 
open public process. We believe that this decisionmaking 
process, which will fully involve all affected stakeholders, 
will help frame the legal and scientific debate so that this 
conflict can be resolved to advance the concentration of sea 
otters in a manner that is both fair and equitable to all 
affected interests.
    Mr. Chairman, that concludes my prepared testimony, and I 
will be happy to answer any questions.
    [The prepared statement of Mr. Thompson follows:]

    Statement of Steve Thompson, Acting Manager, California/Nevada 
 Operations Office, U.S. Fish and Wildlife Service, U.S. Department of 
                              the Interior

    Mr. Chairman, thank you for the opportunity to provide testimony on 
the Administration's efforts to recover the southern sea otter. 
Recovery of the sea otter will require a sustained effort by the 
Federal government and our State, local and private partners. The 
Administration is committed to recovering the otter, and we look 
forward working with all affected parties to identify the most 
effective measures to accomplish recovery.
    My testimony will describe the history of sea otter management 
actions, notably the Sea Otter Translocation Program. I will also 
discuss the challenges we face and how we plan to meet those 
challenges.
Origins of Southern Sea Otter Translocation Program
    On January 14, 1977 (42 FR 2968), the Department of the Interior 
(Department), through the U.S. Fish and Wildlife Service (Service), 
listed the southern sea otter (Enhydra lutris nereis) as a threatened 
species under the Endangered Species Act (ESA). This determination was 
made on the basis of the species' small population size and greatly 
reduced range, and the potential risk to the species from oil spills. A 
southern sea otter recovery team was established in 1980 and a recovery 
plan for the species was approved on February 3, 1982. Recovery goals 
included: minimizing risk from potential oil spills; establishing at 
least one additional breeding colony outside the then-current southern 
sea otter range; and compiling and evaluating information on historical 
distribution and abundance, available but unoccupied habitat, and 
potential fishery conflicts. The approved recovery plan identified the 
establishment of a second colony of otters by means of translocation of 
southern sea otters to a remote location, as what was expected to be an 
effective and reasonable recovery action. The recovery plan 
acknowledged that a translocated southern sea otter population could 
impact shellfish fisheries that had developed in areas formerly 
occupied by southern sea otters.
    The purpose of a translocation program was to establish southern 
sea otters in one or more areas outside the otters' then-current range. 
It was believed that this action would minimize the possibility of a 
single natural or human-caused catastrophe from adversely affecting a 
significant portion of the population. Ultimately, it was anticipated 
that translocation would result in a larger population size and a more 
continuous distribution of animals throughout the southern sea otter's 
former historical range. The Department viewed translocation as 
important to achieving recovery of the southern sea otter.
    Translocation of a listed species to establish experimental 
populations is specifically authorized under section 10(j) of the ESA. 
However, the southern sea otter is protected under both the ESA and the 
Marine Mammal Protection Act (MMPA), and the MMPA contains no similar 
translocation provisions. For southern sea otters, this dilemma was 
resolved by the passage of Public Law (P.L.) 99-625 (Fish and Wildlife 
Programs: Improvement; Section 1. Translocation of California Sea 
Otters) on November 7, 1986. This law specifically authorized 
development of a translocation plan for southern sea otters 
administered in cooperation with the affected State.
    A translocation plan developed by the Secretary of the Interior 
under P.L. 99-625 was required to include: the number, age, and sex of 
sea otters proposed to be relocated; the manner in which sea otters 
were to be captured, translocated, released, monitored, and protected; 
specification of a zone into which the experimental population would be 
introduced (translocation zone); specification of a zone surrounding 
the translocation zone that did not include range of the parent 
population or adjacent range necessary for the recovery of the species 
(management zone); measures, including an adequate funding mechanism, 
to isolate and contain the experimental population; and a description 
of the relationship of the implementation of the plan to the status of 
the species under the ESA and determinations under section 7 of the 
ESA. The purposes of the management zone were: to facilitate the 
management of southern sea otters; to facilitate the containment of the 
experimental population within the translocation zone; and, to the 
maximum extent feasible, prevent conflicts between the experimental 
population and other fishery resources within the management zone. 
Under a translocation plan, any sea otter found within the management 
zone was to be treated as a member of the experimental population. The 
Department must use all feasible non-lethal means to capture sea otters 
in the management zone and return them to the translocation zone or to 
the range of the parent population.
Development of Translocation Plan
    On March 6, 1987, the Department completed an intra-Service 
biological opinion that evaluated a proposed translocation of southern 
sea otters to San Nicolas Island, our preferred translocation site. The 
biological opinion analyzed effects on the parent population caused by 
removal of southern sea otters from the population for translocation. 
The opinion also analyzed the effects on the species of containment of 
otters through their removal from the management zone. The proposed 
translocation plan was found to be a well-designed recovery action that 
maximized the opportunity for success while minimizing negative impacts 
on the parent population. The Department concluded that the southern 
sea otter translocation plan would not likely jeopardize the continued 
existence of the species.
    In May 1987, the Department finalized an Environmental Impact 
Statement (EIS) that analyzed the impacts of establishing a program to 
translocate southern sea otters from their then-current range along the 
central coast of California to areas of northern California, southern 
Oregon, or San Nicolas Island off the coast of southern California. San 
Nicolas Island was identified as the preferred alternative. A detailed 
translocation plan meeting the requirements of P.L. 99-625 was included 
as an appendix to the final EIS.
    Regulations to implement P.L. 99-625 were finalized August 11, 
1987, and are found at 50 CFR 17.84(d). They provide details of the 
translocation plan, including criteria for determining whether the 
translocation program would be considered a failure. Waters surrounding 
San Nicolas Island were designated as the translocation zone, and all 
waters south of Point Conception, California, with the exception of 
waters surrounding San Nicolas Island, were designated as the 
management zone.
    On August 19, 1987, as part of our cooperative actions with the 
State of California, the Department signed a Memorandum of 
Understanding with the California Department of Fish and Game (CDFG) 
providing for cooperative research and management efforts to promote 
recovery of the southern sea otter population in California. The 
agreement also included provisions to minimize conflicts between 
southern sea otters, existing shellfish fisheries, and other users of 
marine resources through containment of sea otters that might enter the 
management zone.
Implementation of the Translocation Plan
    On August 24, 1987, the Department began implementation of the 
translocation plan by starting to move groups of southern sea otters 
from the parent population at the coast of central California to San 
Nicolas Island. In December 1987, in coordination with the CDFG, the 
Department began capturing and moving sea otters that entered the 
designated management zone in an effort to minimize conflicts between 
sea otters and fisheries within the management zone and to facilitate 
the management of sea otters at San Nicolas Island.
    The Department released 140 southern sea otters at San Nicolas 
Island between August 1987 and March 1990. As of March 1991, 
approximately 14 sea otters (10 percent) were thought to remain at the 
island. Some sea otters died as a result of translocation; many swam 
back to the parent population, some moved into the management zone; and 
the fate of more than half the sea otters taken to San Nicolas is 
unknown. In 1991, due to low retention and survival, the translocation 
of sea otters to San Nicolas Island stopped. However, the Department 
continued monitoring the sea otters remaining in the translocation 
zone. Sea otter surveys at San Nicolas Island are now conducted by the 
Biological Resources Division of the U.S. Geological Survey on a 
bimonthly basis.
    Sea otters were captured and removed from the management zone until 
February 1993. At that time, two sea otters that had been recently 
captured in the management zone were found dead shortly after their 
release in the range of the parent population. A total of four sea 
otters were known or suspected to have died within 2 weeks of being 
moved from the management zone. The Department suspended all sea otter 
capture activities in the management zone to evaluate sea otter capture 
and transport methods. Results of the evaluation were inconclusive, but 
the Department remained concerned that capture and transport of sea 
otters found in the management zone could result in the death of some 
animals. Between December 1987 and February 1993, 24 sea otters were 
captured and removed from the management zone and returned to the 
parent range. Of these, two sea otters were captured twice in the 
management zone after being moved to the northern end of the parent 
range, suggesting that capture and relocation were ineffective. 
Containment efforts were discontinued after 1993 in response, in part, 
to our concerns about the unexpected mortalities of otters experienced 
during or shortly following their removal from the management zone. The 
Department also recognized that techniques at the time, which proved to 
be less effective than originally predicted and were labor intensive, 
were not a feasible means of containing otters. In 1997, CDFG announced 
that they also would no longer be able to assist with sea otter 
captures in the management zone.
Assessment of the Translocation Plan
    A group of approximately 100 southern sea otters moved from the 
parent range into the northern end of the management zone in 1998. At 
the same time, range-wide counts of the southern sea otter population 
indicated a decline of approximately 10 percent since 1995. Given the 
decline in the southern sea otter population, the Department asked the 
Southern Sea Otter Recovery Team, a team of biologists with special 
expertise in sea otter ecology, for a recommendation regarding the 
capture and removal of sea otters in the management zone. The recovery 
team recommended that sea otters not be moved from the management zone 
to the parent population because moving large groups of sea otters and 
releasing them within the parent range would be disruptive to the 
social structure of the parent population.
    In August 1998, two public meetings were held to provide 
information on the status of the translocation program, describe 
actions we intended to initiate, and solicit general comments and 
recommendations. At these meetings, the Department announced that it 
would reinitiate consultation under Section 7 of the ESA for the 
containment program, and begin the process of evaluating the program 
under the failure criteria established for the translocation plan. The 
technical consultant group for the Southern Sea Otter Recovery Team, 
composed of representatives from the fishery and environmental 
communities as well as State and Federal agencies, was also expanded to 
assist with evaluating the translocation program. The Department 
provided updates on the translocation program and status of the 
southern sea otter population to the California Coastal Commission, 
Marine Mammal Commission, and California Fish and Game Commission in 
1998 and 1999.
    In March 1999, the Department distributed its draft evaluation of 
the translocation program to interested parties. The draft document 
included the recommendation that the translocation program be declared 
a failure because fewer than 25 sea otters remained in the 
translocation zone and reasons for the translocated otters' emigration 
or mortality could not be identified and/or remedied. The Department 
received substantive comments from agencies and the public following 
release of the draft for review.
    In accordance with our re-initiation of consultation under Section 
7 of the ESA, the Department prepared a draft biological opinion 
evaluating southern sea otter containment. The draft opinion was 
distributed to interested parties for comment on March 19, 1999, and a 
final opinion was completed on July 19, 2000. The re-initiation of 
consultation was prompted by the receipt of substantial new information 
on the population status, behavior, and ecology of the southern sea 
otter that revealed effects of containment that were not previously 
considered. Specifically, the biological opinion noted that in 1998 and 
1999 southern sea otters moved into the management zone in much greater 
numbers than had occurred in prior years; analysis of carcasses 
indicated that southern sea otters were being exposed to environmental 
contaminants and diseases which could be affecting the health of the 
population; range-wide counts of southern sea otters found numbers were 
declining; recent information, in particular the implications of the 
effects of the Exxon Valdez oil spill, indicated that sea otters at San 
Nicolas Island would not be isolated from the potential effects of a 
single large oil spill; and the capture and release of large groups of 
sea otters was likely to result in substantial adverse effects on the 
parent population. The Service concluded that reversal of the southern 
sea otter population decline, and expansion of the southern sea otter's 
population distribution are essential to its survival and recovery. The 
Service further concluded that continuation of the containment program, 
while restricting the southern sea otter to the area north of Point 
Conception, will likely exacerbate recent sea otter population declines 
and increase vulnerability to catastrophic man-made or natural events, 
and therefore, likely jeopardize the continued existence of the 
species.
    On February 8, 2000, a draft revised recovery plan for the southern 
sea otter was released for public review and comment (65 FR 6221). 
Based on the observed decline in abundance and shift in distribution of 
the southern sea otter population, the recovery team recommended in the 
draft revised recovery plan that it would be in the best interest of 
the southern sea otter to declare the experimental translocation of 
southern sea otters to San Nicolas Island a failure and discontinue 
maintenance of the management zone. The recovery team's recommendation 
will be fully evaluated through the Department's ongoing process on the 
translocation action under the National Environmental Policy Act 
(NEPA).
Current Status of Southern Sea Otter
    Based on three year running averages of Spring survey data, the sea 
otter population in California declined from 1995 to 1998. Recent 
counts indicate that the population is stable but still below the 
number believed necessary for recovery of the species. In spite of more 
than 140 sea otters having been translocated and evidence of 
reproduction, the population of sea otters at San Nicolas Island 
currently comprises only approximately 20 adults.
Current Status of the Translocation Program
    To date, the southern sea otter translocation program has not met 
the primary goal of establishing a viable population of southern sea 
otters at San Nicolas Island. In the translocation plan, the Department 
determined that a self-sustaining colony size of 150 southern sea 
otters would be necessary to consider the population at San Nicolas 
Island viable. Based on trends since the translocation program began 
and current circumstances, a population of this size may not be 
attainable.
    On July 27, 2000, the Department published in the Federal Register 
a notice of intent to prepare a supplemental EIS on the southern sea 
otter translocation program (65 FR 46172). The need for a supplemental 
EIS is based on changed circumstances and new information since the 
original EIS on translocation of southern sea otters was prepared in 
1987. Public scoping meetings were held on August 15 and 17, 2000, with 
the purpose of soliciting information to be used in defining the 
overall scope of the supplemental EIS, identifying significant issues 
to be addressed, and identifying alternatives to be considered. The 
technical consultants to the Southern Sea Otter Recovery Team met to 
discuss the supplemental EIS on September 26, 2000. A scoping report 
for the supplemental EIS was distributed to the public and interested 
parties in April 2001. The Department plans to complete a draft 
supplemental EIS to be released for public comment. A final document 
will subsequently be published. The draft evaluation of the 
translocation program released in March 1999 will be finalized 
following further opportunity for public participation in the decision-
making process and completion of the EIS.
    On January 22, 2001, the Department published a notice of policy 
regarding capture and removal of southern sea otters from a designated 
management zone (66 FR 6649). The notice advises the public that the 
Department has determined that it will not capture and remove southern 
sea otters from the southern California sea otter management zone 
pending completion the ongoing reevaluation of the southern sea otter 
translocation program, including the preparation of a supplemental EIS 
and release of a final evaluation of the translocation program.
    As explained in the notice, the Department currently faces a 
conflict between the obligation to isolate and contain California sea 
otters pursuant to Public Law 99-625 and the statutory mandate to avoid 
carrying out activities that are likely to jeopardize the continued 
existence of those otters. We believe that the ongoing decision-making 
process, which will fully involve all affected stakeholders, will help 
to frame the legal and scientific debate so that this legal and 
scientific conflict can be resolved to advance the conservation of sea 
otters in a manner that is both fair and equitable for all affected 
interests.
Working with the State and Stakeholders
    The Department has become increasingly active in our efforts to 
identify actions which will promote the recovery of the southern sea 
otter, address sea otter/fishery conflicts, and build partnerships. For 
example, in 1999 the Department created a forum to identify, 
prioritize, coordinate, and implement research needs for California sea 
otters. The Monterey Bay Aquarium now hosts this research symposium 
annually, bringing together scientists, resource agencies, and others 
working in the field of southern sea otter research and conservation to 
discuss goals and objectives in a creative and productive setting.
    Through our endangered species landowner incentives program, we 
secured funding to help fishermen convert fishing gear that may trap 
and drown sea otters. Metal rings that will prevent otters from 
entering traps have been purchased and are now in the process of being 
distributed to fishermen. The California Fish and Game Commission has 
responded to concerns for sea otters by requiring these rings to be 
placed in live fish traps along the central California coast where most 
sea otters reside.
    A separate, community-based dialog on sea otter issues was 
initiated by environmental and fishery groups in 1999. In 2000, the 
dialog ceased. However, renewed efforts to reconvene the group have 
begun, and a meeting is likely to occur in the near future. The 
Administration supports this involvement by the community and hope to 
be invited to participate in a way that will promote a better 
understanding and resolution of sea otter issues.
    As interest in sea otter/fishery interactions has increased, the 
Department has increased its efforts to keep key partners informed and 
up to date. It has provided frequent updates to the California 
Department of Fish and Game, the California Fish and Game Commission, 
the California Coastal Commission, and the Marine Mammal Commission, 
and it will continue to keep these agencies informed and involved in 
decisions it makes with respect to sea otters.
Conclusion
    Mr. Chairman, from the outset, our efforts to recover the southern 
sea otter have been carried out under a unique set of circumstances. 
The fact that this species is listed under the ESA, and designated as a 
depleted species under the MMPA, required passage of a special law to 
authorize the translocation program. This allowed the Department to 
employ the experimental population recovery tool that has proved highly 
successful for many other imperiled species. Clearly the Department's 
expectations for the southern sea otter translocation have yet to be 
achieved, and we intend to examine these circumstances in significant 
detail through the ongoing NEPA process.
    The NEPA process that is now underway will engage all stakeholders 
in helping the Department examine all available alternatives to address 
the current biological status of California sea otters, the problems 
posed to sea otters that remain within the translocation zone, the 
legal and scientific conflicts posed by the containment obligation, and 
the possible need for greater management flexibility. No decisions have 
been made by the Department at this time, nor will any decisions be 
made until the current collaborative process of working with all 
stakeholders through the NEPA process is completed.
    Mr. Chairman, this concludes my prepared testimony. I would be 
happy to answer any questions.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Thompson.
    Ms. Gaffney?

STATEMENT OF KAITILIN GAFFNEY, CALIFORNIA CENTRAL COAST PROGRAM 
                 MANAGER, THE OCEAN CONSERVANCY

    Ms. Gaffney. Good afternoon, Mr. Chairman and members of 
the Subcommittee. Thank you for the opportunity to present our 
views on marine mammals in California under the Marine Mammal 
Protection Act. My name is Kaitilin Gaffney, and I am the 
California Central Coast Program Manager for The Ocean 
Conservancy, and I work out of our field office in Santa Cruz, 
California.
    The Ocean Conservancy, formerly the Center for Marine 
Conservation, played a leadership role in the development of 
the 1994 amendments to the MMPA, and we continue to actively 
participate in the amendments' implementation. We believe that 
Congress's refinements to the act in '94 brought it closer 
toward achieving its goals, and that the MMPA is now an 
international model for the effective conservation of marine 
mammals. In short, any problems with the MMPA stem not from the 
act itself, but from the agencies' failure to implement the act 
fully and effectively, compounded by a chronic lack of 
resources for effective implementation.
    Today I am going to address both of the issues that the 
other panelists have discussed, interaction of pinnipeds, 
specifically California sea lions and harbor seals, with salmon 
stocks, as well as the translocation program for the southern 
sea otter.
    Regarding the first issue, I think it is important to 
reiterate that pinnipeds have never been the primary cause of 
salmonid declines. In fact, studies show that salmon make up 
only a very small percentage of pinniped diet, and that habitat 
loss is the primary reason behind salmonid declines.
    Nonetheless, in 1994 the environmental community, the 
fishing industry, and Congress provided the National Marine 
Fisheries Service with the tools in Section 120 of the MMPA to 
effectively and strategically address the issue of pinniped 
predation on threatened and endangered salmonid stocks. 
Consequently, there is no need to amend the MMPA to allow a 
blanket authorization for the intentional lethal removal of 
pinnipeds by State and Federal resource agencies.
    The Ocean Conservancy believes that nonlethal deterrents 
hold the most promise to resolve pinniped-salmonid conflicts. 
NMFS has failed, however, to publish final guidelines for what 
constitute acceptable nonlethal deterrents, and NMFS and 
Congress have not yet placed a sufficient priority on dedicated 
and aggressive research into the development of safe, effective 
nonlethal deterrents.
    The Ocean Conservancy strongly opposes any attempt to 
remove the statutory prohibition on shooting pinnipeds. Any 
change to the prohibition will only result in the wounding, 
maiming and death of hundreds of marine mammals, an outcome 
that would be both inhumane and unacceptable to the public.
    Furthermore, allowing fishermen to target marine mammals 
will create an unreasonable risk to species such as Steller sea 
lions, southern sea otters, and harbor porpoise which could 
easily be shot by mistake. Because NMFS cannot adequately 
enforce the existing statutory prohibition, amending it will 
only create an open season on marine mammals throughout the 
United States.
    Regarding the issue of southern sea otters, the U.S. Fish 
and Wildlife Service's efforts to recover the southern sea 
otter, listed as threatened under the Federal Endangered 
Species Act, have not been successful. As was mentioned by Mr. 
Thompson, the population has declined in recent years, and the 
current population of just under 2,200 animals is down 
significantly from historic population estimates of 16,000 to 
20,000 individuals.
    I am not going to repeat the history of the translocation 
law, as Mr. Thompson covered that very well, but will go again 
to 1999 and the biological opinion finding issued by the Fish 
and Wildlife Service. The finding stated that removal of sea 
otters from the southern California otter-free management zone 
would jeopardize their continued existence, and that allowing 
the southern sea otter to expand its range is essential to the 
species' survival and recovery.
    Fish and Wildlife service now proposes to designate the 
translocation a failure, and has initiated formal reevaluation 
of the translocation program. Given the decline in the southern 
sea otter population, The Ocean Conservancy concurs with the 
biological opinion, and we believe that moving any animals out 
of the management zone at this time would likely result in 
mortality and would further impede recovery, in violation of 
the Endangered Species Act. We believe that efforts to remove 
otters from San Nicolas Island will have similar results in 
mortality, and that the existing population at San Nicolas 
Island should be allowed to remain.
    In the past, The Ocean Conservancy has engaged in 
discussions with the fishing industry about how to recover the 
southern sea otter while working to ensure sustainability of 
commercial fisheries. We would be very interested in resuming 
this dialogue to further explore potential areas of common 
ground.
    In the meantime, we urge Congress to refrain from amendment 
the MMPA, and to instead direct Fish and Wildlife Service to 
expeditiously complete its reevaluation of the translocation 
program. We also request that Congress provide funds to 
undertake activities that the environmental community and the 
fishing industry have identified as beneficial to both sea 
otter recovery and fisheries.
    In conclusion, we believe that the existing MMPA provisions 
provide the appropriate methods for addressing pinniped-
salmonid conflicts, and we concur with Fish and Wildlife 
Service's biological opinion on the southern sea otter, and 
support the agency's efforts to reevaluate the translocation 
plan.
    Mr. Chairman, that concludes my remarks. I would be happy 
to answer any questions.
    [The prepared statement of Ms. Gaffney follows:]

    Statement of Kaitilin Gaffney, California Central Coast Program 
                     Manager, The Ocean Conservancy

    Mr. Chairman and Members of the Subcommittee, thank you for the 
opportunity to present our views on the Marine Mammal Protection Act 
(MMPA), specifically marine mammal species in California. My name is 
Kaitilin Gaffney. I am the California Central Coast Program Manager for 
The Ocean Conservancy, and I work out of our field office in Santa 
Cruz, California.
                          I. SUMMARY STATEMENT
    The Ocean Conservancy (formerly the Center for Marine Conservation) 
played a leadership role in the development of the 1994 amendments to 
the MMPA, especially those governing the incidental take of marine 
mammals in commercial fisheries. Since that time we have been one of 
the few organizations that has actively participated in the amendments' 
implementation. The Ocean Conservancy believes that, in the sweeping 
changes made in 1994, Congress refined the Act and brought it closer 
toward achieving its goals of recovering marine mammal populations. The 
MMPA is an international model for effective conservation and 
protection of marine mammals. In short, the problems with the MMPA stem 
not from the Act itself, but often the agencies' failure to implement 
the Act fully and effectively, compounded by a chronic lack of 
resources for effective implementation.
A. Pinnipeds and Salmonids
    Pinnipeds have never been the primary cause of a salmonid decline, 
nor has it been scientifically demonstrated that they have been a 
primary factor in the delayed recovery of a depressed salmonid species. 
Studies show that salmonids make up only a small percentage of pinniped 
diets, and that habitat loss is a primary factor in salmonid decline. 
Nonetheless, in 1994, the environmental community, the fishing 
industry, and Congress provided the National Marine Fisheries Service 
(NMFS) with the tools in Section 120 of the MMPA to effectively address 
the issue of pinniped predation on threatened and endangered salmonid 
stocks. Section 120 serves its purpose. NMFS successfully used these 
provisions to authorize the removal of California sea lions preying on 
steelhead trout at the Ballard Locks. In future conflicts NMFS must 
choose to use these tools wisely.
    The Ocean Conservancy asserts that, as currently codified in law, 
Sections 109 and 120 of the MMPA [16 U.S.C. Sec. Sec. 1379,1389] offer 
effective and precautionary approaches to protecting pinnipeds, 
salmonid fishery stocks, biodiversity, and human health and welfare. 
Consequently, there is no need to amend the MMPA to allow a blanket 
authorization for the intentional lethal removal of pinnipeds by state 
and federal resource agencies. Nor do we believe that such a blanket 
authorization would be acceptable to the public.
    Non-lethal deterrents hold the most promise to resolve the problems 
of ``nuisance'' animals and as such should be the first line of defense 
as opposed to lethal removal. NMFS has failed, however, to publish 
final guidelines for what constitute acceptable non-lethal deterrents. 
NMFS and Congress have also not placed a sufficient priority on 
dedicated and aggressive research into the development of safe, 
effective non-lethal deterrents. Development of such deterrents will 
aid in reducing not only predation on threatened and endangered 
salmonid stocks, but also other conflicts between pinnipeds and humans.
    The Ocean Conservancy strongly opposes any attempt to remove the 
statutory prohibition on shooting marine mammals or even to modify this 
provision to allow limited, controlled shooting of pinnipeds by 
fishermen. Any change to the prohibition will only result in the 
wounding, maiming, and death of hundreds of marine mammals. 
Furthermore, allowing fishermen to target marine mammals will create an 
unreasonable risk to special status species such as Steller sea lions, 
southern sea otters, and harbor porpoise, which could easily be shot 
``by mistake.'' Because NMFS cannot adequately enforce the existing 
statutory prohibition, amending it will only create an ``open season'' 
on marine mammals throughout the United States.
B. Southern Sea Otters
    The U.S. Fish and Wildlife Service's (FWS) efforts to recover the 
southern sea otter (Enhydra lutris nereis), found mainly off the 
central California coast and listed as threatened under the federal 
Endangered Species Act (ESA), have not been successful. The southern 
sea otter population steadily increased between the mid-1980s and 1995, 
but since 1995, the population has declined by 9%. The current 
population is over 2,100 individuals, a drastic decline from an 
estimated historical population of 16,000-20,000 animals. The greatest 
extant threats to the subspecies include oil spills, infectious 
disease, water pollution, and fishing gear and nets.
    In accordance with the Translocation Law (Public Law 99-625 
(1986)), in 1986, FWS began an experiment to move (translocate) a 
number of southern sea otters to San Nicolas Island off of Santa 
Barbara--south of their current range--in an attempt to create a viable 
second colony. The goal was to minimize the chance that the entire 
subspecies could be wiped out by an oil spill along the central 
California coast. FWS estimates that the translocated colony on San 
Nicolas Island currently numbers less than 25 sea otters. The 
Translocation Law also created an otter-free zone to protect shellfish 
fisheries from sea otter competition, as these areas were devoid of 
otters at the time of the law's passage. Despite their declining 
population, a group of predominantly, male sea otters have seasonally 
expanded their geographical range into this otter-free zone. Moreover, 
new information on sea otters discovered since the Translocation Law's 
enactment demonstrate that its statutory provisions are no longer in 
the southern sea otter's best interests.
    Last year, FWS found in a biological opinion that the removal of 
sea otters from the Southern California ``otter free management zone'' 
would jeopardize their ``continued existence'' and that allowing the 
southern sea otter to expand its range is ``essential to the species' 
survival and recovery.'' Furthermore, FWS has completed a Draft 
Evaluation of the Southern Sea Otter Translocation Program, in which 
the agency proposes to designate the translocation a failure, and has 
initiated development of a Supplemental Environmental Impact Statement 
(SEIS) to reevaluate the translocation program. Given the decline in 
the southern sea otter population, The Ocean Conservancy concurs with 
the biological opinion and believes that moving any animals out of the 
management zone would likely result in mortality that would further 
impede recovery, in violation of the ESA.
    Preventing further range expansion will limit the natural growth 
rate of the mainland population. Access to historical habitat may halt 
the population decline, prevent nonspecific resource competition, and 
decrease the potential for disease by providing more space. Therefore, 
The Ocean Conservancy supports declaring the translocation a failure, 
eliminating the management zone, allowing the existing population at 
San Nicolas Island to remain, and allowing sea otters to naturally 
expand their range.
    In the past, our organization has engaged in discussions with the 
fishing industry about how to recover the southern sea otter while 
working to ensure the sustainability of commercial shellfish fisheries. 
We would be interested in resuming this dialogue with the fishing 
industry to continue to explore potential areas of common ground that 
we have identified that, utilizing the existing statutory and 
regulatory framework would promote both the recovery of the southern 
sea otter and healthy fisheries. In the meantime, we urge Congress not 
to amend the MMPA, but to direct FWS to expeditiously complete its 
reevaluation of the translocation. We also request that Congress 
provide funds to undertake activities that the environmental community 
and the fishing industry have identified as beneficial to the sea otter 
recovery and fisheries.
                             II. BACKGROUND
    In 1994, Congress reauthorized the Marine Mammal Protection Act. As 
part of the reauthorization, a coalition of environmental 
organizations, animal welfare groups, commercial fishing industry 
representatives, and Alaska Natives, assisted by a professional 
facilitator, developed a negotiated proposal to govern the incidental 
take of marine mammals during commercial fishing operations. A subgroup 
of the negotiating parties also met to address the issue of pinniped 
predation on declining salmon stocks. This subgroup proposed to 
Congress a multi-phased process to evaluate whether all feasible 
methods of non-lethal deterrence had been tried and whether the target 
marine mammals were responsible for the fish declines. This proposal 
also called for a task force to consult with the Secretary of Commerce 
about seals and sea lions considered ``nuisance'' animals because of 
their predation of steelhead and salmon, species prized by commercial 
and recreational fishermen, at the Ballard Locks in Seattle and in the 
Columbia River. Based on the outcome of the consultation and an 
evaluation by the task force, the subgroup's proposal suggested 
creating a process whereby the Secretary of Commerce could authorize a 
State to lethally remove pinnipeds that prey on endangered salmonid 
stocks, provided that the nuisance pinniped(s) is identified as 
habitually exhibiting dangerous or damaging behavior that could not be 
deterred by other means. Congress enacted this proposal, as part of its 
1994 amendments. It was ultimately codified at Section 120 of the MMPA.
    As amended, the MMPA requires the Secretary of Commerce to engage 
in a scientific investigation to determine whether California sea lions 
and Pacific harbor seals are having a significant negative impact on 
the recovery of salmonid fishery stocks that have been listed under the 
ESA or are approaching endangered or threatened status, or are having 
broader impacts on the coastal ecosystem of Washington, Oregon, and 
California [16 U.S.C. Sec. 1389(f)(1)]. In 1997, NMFS published a 
Technical Memorandum with the results of those investigations. The MMPA 
also required NMFS to enter into a discussion with the Pacific States 
Marine Fisheries Commission to develop recommendations to address 
problems NMFS identified in its scientific investigations [16 U.S.C. 
Sec. 1389(f)(2)]. In February 1999, NMFS issued a Report to Congress on 
the agency's investigations and consultations with the states of 
Washington, Oregon, and California concerning the impact of California 
sea lions and Pacific harbor seal impacts on salmonid stocks and 
coastal marine ecosystems.
   III. THE OCEAN CONSERVANCY'S GENERAL RESPONSE TO NMFS': Report to 
 Congress: Impacts of California Sea Lions and Pacific Harbor Seals on 
                  Salmonids and West Coast Ecosystems
    The Report to Congress contains four recommendations: (1) implement 
site-specific management for California sea lions and Pacific harbor 
seals; (2) develop safe, effective non-lethal deterrents; (3) 
selectively reinstate authority for the intentional lethal taking of 
California sea lions and Pacific harbor seals by commercial fishermen 
to protect gear and catch; and (4) conduct research to fulfill 
information needs. The Ocean Conservancy strongly opposes the first and 
third recommendations: Congress should neither amend the MMPA to 
implement site-specific management for pinnipeds, nor selectively 
reinstate authority to allow intentional lethal taking of pinnipeds by 
commercial fishermen to protect gear and catch. The Ocean Conservancy 
strongly supports the second and fourth recommendations: Congress 
should direct NMFS to develop safe, effective non-lethal deterrents and 
conduct the research necessary to fulfill significant information gaps.
    NMFS' recommendations in the Report to Congress are based on a 
scientifically unsubstantiated leap from the conclusions of the Working 
Group Report. At no time did the Working Group Report recommend the 
lethal removal of pinnipeds. Rather it identified data gaps and 
provided recommendations for additional research. Although The Ocean 
Conservancy fully supports the Working Group Report's recommendations, 
it is our position that, based on the information presented in both the 
Report to Congress and the Working Group Report, NMFS fails to make its 
case that these species of pinnipeds are ``having a significant 
negative impact on the recovery of salmonid fishery stocks'' or ``are 
having broader impacts on the coastal ecosystem of Washington, Oregon, 
and California.''
    California sea lions and Pacific harbor seals are a natural part of 
the Pacific ecosystem, opportunistically utilizing a prey source 
concentrated by man-made structures (e.g., dams) and habitat changes. 
The reasons for salmonid declines are complex, and are largely 
unrelated to pinniped predation. Indeed, studies demonstrate that 
salmonids make up a very small percentage of pinniped diets. If NMFS 
expects to recover salmonid stocks, it must begin by fully addressing 
human-induced causes of these declines. Until NMFS has effectively 
addressed the human causes of salmonid declines, or until one of the 
salmonid stocks is demonstrably threatened with extinction by continued 
pinniped predation, there is no justification for NMFS' recommendation 
to amend the MMPA to exponentially expand lethal removal 
authorizations.
    The Ocean Conservancy strongly recommends that Congress instruct 
NMFS to continue to evaluate and assess the level of pinniped predation 
on salmonids and aggressively pursue the research recommendations 
outlined in both the Report to Congress and the Working Group Report. 
Furthermore, we strongly recommend that, once data become available, 
NMFS compare levels of pinniped predation to the impacts of other 
activities (including commercial and sport fishing, dam operations, 
silvicultural and agricultural practices), and investigate and propose 
actions to mitigate the decline of salmonid stocks by all sources. 
Blaming pinnipeds for the salmonid stocks' failure to recover merely 
distracts from efforts to find real solutions to the problems facing 
the salmonids. Because NMFS was unable to demonstrate that California 
sea lions and Pacific harbor seals are ``having a significant negative 
impact on the recovery of salmonid fishery stocks'' or ``are having 
broader impacts on the coastal ecosystem of Washington, Oregon, and 
California,'' no amendments to the existing statutory scheme are 
warranted. The Ocean Conservancy strongly urges NMFS to use the 
existing tools in the MMPA such as Section 120 and to enforce fully the 
prohibition on intentional shooting of marine mammals.
    Although The Ocean Conservancy recognizes that NMFS continues to 
encounter problems with public interactions with marine mammals, 
recovering marine mammal populations also provide tremendous benefits 
to coastal communities and to the public. Increasing populations of 
both humans and marine mammals along the nation's coasts have brought 
about not only competition for space on boats, docks, and beaches, but 
also increased opportunities for wildlife viewing, education, and 
benefits to coastal tourism.
    Increased interactions between humans and pinnipeds potentially 
produce ``nuisance'' pinnipeds. The public's desire to feed, swim with, 
and otherwise interact with these animals can modify an animal's 
behavior and create conflicts when marine mammals do not distinguish 
between taking fish out of commercial gear and food from well-meaning 
citizens. The Ocean Conservancy will continue our efforts to educate 
the public about how enjoy viewing marine mammals from a distance 
without modifying their behavior.
    The Ocean Conservancy agrees with NMFS that there is insufficient 
data to evaluate the impacts of pinnipeds on the marine ecosystem and 
the economic losses to the fishery from pinniped depredation of catch 
and damage to gear. But we contend that pinniped competition with 
humans for fisheries resources is not a sound scientific reason to call 
for the lethal removal of pinnipeds. Rather, NMFS and the fishing 
industry should reevaluate the fishery management allocation system in 
order to provide an adequate allocation to predators (e.g., pinnipeds) 
whose very survival is inextricably linked to fishery resources. 
Moreover, NMFS and the fishing industry must recognize, as other 
industries do, that there are cost associated with doing business and 
that these costs include a certain level of acceptable loss due to 
interactions with resident wildlife.
    Below, we provide more detailed comments on NMFS' recommendations 
contained in its Report to Congress.
A. ``Implement Site-specific Management for California Sea Lions and 
        Pacific Harbor Seals''
    The Ocean Conservancy strongly opposes NMFS' ``framework'' proposed 
under its first recommendation: ``(1) In situations where California 
sea lions or Pacific harbor seals are preying on salmonids that are 
listed or proposed for listing under the ESA salmonids or salmon 
populations the states identified as being of special concern 
(``depressed,'' ``critical,'' or ``sensitive''), immediate use of 
lethal removal by state or federal resource agency officials would be 
authorized; (2) In situations where California sea lions or Pacific 
harbor seals are preying on salmonid populations of concern or are 
impeding passage of these populations during migration as adults or 
smolts, lethal takes by state or federal resource agency officials 
would be authorized if (a) non-lethal deterrence methods are underway 
and are not fully effective, or (b) non-lethal methods are not feasible 
in the particular situation or have proven ineffective in the past; (3) 
In situations where California sea lions or Pacific harbor seals 
conflict with human activities, such as at fishery sites and marinas, 
lethal removal by state or federal resource agency officials would be 
authorized as a last resort when an individual pinniped fails to 
respond to repeated deterrence attempts, or when repeated deterrence 
attempts do not affect the behavior of an individual pinniped over the 
long-term.'' Although all lethal removals would have to be within the 
Potential Biological Removal level for the pinniped stock established 
by NMFS in accordance with the MMPA, The Ocean Conservancy asserts that 
NMFS' proposal is unnecessary and unjustified. Section 120 of the MMPA 
already establishes the appropriate procedures for lethal removal of 
California sea lions or Pacific harbor seals where these species are 
preying upon ESA-listed.
    Section 120 requires that, for a lethal take to be authorized, the 
applicant (a state) must demonstrate that individually identifiable 
pinnipeds are having a significant negative impact on the decline or 
recovery of salmonid fishery stocks that are listed or are approaching 
the status of threatened or endangered species under the ESA. The Ocean 
Conservancy strongly disagrees with the characterization of these 
provisions by NMFS and the states of California, Oregon, and Washington 
as cost prohibitive, cumbersome, restrictive, and unworkable. We also 
dispute the assertion that the amount of evidence needed to establish 
that specific pinnipeds are having a significant negative impact on a 
salmonid population is ``time-intensive, difficult, and expensive to 
obtain.'' The Ocean Conservancy firmly believes that Section 120 
provides the flexibility to conserve salmonid stocks and establishes 
the appropriate burden of proof to demonstrate both that pinnipeds are 
having a significant negative impact on the decline or recovery of 
salmonid fishery stocks and that all reasonable and prudent non-lethal 
measures have failed.
    During the 1994 MMPA reauthorization process, environmental and 
fishing interests as well as Congress recognized the need to address 
the role of pinnipeds in the conservation of endangered salmonid 
populations. The provisions of Section 120 are the result of a 
compromise that allows NMFS to take action where necessary to protect 
salmonid populations, yet preserves the protective nature of the MMPA. 
The Ocean Conservancy believes that a blanket authorization to states 
for the immediate use of lethal removal is contrary to the 
precautionary protection goals and objectives of the MMPA, will not 
guarantee that these pinnipeds receive the protections afforded by the 
MMPA, and fails to recognize that lethal removal is a flawed management 
tool. A general authorization would grant too much authority and 
discretion to state agencies, while removing two key components of 
Section 120--scientific review and assessment of existing data, and 
public oversight and participation in the process. If pinniped 
populations have in fact expanded to the point where they need to be 
managed, the MMPA provides a process for transfer of management 
authority to the states subject to specified conservation standards.
    In this context, it is worth noting that an authorization under 
Section 120 has been used only once, at the Ballard Locks in Seattle, 
Washington. On June 30, 1994, the Washington Department of Fish and 
Wildlife (WDFW) requested authority under Section 120 to kill problem 
California sea lions at the Ballard Locks. Evidence indicated that the 
non-lethal methods tried underwater firecrackers, chaser boats, 
acoustic deterrence and harassment devices, taste aversion 
conditioning, experimental barrier nets, trapping and relocation had 
not succeeded in eliminating sea lion predation. On January 6, 1995 
(less than six months later), NMFS provided WDFW with a three-year 
conditioned authority to lethally remove fifteen California sea lions 
to protect steelhead salmon from predation at the Ballard Locks.
    The Ocean Conservancy believes not only that this single experience 
is an insufficient basis for recommending significant statutory 
amendments to Section 120, but that it actually demonstrates that the 
process worked as intended. Specifically, it took less than six months 
from the request letter to the Secretary to the removal of animals at 
the Locks. Although NMFS and WDFW accused the process of being 
``cumbersome and time-consuming,'' Section 120 enabled wildlife 
management officials to conduct removals at the locks expeditiously and 
efficiently.
    Restoring anadromous fisheries and managing human and pinniped 
competition are not easy goals to achieve. The Ocean Conservancy 
strongly believes, however, that a lasting solution to these challenges 
must be collaborative, must be based on adequate scientific research, 
and must address the values and interests of fishers, conservation 
organizations, and the general public. There are, no doubt, refinements 
that could be made in the process that do not require amendments to the 
MMPA. Consequently, we recommend that NMFS and the states of Oregon, 
Washington, and California work with the conservation community to 
reevaluate the process and devise mechanisms to make implementation of 
Section 120 more responsive and effective, but that Congress decline to 
amend Section 120 as proposed by NMFS.
B. ``Develop Safe, Effective Non-lethal Deterrents''
    The Ocean Conservancy strongly supports NMFS' recommendation that 
safe, effective non-lethal deterrents be developed and that these 
deterrents should not have detrimental incidental effects. We agree 
that research and development of pinniped deterrence methods and 
devices should be a priority and should receive adequate funding. 
However, The Ocean Conservancy disagrees with the statement in the 
Report to Congress that ``lethal removal remains the only effective 
alternative until satisfactory deterrence measures are developed.'' 
Rather, we agree with the Working Group Report's statement indicating 
that lethal removal or pinniped population control may not always 
result in the expected outcome and may, in fact, be detrimental to fish 
populations and the ecosystem as a whole.
    Many fishing industries and environmental groups have long 
supported the use of non-lethal deterrents. In 1998, representatives 
from conservation and animal welfare organizations, commercial and 
recreational fishing associations, universities, and federal and state 
agencies gathered at the Monterey Bay Aquarium to discuss the 
interactions of California sea lions and Pacific harbor seals with wild 
salmon stocks and commercial and recreational fisheries that operate 
off the West Coast. During these discussion it became clear that 
representatives from both the fishing industry and the conservation/
animal welfare community are frustrated with NMFS' failure to issue 
final guidance on non-lethal methods to deter pinnipeds from dangerous 
or damaging interactions with fishing gear and catch. The group sent a 
joint letter to NMFS requesting the immediate release of the non-lethal 
deterrents guidelines. Although NMFS originally published draft 
guidelines for public comment in the spring of 1995 (60 Fed. Reg. 22345 
(May 5, 1995)), nearly six years later, NMFS has ignored this and other 
requests and still has not released final guidelines. We believe it is 
now time for Congress to direct NMFS to promptly release final 
guidelines for the use of non-lethal deterrents by commercial and 
recreational fisheries in interactions with marine mammals. In 
addition, we believe Congress should amend the MMPA to require NMFS to 
promulgate binding and enforceable regulations for the use of non-
lethal deterrents, as set forth in Attachment A.
    The Ocean Conservancy continues to believe that the best hope to 
address pinniped interactions with salmonid stock and fishermen is to 
develop safe, non-lethal deterrents. To further this goal, we also 
recommend that MMPA Section 120 be amended to provide for an aggressive 
and dedicated research program to develop and test safe, non-lethal 
deterrents, as follows:

    AMENDMENT--At Section 120 strike existing section (f) and insert 
new section (f) as follows:

    1) L(A) Within six months of enactment, the Secretary shall 
undertake a review of all non-lethal methods that have been used to 
deter marine mammals and, in consultation with the Marine Mammal 
Commission, representatives of academic and scientific organizations, 
environmental groups, commercial and recreational fisheries groups, 
gear technologists, and others as the Secretary deems appropriate, 
shall develop a research plan for the development and testing of safe, 
non-lethal deterrents. In developing the research plan the following 
criteria should be considered---- (i) Such deterrents may be used to 
deter marine mammal interactions with (a) fishing gear and catch; (b) 
aquaculture resources; or (c) salmonid fishery stocks that have been 
listed as endangered or threatened under the Endangered Species Act of 
1973 (16 U.S.C. Sec. 1531), or that the Secretary finds are approaching 
endangered or threatened status; and (ii) The research and development 
of such deterrents shall provide for the humane take of marine mammals 
by harassment, as defined at Section 3(18)(A)(ii) of this Act.
    2) LThe Secretary shall undertake and complete the research plan, 
and any related studies, developed pursuant to paragraph (1) not later 
than 2 years after the date of enactment.
    3) LThe Secretary shall submit a report of the findings and 
recommendations for additional research or action to the Committee on 
Resources of the House of Representatives and the Committee on 
Commerce, Science and Transportation of the Senate 3 year after the 
date of enactment.
    4) LThe Secretary shall make the report and the recommendations 
submitted under paragraph (3) available to the public for review and 
comment for a period of 90 days.
    5) LFor the purposes of carrying out this section, the Secretary 
may accept, solicit, receive, hold, administer, and use gifts, devices, 
in-kind contributions, and bequests.
    6) LThere are authorized to be appropriated to the Secretary 
$1,500,000 annually to carry out the provisions of this subsection.
C. ``Selectively Reinstate Authority for the Intentional Lethal Taking 
        of California Sea Lions and Pacific Harbor Seals by Commercial 
        Fishermen to Protect Gear and Catch''
    The Ocean Conservancy strongly opposes NMFS' recommendation to 
amend the MMPA to allow NMFS to authorize lethal removal of marine 
mammals on a case-by-case basis to protect gear and catch in certain 
fisheries, even if, as NMFS proposes, the authorization is subject to 
the following conditions: 1) there is a demonstrated need; 2) the 
lethal authorization would be limited to specific areas and fisheries; 
3) fishermen who receive such authorizations should be trained or 
demonstrate the ability to distinguish among pinniped species; 4) the 
taking would have little effect on the pinniped stock's continued 
growth and recovery; and 5) the taking would be within the PBR for the 
stock.
    In 1994, the environmental community and the fishing industry 
negotiated a proposal to prohibit the intentional lethal taking of 
marine mammals to protect gear and catch, which became a critical 
provision in the 1994 Amendments to the MMPA. Congress' intent in 
enacting this provision is clear not only from the plain language of 
the statute but also from testimony and statements in the Congressional 
Record. The Ocean Conservancy, as one of the negotiating parties, felt 
strongly that the fishing industry should not intentionally shoot 
marine mammals to deter them from gear and catch. In addition, The 
Marine Mammal Center (TMMC) presented compelling evidence that shooting 
as a deterrence method is inhumane and often results in wound rather 
than dead. The industry conceded that, given the availability of 
various non-lethal deterrents, shooting marine mammals to deter them 
from fishing gear and catch was not necessary. Furthermore, intentional 
shooting of marine mammals is unacceptable to the general public.
    Despite the enactment of this hard-won landmark provision, 
fishermen continue to shoot marine mammals. In fact, from 1992 to 2000, 
TMMC documented 305 gunshot pinnipeds and sea otters along the Central 
California coast alone. TMMC further estimates, based on extrapolated 
data from estimates of gunshot wounds in live stranded marine mammals, 
that between two to three hundred pinnipeds die each year along the 
entire California coast from gunshot wounds. Consequently, there is no 
reason to believe that NMFS would be able to adequately monitor and 
enforce any authorization for lethal removal and compliance with 
conditions thereto. Permitting lethal removal to protect gear and 
catch, when fishermen continue to disobey the existing law and shoot 
marine mammals, would be tantamount to providing the fishing industry 
with a blanket authorization to dramatically increase killing and 
wounding pinnipeds and sea otters. We strongly oppose any efforts to 
lift the existing prohibition on intentional shooting of marine 
mammals.
D. ``Information Needs''
    The Ocean Conservancy supports NMFS' recommendations for additional 
research and the research programs outlined in the Report. However, The 
Ocean Conservancy does not support the direct lethal collection of 
pinnipeds for analysis of stomach contents given that non-lethal 
methods exist to achieve the same objective.
IV.THE OCEAN CONSERVANCY'S VIEWS ON MANAGEMENT AND RECOVERY EFFORTS FOR 
                         THE SOUTHERN SEA OTTER
A. Background
                        1. the translocation law
    Scientists and managers have been concerned for some time that this 
already threatened population could be wiped out as a result of a 
single large oil spill that would likely drift across the entire extent 
of the sea otter's range. In December 1980, the Marine Mammal 
Commission recommended to FWS that the agency implement a zonal 
management strategy to establish one or more sea otter colonies outside 
the existing southern sea otter range, which would ultimately result in 
a larger population size and a more continuous distribution of animals 
throughout the range.
    In 1986, Congress passed the Translocation Law to authorize the 
development and implementation of a program to establish at least one 
sea otter colony outside the existing sea otter range in California. 
The Translocation Law authorized FWS to move a group of southern sea 
otters from central California to San Nicolas Island in the Santa 
Barbara Channel the translocation zone. FWS believed that this area 
would be far enough away from the parent population to prevent animals 
moving back to that population, while also providing sufficient space 
to allow recovery of the species and protect it from an oil spill off 
the central coast of California.
    At the same time, the southern California shellfish fishery 
expanded to include sea urchins as well as abalone. To protect 
commercial and recreational shellfish fisheries that had developed in 
the absence of otters, otter-free zones or management zones were 
developed to prevent sea otters from recolonizing areas where 
substantial shellfish fisheries existed.
    In the management (otter-free) zone surrounding the translocation 
zone, sea otters would be excluded and only accorded the status of 
species that have been proposed for listing (``candidate species'') 
under the ESA. Under the Translocation Law, sea otters found in the 
management zone must be removed and relocated into either the 
translocation zone or to the parent population by non-lethal means. In 
addition, the law provides that incidental takes of sea otters by non-
lethal means in the management zone do not violate either the ESA or 
the MMPA. The capture and relocation of the sea otters found in the 
management zone was designed to contain the experimental translocated 
population, minimize conflicts between sea otters and commercial and 
recreational fisheries, and protect the otters because protection 
measures within the management zone are less stringent. Finally, the 
law specifically acknowledges that members of the parent population may 
be found in the management zone and requires their removal to maintain 
that zone free of otters.
               2. implementation of the translocation law
    The overall goal was to ensure that 70 sea otters would remain on 
San Nicolas Island and form the core nucleus of breeding sea otters. 
Within the 1997 to 2002 time frame, the San Nicolas population was 
expected to reach its carrying capacity of about 500 animals.
    Between 1987 and 1990, 252 sea otters were captured from the 
central California coast for translocation to San Nicolas Island, but 
only 140 were actually released. These otters did not fare well. Some 
returned to the coast, primarily back to their original range of 
southern sea otters, but the fate of most is unknown, despite the fact 
that all were tagged. Some of these otters may have lost their marking 
tags while returning to the mainland, while others probably died. At 
least seven of the 140 took up residency at the island, and the 
population was estimated to be 14 to 17 in 1998. Since 1990, the 
population at San Nicolas Island has not change significantly, 
numbering between 6 to 23 animals.
                    3. failure of the translocation
    It is FWS' responsibility to keep the management zone free of sea 
otters. Between 1987 and 1994, twenty independent sea otters (10 male 
and 10 female) and four dependent pups have been captured in the 
management zone and released in the northern portion of the mainland 
population.
    The containment effort, which includes monitoring, capture, and 
relocation of the sea otters, proved expensive and largely 
unsuccessful. Support for the program has waned in recent years. In 
1990, the California Fish and Game Commission voted to cease supporting 
the project, and subsequently, the California Coastal Commission asked 
FWS to stop the project. In 1993, four sea otters died within a two-
week period, shortly after release into the parent population. As a 
result, relocation/containment efforts were put on hold.
    FWS had anticipated that approximately 5 percent of the animals 
captured and relocated could die from associated stress, but the 
mortality rate in 1993 alone was approximately 16 percent. These deaths 
called into question whether the relocation/containment methods were 
being conducted by non-lethal means. Since 1993, the FWS has not 
removed any otters from the management zone. FWS data indicated that 
the numbers of sea otters at San Nicolas Island were continuing to 
decline, and the translocation program should be evaluated.
    During the past few years, a number of southern sea otters have 
entered the management zone. In March 1998, 65 sea otters were found in 
and near Cojo Anchorage. By April, the number of otters grew to 101, 
mostly male sea otters. From January through February 1999, the number 
of sea otters around Gaviota Pier to Cojo Cove (areas within the 
management zone) increased from 50 to 152 animals. The possibility that 
this many sea otters may inhabit the management zone prompted FWS to 
reevaluate the management plan.
    The increase in the number of otters in the management zone raised 
concerns within the fishing industry that the animals may have 
devastating effects on shellfish fisheries in the management zone. On 
the other hand, some scientists noted that, given the recent data 
indicating that the population has declined by 9% since 1995, the range 
expansion was likely not due to an increasing population, but may be a 
population in search of new or additional prey, or a population that 
may be moving due to limited prey resources in some areas of its range. 
The Recovery Team noted that the capture and relocation of a large 
number of sea otters could result in the deaths of animals, and disrupt 
the existing social structure of resident groups, increase competition 
for resources, and very possibly exacerbate the observed population 
decline.
B. FWS Actions
    Between 1999 and 2000, FWS completed a Biological Opinion (BO) 
under the ESA and a Draft Evaluation of the Southern Sea Otter 
Translocation Program, in which FWS proposed to designate the 
translocation a failure. In addition, during the summer of 2000, the 
FWS published a notice of intent and held scoping meetings to prepare a 
supplemental Environmental Impact Statement (EIS) that will reevaluate 
the current translocation program for southern sea otters and analyze a 
number of sea otter management alternatives.
         1. fws' current position on containment/translocation
    In completing the BO, the FWS determined that moving the animals 
out of the management zone would jeopardize the species, in violation 
of Section 7 of the ESA. This conclusion was reached because:

     L``Reversal of the southern sea otter's population decline 
is essential to its survival and recovery. Continuation of the 
containment program will result in the capture, transport, and release 
of large numbers of southern sea otters from the management zone into 
the parent population. These actions may result in direct deaths of 
individuals and disrupt social behavior in the parent population to the 
degree that those affected individuals will have reduced potential for 
survival and reproduction. These effects will exacerbate the recent 
decline of the southern sea otter population.''
     L``Expansion of the southern sea otter's distribution is 
essential to its survival and recovery. Continuation of the containment 
program will result in the exclusion of southern sea otters from the 
area south of Point Conception. This effect will perpetuate the 
species' artificially restricted range and its vulnerability to the 
adverse effects of oil spills, disease, and stochastic events.''

    The Ocean Conservancy concurs with the FWS' findings, and fully 
supports the jeopardy analysis in the BO.
  2. the ocean conservancy's position on containment and translocation
    The Ocean Conservancy recognizes that the decision by FWS to 
declare the translocation a failure will have ecological effects for 
southern sea otters and their habitat, and economic effects on 
commercial shellfish fisheries and their future management 
requirements. However, we believe that moving any animals out of the 
management zone would likely result in mortality that would further 
impede the recovery of this species, in contravention of the ESA. 
Moreover, we assert that the sea otter population must be allowed to 
expand its range, to promote recovery, avoid nonspecific resource 
competition, and decrease the potential for disease. Therefore, The 
Ocean Conservancy supports declaring the translocation a failure, 
eliminating the management zone, allowing the population at San Nicolas 
Island to remain, and allowing sea otters to naturally expand their 
range to allow for the recovery of the species under the ESA and to 
achieve its Optimum Sustainable Population under the MMPA. We urge 
Congress not to amend the MMPA to address this issue and, instead, ask 
Congress to direct FWS to move forward expeditiously to complete its 
EIS on the translocation.
C. Litigation
    In April 2000, a segment of the southern California commercial 
shellfish fishery filed a lawsuit seeking to force FWS to capture and 
remove sea otters from the management zone. The plaintiffs took this 
action, even though they were engaged in discussions with the 
environmental community in an effort to find consensus on issues of 
concern. The Ocean Conservancy, Defenders of Wildlife and Friends of 
the Sea Otter successfully intervened in this case on the side of FWS, 
despite opposition by the plaintiff fishing groups. The Humane Society 
of the United States and the Animal Protection Institute received 
amicus curiae status.
    The fishing groups who brought this case did not represent the 
views of many components of the California fishing community, which 
favored instead an approach of trying to achieve consensus through 
negotiations. The existence of the lawsuit brought the discussions 
between the fishing industry and environmental community to a halt.
    Without ever pressing their case, the plaintiff fishing 
organizations dropped this case in July, 2001. They dismissed the case 
without obtaining any relief or even submitting pleadings. Now that the 
lawsuit has been dropped, efforts are underway to explore the 
possibility of resuming the discussions.
D. The Next Chapter Looking for Common Ground
    The Ocean Conservancy supports public policies that foster healthy 
marine ecosystems and the recovery of threatened species, but values 
doing so with sensitivity to the needs of fishing communities. We 
believe that existing law, including the ESA and the MMPA, provides 
appropriate mechanisms for conserving sea otters while addressing the 
concerns of fishing communities.
    In October 1999, members of the fishing industry and conservation 
community met to explore areas of common interest and identify actions 
to recover southern sea otters while at the same time ensuring the 
sustainability of commercial shellfish fisheries. At their first 
meeting group established as an objective: Maintain well-managed and 
abundant fisheries, healthy marine ecosystems, and recover the southern 
sea otter population.
    To achieve this objective, the group framed an action plan that 
included three broad-based goals: 1) pollution prevention; 2) southern 
sea otter and ecosystem health assessment and maintenance; and 3) 
habitat enhancement.
    In March 2000, the group devised tasks within the action plan to 
achieve these goals and objectives. They are:

    1) LSupport State Funding for Ecosystem Health Monitoring: More 
than five years of data indicate that nearly 40% of the dead sea otters 
examined had an infection at the time of death. We must determine sea 
otter infection rates, how and to what degree infections are 
communicable, and the incidence and impact of environmental 
contaminants, toxins and parasites on sea otters and their critical 
habitat. The marine ecosystem health monitoring program should be a 
jointly funded cooperative research effort to collect and coordinate 
ecological, biomedical, chemical and physical oceanographic and 
atmospheric information to identify trends and events affecting otter 
and shellfish populations.
    2) LFishing Gear Modifications: The commercial fishing industry can 
play a leadership role in efforts to avoid sea otter entrapment in 
fishing gear by establishing gear advisory groups. The gear advisory 
groups could work to mitigate potential entrapment in live fish traps, 
including crab and lobster traps, which may be used within sea otter 
habitat.
    3) LSea Otter Health Assessment: A multi-agency, public/private 
effort is needed to assess the health of wild California sea otters. We 
propose using the model that NMFS has successfully implemented to 
obtain valuable information on the health status of the Hawaiian Monk 
Seal population.
    4) LJump Start the Sea Otter Recovery Plan: As FWS nears completion 
of an updated Southern Sea Otter Recovery Plan, we should work jointly 
to secure federal, state, and private funding for its implementation.
    5) LEnhance Shellfish Recruitment and Harvest within and beyond the 
Sea Otter Range: If adequate research and development funds were 
available, fishermen could develop and test devices to enhance 
protected habitat for commercial shellfish harvesting. We should work 
to engage scientists, engineers, and funders in developing pilot 
projects for creation of artificial shellfish refugia and cryptic 
habitat.
    6) LMap Fisheries and Key Facilities Within Current and Potential 
Otter Range: Managers may be able to effectively and cooperatively 
develop adaptive conservation and management strategies allowing for 
the co-existence of fisheries and sea otters, if information systems 
exist to easily identify fisheries, activities, and facilities that may 
affect or be affected by current or future overlap of the sea otter 
range expansion and fishing grounds.
    7) LAdaptive Management Strategies to Address Otter Range 
Expansion: To improve conservation and management, scientists must 
better understand and develop predictive models to assess the impact of 
sea otter movements on fisheries and the ecosystem. This will require 
additional research into the dynamics of sea otter range expansion and 
correlations to overall indicators of ecosystem health, pollution or 
disease conditions and prey availability.
    8) LIdentify Mitigation Measures for Fisheries That Could Be 
Affected by Sea Otter Range Expansion: Although no one can predict to 
what degree sea otters may continue expanding their range, scientists, 
fishermen, environmentalists, and managers should work toward 
identifying possible measures to reduce potential adverse impacts on 
certain fisheries and mariculture projects. The mitigation measures 
should help reduce fishery impacts due to area or species closures, 
disease or pollution and should take into consideration the social and 
economic consequences of changes to the fisheries, marine habitat, and 
sea otter recovery brought about by the movement of sea otters.

    Both the fishing industry and the conservation community have 
expressed an interest in resuming these discussions that were stalled 
due to the litigation. The Ocean Conservancy believes that these action 
items provide a possible basis to continue these discussions. We will 
work to promote both the recovery of the southern sea otter and its co-
existence with healthy fisheries. We request that Congress refrain from 
amending the MMPA, but instead support this effort to find common 
ground and instruct FWS to actively participate in these discussions. 
We anticipate that, where we reach consensus on actions that will 
benefit both sea otters and fisheries, we will request that Congress 
provide the necessary funding.
              V. OTHER MARINE MAMMAL PROTECTION ACT ISSUES
    The Ocean Conservancy continues to play a key role in the 
implementation of the MMPA. We currently serve on all of the take 
reduction teams established by NMFS under the Act and provided our 
views on their implementation to the Committee at its hearing on the 
MMPA on April 6, 2000. We have witnessed significant progress toward 
the MMPA's goal of recovering marine mammal populations. The MMPA has 
been and remains an international example for effective conservation 
and protection of marine mammals. In our opinion, the problems with the 
Act stem not from the MMPA itself, but from ineffective implementation 
and a chronic lack of resources.
    Consequently, The Ocean Conservancy believes that, at most, only 
minor, non-controversial amendments to fine-tune the Act are needed 
when the Act is reauthorized. Our attached recommendations provide such 
changes. Specifically, The Ocean Conservancy's goals for a 
reauthorization are to: (1) preserve gains that were made in 1994 
(e.g., Sections 109 and 120); (2) prevent weakening of the definition 
of harassment; (3) further define the zero mortality rate goal; (4) 
strengthen the MMPA penalty and enforcement provisions to effectively 
deter violations of the MMPA; (5) improve the implementation of the 
take reduction team process; (6) protect and strengthen the Act's co-
management provisions to allow co-management of non-depleted species/
stocks; (7) increase authorized funding levels for the Act overall, and 
specifically the authorized funding levels for the health and stranding 
response provisions, (8) expand authority under Section 118 to allow 
the Secretary to authorize a take reduction team for fishery 
interactions involving prey related issues and other human-related 
threats (e.g. ship strikes); and (9) devise and implement a research 
plan to develop non-lethal deterrents to prevent marine mammals from 
interacting with fishers gear and catch.
    In conclusion, the MMPA has many of the tools it needs to protect 
marine mammals. Its implementation could be greatly improved if 
appropriators would fund the statute at currently authorized levels. 
Additionally, NMFS and FWS should work with the environmental community 
and the fishing industry to undertake needed research and improve the 
MMPA's implementation. At this juncture, these actions may actually do 
more to conserve marine mammals than additional amendments to the Act.
                                 ______
                                 
                              ATTACHMENT A
                         THE OCEAN CONSERVANCY
                  DRAFT MMPA REAUTHORIZATION LANGUAGE

         TITLE I CONSERVATION AND PROTECTION OF MARINE MAMMALS
                           sections 117 & 118
    GENERAL COMMENTS: The Ocean Conservancy, formerly the Center for 
Marine Conservation, believes that, for the most part, Sections 117 
and118 are functioning well and require very little modification. The 
methods for determining the potential biological removal level (PBR) 
are risk adverse and scientifically sound. Likewise, the process for 
gathering information, preparing, and obtaining scientific review of 
the stock assessments is working well and has resulted in greatly 
improved stock assessments for most marine mammal stocks. There are 
several actions that still require regulatory action: (1) definition of 
Zero Mortality Rate Goal; (2) guidelines for acceptable methods of 
deterrence; and (3) guidelines for the elements that constitute serious 
injury. The Ocean Conservancy recommends that NMFS issue these 
appropriate notices immediately.
SECTION 118(d)--MONITORING INCIDENTAL TAKES
    ISSUE: Assistant Administrator Penny Dalton noted in her June 29, 
1999, testimony before the House Resources Committee that: ``Funds for 
monitoring programs have been limited; therefore, only fisheries 
experiencing frequent interactions with marine mammals have generally 
received priority for observer program coverage. In 1997, approximately 
1/5 of the U.S. fisheries having frequent or occasional interactions 
with marine mammals were observed for these interactions. These large 
gaps in our knowledge of fisheries' impacts to marine mammal stocks 
makes it difficult to develop appropriate management measures.'' In the 
course of the take reduction team process, the fishing industry and 
environmental community routinely recommend increased observer 
coverage. Unfortunately, limited resources have precluded such 
increases. Consequently, The Ocean Conservancy strongly believes that 
the Secretary should have the discretion to assess fees, as needed, to 
initiate and implement an observer program, particularly for those 
fisheries that request such programs.
    AMENDMENT--At Section 118(d) insert a new paragraph (11) as 
follows:
    (11) The Secretary may establish a system of fees to pay for the 
costs of implementing an observer program established under this 
section.

    ISSUE: The National Marine Fisheries Service has raised concerns 
regarding whether the agency has the authority to place observers on 
vessels in Category I and II fisheries that have not registered and 
obtained marine mammal incidental take authorizations. The Ocean 
Conservancy believes that NMFS clearly has the authority to place 
observers on any vessel within a Category I or II fishery, regardless 
of whether the owner or master of the vessel has registered. To make 
this point absolutely clear, we believe that the MMPA should be amended 
to explicitly provide this authority.
    AMENDMENT--At Section 118(d) insert a new paragraph (8) as follows:
    (8) The Secretary may require that an observer be stationed on a 
vessel engaged in a fishery listed under subsection (c)(1)(A)(i) or 
(ii) that is not registered under subsection (c). In such case the 
Secretary shall notify the owner and master of the vessel that they are 
in violation of section (c)(3)(C) of this title.
SECTION 118(c)--REGISTRATION AND AUTHORIZATION
    ISSUE: With Section 118 in force, the interim exemption provisions 
embodied in Section 114 are obsolete and no longer in effect, and, 
therefore, Section 114 should be removed from the Act entirely and the 
necessary technical and conforming amendments made to other provisions 
in the Act. In this situation, the following technical amendment 
applies:
    TECHNICAL AMENDMENT At Section 118(c)(3)(A)(i) delete the phrase 
``except that owners of vessels holding valid certificates of exemption 
under section 114 are deemed to have registered for purposes of this 
subsection for the period during which such exemption is valid.''

    ISSUE: During several take reduction team negotiations, the NMFS 
has remarked on instances where vessel owners have refused to allow 
observers on their vessels and have done so without prosecution. 
Moreover, enforcement personnel have indicated that their efforts to 
enforce the Act are constrained because NOAA General Counsel has 
narrowly interpreted ``engaged in a fishery'' to mean engaged in the 
fishery on the day that the refusal occurs. The Ocean Conservancy views 
this failure to take observers as a flagrant violation of the Act and 
regards NOAA General Counsel's interpretation as inconsistent with the 
intent of the Act. Therefore, the following amendments are offered to 
ensure that vessel owners are motivated to comply with this provision 
of the Act and to clearly state that NMFS has prosecutorial authority 
for any violations of this requirement.
    AMENDMENT--At Section 118(c)(3)(B) insert new subparagraph (i) as 
follows:
    (i) Any owner or master of a vessel required by the Secretary to 
take on board an observer and who fails to do so shall be deemed to 
have violated this title and shall be subject to penalties under this 
title.

    In addition, The Ocean Conservancy recommends the following 
addition to the list of definitions:
    AMENDMENT At Section 3 of the Act, insert a new definition (28) as 
follows:
    (28) The term ``engaged in a fishery'' means to have a valid permit 
issued by the Secretary in accordance with the Magnuson-Stevens Fishery 
Conservation and Management Act (16 U.S.C. Sec. 1801 et seq.) or the 
State for any of the fisheries listed under Sections 
118(c)(1)(A)(i),(ii), or (iii).

    ISSUE: The Ocean Conservancy believes that the Congress should 
strengthen the incentive for fishermen to register by allowing NMFS to 
seek the forfeiture of the catch from any fishing operations conducted 
without the required authorization and to assess a substantial fine 
against the vessel. In addition, the fine currently stipulated in the 
Act for failure to display or carry evidence of an authorization is not 
a sufficient deterrent. This fine must be increased to ensure that 
owners obtain, and display or carry, evidence of a current and valid 
authorization.
    AMENDMENT--At Section 118(c)(3)(C) amend to read: ``shall be 
subject to the penalties, fines and forfeiture under Sections 105 and 
106 of this title, and for violations of clause (iii) shall be subject 
to a fine of not more than $5,000.00 for each offense.''
SECTION 118(f) TAKE REDUCTION TEAMS
    ISSUE: Apparently NMFS has yet to realize that consensus is hard-
won, and from the perspective of the individuals engaged in this 
process, take reduction teams are critically important to their 
livelihood and the conservation of the species. Therefore, NMFS must 
view the take reduction team process as a priority partnership for the 
agency and all of the various stakeholders. The ground rules require 
that all participants have the authority to commit their organizations 
to the consensus; NMFS must meet this requirement as well. NMFS 
representatives must be active participants, able to legally evaluate 
the conservation strategies and commit the agency to the consensus. 
They must advise the team as to whether the conservation strategies 
will meet the Act's targets, are easily implemented and enforced, and 
whether the research recommendations are achievable. It undermines the 
process when team members conclude the negotiations with false 
expectations that their recommendations will be implemented. To 
facilitate decision-making at team meetings, The Ocean Conservancy 
recommends that the Regional Administrator, a representative from NOAA 
General Counsel, and a NMFS enforcement officer be present during 
negotiations when the consensus is being formed.
    AMENDMENT Section 118(f)(6)(C) amend the last sentence of this 
paragraph to read: ``Take reduction teams shall, to the maximum extent 
practicable, consist of an equitable balance among representatives of 
resource user interest and nonuser interests, ``and include, as full-
fledged members, representatives from the federal agency offices of 
legal counsel, enforcement, and the regional administrator.''
SECTION 118(j) CONTRIBUTIONS
    ISSUE: NMFS has been reluctant to fully utilize this provision of 
the Act, especially as it pertains to accepting funds from either the 
fishing industry or the conservation community to observe a particular 
fishery. NMFS claims that it is uncertain whether it could use such 
funds to administer an observer or research program. The Ocean 
Conservancy believes that this should be clarified, as it was the 
intent of the drafters to provide NMFS with the ability to work 
cooperatively with various user groups to undertake the necessary 
measures to effectively implement this section in the event there were 
insufficient federal funds to conduct research or observer programs.
    AMENDMENT At Section 118(j) insert the following: For purposes of 
carrying out this section, ``including observer, research, and 
education and outreach programs,'' the Secretary may accept, solicit, 
receive, hold, administer, and use gifts, devises, and bequests.
      section 119--marine mammal cooperative agreements in alaska
    ISSUE: The Ocean Conservancy supports the notion of co-management 
by Alaska Natives and the Federal Government. However, to date, the 
agreements that NMFS has entered into with the Alaska Native Community 
lack any means of enforcement. To avoid causing the decline of a stock 
through subsistence harvest, and to ensure compliance with co-
management agreements, The Ocean Conservancy recommends that a breach 
of the terms of the agreement be deemed a violation of the Act.
    AMENDMENT--At Section 119, insert a new paragraph (c) and re-letter 
the following paragraphs as appropriate:

    (c) VIOLATION. The breach of any provisions of a cooperative 
agreement, by any Alaskan Native, shall be deemed a violation of this 
title and shall be subject to penalties under this Act. Any vessel used 
in such violation shall be subject to forfeiture to the United States.
          section 120 pacific coast task force; gulf of maine
    AMENDMENT--At Section 120 strike existing section (f) and insert 
new section (f) as follows:
    1) L(A) Within six months of enactment, the Secretary shall 
undertake a review of all non-lethal methods that have been used to 
deter marine mammals and, in consultation with the Marine Mammal 
Commission, representatives of academic and scientific organizations, 
environmental groups, commercial and recreational fisheries groups, 
gear technologists, and others as the Secretary deems appropriate, 
shall develop a research plan for the development and testing of safe, 
non-lethal deterrents. In developing the research plan the following 
criteria should be considered----
    (i) LSuch deterrents may be used to deter marine mammal 
interactions with (a) fishing gear and catch; (b) aquaculture 
resources; or (c) salmonid fishery stocks that have been listed as 
endangered or threatened under the Endangered Species Act of 1973 (16 
U.S.C. Sec. 1531), or that the Secretary finds are approaching 
endangered or threatened status; and
    (ii) LThe research and development of such deterrents shall provide 
for the humane take of marine mammals by harassment, as defined at 
Section 3(18)(A)(ii) of this Act.
    2) LThe Secretary shall undertake and complete the research plan, 
and any related studies, developed pursuant to paragraph (1) not later 
than 2 years after the date of enactment.
    3) LThe Secretary shall submit a report of the findings and 
recommendations for additional research or action to the Committee on 
Resources of the House of Representatives and the Committee on 
Commerce, Science and Transportation of the Senate 3 year after the 
date of enactment.
    4) LThe Secretary shall make the report and the recommendations 
submitted under paragraph (3) available to the public for review and 
comment for a period of 90 days.
    5) LFor the purposes of carrying out this section, the Secretary 
may accept, solicit, receive, hold, administer, and use gifts, devices, 
in-kind contributions, and bequests.
    6) LThere are authorized to be appropriated to the Secretary 
$1,500,000 annually to carry out the provisions of this subsection.
   section 101(a)--amendments pertaining to the deterrence of marine 
                                mammals.
    ISSUE--Both The Ocean Conservancy and the fishing industry continue 
to be extremely frustrated by NMFS' failure to comply with the MMPA's 
requirement to publish, in a final rule, guidelines for non-lethal 
deterrents. Because we recognize that NMFS cannot enforce guidelines, 
The Ocean Conservancy recommends that NMFS promulgate regulations that 
delineate acceptable methods to safely deter marine mammals, including 
threatened and endangered marine mammals. In addition, the burden of 
proof should fall on the proponent of a particular method to 
demonstrate that any newly proposed deterrent is safe and effective for 
deterring marine mammals.
    AMENDMENT--Modify Section 101(a)(4)(B) as follows:
    (B) Within six months of enactment,[T]the Secretary shall, through 
consultation with appropriate experts, and after notice and opportunity 
for public comment, publish in the Federal Register [a list of 
guidelines] regulations regarding the methods permissible for [or] use 
in safely deterring marine mammals. In the case of marine mammals 
listed as endangered species or threatened species under the Endangered 
Species Act of 1973, the Secretary shall recommend specific non-lethal 
measures that may be used to deter these marine mammals and adopt 
regulations under the Endangered Species Act that permit the use of 
these methods. Actions to deter marine mammals consistent with such 
[guidelines] regulations or specific measures shall not be a violation 
of this Act.

    Insert a new paragraph (C) and re-letter remaining paragraphs as 
appropriate:

    (C) Effective 60 days after publication of such regulations in the 
Federal Register, persons may only employ deterrents authorized by the 
regulations unless proponents of alternative deterrents can demonstrate 
that such deterrents are safe, non-lethal methods. Upon such 
demonstration, the Secretary may authorize the use of an alternative 
deterrent after notice and opportunity for public comment, through 
regulation under this Act.
     section 101(a)(5)(d)(i)--amendments for small-take provisions
    ISSUE: The Ocean Conservancy is concerned that applicants are using 
the streamlined mechanism for authorizing incidental takes by 
harassment for a period of up to one year to avoid assessment of the 
cumulative impacts of activities. Applicants may segment long-term 
activities into one-year intervals, seeking a separate authorization 
for each, or may seek separate authorizations for each of several 
similar or related activities, which by themselves have only negligible 
impacts, but may have significant cumulative detrimental affects. 
Therefore, we recommend that this Section be amended as follows:
    AMENDMENT Insert a new 101(a)(5)(D)(i)(I) as follows:
    (i) Will have a negligible impact on such species or stock, with 
consideration given to all related activities that may cumulatively 
result in more than a negligible impact.

    ISSUE: The Ocean Conservancy agrees with the concerns expressed by 
NMFS that Section 118 does not cover the incidental take of marine 
mammals in the course of recreational fishing. Therefore, this user 
group's take is virtually unregulated under the Act. The Ocean 
Conservancy recommends that Congress investigate with the agency 
mechanisms to amend either the small-take provisions or Section 118 to 
include recreational fishers who take marine mammals in recreational 
fisheries, using the same gear as that regulated in commercial 
fisheries.
             section 101(b)--exemption for alaskan natives
    ISSUE: The management history of the subsistence harvest of beluga 
whales in Cook Inlet illustrates the need for more aggressive and 
proactive federal intervention and management to avoid a species 
becoming eligible for listing as depleted under the MMPA. The purpose 
of the ``strategic'' definition for some marine stocks is to identify 
unsustainable levels of take, so that appropriate action can be taken 
to avoid listing that stock. While The Ocean Conservancy supports 
subsistence, we believe that, in those cases where marine mammal stocks 
are designated as strategic, the federal government should intervene 
and work with the native community to monitor and regulate harvests to 
ensure the long-term health of the stock and the ability to continue 
subsistence harvests.
    AMENDMENT--At Section 101(b)(3) insert the following:
    Notwithstanding the preceding provisions of this subsection, when, 
under this Act, the Secretary determines any species or stock of marine 
mammals subject to taking by Indians, Aleuts, or Eskimos to be a 
strategic stock as defined in Section 3(19) or depleted as defined in 
Section 3(1), he may prescribe regulations for the taking of such 
marine mammals by Indian, Aleut, or Eskimo described in this 
subsection. Such regulations may be established with reference to 
species or stocks, geographical description of the area included, the 
season of taking, or any other factors related to the reason for 
establishing such regulations and consistent with the purposes of this 
Act.
                 section 101(b) documentation required
    ISSUE: To clarify that a nation is responsible for reporting on the 
aggregate dolphin mortality limit assigned to it under the Agreement 
for the International Dolphin Conservation Program, the language in the 
Act should be amended to reflect that the nation must provide 
information on its dolphin mortality as compared to the aggregate limit 
assigned to it vessels.
    TECHNICAL AMENDMENT--MMPA Section 101(a)(2)(B)(iii): after the 
first word ``limit'' add the phrase ``assigned to that nation's 
vessels.''
                section 101(a) moratorium and exception
    ISSUE: To streamline the Act's provision pertaining to high-seas 
drift net fishing and to incorporate by reference the definition of 
``large-scale driftnet'' from the Magnuson Act, The Ocean Conservancy 
recommends the following technical amendment:
    TECHNICAL AMENDMENT--Section 101(a)(2)(F): amend as follows: ``in 
the case of fish or products containing fish harvested by a nation 
whose fishing vessels engage in high seas large-scale driftnet fishing, 
shall require the government of the exporting nation to provide 
documentary evidence that the fish or fish product was not harvested 
with a large-scale driftnet. For the purposes of subparagraph (F), the 
term 'large-scale driftnet fishing' has the meaning given such term in 
section 3 of the Magnuson-Stevens Fishery Conservation and Management 
Act.''
                     section 105 and 106--penalties
    ISSUE: The Ocean Conservancy believes the penalty provisions of the 
Act should be updated to reflect economic changes that have occurred 
since they were enacted in 1972. Current penalties are low enough to be 
viewed by some violators as an acceptable cost of doing business.
    AMENDMENTS

    Modify Section 105(a)(1) to allow a civil penalty: ``of not more 
than [$10,000] $25,000 for each such violation . . .''

    Modify Section 105 (b) to allow a criminal fine: ``not more than 
[$20,000] $50,000 for each such violation . . .''

    Modify Section 106(b) to allow a civil penalty: ``of not more than 
[$25,000] $50,000.''
         title iv--marine mammal health and stranding response
    ISSUE: In 1994, an amendment was added to Title IV, Marine Mammal 
Health and Stranding Response, which allows funds from the Unusual 
Mortality Event Fund to be used for the care and maintenance of marine 
mammals seized under section 104(c)(2)(D). The Marine Mammal Unusual 
Mortality Event Working Group opposes the use of these funds for this 
purpose, as does The Ocean Conservancy. Not only could this situation 
rapidly deplete funds that are needed to respond to an unusual 
mortality event, it was not the intent of either Congress or the 
proponents of the original legislation to provide funds for the care 
and maintenance of seized animals. This situation should be addressed 
in either the Animal Welfare Act or another provisions of the MMPA. 
Furthermore, potential contributors to the fund might be deterred by 
this provision due to the controversy surrounding marine mammals in 
captivity. The Ocean Conservancy recommends that this provision be 
deleted.
    AMENDMENT At Section 405, delete (b)(1)(A)(iii).

    ISSUE: Title IV has been historically under-funded. The Marine 
Mammal Health Stranding and Response Act has never received dedicated 
funding and, to date, no funds have been appropriated to the Emergency 
Response Fund. To support the Act's provisions, the NMFS has had to 
cobble together funds from its base funds. In short, funding for 
implementation of the Marine Mammal Protection Act, specifically the 
Title IV provisions, has created a situation where the agency has had 
to ``rob Peter to pay Paul.''
    Despite being under-funded, most of the mandated activities have 
been initiated, and the Marine Mammal Health and Stranding Response 
Program has greatly improved the response to both routine strandings of 
marine mammals and unusual mortality events. Nevertheless, unexplained 
die-offs of marine mammals have continued on almost an annual basis 
along the United States coastline, and NMFS' response to these die-offs 
has been hampered by a lack of funding. Without adequate funding, NMFS 
cannot be proactive; it cannot develop a strong marine mammal health 
assessment program, support volunteer stranding networks, or develop 
accurate baseline information on stranding rates, contaminants, 
disease, and other factors related to detecting and determining causes 
of unusual mortality events. Furthermore, the lack of funds hinders 
NMFS' ability to fully develop and implement contingency programs to 
respond to die-offs or oil spills. Consequently, NMFS may be unable in 
the future to determine the cause of these die-offs of marine mammals--
animals that are potential indicators of the health of the marine 
environment.
    AMENDMENT--Delete the current language of Section 408 and replace 
it with the following language:

    Sec. 408. There is authorized to be appropriated to
    (1) Lthe Secretary for carrying out this title (other than sections 
402 and 405) $1,500,000 for each of five fiscal years beginning in 
2003;
    (2) Lthe Secretary for carrying out sections 402 and 404, 
$1,500,000 for each of five fiscal years beginning in 2003;
    (3) Lthe Secretary for carrying out Section 405, $2,000,000 for 
each of five fiscal years beginning in 2003;
    (4) Lthe Fund, $500,000 for each of five fiscal years beginning in 
2003; and
    (5) Lthe Secretary of Interior for carrying out this title, 
$500,000 for each of five fiscal years beginning in 2003.''

TITLE III INTERNATIONAL DOLPHIN CONSERVATION PROGRAM

           section 303--regulatory authority of the secretary
    ISSUE: When Congress created the International Dolphin Conservation 
Program Act (IDCPA), the intent was to follow the 30 minutes ``after 
sundown'' rule that has been used under the previous provisions of MMPA 
Section 104(h)(2)(B)(iv) and under the International Dolphin 
Conservation Program. To clarify that Congress did not intend to change 
the requirement that the sacking up of purse seine nets must begin no 
later than 30 minutes after sundown, we recommend that the Act be 
amended as follow:
    TECHNICAL AMENDMENT: In section 303(a)(2)(B)(v), replace the word 
``before'' with ``after.''
                      section 307(a)--prohibitions
    ISSUE: To clarify that the cross-reference in Section 307(a)(2) 
deals specifically with purse seine fishing for tuna in the ETP, which 
is managed under the IDCP, The Ocean Conservancy recommends the 
following change:
    TECHNICAL AMENDMENT: At Section 307(a)(2), the cross reference 
should be to section 101(e), not 101(d).
           section 303 regulatory authority of the secretary
    ISSUE: To correct a typographical error, the following change 
should be made:
    TECHNICAL AMENDMENT: In section 303(a)(2)(B)(x), insert ``or'' 
after ``serious injury.''
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Ms. Gaffney. There 
seems to be a difference of opinion presented here this 
afternoon concerning the issues of salmon and steelhead and sea 
lions, seals and otters. And I guess what we are going to 
attempt to do in the coming months, after we glean and digest 
your testimony, is to determine the best way to proceed.
    The issue seems to be, at least part of the issue, can for 
example a healthy sea otter population coexist with an 
economically profitable commercial fishing operation? And I am 
not sure if we will resolve that here this afternoon, but what 
I would like to ask the National Marine Fisheries Service, I 
guess, and Mr. Thompson and Mr. Rebuck, is sea otter, for 
example--because that is what Mr. Rebuck focused in on, so we 
will look at that before we take a look at the sea lions--Mr. 
Thompson and then Dr. Scordino, if you want to answer this as 
well, if you have any information, what is a healthy, 
sustainable sea otter population? When could we say it is 
recovered? And adding to the complexity of this, if the stock 
of a number of fish species is below sustainable rates, how do 
we manage to bring the fish stocks up and recover the sea otter 
population? Is that possible? How long would it take? Mr. 
Thompson?
    Mr. Thompson. I was afraid you were going to start with me. 
The healthy sea otter population I think I can start to answer, 
and that is, the determination is based on a lot of factors, 
like we said in the listing before. The small range, which is 
expanding. We would look at, there is new information now on 
contaminants and the impact of those contaminants on the 
population, what kind of condition they would be in.
    Mr. Gilchrest. Is cat feces a problem with sea otters?
    Mr. Thompson. Apparently disease problems are, there are 
some relationships to those that are a problem, yes. There is 
also starvation, shark bites. There is lots of things that go 
into a healthy population of sea otters. This population is 
increasing at about 5 percent per year, which is a slow, stable 
or steady growth, but the impacts of other things like 
fisheries, we have been able to seem to work through those. So 
from the standpoint of the sea otter, I think it can work with 
the fishing community.
    Mr. Gilchrest. Is there a number you can give us?
    Mr. Thompson. The number in the current recovery plan is 
about 2,600. The draft that is out for review, there is a lot 
of discussion about the number may be slightly higher, need to 
be higher.
    Mr. Gilchrest. And how many are out there, approximately, 
now?
    Mr. Thompson. Roughly 2,200 are there right now, so we are 
close to the recovery number. Now, that is just the number. 
Like I said before, there is lots of other factors that would 
have to go into a healthy population.
    Mr. Gilchrest. Mr. Rebuck?
    Mr. Rebuck. Thank you, Mr. Chairman. I think that what you 
propose is doable, but only through zonal management.
    Mr. Gilchrest. Pardon me. What?
    Mr. Rebuck. Excuse me?
    Mr. Gilchrest. Only if what?
    Mr. Rebuck. Only through zonal management.
    Mr. Gilchrest. Zonal management?
    Mr. Rebuck. Zonal management, yes, sir. In 1980--
    Mr. Gilchrest. Is this going back, then, to the 
translocation and the management areas?
    Mr. Rebuck. Actually before that. In 1980 the Marine Mammal 
Commission drafted a letter saying that zonal management was a 
solution to protection of sea otters and protection of 
shellfish resources, and so a lot of us have seized upon that 
particular letter. It is in my packet as an exhibit. Since in 
my opinion I think it is--
    Mr. Gilchrest. What do you mean by zone management?
    Mr. Rebuck. Creating zones. Essentially that is what was 
accomplished through the public law. The Fish and Wildlife 
Service created an otter zone around San Nicolas Island for the 
exclusive use of sea otters, but then committed to containment 
of those animals at San Nicolas. South of Point Concepcion, 
which is Santa Barbara County, California, to the Mexican 
border, was a no otter management zone, meaning that the--
    Mr. Gilchrest. What would happen if there were otters 
there?
    Mr. Rebuck. Well, it was the job of the U.S. Fish and 
Wildlife Service and the California Department of Fish and Game 
to go out and capture any stray animals and then remove them 
from that management zone, and the Department of Fish and Game 
actually did the bulk of that particular work. They tried very 
hard.
    Mr. Gilchrest. So it was actually managed for a while that 
way?
    Mr. Rebuck. It was, yes, for the first couple of years of 
the project. By 1993 the Fish and Wildlife Service, based on 
mortality in captured animals, determined that they were at 
jeopardy and that they would no longer capture these animals. 
Now, it is my understanding the public law exempted them from 
that jeopardy, so there is a legal issue there.
    But I think, adding to this now, since the listing of sea 
otters in California in 1977 there has been a significant 
reduction in the risk to those animals, and I have identified 
15 of them in my testimony for you. And then also the recent 
range expansion, I think at some point we should take into 
consideration that the expanded range would reduce the risk to 
this population of oil spills, and that needs to be factored in 
as well.
    Mr. Gilchrest. The risk of the, you said oil spills?
    Mr. Rebuck. Well, yes. Yes, sir. The primary reason for 
listing sea otters in California was the risk of a massive oil 
spill along the coast. We now have a $1 billion oil clean-up 
program. We have a State Office of Oil Spill Preparation. We 
have a clean-up facility at Santa Cruz. We have had tanker 
facilities closed at four or five major ports along the coast. 
We have tankers using double hulls now. Many of the threats to 
the sea otter in 1977 no longer exist or have been 
significantly reduced.
    Mr. Gilchrest. Dr. Scordino, do you want to make a comment?
    Mr. Scordino. No, I--
    Mr. Gilchrest. I guess the reason I asked you to be a part 
of the question was the fisheries, the various stocks that are 
either recreationally or commercially harvested, are many of 
them at an unsustainable level? Can you bring up the optimum 
yield of those fisheries and at the same time sustain the 
present or a slightly increased population of sea otter?
    Mr. Scordino. I can't really comment on the sea otter, but 
on the status of our West Coast fisheries, our groundfish 
fishery, we have a number of populations, fish species, that 
are currently on rebuilding plans, where they are below levels 
that would provide sustainable yields. So we are in a stage 
right now of trying to come up with better fishery management 
measures just to control the amounts of removals by fishermen 
on the West Coast.
    Mr. Gilchrest. So is there any communication? Because you 
have a problem with sea otters, you have a problem with 
sustaining fish stocks, not to mention sea lions and seals. So 
I guess, Dr. Scordino, is there any transfer or exchange of 
information between yourself, Fish and Wildlife, on how to 
create that management regime?
    Mr. Scordino. I will defer to Fish and Wildlife Service, 
but the prey species for sea otters, my understanding, is 
shellfish, so it is not the finfish resources that we manage 
under the fishery management plans.
    Mr. Thompson. We have considerable communication going on 
with all parties, and one of the things that has been started 
recently is that the Monterey Bay Aquarium is hosting a 
symposium, in fact once a year, to pull together scientists and 
affected parties to look at the impacts of sea otters on those 
resources, and we are working closely with the State. As they 
brought up earlier, crabs, abalone, lobster, urchins, are the 
things that would be most impacted by the sea otter.
    Mr. Gilchrest. Ms. Gaffney?
    Ms. Gaffney. Thank you. I just wanted to follow up on this 
question, because there is actually a very different 
relationship between finfish and sea otters than perhaps you 
believe. As was mentioned, the primary prey species for sea 
otters are the shellfish, and the expected relationship between 
sea otters and finfish, particularly some of these groundfish 
species off the West Coast that are doing so poorly, is that 
the sea otter may actually provide a benefit to those finfish 
species.
    And the way that occurs is that the sea otter acts as 
essentially a keystone species. It is the top. It is the 
indicator. And because the sea otter preys on the shellfish, 
urchins, abalone, that are grazers, so those are the animals 
that eat the kelp, when you reduce the number of grazers in the 
ecosystem because the sea otter is preying on those species, 
you can have healthier kelp forests.
    And many of the groundfish species that we are talking 
about, rockfish out in California that are really at 
drastically low levels, spend at least part of their life cycle 
living in the kelp. Frequently the juvenile phase of their life 
cycle is spent in kelp forests. So when kelp forests are 
impacted by grazing species, we see declines in finfish, and 
there is an expectation that having sea otters as part of that 
system can actually provide a benefit to the finfish species, 
although certainly may cause declines in the shellfish 
fisheries.
    Mr. Gilchrest. Sea otters are grazers?
    Ms. Gaffney. No, sea otters prey on grazers.
    Mr. Gilchrest. Sea otters prey on the grazers, so the kelp 
is healthier.
    Ms. Gaffney. Healthier.
    Mr. Gilchrest. So you have more habitat for finfish.
    Ms. Gaffney. Exactly.
    Mr. Gilchrest. And the finfish population is likely to 
increase with a healthy otter population.
    Ms. Gaffney. Right.
    Mr. Gilchrest. Mr. Rebuck says no.
    [Laughter.]
    Mr. Rebuck. I would only ask Ms. Gaffney to cite some 
literature that supports that, because I have been hearing this 
for 20 years. There is a lack of data that demonstrates that 
this is the case.
    Mr. Gilchrest. Ms. Gaffney?
    Ms. Gaffney. There is a researcher at the University of 
California at Santa Cruz, Jim Estes, who does a lot of work on 
both sea otter populations in California and also up in Alaska, 
and also does work on ecosystem level issues related to marine 
biology, and I would be happy to provide some of his 
publications for the record if that would be helpful.
    Mr. Gilchrest. I would very much like to read it.
    Mr. Rebuck. Alaska is not California, sir, ma'am.
    Ms. Gaffney. He works in both places.
    Mr. Gilchrest. We will take a look at that, and invite him 
for the next hearing.
    My time is up, and I would like to yield now to the 
gentleman from American Samoa, Mr. Faleomavaega.
    Mr. Faleomavaega. Thank you, Mr. Chairman.
    Mr. Chairman, I would like to ask unanimous consent that 
the statement sponsored by the Humane Society of the United 
States be made part of the record, dated October 11, 2001.
    Mr. Gilchrest. Without objection, so ordered.
    [The information referred to follows:]

          Statement of the Humane Society of the United States

    On behalf of our more than 7 million members and constituents, The 
Humane Society of the United States (HSUS) wishes to thank you, Mr. 
Chairman and members of the Subcommittee, for allowing us to submit 
this written statement for the record regarding the issues surrounding 
abundant pinniped and sea otter populations.
    The HSUS plays an active role in working toward protection of 
marine mammals in the United States. We continue to work diligently to 
maintain protection for pinnipeds. Between 1992 and 1994, The HSUS 
participated in an ad hoc stakeholder negotiation that resulted in 
proposals to Congress for the Amendments to the Marine Mammal 
Protection Act (MMPA or the Act) that were passed in 1994. Since that 
time we have served on a number of appointed committees, working groups 
and take reduction teams that have arisen from the implementation of 
the many provisions that were added to the MMPA in 1994. We have also 
testified a number of times before this and other House Committees 
regarding the implementation of various portions of the MMPA, most 
recently in an April 2000 hearing on oversight of the Take Reduction 
Team process. We would like to apprise this Committee of our interests 
and concerns relative to portions of the MMPA that pertain to pinnipeds 
(seals and sea lions) and sea otters.
Background
    During the meetings of the ad hoc multi-stakeholder group that were 
held between 1992 and 1994, issues surrounding growing populations of 
pinnipeds were discussed in depth. Representatives of animal welfare 
and conservation interests, fisheries groups, native groups, the 
National Marine Fisheries Service (NMFS), and staff from a number of 
Congressional Committees attended the meetings of this ad hoc group. A 
sub-group of this larger ad-hoc group devoted a number of meetings 
specifically to discussing pinnipeds. In the group, we addressed the 
assertion that pinnipeds were causing declines in salmonid populations 
and seriously impacting the viability of commercial aquaculture 
operations. It was the finding of this negotiating group that there was 
insufficient evidence to document these claims.
    As a result, the group proposed a process that required an 
evaluation of the data surrounding specific incidences in which 
pinnipeds were suspected of adversely affecting fish populations. It 
called for a task force to evaluate the data and make recommendations 
to the Secretary of Commerce regarding possible mitigation measures, 
including intentionally killing animals. Data were required to 
demonstrate to the task force that specific nuisance animals were 
involved and that the removal of these animals would positively resolve 
most of the concerns. This process also required a demonstration that 
non-lethal measures had been tried and failed prior to seeking 
authority to kill animals.
    The proposals put forth by the group formed the basis for the 
process that Congress ultimately put in place with the 1994 Amendments. 
The section of the Act that dealt with pinniped conflicts was codified 
as Section 120. During meetings of the ad hoc group, commercial 
fisheries representatives supported removal of the authority for 
fishermen to kill marine mammals interacting with gear and catch, and 
to confine lethal taking to situations in which human life was 
jeopardized. Congress adopted this recommendation as well.
    The ad hoc negotiating group also discussed predation by seals at 
finfish aquaculture sites in Maine. Again, no information was available 
to substantiate claims of financial hardship. In the wake of the ad hoc 
group's meetings, Congress amended the MMPA to include a provision 
under Section 120 that called for the NMFS to convene a task force to 
evaluate these interactions with aquaculture and recommend whether or 
not mitigation measures should be required.
    Since that time a number of task forces have met and stakeholder 
negotiations have continued.
Gulf of Maine Pinniped Aquaculture Task Force
    This group was tasked by the MMPA with evaluating predation by 
seals on finfish in marine aquaculture facilities, primarily in the 
State of Maine. The group met a number of times and produced a report 
that was conveyed to the NMFS in February 1996. The results of this 
report were, in turn, provided in a Report to Congress. The group 
agreed by consensus to recommend that before lethal removal of seals 
should be considered, three criteria must be met: the consequences of 
the depredation most be severe and demonstrable; lethal measures under 
consideration must be verified as an effective means of solving the 
predation problem; and no non-lethal alternatives are available. The 
Task Force could not agree that these criteria had been met in Maine. 
No lethal taking authority was recommended. The HSUS believes that 
there is no necessity for re-instituting authority for lethal removal 
of pinniped by aquaculturists in Maine or elsewhere.
Ballard Locks Task Force
    The first plea for the use of authority for lethal removal of 
pinnipeds came in June 1994, when the Washington Department of Fish and 
Wildlife (WDFW) requested authority under Section 120 to lethally 
remove problem California sea lions from the Ballard Locks in Seattle, 
Washington. In their request, they stated that non-lethal deterrents 
were ineffective and that they could provide evidence that the 
predation by California sea lions was a proximal cause of ongoing 
declines in migrating steelhead salmon. A task force was convened, and 
The HSUS was appointed as a member of the task force. The process was 
contentious and many of the independent scientists and environmental 
groups felt that the WDFW had not met its burden of proof. Despite a 
lack of consensus among the group, in January 1995, the NMFS granted a 
three-year authority to remove up to 15 California sea lions. This does 
not appear to have been necessary or effective.
    In 1996, there were 981 California sea lions in Puget Sound 
(maximum peak count). Sea lions were removed in spring 1997. In spring 
1997, there were 528 sea lions counted; since that time their overall 
numbers have dropped to as low as 220 animals. Concurrently, and 
independently of the numbers of sea lions, the steelhead run has 
continued to decline. In 1997, there were 620 steelhead salmon counted; 
there were 584 in 1998, 220 in 1999, 48 in 2000 and 42 so far this 
year. This would seem to support overall evidence that sea lion 
predation is neither responsible for the initial declines nor is it the 
proximal cause of ongoing declines in endangered fish runs. These 
declines continue apace as a result of unmitigated effects of dams and 
other human-related habitat destruction and degradation.
Report to Congress - Impacts of California Sea Lions and Pacific Harbor 
        Seals on Salmonids and West Coast Ecosystems
    The 1994 Amendments to the MMPA also required that the NMFS submit 
to Congress a report on the impacts of sea lions and seals on 
ecosystems on the west coast. Although fishery groups were consulted in 
the preparation of this report, conservation interests were not 
similarly included. It is hardly surprising, then, that the report 
casts a dim light on pinnipeds and their role in the various west coast 
ecosystems. The report to Congress made four recommendations: implement 
site-specific management for California sea lions and Pacific harbor 
seals; develop safe, effective non-lethal deterrents; selectively 
reinstate authority for the intentional lethal taking of California sea 
lions and Pacific harbor seals by commercial fishermen to protect gear 
and catch; and fulfill additional informational needs.
    The HSUS strongly opposes the recommendations made in the Report 
for site-specific lethal management of California sea lions and Pacific 
harbor seals and for reinstating authority for the intentional lethal 
taking of these species by commercial fishermen to protect gear and 
catch. Based on our review of available data, we do not believe that 
removal of pinnipeds will achieve the stated goals of fisheries 
protection and enhancement. We strongly believe that sea lion predation 
is not responsible for the decline of fisheries along Washington, 
Oregon, and California and that it is crucial that managing agencies 
mitigate the true sources of the declines.
    Recommendations for lethal removal will likely undermine the 
report's other recommendations for developing safe and effective non-
lethal deterrents and filling other information needs. We are concerned 
that this Report focuses only on the symptoms of the problem of 
declining fisheries while completely ignoring the causes and the most 
promising solutions to mitigate them.
    The HSUS made a number of comments on the report and we continue to 
recommend that the NMFS and the Pacific States Marine Fisheries Council 
investigate the real and primary cause(s) of the fish run declines 
(e.g., hatchery fish competition, fish passage problems due to 
construction and operation of fishways and dam, water and general 
habitat degradation) and implement solutions to mitigate them. We also 
recommend that they conduct studies and implement pinniped deterrence 
methods that are found to be humane and realistically promising (e.g., 
alternative barrier designs, expanded acoustic deterrence devices). The 
HSUS opposes sea lion removal (lethal or non-lethal), or the use of any 
method likely to seriously injure these animals or adversely affect the 
ecosystem of which they are a part.
General Issues Relating to Pinniped Predation
    Since the Amendments to the MMPA in 1994, commercial and for-hire 
fishing boats on the west coast have expressed on-going concerns about 
interactions with pinnipeds. This has resulted in a number of 
management actions, some of which show promise and others of which are 
shortsighted. Many of these highlight the need for non-lethal 
deterrents.
    The NMFS and the Pacific States Marine Fisheries Commission 
proposed testing of an acoustic deterrent device known as a pulsed 
power device. The possible use of this device raised concerns by both 
marine mammal biologists and acousticians and fishery biologists. The 
concerns centered on inadequate research protocols and, more 
importantly, the acoustic and concussive characteristics of the device 
that indicated that there was a significant likelihood that its use 
would result in injuring the sea lions and harming other non-target 
marine mammals, fish, turtles and birds. A hearing before the 
California Coastal Commission in October 1999 resulted in the 
Commission finding that a test of the device in or near the coast of 
California was not consistent with coastal protective legislation. 
Further, they concluded that no field testing of the device should be 
conducted until it could be determined that its use was not likely to 
adversely affect marine organisms. While the HSUS has long supported 
testing and use of non-lethal measures, we are adamantly opposed to the 
use of non-lethal devices whose use may cause more problems than they 
solve.
    To that end, we also wish to point out that the NMFS has never 
issued guidelines for the testing or use of non-lethal deterrents. A 
draft of guidelines for the use of non-lethal deterrents was published 
by the NMFS in spring 1995; however, no final guidelines were 
forthcoming. This is a concern shared by both the fishing industry and 
conservation and animal protection organizations.
    There have been a number of stakeholder meetings in which pinniped 
predation has - been the subject. These include a workshop at the New 
England Aquarium that focused on east coast pinnipeds; an evening 
session of the August 1997 meeting of the American Fisheries Society in 
Monterey California, which brought together scientists and 
stakeholders; and meetings at the Monterey Bay Aquarium between fishing 
groups, conservation and animal welfare groups, and state managers. At 
an April 1998 meeting at Monterey Bay Aquarium, a number of 
recommendations were made. Both the fishing groups and conservation/
animal welfare community expressed frustration with the failure of the 
NMFS to issue guidelines for appropriate use of non-lethal deterrents 
with harbor seals and California sea lions who were interacting with 
fishing gear and catch. There was consensus among these disparate 
groups that the NMFS should immediately release guidelines or 
regulations pertaining to the use of non-lethal deterrents. To this 
date, no such guidelines or regulations have been issued. The most 
hopeful outcome of this meeting was the obvious degree of support given 
by both commercial interests and animal protection groups to the need 
for non-lethal deterrents. The NMFS must dedicate additional resources 
to this task on a priority basis.
Southern Sea Otters
    With regard to management of southern sea otters, the 1994 
Amendments deferred to existing provisions in the Act, and did not 
recommend changes. The HSUS does not believe it is necessary to amend 
the MMPA to address interactions between sea otters and commercial 
fisheries, nor to direct recovery or containment measures that can be 
enacted in a regulatory context. In particular, the population of sea 
otters at San Nicolas Island should remain and sea otters elsewhere 
should be allowed to range freely in the wake of the failure of the 
translocation efforts and subsequent mainland population declines. 
Southern-sea otters are a threatened species and should be allowed to 
expand their historic range as efforts to recover their numbers 
continue.
Conclusion
    The HSUS does not believe that there is a need to amend the MMPA to 
further address issues of conflicts with pinniped populations. The NMFS 
must devote considerably more time and resources to finding and testing 
innovative approaches to non-lethal deterrence that are not likely to 
have an adverse impact on animals in the marine ecosystem.
    In May 1999, Yale University--completed a survey entitled 
``American Perceptions of Marine Mammals and their Management.'' In 
this, they found that three fifths of Americans disapproved of reducing 
populations of seals and sea lions and more than 90% opposed the use of 
lethal practices such as shooting or poisoning seals and sea lions as a 
means of reducing conflicts even though these methods were described as 
being the least expensive option. Clearly the American people would not 
support any changes to the MMPA that would broaden the use of intrusive 
or lethal methods for managing conflicts and if necessary are willing 
to endure financial sacrifice to ensure protection of marine mammals of 
all species.
    We would like to thank the Subcommittee for the opportunity to 
present our concerns regarding proposals to further amend the Marine 
Mammal Protection Act.
                                 ______
                                 
    Mr. Faleomavaega. Mr. Chairman, I take an obvious interest 
in the fact that there are some very strong disagreements, and 
I presume not only on data but the figures themselves, in terms 
of the problems that we have had with sea otters, sea lions, 
and I just wanted to ask if there is anybody, hopefully a 
neutral party that could give us the facts and the figures. I 
assume this will be the National Marine Fisheries Service? Is 
that Dr. Scordino?
    We happen to have a very strong disagreement, obviously, 
between Mr. Rebuck and Ms. Gaffney. Can you give us the true 
answer to the controversy here?
    Mr. Scordino. Well, one thing, I don't know that there is 
any controversy on seal and sea lion population numbers, their 
status and increasing population numbers, but I might comment 
on the current authorities in the act versus the 
recommendations in the report to Congress.
    Congress did provide us with new authority in the 1994 
amendments under Section 120 that provided a process for a 
State to come forward and request authority to remove specific 
nuisance animals, problem pinnipeds, and we did use that 
authority under Section 120 to issue to the State of Washington 
a letter of authorization to remove California sea lions at the 
Ballard Locks.
    But as we went through that process, one of the things we 
found was, the provisions are so stringent that were laid out--
for example, the animals that might be dealt with had to be 
individually identifiable animals. When you have 200,000 sea 
lions up and down the coast, and 76,000 harbor seals, having 
individually identifiable animals requires a long time frame of 
work in a specific area, which we had at the Ballard Locks.
    We had 10 years of studies. We had branded every single sea 
lion that was in the area of the Ballard Locks. We are now up 
to something like 890 sea lions have brand numbers on them, so 
we know which animals are the ones that come into the locks and 
cause the problems, in contrast to those that aren't the 
problems, and we leave them alone and they do what they want.
    The problem as we move into other systems is we don't have 
that long series of studies and that long train of information 
with marked animals, etcetera. And the concern is where you 
have an ESA listed species and you have animals foraging, the 
need to have immediate response isn't there as the Section 120 
authority is currently constructed.
    Mr. Faleomavaega. Of course, the problem here is not just 
in California. This is also true on the East Coast, and I am 
sure the Chairman is very much aware of the problem. And I 
would like to ask Mr. Fletcher, it is always the question of 
commercial fishermen and recreational fishermen that always 
seem to be at the short end of the stick here. Am I wrong on 
this? What is the dollar value loss that the recreational 
fishing industry in California has taken because of the 
problems with sea lions?
    Mr. Fletcher. Well, a conservative estimate is in the 
millions of dollars, but it is difficult to give you a firm 
figure, sir, because we have not only fish being removed from 
nets and off lines. We have a resultant attitude on the part of 
the public that ``Why should I go fishing when all that happens 
is I hook a fish and a sea lion eats it?'' And so people who 
might otherwise pay money and go fishing, don't, but we can't 
quantify that number.
    But clearly millions of dollars a year are lost in 
commercial fish that are ripped out of nets, off lines, and 
millions of dollars in sport fishing revenue are lost because 
fishermen choose not to fish anymore because of the very 
negative experiences they have at certain times. And Dr. 
Scordino made one comment about a study in Monterey Bay that 
indicates up to 70 percent of fish that were hooked by 
recreational anglers in that area during that study were lost 
to sea lions.
    We can't tell you how many dollars that might be unless you 
measure by a per fish average. And some information I have 
indicates that in 1980, 12,459 legal size salmon with an 
estimated value of $20 each were lost, for a total loss of 
$274,000. By 1995, that number had jumped to 86,700 legal size 
salmon at a cost of $1,734,000. Now, that is as of 1995, and 
that is for salmon only, which is a small part of the overall 
impact of sea lions on recreational and commercial fisheries.
    Mr. Faleomavaega. Suppose we go back to the basic issue, 
Mr. Chairman. I notice my time is up, and not wanting to pass 
the buck, I would like to ask Dr. Scordino, in his best 
judgment as the regulator, we gave him this responsibility, 
should we pay more heed to the concerns of our recreational and 
commercial fishing industry? Somebody has got to eat. You have 
got to pay the bills. Or should we continue allowing the sea 
lions to do everything and anything they want to do, eat the 
fish?
    Mr. Scordino. Well, the dilemma we face, I think all of us 
collectively, I don't think anyone would disagree with needing 
to find a nonlethal way to keep these animals away from fishing 
gear. I mean, that is the solution. But you have the problem 
that is confounded with animals, as I said, that learn to work 
boats, and I am not sure we are going to find nonlethal ways to 
keep those animals away from gear without affecting other 
species.
    So we tried this pulse power device, and we all thought we 
had the solution. This was a device that puts out this 
underwater noise that would deter the sea lions. But the 
problem was, it also raised concerns about what effects did it 
have on other species. And we are kind of stuck. We are not 
sure where to go with trying to keep these animals away from 
fishing boats.
    Mr. Faleomavaega. So is it your best opinion, Mr. Scordino, 
that we should not make any changes in the current law?
    Mr. Scordino. Well, our recommendations, recommendation 
number one in that 1999 report suggested you look at providing 
authority for State and Federal officials to take care of 
individual animals in certain situations, where necessary.
    Mr. Faleomavaega. Thank you, Mr. Chairman. My time is up.
    Mr. Gilchrest. Thank you, Mr. Faleomavaega.
    I just have two follow-up questions. One of the nonlethal 
means was, for lack of a better term, a pulse deflector or some 
type of acoustic, to make a noise to keep the sea lions away. 
Ms. Gaffney, is that an issue with your organization?
    Ms. Gaffney. We were not one of the environmental 
organizations that specifically raised concerns about that 
technology, but I think it is fair to say that we are concerned 
about it. There was essentially scientific information that, as 
was mentioned earlier, that demonstrated both that the impact 
of that specific technology may be unacceptable to the animals 
that it is targeting, and may also have impacts on other 
nontarget species.
    But I think it brings us back to the point, which is that 
we really need to take a more dedicated and aggressive approach 
to developing nonlethal deterrents. That was one option that 
came forward and what we learned was that it was probably not 
as good as it initially appeared.
    What we are recommending is that the agency essentially 
convene all of the stakeholders, the environmental 
organizations, the fishing community, as well as the scientific 
community, and come up with a specific, systematic approach to 
a research plan and to the range of nonlethal deterrents, so 
that we can actually move forward and hopefully come up with 
some effective alternatives in a reasonable time frame. We just 
don't believe that it has gotten the level of attention that it 
needs to prove successful.
    Mr. Gilchrest. Dr. Scordino, would you? Is that a good 
recommendation?
    Mr. Scordino. I think we have tried and we would like to 
continue to try and find a solution. Maybe getting all the wise 
heads together, maybe we can find something. I know Mr. 
Fletcher mentioned the industry is interested in pursuing 
further experimentation.
    Mr. Gilchrest. That wasn't done with the report, the 1999 
report?
    Mr. Scordino. Well, as of the time of the 1999 report, all 
of the technologies that were available to us and we were aware 
of weren't showing continued success, and that is where we 
were. We kind of put all our eggs in one basket with the pulse 
power device and put our efforts into seeing development of 
that device, hoping it would provide the kind of solution we 
are looking for. But, as I said, it had too much of a solution. 
It affected other things, too.
    Mr. Gilchrest. So there is an ongoing evaluation of that 
report now? I am just not sure I know what the status of--
    Mr. Scordino. We should be receiving a final report from 
the lab studies on the pulse power device, which as I 
mentioned, the preliminary information is showing that it had, 
even with its high intensity noise, had limited effectiveness 
on sea lions tested in a captive situation.
    Mr. Gilchrest. I see. I know not far down the road from 
where I live, they used some type of sounding device to keep 
turkey buzzards away from a dock. What happened was, though, it 
also kept the osprey and the bald eagles and the owls and the 
other hawks away from that whole area, so fortunately they 
stopped using that. And then, this is a much simpler problem 
than what you are facing, people just chased them away, when 
they landed on their windshield and ate the windshield wiper, 
and then the problem was solved.
    Mr. Scordino. I might comment that some of our past 
experiments also had the opposite effect, where we tested 
devices to keep animals away from gillnets. And what instead 
turned out to happen is they served as dinner bells, so when 
fishermen turned on the devices under gillnets, it instead 
attracted animals, told them that there was a net in the water 
and it had fish in it, and we had the opposite effect. So it is 
a really tough area to address.
    Mr. Gilchrest. Just one other follow-up question. The first 
recommendation in your report implements site-specific 
management for California sea lions and harbor seals, and you 
said that you have identified many of these sea lions. Can that 
be used to resolve some of the issues with the commercial and 
recreational fishermen? Or is it just, I mean, you have too 
many sea lions chasing recreational charter boats, or can you 
identify specific sea lions or seals and remove them from the 
population and things would improve?
    Mr. Scordino. The areas where we have the greatest problems 
with California sea lions are open water areas, so, for 
example, Monterey Bay. My guess, from what I have seen in 
Monterey Bay, is there is probably a group of animals that have 
learned to follow the fishing boats, but then they are mixed in 
with another 500 to 1,000 animals in the area, which makes 
management measures very complicated and difficult. We had the 
luxury at the Ballard Locks, it was a closed area, we could 
actually trap the animals and brand them so we could track them 
over time. But once you get into the ocean, that kind of 
approach is real difficult.
    Mr. Gilchrest. Mr. Fletcher?
    Mr. Fletcher. Thank you, sir. Just one comment. I mentioned 
that we have had big problems with sea lions at the bait docks 
along the harbors. These are identifiable animals. There is a 
very small group of them, and if there is any way to become a 
little bit more aggressive in deterring this very small group 
of problem animals, at least that one problem area could be 
addressed in a very dramatic fashion, because we could identify 
these animals. They live there. They could be maybe hazed away 
from those facilities with fire hoses or other means that would 
be more aggressive.
    That might help deal with that particular problem, because 
that is a major problem in many of the California ports. The 
bait receivers are attacked by these animals, and much of the 
bait is chased out, and the animals sometimes haul out on the 
receivers and break down the receivers. This is a very small, 
identifiable group.
    Mr. Gilchrest. Mr. Faleomavaega?
    Mr. Faleomavaega. Mr. Chairman, I just have one quick 
question to Dr. Scordino.
    Has the National Marine Fisheries Service made a 
determination of what is considered a reasonable population of 
sea lions, or there is no control? I mean, suppose we have a 
million sea lions. Are we going to continue repopulating until 
we get to 5 million sea lions?
    I mean, how far does it go? Is there an estimate, an amount 
that the National Marine Fisheries Service says this is a 
reasonable amount? In other words, being excessive, and I am 
not suggesting that we ought not be mindful of helping God's 
creatures, but there is also being excessive in the sense of 
200,000 sea lions or sea otters. I mean, where is the limit, or 
should there be a limit?
    Mr. Scordino. We are currently operating under--the goal of 
the Marine Mammal Protection Act is to bring the populations to 
their optimum sustainable population level, and what that is, 
is the population, it levels out. It stops increasing. With 
harbor seals in Washington and Oregon, we can now say they are 
at that level. They have kind of leveled out. The populations 
aren't increasing.
    Mr. Faleomavaega. Have we done the same thing for 
California?
    Mr. Scordino. California sea lions, it is not as clear. A 
number of our scientists, though, believe that the population 
is leveling off, but the problem is, when you have these El 
Ninos, it knocks--our population index is pup counts, and when 
you have an El Nino condition, it reduces pup production 
dramatically, so kind of our curve starts over again, so being 
able to see that deflection in the curve doesn't happen.
    Mr. Faleomavaega. Yes, but--
    Mr. Scordino. I think we are, as I said, I think some of 
our scientists feel pretty strongly that we are probably close 
to OSP for California sea lions, so we may be talking about 
200,000 to 250,000 animals on the West Coast as being the OSP 
range.
    Mr. Faleomavaega. For the sea lions in California--
    Mr. Scordino. For California sea lions.
    Mr. Faleomavaega. --is it safe to have 200,000 sea lions?
    Mr. Scordino. They are currently at over 200,000 right now.
    Mr. Faleomavaega. But I am still--is that--maybe I am not 
framing my question properly here. My concern is that we want 
conservation. My gosh, you know, God made these creatures. We 
ought to live and abide by their ability. But when the 
overpopulate, when they become excessively more than what a 
human being is able to consume, then where do we go from there?
    And I am not clear exactly where the National Marine 
Fisheries Service is coming into this picture. You are saying 
that it is okay to have 250,000 sea lions in California, that 
is considered an optimum figure?
    Mr. Scordino. Well, what I am saying is that our mandate is 
to have these populations at their optimum sustainable 
population level, in accordance with the law. So that is 
probably what we are looking at, then, is the optimum number 
for California sea lions is probably in the 200,000 to 250,000 
range. When they go above that, they are starting to exceed 
their carrying capacity.
    Mr. Faleomavaega. And carrying the food chain, what is the 
predator of the sea lion? Sharks?
    Mr. Scordino. Sharks, killer whales, and man, you know, and 
other environmental--like I said, El Nino conditions, El Ninos 
do have an effect on these populations. They move their prey 
species into areas that the animals don't normally forage.
    Mr. Faleomavaega. It becomes really a policy issue, and I 
am trying to figure out which is more important, maintaining 
the lives and the needs of our recreational and commercial 
fishermen and their families, or continue allowing the 
excessive populations of sea lions.
    Mr. Scordino. All I can say is, the mandate is in the law, 
and we are bound by that.
    Mr. Faleomavaega. I'm sorry, Mr.--
    Mr. Gilchrest. Mr. Rebuck.
    Mr. Rebuck. Maybe I can help you. A number of years ago in 
one of the gillnet fisheries there was a take of sea lions in 
the range of 5,000-6,000 animals a year, did not put a dent in 
the population.
    We also have in southern California as of May of this year 
a listed invertebrate, the white abalone, Haliotis Sorensini, 
which according to the National Park Service, the National 
Marine Fisheries Service, there are fewer white abalone than 
there are sea otters, and yet the Fish and Wildlife Service 
wants to allow sea otters to overlap the range of the white 
abalone. So sometimes the decisionmaking is very curious.
    Mr. Faleomavaega. Well, one thing is very clear, and I had 
a personal experience in not only pressing for resolutions in 
the Congress, but the gillnets, drift nets, this is manmade, 
where you are talking about 30 miles long of these drift nets 
that drop about 30 feet in depth, and it is the number one 
killer. I mean, you know, this is man's device, and it is the 
most dangerous thing that I have ever seen in my life, where it 
kills anything that moves in the ocean.
    Mr. Rebuck. In California, sir, drift gillnet fishermen are 
limited to one mile of gear, not 30 miles. So that is the 
international, you know, high seas fishery.
    Mr. Faleomavaega. Well, that is what I am suggesting here, 
is that we had to contend with the Taiwanese, the Japanese, 
that were doing this.
    Mr. Rebuck. I think our people have really led the way in 
conservation and methodology.
    Mr. Faleomavaega. But I am still puzzled, Mr. Chairman. I 
don't know if I have gotten a clear picture from our friends 
here. On the one hand we need to press on for continued 
conservation of these precious animals, and on the other hand 
the needs of our commercial and recreational fishing industry 
are at risk. And my question is, where do we draw the line and 
how can we best provide, in a regulated forum, for the needs of 
both sides? And this is where I am a little puzzled, Mr. 
Chairman. Thank you.
    Mr. Gilchrest. Thank you, Mr. Faleomavaega.
    I sense probably more frustration up here than perhaps out 
there, because at least all of you are engaged in this with 
your minds and your hands and your activities, so you are on 
the front line of seeing what reality is along the West Coast.
    But what we will attempt to do, to just give you some 
direction as we move along in this--because we are certainly 
not going to draw up a reauthorization bill next week, we hope 
next spring or early summer--but as we move along on this, some 
of the just virtually infinite complexity of these issues, in 
my judgment at any rate, is to manage this thing from an 
ecosystem perspective, including man as part of the ecosystem.
    But I would hope that in this new century we would have the 
knowledge, the resources, the ability to cooperate, and the 
tolerance for different opinions, to establish a management 
regime that is both economically viable and environmentally 
sustainable. And as we move through the process, I would 
certainly invite all of you to continue to contact us via all 
of the manifestations of communication that there are, in 
person being probably the best. As we continue the process, we 
would like to have your continued input. Thank you all very 
much.
    I would like to ask unanimous consent that the gentlelady 
from Hawaii, Mrs. Mink, be allowed to sit at the dias.
    Hearing no objection, so ordered.
    Mrs. Mink. Thank you, Mr. Chairman.
    Mr. Gilchrest. You are welcome.
    Panel number five: Dr. Hal Whitehead, Killam Professor of 
Biology, Dalhousie University; Dr. Naomi Rose, Marine Mammal 
Scientist, The Humane Society of the United States; Dr. Kurt 
Fristrup, Bioacoustic Research Program, Cornell Laboratory of 
Ornithology; Dr. Darlene Ketten, Associate Scientist in 
Biology, Woods Hole Oceanographic Institution, Assistant 
Professor, Harvard Medical School; Admiral Dennis McGinn, 
United States Navy, Deputy Chief of Naval Operations, former 
Navy pilot in Vietnam, Warfare Requirements and Programs.
    I want to welcome all of you here this afternoon, and I 
guess this is our last panel. The fifth panel will discuss some 
of the issues regarding the importance of national defense and 
technology with the ability to be harmonious with the marine 
environment in the process. Our first witness will be Dr. 
Whitehead. Welcome.

   STATEMENT OF HAL WHITEHEAD, KILLAM PROFESSOR OF BIOLOGY, 
             DALHOUSIE UNIVERSITY, HALIFAX, CANADA

    Mr. Whitehead. Mr. Chairman, thank you very much for giving 
me this opportunity to talk to you on the naval sonars. I am 
going to make my comments on the potential effects of military 
sonars from the perspective of a population biologist.
    We as a society and you as lawmakers are concerned about 
how human activities in the ocean affect the health and 
viability of populations, species and ecosystems. These 
questions are in the realm of population biology.
    Sound is, in many ways, the best channel for communication 
and sensing in the ocean. It travels over long distances and 
can convey a great deal of information. Marine mammals and 
other ocean animals, but especially the toothed whales and 
dolphins, have evolved to use sound efficiently for sensing 
their environment and communicating with each other.
    For some of the same reasons that sound is important to 
marine mammals, it is used by navies. The noise produced can 
have a range of consequences for ocean life which range from 
rupture of organs through permanent hearing loss, temporary 
hearing loss, disturbance, masking of sounds, and psychological 
effects. All of these six channels may have population level 
consequences.
    So how can we, the research community, assess these 
potential consequences in order to guide you as lawmakers? The 
key issue you must understand is that studies of some potential 
effects of some sounds on some species, such as research on ear 
structure after sound exposure, inform us very little about the 
population effects of sounds.
    There are about 80 species of whale and dolphin. Noises 
vary greatly in a range of characteristics, and can produce 
population level effects through at least the six different 
channels I have just mentioned. For instance, the Navy-
sponsored studies of four species of baleen whale to reduced-
power LFA sources showed clear behavioral responses, but this 
tells us almost nothing about the population effects of the 
full source on sperm and beaked whales, which are, for many of 
us, the real concern.
    However, there are data. In March 2000 a stranding of 
beaked and other whales took place in the Bahamas as a result 
of naval exercises. For a population biologist, the key 
statement in Balcomb and Claridge's report is this: ``None of 
the Cuvier's beaked whales that we had documented in our 9-year 
study have returned since the March 15 naval exercise. We 
consider it entirely plausible that most, if not all, of the 
local population of this species was killed on that day.''
    We know little of beaked whale population biology, but our 
own studies and those of Balcomb and Claridge suggest that 
these animals probably generally occur in small local 
populations which would be very vulnerable to these kinds of 
events.
    Some maintain that the Bahamas stranding was a one-off 
event caused by special oceanographic circumstances, but this 
is not the case. The International Whaling Commission reports 
that historically, 8 of 49 beaked whale strandings and all 6 
out of 6 multiple species beaked whale strandings occurred 
together with military activities. For a population biologist, 
these are scary numbers.
    But what about LFA? LFA is of a lower frequency than most 
other sonars and has enormous range, with one transmission 
potentially affecting whales over an area of about the size of 
Texas. This, again is scary for a population biologist.
    Because LFA is of a lower frequency than the sonars that 
operated during the Bahamas stranding, it is sometimes 
concluded that it will not be dangerous. This is wrong. We know 
so little of how sound affects populations of marine life, that 
we cannot conclude that LFA will be better or worse than other 
sound sources, but the huge range over which it operates is of 
grave concern.
    So, unfortunately, as so often in the marine world, you 
must regulate and manage based on imperfect knowledge. But from 
this population biologist's perspective, it is clear that LFA 
is an important threat to marine life.
    Thank you very much.
    [The prepared statement of Mr. Whitehead follows:]

Statement of Hal Whitehead, PhD, Killam Professor of Biology, Dalhousie 
                      University, Halifax, Canada

    I have been asked to comment on the US Navy's use of SURTASS LFA 
sonar, as well as other sonar technologies, and their possible effects 
on marine mammals. I am very grateful to you for offering me this 
opportunity.
    I have been studying the population biology of whales, especially 
sperm and beaked whales, since 1975, and have published over 100 papers 
in refereed journals. I am Killam Professor of Biology at Dalhousie 
University and a member of the Cetacean Specialist Group of IUCN, which 
allocates conservation priorities for whales and dolphins globally. I 
am also a member of the Committee on the Status of Endangered Wildlife 
in Canada, which assesses the status of species of animals and plants, 
and Co-chair of its Marine Mammal Subcommittee
    I will make these comments on the potential effects of military 
sonars from the perspective of a population biologist. We as a society, 
and you as lawmakers, are concerned about how human activities in the 
ocean affect the health and viability of populations, species and 
ecosystems. These questions are in the realm of population biology.
    Sound is, in many ways, the best channel for communication and 
sensing in the ocean. It travels over long distances and can convey a 
great deal of information. Marine mammals and other ocean animals have 
evolved to use sound efficiently for sensing their environment, 
detecting prey and predators, finding and attracting mates, and keeping 
in touch with their social partners and young. This is especially the 
case for the odontocete or toothed whales which have sophisticated 
sonars and social systems. They are critically dependent on sound. As 
my wife and colleague, Dr Linda Weilgart, has put it AA deaf whale is a 
dead whale.@
    For some of the same reasons that sound is important to marine 
mammals (communication, sensing the environment, predators and prey) it 
is used by navies. Even before the development of LFA systems, the 
amount of noise in the oceans increased dramatically from human 
activity. Of the various types of noise that we are introducing into 
the ocean, military sonars have some features of special concern, such 
as high intensities and frequencies within the range that are commonly 
used by marine mammals. It can have a range of consequences for ocean 
life from rupture of organs, through permanent hearing loss, temporary 
hearing loss, disturbance, masking of sounds, and psychological 
effects. All of these channels, and especially when they act in 
combination, may have population level consequences.
    How can the research community assess these potential consequences 
in order to guide you as lawmakers? The key issue you must understand 
is that studies of some potential effects of some sounds on some 
species, such as research on ear structure after sound exposure, and 
the US Navy's LFA whale research program, inform us very little about 
the population effects of sounds. There are about 70 species of whale 
and dolphin, noises vary greatly in frequency, intensity and other 
characteristics, and can produce population level effects through at 
least the six different routes just noted. It is also important to 
realize that animals can be injured by sounds which they cannot hear.
    The Navy-sponsored studies of four species of baleen whale to 
reduced-power LFA sources showed clear behavioral responses (e.g. 
Miller et al. 2000). But this tells us almost nothing about the 
population effects of the full source on sperm and beaked whales, which 
are, for many of us, the most obvious area of concern.
    Studying the population biology of any oceanic species is very 
difficult, but there are data on how ocean noise can produce 
population-level effects. In March 2000, a multiple-species stranding 
of beaked and other whales took place in the Bahamas following, and, as 
is now clear, as a result of, naval exercises. There has been a lot of 
attention paid to the anatomical studies of the stranded animals, and 
these are important. But, for a population biologist, the key statement 
in the report is none of the Cuvier's beaked whales that we had 
documented in our nine-year study have returned since the March 15 
naval exercise... We consider it entirely plausible that most, if not 
all, of the local population of this species was killed on that day... 
(Balcomb and Claridge, 2001). We know little of beaked whale population 
biology, but evidence from the Bahamas project and the only other long-
term study of a beaked whale population which my group carries out off 
Nova Scotia (Gowans et al., 2000) indicates that these animals may 
generally occur in small local populations near the edges of the 
continental shelves. Such populations would be very vulnerable to these 
kinds of events.
    Some maintain that the Bahamas stranding was a one-time event, 
caused by special oceanographic circumstances, but another recent 
publication shows that this is not the case. The International Whaling 
Commission (2001) reports that 8 out of 49 beaked whale strandings 
(1838-1999), and 6 out of 6 multiple species beaked whale strandings 
(1974-1999), occurred with military activities. For a population 
biologist these are scary numbers, and strongly suggest that naval 
activities, and the sounds that accompany them, are frequently lethal 
to beaked and other whales and have population-level consequences.
    What about LFA? LFA is of lower frequency than most other sonars, 
and has increased range. The US Navy has not, to my knowledge, provided 
useful ranges. However, 120db is the level at which marine mammals 
often display clear reactions to noise. Competent bioacousticans have 
calculated that LFA reaches 120db at 500km from the source. Thus any 
LFA transmission could potentially affect an area of about the size of 
Texas. This again is scary for a population biologist.
    Because LFA is of a lower frequency than the sonars that operated 
during the Bahamas stranding, it is sometimes concluded that it will 
not be dangerous. This is wrong. We know so little of how sound affects 
populations of marine life that we cannot conclude that LFA will be 
better or worse than other sound sources, but the huge range at which 
it may be a threat is of grave concern.
    To sum up, we know that more noise is generally bad, and there is 
quite good evidence that military sonars can have population level 
effects on whales. Because of the difficulties of studying population 
level effects directly, the scientific community is unlikely to be able 
go very much beyond these summary statements in the medium term. In 
this case, as so often in the marine environment, you must regulate and 
manage based upon imperfect knowledge. I cannot make a professional 
assessment of the military merits of LFA sonar, but there is good 
reason to believe that it could have a severe population-level impact 
on marine life.
References
    Balcomb, K. C., and D. E. Claridge. 2001. A mass stranding of 
cetaceans caused by naval sonar in the Bahamas. Bahamas Journal of 
Science 5:2-12.
    Gowans S, Whitehead H, Arch JK, Hooker SK (2000) Population size 
and residency patterns of northern bottlenose whales (Hyperoodon 
ampullatus) using the Gully, Nova Scotia. Journal of Cetacean Research 
and Management 2:201-210
    International Whaling Commission (2001). Report of the Standing 
Committee on Environmental Concerns. Journal of Cetacean Research and 
Management (Supplement) 3: 255.
    Miller, P. J. O. et al. 2000. Whale songs lengthen in response to 
sonar. Nature 405: 903.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Dr. Whitehead.
    Dr. Rose?

STATEMENT OF NAOMI A. ROSE, MARINE MAMMAL SCIENTIST, THE HUMANE 
                  SOCIETY OF THE UNITED STATES

    Ms. Rose. Good day. My name is Naomi Rose. I am the marine 
mammal scientist for The HSUS. On behalf of our more than 7 
million members and constituents, I wish to thank you, Mr. 
Chairman, and members of the Subcommittee for inviting me to 
testify on the Navy's SURTASS LFA sonar.
    The HSUS has been involved in the issues surrounding LFA 
since the existence of this technology first became public 
knowledge in 1995. Today I would like to address five main 
points concerning LFA and our concerns.
    One, regarding the scientific research program or SRP that 
the Navy conducted, The HSUS has consistently pointed out the 
limitations of this research. While the SRP was a reasonable 
beginning, it was never designed to adequately inform the NEPA 
process. Its results were clearly incapable of providing enough 
information to conclude that LFA would have negligible impacts 
on marine life.
    Nevertheless, the Navy, NMFS, and some witnesses on this 
panel have in fact concluded that LFA, operated under proposed 
mitigations, is essentially risk-free. It is germane to point 
out that the Navy and most scientists thought the same thing 
about mid-frequency sonars prior to the mass stranding of the 
beaked whales in the Bahamas in March 2000.
    It is not accurate to say that active sonars have been 
operating for decades without harm to marine life. Rather, 
these sonars have been operating without any observed harm to 
marine life, and yet some harm in fact has been correlated with 
these activities. It is quite possible, in fact, that standard 
active sonars have been harming beaked whales for decades, and 
nobody noticed because nobody was particularly looking until 
now.
    It is important to note that the SRP results could not 
disprove the hypothesis that feeding, migrating and breeding 
are so important to whales that exposure to LFA transmissions 
of up to 155 dB was not enough to cause them to abandon these 
behaviors.
    Scientists make progress when studying complex subjects not 
by proving, but by disproving hypotheses. The Navy's impatience 
with scientific process has been apparent from the inception of 
the SRP, making its claim that it has based its conclusions 
that LFA is benign on sound science especially troubling.
    My second point is regarding the 180 decibel safe exposure 
level. None of the whales in the SRP were exposed to 
transmissions above 155 dB, yet the Navy has determined, and 
NMFS concurs, that the safe exposure level for LFA 
transmissions for all marine life is 180 decibels.
    Sounds at 180 dB are almost 1,000 times more intense than 
sounds at 155 dB. From the SRP, we know that baleen whales 
exposed to low frequency sounds of up to 155 dB in the short 
term changed their vocalization rates, deviated from migratory 
paths, displaced themselves from breeding grounds, and 
lengthened mating songs.
    There is no way, from these results, that anyone can 
conclude that exposure to sounds almost 1,000 times more 
intense will have no greater effect, especially over the long 
term. To conclude that the effect of such exposure will be 
negligible is arbitrary.
    My third point addresses the comparison between mid-
frequency sonars and LFA. The Navy and NMFS have dismissed as 
speculation the possibility that the mass stranding of beaked 
and baleen whales in the Bahamas was not an isolated event, yet 
as noted in Dr. Whitehead's testimony, of the six known mixed 
species mass strandings involving beaked whales before the 
Bahamas, all six occurred in proximity to naval maneuvers.
    These are remarkable statistics. These correlations are not 
proof that active sonars kill beaked whales, but I would like 
to point out that the results of the SRP are not proof that LFA 
is benign, either.
    The Navy, NMFS, and some witnesses here today believe that 
comparing mid-frequency sonars to LFA sonar is like comparing 
apples to oranges. I believe it is more a matter of comparing 
apples to apples, a difference in degree, not kind.
    My fourth point is regarding resonance effects. The HSUS 
notes that there is virtually no discussion in the SURTASS LFA 
documentation of the potential for resonance impacts on marine 
mammals exposed to low frequency sound. These are physical 
effects that cause reverberations in air-filled cavities, 
tissues and organs of marine animals. The common analogy is a 
wine glass shattered by an opera singer, so we are talking 
about tissue rupture.
    As I am not a bioacoustician, I merely wish to point to 
this issue as one of serious and legitimate concern. I urge the 
Subcommittee to explore this issue further with members of this 
panel, but also that members approach additional experts in 
bioacoustics, oceanography and the physics of sound, in order 
to receive a full picture of the potential negative impacts on 
marine life from resonance impacts of LFA.
    Finally, the MMPA requires that NMFS set forth regulations 
for monitoring and reporting of authorized incidental takes. 
The purpose of this provision is to verify that the activity in 
question is in fact having only negligible impacts on marine 
mammal species and stocks.
    As there are no empirical data on the impact of LFA 
transmissions on marine mammals at exposures greater than 155 
decibels, the impact of exposures between 155 and 180 dB is 
inarguably uncertain. Therefore, monitoring marine mammals 
between 155 and 180 dB is not only legally required but 
scientifically imperative. Despite this, there is no proposal 
to require monitoring or reporting of takes at exposures below 
180 dB, thus violating the letter and the intent of the MMPA.
    In conclusion, The HSUS believes that the results of the 
SRP and other research have been overinterpreted and 
inappropriately applied to all marine species. We believe that 
there is compelling evidence that operational deployment of LFA 
will in fact have significant negative impacts on the marine 
environment, especially in conjunction with LFA-like sonars 
that are being developed in other nations. We also believe that 
NMFS's proposed rule violates the MMPA.
    Thank you for allowing me to testify today, and I would be 
happy to answer any questions.
    [The prepared statement of Ms. Rose follows:]

Statement of Naomi A. Rose, Ph.D., Marine Mammal Scientist, the Humane 
                      Society of the United States

    Good day. My name is Naomi Rose and I am the marine mammal 
scientist for The Humane Society of the United States (HSUS). On behalf 
of our more than 7 million members and constituents, I wish to thank 
you, Mr. Chairman and members of the Subcommittee, for inviting me to 
testify on this panel addressing the US Navy's use of Surveillance 
Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) sonar. I 
very much appreciate the opportunity this hearing provides to have all 
views on this controversial technology presented to this Subcommittee.
BACKGROUND
    The HSUS has been involved in the issues surrounding the Navy's use 
of SURTASS LFA sonar since the existence of this technology first 
became public knowledge in 1995. Along with the Natural Resources 
Defense Council and Cetacean Society International, The HSUS has from 
the beginning followed the Navy's National Environmental Policy Act 
(NEPA) process, which resulted in the publication of a final 
Environmental Impact Statement (EIS) in January 2001. I have attended 
numerous meetings and presentations by the Navy and have participated 
in numerous discussions and debates on this controversial technology. I 
also spent three days in 1997 on the Cory Chouest, the Navy research 
vessel currently carrying the one operational SURTASS LFA sonar system, 
when it hosted a civilian contingent of interested parties during Phase 
I of the Navy's Low Frequency Sound Scientific Research Program (LFS 
SRP). The HSUS submitted extensive comments on the Navy's draft EIS and 
on the National Marine Fisheries Service's (NMFS) proposed rule for a 
small take exemption during use of SURTASS LFA sonar during peacetime.
    Throughout the NEPA process, The HSUS has consistently pointed out 
the limitations of any research carried out under the LFS SRP. While 
this research was a reasonable beginning, it was never designed to 
adequately inform the NEPA process--the results from the LFS SRP were 
clearly incapable of providing adequate information to make careful 
management decisions or to conclude that the use of LFA sonar would 
have negligible impacts on marine life. A study of far greater scope, 
both in terms of species examined and years pursued, would be necessary 
before any solid conclusions regarding significant impacts could 
possibly be made. Nevertheless, the Navy, NMFS, and some witnesses on 
this panel have in fact concluded that LFA sonar, operated under the 
mitigations proposed in the final EIS and proposed rule, is to all 
intents and purposes risk-free.
    It is germane to point out that the Navy (and most scientists) 
thought the same thing, based on about the same amount of information, 
about the use of mid-frequency sonars prior to the mass stranding of 
beaked and baleen whales in the Bahamas in March 2000 as a result of 
exposure to standard mid-frequency tactical sonars during a routine 
Naval exercise. The Navy and others have stated that active sonars have 
been operating for decades in the ocean without harming marine mammals, 
but this is not accurate. These sonars have been operating without any 
observed or causally-linked harm to marine mammals. It is quite 
possible, in fact, that standard active sonars have been harming and 
killing marine mammals for decades and nobody noticed because nobody 
was looking--until now.
    The bottom-line is simple--we do not know enough about marine 
mammal hearing (let alone that of fish and invertebrates) and the 
impacts of loud, low frequency sound on their ears and other organs to 
conclude that the operational use of LFA sonar would be harmless. Yet 
this is precisely what the Navy and NMFS have concluded. In fact, we do 
know enough to suspect strongly that it will be harmful--precautionary 
management compels us to at least delay deployment of this technology 
until we have a better understanding of its potential impacts. In fact, 
all active sonars should be re-examined in light of the growing 
evidence that their use is hazardous to beaked and baleen whales.
    Today I would like to address the following points: 1) concerns 
with the LFS SRP; 2) the 180 dB criterion for ``safe'' exposure to LFA 
transmissions; 3) the comparison of observed impacts on beaked and 
baleen whales from exposure to operational levels of mid-frequency 
sonars to potential impacts on marine mammals from exposure to 
operational levels of LFA sonar; 4) the potential for harmful resonance 
effects from exposure to LFA transmissions; and 5) concerns with the 
requirements for monitoring and reporting ``takes'' in the NMFS 
proposed rule.
1. LOW FREQUENCY SOUND SCIENTIFIC RESEARCH PROGRAM RESULTS
    The LFS SRP examined certain short-term behavioral responses of 
four species of baleen whales to playbacks of LFA transmissions 
transmitted at sound pressure levels (SPLs or volumes) greatly reduced 
from operational levels. In all three Phases of the program, focusing 
on feeding, migrating, and breeding baleen whales, behavioral responses 
were observed, ranging from short-distance displacement to reduced 
vocalization rates. While most whales resumed previously observed 
behaviors soon after transmissions were discontinued, no long-term 
observations were made of individuals exposed to the playbacks. No 
whales were exposed to SPLs greater than approximately 155 dB re 1 mu 
Pa.
    The SRP scientists concluded that exposure to low frequency sound 
below 155 dB did not appear to have any short-term biologically 
significant impacts on whales. Appropriately for this limited work, 
this is a limited conclusion. The team cautioned that these results 
were preliminary and of limited application. In subsequent 
publications, certain team members indicated some concern about LFA 
sonar, concluding that behavioral changes observed during playbacks of 
LFA transmissions ``might affect demographic parameters or [they] could 
represent a strategy to compensate for interference from the sonar.'' 
1 In none of their publications did SRP team members 
conclude that exposure to operational levels of LFA sonar would have no 
significant biological impact on cetaceans (let alone all other marine 
animals). This sweeping conclusion was found solely in the Navy's final 
EIS (and then copied in NMFS' proposed rule), although the EIS points 
to the SRP results for support.
---------------------------------------------------------------------------
    \1\ Miller, P.J.O., N. Biassoni, A. Samuels, an P.L. Tyack. 2000. 
Whale songs lengthen in response to sonar. Nature 405:903.
---------------------------------------------------------------------------
    None of the LFS SRP playback experiments could disprove an 
alternative hypothesis--that feeding, migrating, and breeding are so 
important to blue, fin, gray, and humpback whales that exposure to 
reduced levels of LFA sonar noise is an insufficient stimulus to cause 
them to abandon these behaviors. In short, perhaps all the whales in 
these experiments were negatively impacted--perhaps they were partially 
deafened--but they nevertheless chose to continue their vital life 
processes. No one can say if this conclusion is any more or less the 
truth than the Navy's conclusion that there was no negative impact. If 
adequate prey are few and far between, predator-free migratory 
corridors narrow, or safe breeding sites limited, then the introduction 
of a source of noise pollution, however damaging, may be a minor 
consideration for these animals. This sort of decision-making, weighing 
pros and cons, occurs constantly in many species, including human 
beings. 2
---------------------------------------------------------------------------
    \2\ For example, humans often knowingly remain (with little 
behavioral modification) in injurious situations, when livelihood or 
housing demands require (e.g., coal miners risking black lung because 
the mines are a region's only viable employer; poor families living in 
marginal neighborhoods with environmental hazards because it is the 
only affordable housing).
---------------------------------------------------------------------------
    Ultimately, the Phases of the LFS SRP were designed to test a 
single and simple hypothesis: ``It is doubtful that many marine mammals 
would remain for long in areas where received levels of continuous 
underwater noise are 140+ dB at frequencies to which the animals are 
most sensitive.'' 3 The results of the LFS SRP disproved 
this hypothesis up to 155 dB. Very little else was accomplished and 
certainly the hypothesis that LFA transmissions will have a negligible 
impact at 180 dB was not proved (nor was any evidence provided to 
support it). Science does not in fact prove hypotheses. It disproves 
hypotheses. Scientists make progress when studying complex subjects by 
eliminating hypotheses that are narrow in scope, approaching the 
``truth'' incrementally. The Navy's impatience with the scientific 
process has been apparent throughout the NEPA process, making its claim 
that its EIS conclusions are based on sound science especially 
troubling.
---------------------------------------------------------------------------
    \3\ This hypothesis can be found on p. 369 of Richardson, W.J., 
C.R. Greene, jr., C.I. Malme, and D.H. Thomson. 1995. Marine Mammals 
and Noise. Academic Press, San Diego. 576 pp.
---------------------------------------------------------------------------
    Finally, as a representative for The HSUS, I attended the May 1997 
meeting in Boston at which the LFS SRP was first substantially 
discussed. I state for the record that my recollection of how species 
were selected differs from what is described in the Navy's final EIS 
and in NMFS' proposed rule. While the group generally agreed that the 
four baleen species selected were likely to be among the most 
vulnerable to LFA transmissions, the group also agreed that sperm 
whales and beaked whale species were of equal concern. The sperm whale, 
in fact, was included in Phase III of the SRP, but in the end no data 
were collected on sperm whales because none were observed during the 
study period. Beaked whales were not included solely due to logistical 
constraints. In addition, the Boston discussion clarified that the four 
baleen species were selected as much for their accessibility and the 
likelihood of collecting sufficient data as because they were 
considered representative models for other baleen whales. Given the 
subsequent mass stranding of beaked and minke whales in the Bahamas in 
March 2000, after exposure to active sonars used in routine Naval 
maneuvers, clearly beaked whales continue to belong on the list of 
species potentially most vulnerable to LFA transmissions. The evidence 
from the Mediterranean 4 and the Bahamas suggests strongly 
that SPLs lower than 180 dB for mid-frequency and low frequency sounds 
could have lethal effects on several species of beaked (and possibly 
baleen) whales, over a relatively large geographic area. The essential 
failure of the final EIS or the proposed rule to take these incidents 
(as well as other beaked whale strandings coincident with naval 
exercises in the Canary Islands and elsewhere 5) and as-yet-
unavailable results from on-going investigations into account when 
determining if SURTASS LFA sonar will have only negligible impacts on 
marine mammals violates the ``best scientific information available'' 
standard of the MMPA.
---------------------------------------------------------------------------
    \4\ Frantzis, A. 1998. Does acoustic testing strand whales? Nature 
392:29. This article concluded that a 1996 mass stranding of beaked 
whales along the Greek coastline after a NATO naval exercise testing a 
low to mid-frequency sonar was highly unlikely to be unrelated to this 
testing.
    \5\ International Whaling Commission. 2001. Report of the Standing 
Committee on Environmental Concerns, Appendix J. J. Cetacean Res. 
Manage. 3(suppl):255.
---------------------------------------------------------------------------
2. THE 180 dB CRITERION FOR ``SAFE'' EXPOSURE TO LFA TRANSMISSIONS
    None of the whales in the LFS SRP were exposed to sounds greater 
than 155 dB. Yet the Navy has determined, and NMFS concurs, that the 
``safe'' exposure level for LFA transmissions for all marine life is 
180 dB. This SPL corresponds to a distance approximately 1 km from the 
LFA sonar sound source; that is, animals approximately 1 km from the 
transmitting SURTASS LFA sonar vessel would hear the sound at an SPL of 
approximately 180 dB. I believe not coincidentally, this distance also 
corresponds to a distance that trained marine mammal observers can 
reliably spot and identify surfacing marine mammals from a ship whose 
deck is relatively high off the water.
    It is difficult for humans not accustomed to dealing with acoustics 
to grasp the leap in intensity (not necessarily in perceived volume, 
but in acoustic energy) from 155 dB to 180 dB. Sounds at 180 dB are 
almost 1000 times more intense than sounds at 155 dB. From the LFS SRP, 
we know that baleen whales exposed to low frequency sounds up to 155 dB 
changed their vocalization rates, deviated from their migratory paths, 
displaced themselves from one coastal area to another while engaged in 
breeding behavior, and lengthened their mating songs. These were all 
observable, short-term behavioral changes. There is no way from these 
results that anyone can conclude that exposure to sounds almost 1000 
times more intense will have no greater effect, particularly if these 
effects are difficult or even impossible to detect without closer 
observation (for example, hearing damage) or only become apparent in 
the longer term. In fact, there is no way to conclude from these 
results what effect such exposure would have on these whale species--to 
conclude that the effect will be negligible is simply arbitrary.
    There are very few empirical data on the impact of low frequency 
sound on marine mammals above 155 dB. The studies done to date examined 
species held easily in captivity--dolphin and small whale species and 
seals and sea lions. The applicability of these results to beaked or 
baleen whales is completely speculative. The establishment of 180 dB as 
the exposure level beyond which serious injury or even death is likely 
to occur in beaked and baleen whales, based on anatomy and other 
aspects of biology and physics, is indeed only educated guesswork. If 
the Navy and NMFS are going to rely on speculation to guide their 
management decisions, then they must do so without prejudice.
3. MID-FREQUENCY ACTIVE SONAR VS. LOW FREQUENCY ACTIVE SONAR
    The Navy and NMFS have dismissed as mere speculation the 
possibility that marine mammals suffering temporary hearing loss may be 
more susceptible to predation or ship strike because they may not hear 
predators or ships until it is too late to initiate avoidance. Yet such 
a speculation is merely common sense. They have also dismissed as 
speculation the possibility that the mass stranding of beaked and 
baleen whales in the Bahamas in March 2000 was not in fact an isolated 
event. Indeed this is true--an educated speculation based on some 
compelling evidence. As noted in other testimony, of the seven now-
known mixed species mass strandings involving at least one species of 
beaked whale, all seven occurred in proximity to naval maneuvers. This 
is a remarkable statistic. Eight out of 49 mass strandings of Cuvier's 
beaked whale have also occurred in proximity to naval maneuvers, 
including the stranding along Greece's coastline after a NATO naval 
exercise testing a low frequency sonar. These correlations are not 
proof that active sonars kill beaked whales--but the results of the LFS 
SRP are not proof that LFA sonar is safe either. The seven-out-of-seven 
statistic is certainly strongly suggestive--suggestive that in the 
presence of naval acoustic activities and perhaps under specific (but 
not necessarily uncommon) oceanographic conditions, beaked and baleen 
whales are impacted in a way that causes them, if land is nearby, to 
strand and die.
    The Navy, NMFS, and some witnesses here today believe that 
comparing what happened with mid-frequency sonars in the Bahamas to 
what may happen with LFA sonar is premature and even baseless. I have 
often heard the phrase ``comparing apples and oranges.'' I believe it 
is more a matter of comparing two different varieties of apples--in 
other words, the two situations are different in degree, not kind. In 
my opinion, what is a matter of apples and oranges is establishing a 
``safe'' exposure level for marine mammals (based on mere speculation) 
of 180 dB while establishing a ``safe'' exposure level for humans 
(based on empirical studies of the effect of LFA transmissions on Navy 
divers) of 145 dB. Interestingly, the 145 dB criterion is based on a 2% 
``very severe aversion reaction'' standard. Thus human divers are 
protected at a 2% level based on psychological impact (i.e., it is 
assumed that 2% of divers will be affected psychologically when exposed 
to 145 dB), while marine mammals are protected at a 95% level based on 
physiological impact (i.e., it is assumed that 95% of marine mammals 
will be affected physiologically--will suffer temporary hearing loss--
when exposed to 180 dB). Claiming that an exposure level (to anything, 
whether it is oceanic noise or arsenic in drinking water) that will 
physiologically affect 95% of individuals is ``safe'' is counter to 
virtually all human safety standards, where a 5% ``will affect'' level 
is more commonly accepted and used. The Navy and NMFS have selected 
this far less protective standard for marine mammals despite the fact 
that marine mammals are more dependent on sound and more likely to be 
exposed to LFA transmissions than human divers.
4. RESONANCE EFFECTS
    The HSUS notes that, despite the recommendations of a number of 
scientists, there is minimal discussion and no substantive 
consideration in any of the SURTASS LFA NEPA or MMPA documentation of 
the potential for resonance impacts on marine mammals exposed to low 
frequency sound. These are physical effects that do not necessarily 
damage hearing but instead cause reverberations in air-filled cavities, 
tissues, and organs of marine animals--the common analogy is to a wine 
glass shattered by an opera singer's high C. In fact, in several 
instances in the various NEPA and MMPA documents, the primary and even 
sole impact of concern is identified as auditory effects, despite 
increasing evidence that perhaps the primary impact of concern should 
be non-auditory effects. As I am not a physicist or a bioacoustician, I 
merely wish to point to this issue as one of serious and legitimate 
concern. The Subcommittee can explore this issue further with members 
of this panel, but The HSUS recommends that members approach additional 
experts on bioacoustics, oceanography, and the physics of sound in 
order to receive a full picture of the potential negative impacts on 
marine life from the resonance effects of LFA and other active sonar 
transmissions.
5. MONITORING AND REPORTING ``TAKES''
    The MMPA requires that NMFS set forth regulations on the 
``requirements pertaining to the monitoring and reporting of [the 
authorized incidental takes of small numbers of marine mammals].'' The 
Marine Mammal Commission has noted that the purpose of this provision 
is to verify that the activity in question is in fact having only 
negligible effects on marine mammal species and stocks. As there are no 
empirical data on the impact of LFA transmissions on marine mammals at 
SPLs greater than 155 dB, the impact of exposures between 155 dB and 
180 dB is inarguably uncertain, regardless of ``reasonable'' 
assumptions, educated speculation, or empirical data using other sound 
sources, frequencies, and species. Therefore, monitoring marine mammals 
exposed to SPLs between 155 dB 6 and 180 dB is not only 
legally required but scientifically imperative.
---------------------------------------------------------------------------
    \6\ Monitoring impacts at exposures of 155 dB as a lower limit is a 
minimum requirement--even better would be to set the lower limit for 
monitoring below 155 dB, down to the current ``safe'' level of 120 dB, 
in order to collect data seeking to verify the assumption that only 
harassment and non-serious injury occur between 120 dB (0% risk) and 
180 dB (95% risk).
---------------------------------------------------------------------------
    Despite this requirement, the Navy does not intend and NMFS is not 
proposing to require monitoring or reporting of takes at exposures 
below180 dB, thus violating the letter and intent of the MMPA. The 
proposed mitigations are based entirely on the assumption that no takes 
other than harassment and non-serious injury will occur at exposures 
below 180 dB. Thus the Navy has requested authorization to take small 
numbers of marine mammals by harassment and non-serious injury only. By 
the Navy's (and NMFS') own definition, these takes will occur between 
120 dB and 180 dB (0% risk to 95% risk, respectively). Yet there is no 
proposed real-time monitoring or reporting of impacts of LFA 
transmissions below 180 dB exposures.
    A long-term monitoring program plans to provide annual estimates of 
the number of animals injured and harassed (for example, through 
coordinating with stranding networks), but given the lack of monitoring 
below 180 dB, it is difficult to see how these estimates will be other 
than pure guesswork. Stranding records are unlikely to provide direct 
evidence of cause, unless qualified marine scientists are on-site 
during a stranding event to conduct necropsies on fresh specimens (as 
in the Bahamas incident; however, this co-occurrence of a qualified 
scientist and stranded whales was a highly unusual event). Therefore 
the Navy will have few or no data with which to comply with its 
obligation (and plan) to 1) provide actual annual harassment and non-
serious injury estimates; 2) verify the estimates predicted from 
modeling; or 3) verify its assumption (with all the attendant 
uncertainties) that no serious injuries or deaths will occur between 
120 dB and 180 dB.
    The Navy's risk analysis assumes that 2.5% of exposed animals will 
be harassed or non-seriously injured at 150 dB, 50% at 165 dB, and 95% 
at 180 dB. If these assumptions are valid, there could be extremely 
large numbers of marine mammals harassed or non-seriously injured by 
LFA transmissions. However, given that there will be virtually no 
monitoring of marine mammals exposed to SPLs lower than 180 dB, it will 
be impossible for the Navy to ground-truth these assumptions. Should 
these assumptions be invalid and should even greater percentages of 
exposed animals be harassed and non-seriously injured or any 
percentages be seriously injured or killed at exposures below 180 dB, 
the monitoring requirements as proposed will be unlikely or unable to 
determine this.
    In fact, the monitoring program in the proposed rule (specifically 
the pre-transmission monitoring for the presence of marine mammals and 
sea turtles) is designed to exclude marine mammals from the predicted 
``serious injury and death'' impact zone within the 180 dB sound field 
surrounding the LFA sonar sound source. The monitoring is not designed 
(in violation of law) to record what actually happens to marine mammals 
within the predicted ``harassment and non-serious injury'' impact zone 
between 120 dB and 180 dB. The monitoring program as presented is, in 
fact, a mitigation measure, whereas the MMPA sets mitigation and 
monitoring apart as two separate requirements. Therefore, the Navy's 
(and NMFS') monitoring program will violate the MMPA if implemented as 
proposed.
CONCLUSION
    The Navy and NMFS not only consider LFA sonar safe to deploy 
operationally, they consider an exposure level of 180 dB for low 
frequency sound to be safe for all marine life. I cannot emphasize 
enough that there is NO empirical evidence supporting this conclusion 
for beaked or baleen whales (or for sea turtles, fish, and 
invertebrates) and the evidence from studies on other whale and dolphin 
species, as well as for seals and sea lions, is at best preliminary and 
of limited applicability, due in part to small sample sizes, the use of 
sounds that differ in several characteristics from LFA transmissions, 
and the non-ideal acoustic environment of the experiments. If it is 
appropriate to apply this limited research evidence in support of a 180 
dB ``safe'' exposure level to species with different hearing 
capabilities and a sound source with different acoustic properties, 
then it should be equally appropriate to apply the evidence for 
negative impacts of sonar use from incidents involving mid-frequency 
sonars to the operational use of LFA sonar. It is inconsistent and 
biased to allow apples to be compared to oranges only when it promotes 
LFA sonar deployment.
    The HSUS believes it is premature to conclude that LFA sonar is 
benign. We believe that the results, preliminary and limited in nature, 
of the LFS SRP and other research have been over-interpreted and 
inappropriately applied to all marine species. We believe that there is 
compelling evidence that operational deployment of LFA sonar, 
especially in conjunction with LFA-like sonars being developed in other 
nations, will in fact have significant negative impacts on the marine 
environment, most of which may not become apparent for years and even 
decades. We also believe that NMFS' proposed rule is in violation of 
the MMPA.
    I once again thank the Subcommittee for allowing the differing 
views surrounding this controversial technology to be voiced in this 
hearing.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Dr. Rose.
    Dr. Fristrup. Have I pronounced that right, sir?

  STATEMENT OF KURT FRISTRUP, BIOACOUSTICS RESEARCH PROGRAM, 
               CORNELL LABORATORY OF ORNITHOLOGY

    Mr. Fristrup. Better than many of my colleagues. Fristrup. 
My name is Kurt Fristrup. I work at the Cornell Bioacoustics 
Research Program, the Laboratory of Ornithology, and I would 
like to begin by affirming my unequivocal support for the MMPA. 
I think it is absolutely imperative. It has been one of the 
most important vehicles for marine conservation for the last 
two decades, last several decades.
    And I think that in the absence of definitive information, 
the MMPA's requirement that environmental impact assessments be 
based on conservative assumptions is also a critical feature of 
the document, even though it sometimes results in what seems 
like an onerous regulatory burden. I think that the requirement 
for a conservative assumption is good for two reasons.
    The first is that many biological changes are irreversible. 
The loss of a species through extinction is one obvious 
example, but there is increasing evidence that marine 
environments can undergo irreversible ecological shifts if 
perturbed sufficiently, and there is no question that human 
activities, fishing among them, are introducing fairly 
significant impacts on marine environments.
    But the second excellent reason why we should maintain this 
regulatory requirement for conservative assumptions is that it 
encourages the stakeholders, the applicants for permits, to 
conduct or promote research that will remove significant 
sources of ignorance and therefore ease their own regulatory 
burden. That is to say, it encourages the very people who need 
to apply for permits to promote the process that we would use 
to understand better what the problems are in the ocean, and 
help us devise more intelligent regulatory procedures. It helps 
bring them into this process of learning more about how the 
ocean works.
    Now, you have asked me as a scientist to try and tell you 
what we know about the potential impact of LFA, and as 
scientists we are going to be most comfortable when we talk 
about the results of repeatable, controlled experiments. We 
will be moving onto less sure ground when we talk about 
numerical models, where we don't have real data but we can 
specify what our assumptions are, and given those assumptions, 
what the results turn out to be.
    And in the absence of those kinds of information, we have 
to resort to things like pointing out anecdotal information 
that is suggestive, or we guess, and we sometimes dress up our 
guesses as theories. I think it should be obvious to all of you 
that when you are making decisions that have wide-ranging 
impacts, the first two kinds of evidence should always be 
preferred.
    Now, regarding the LFA SRP, it was patently obvious 5 years 
ago that no team of scientists could possibly study every 
species everywhere. There was no chance that all possible 
impacts could possibly be determined. What happened was a 
relatively public process of trying to identify which species 
were the most likely to be at risk, and then to put in place 
the best program that could be done to study the reactions of 
those animals to controlled exposures of these sonars.
    That process resulted in the SRP which did focus on four 
species of baleen whales, but also monitored through surveys 
the responses of another dozen or more species of marine 
mammals that happened to be in the same areas. And I can 
emphasize that there were more than 30 biologists involved in 
the SRP, even though three or four of us wound up taking the 
prominent speaking roles.
    And it was conspicuous that during all three phases, none 
of those independent researchers reported a behavioral response 
that would have triggered us to stop the experiment. We had all 
kinds of protocols in place that would call for suspension of 
the experiments upon any acute behavioral response. The 
striking thing for those of us who expected to see a result was 
that there were no repeatable responses observed on the water.
    Now, a lot, many, many man-months of patient statistical 
effort has allowed us to pull out some consistent responses, or 
I should say some statistically average responses to exposure 
to this sound. For example, humpback whales off Hawaii, which 
sang songs in 1997 or 1998 that were about 13.5 minutes long, 
showed a change in average song length of about 40 seconds in 
response to LFA exposure, and there were many other interesting 
aspects of that response, but it is much smaller than the song-
to-song variance of the same whale, of any individual whale 
song.
    That is to say, any one singer would change the length of 
its song by 2.5 minutes, on average, song-to-song, and yet the 
response to the Navy sonar was on the order of 40 seconds. This 
is precisely why it is so difficult to document responses to 
these sonars. They wound up being smaller than we expected, and 
especially small in range of stimulation to the natural range 
of behavior for these animals.
    With these results in hand, we then tried to model the 
potential responses for operational impacts, and that involved 
the most extensive acoustic modeling effort I am aware of for 
this kind of environmental impact measurement. Those models, 
combined with risk function analysis which explicitly 
recognizes the potential impact in between 155 and 180 dB, are 
what went into the final report, the final environmental impact 
statement that tries to provide a prudent, conservative 
estimate of the potential impact of Navy LFA operations.
    Thank you.
    [The prepared statement of Mr. Fristrup follows:]

  Statement of Kurt Fristrup, Bioacoustics Research Program, Cornell 
                       Laboratory of Ornithology

    My educational and career choices were motivated by an abiding 
interest in science, conservation and education. The issues before us 
at this hearing, and the divergent opinions we will hear, will be most 
effectively resolved if our actions incorporate contributions from all 
three disciplines. The rational formulation of environmental policy 
must be based on scientific conservation, but it is imperative that we 
contemplate public education in this process. In addition to the need 
for an informed electorate, enduring efforts to monitor and conserve 
natural resources achieve the greatest success when the majority of the 
affected population adopts these commitments as their own.
             General remarks concerning the MMPA and sound
    Marine mammals are the subject of intense popular interest and 
concern, so the MMPA reflects a societal priority. However, effective 
environmental conservation requires that we focus on the ecological 
justification for special regulations pertaining to Marine mammals, 
without being distracted by popular sentiments or misconceptions. As 
large-bodied predators at the top of the marine food chain, marine 
mammals can be used to gauge the status of broad assemblages of marine 
resources.
    Marine mammals are important indicator species for the``heath of 
the world's oceans. There are about 100 species of marine mammals, and 
they have a substantial effect on global ocean ecosystems. For example, 
a rough estimate of the annual consumption of fishes and squids by 
sperm whales alone (1.5 million whales at 200 kg/day translates to 
approximately 100 million metric tons per year) is equivalent to the 
global annual production of human fishing efforts. Marine mammals must 
regularly surface to breath, and many of their sounds can be detected 
at ranges from tens to hundreds of miles. Among all marine organisms, 
they offer us unique opportunities to detect and observe them.
    For marine environments, the sounds of human activities are 
especially pervasive. At all frequencies, the absorption of sound 
energy by seawater is more than 100-fold less than the absorption of 
sound by air. The changing physical properties of seawater with depth, 
and the reflective properties of the surface and ocean bottom, often 
create channels for very efficient sound transmission. A sound, 
especially a low frequency sound, can be audible at very long ranges 
from its source.
    Hearing is critical for all vertebrates. It is an omnidirectional 
sense. No vertebrate species are known to be deaf; in contrast, many 
blind species of fish, amphibians, reptiles, and mammals have been 
documented. Animals are able to determine the direction to a sound 
source, and often the distance as well. For marine mammals, the spatial 
scale of their acoustical awareness may span tens or hundreds of miles.
    These general considerations would lead us to predict that marine 
mammals would react to the sounds of human activities. This expectation 
has been confirmed many times by studies of a range of species in 
differing environments. In addition to these universally acknowledged 
facts, the need to protect marine mammal stocks from substantial losses 
due to Navy sonar operations is recognized by all interested parties 
(NMFS, Navy, academic scientists, environmental advocates). The 
disagreements arise from attempts to translate behavioral reactions to 
risk.
    Scientifically documenting the link between observed behavioral 
reactions and risks to survival or reproduction is challenging. A 
seamless chain of empirical evidence will never be available. 
Therefore, every environmental analysis should clearly specify the 
entire deductive process used to translate behavioral reaction into 
risk.
    The most likely means of deducing risk will involve explicit 
consideration of time or energy budgets. For time budgets, we might 
determine the duration of a disturbed behavior pattern upon exposure to 
a set of sounds, and express this as a fraction of the total 
opportunity perform the normal behavior. For energy budgets, we might 
determine the reduction in foraging success or the increase in energy 
expenditure due to the changed behavior, as a fraction of the animal's 
daily or annual energy budget. The remaining component of this 
deductive process would be an estimate of the reductions in survival 
probability or mating success due to this fractional loss of energy or 
opportunity.
    The choice between time or energy budgets for estimating risk must 
focus on, the more likely limiting factor. For example, some 
opportunities for reproduction may be quite fleeting, and the energy 
expended in these efforts may be modest. In these cases, a time budget 
must be preferred. Environmental risk assessment must reflect our best 
knowledge about the critical environmental factors affecting the health 
of populations.
    This approach to environmental regulation has the advantage that 
effort can- be effectively invested in critical areas by dismissing 
cases of negligible impact. Animals may exhibit brief changes in 
behavior to any perceivable stimulus. If it can be persuasively 
demonstrated that these momentary shifts in attention and activity are 
insignificant in relation to both the time and energy budgets of these 
animals, then these reactions do not constitute an environmental risk 
that merits regulation.
    My remarks have focused upon behavioral reactions, because for 
almost all sound sources the risk of injury will be confined to a very 
small number of individuals (if any). The best evidence, culled from a 
wide variety of sources, suggests that permanent shifts in hearing 
thresholds will occur at sound levels that are limited to a range of 
several hundred meters from our loudest sound sources. Permanent damage 
to hearing almost certainly occurs at lower sound levels than damage to 
any other tissues. In order for the risk of injury to apply to a 
significant fraction of a population, the distribution and-movements of 
the animals would have to be very concentrated relative to the position 
and movement of the sound source. Given the spatial extent of most 
marine mammal populations, very few cases raise this concern.
    Here I must also emphasize that in terms of risk of death there is 
no distinction between behavioral reactions and injury. A severe flight 
or panic reaction to a sound can cause animals to fatally strand on 
shore.
    I close this section with a conundrum for environmental 
conservation. The irreversible nature of many environmental impacts 
motivates a cautious approach to assessing risk. Environmental impact 
assessments are required to incorporate plausible, worst-case 
assumptions. Thus, with complete' knowledge we should obtain less 
severe assessments of environmental impact than we are obligated to 
make when there are data gaps. This realization may encourage some 
environmental advocates to believe that it is in their best interests 
to inhibit environmental research or dismiss its findings. This 
strategy will be especially attractive to environmental activists who 
mistrust the scientific and federal policy processes.
    None of us should question the requirement for conservative bias in 
environmental risk assessments. However, the potential for strategic 
abuse of these statutory requirements would be greatly reduced by more 
effective public education regarding environmental policy. This means, 
for example, that public hearings regarding policy should invest 
serious effort in providing a forum for education and discussion in 
parallel with their mission to solicit public comment.
    A simple, effective mechanism for public education would to arrange 
for poster sessions. to run concurrently with hearings, in an adjacent 
room. Individuals, interest groups, regulators, and concerned 
commercial or federal organizations would be invited to display their 
views and informally discuss them with visitors. Citizens who come to 
comment would not have to sit passively listening to other people's 
comments, but could circulate in the poster area and participate in 
informal discussions.
    I suggest this based on my personal experience at NMFS public 
hearings regarding their LFA permit decision. Many intelligent and 
concerned citizens showed up, but their comments were all too easy to 
dismiss because they were misinformed about undisputed facts. The 
formal public comment sessions often degenerated into showy displays of 
antagonism and emotion. However, at these same hearings I enjoyed many 
thoughtful and constructive conversations in the hallways. People were 
hungry for facts, and open to new ways of thinking. When these informal 
discussions ended with differences of opinion, it was always much 
clearer what the basis for disagreement was.
    In my experience, better understanding of natural systems has 
allowed us to focus on critical environmental questions, and implement 
less onerous protective regulations. Environmental research may also 
reveal a new class of problems that had not been recognized previously, 
and it will always be less expensive to remedy such problems when they 
are detected early. Better information is essential for efficient 
environmental management and developing a lasting consensus regarding 
the conservation of biodiversity. History conclusively demonstrates 
that ignorance has never favored the preservation of natural habitats.
                Reactions of marine mammals to LFA sonar
    The LFA SRP was preceded by several studies showing that that 
baleen whales avoided industrial noise sources. Studies of several 
species demonstrated changes in movements related to sounds at received 
levels between 115 and 125 dB relative to an underwater sound pressure 
level of 1 Pa (this common received level reference will be omitted 
hereafter). Speaking in relation to the potential for hearing loss, 
Richardson of al. 1995 (Marine Mammals and Noise, p. 369) stated: ``It 
is doubtful that many marine mammals would remain for long in areas 
where received levels of continuous underwater noise are 140+ dB at 
frequencies to which the animals are most sensitive.'' Based on these 
results, simple calculations indicated that LFA could affect huge areas 
of marine habitat. The U. S. Navy funded a Scientific 'Research Program 
(LFA SRP) to address critical gaps in our ability to predict the 
responses of marine animals to this sound source. In early 1997, the 
Navy sponsored meetings at which a collection of independent scientists 
and environmentalists identified the most promising opportunities for 
filling these data gaps. Three field projects emerged from these 
deliberations, and approximately 60 researchers participated in the 
resulting data collection.
    Given the expectation that LFA signals could evoke acute behavioral 
reactions, a wide range of research protocols were adopted by the LFA 
SRP to ensure that none of the free-ranging animals understudy could be 
permanently affected by the experiments. Foremost among these 
precautions were commitments to ensure that no experimental animal 
would receive LFA signals at levels exceeding 160 dB, and that no 
animals within 3 nautical miles of shore were exposed to received 
levels exceeding 140 dB. Observational protocols called for suspension 
of LFA broadcasts when any member of the research team witnessed an 
acute reaction.
    The three field programs of the LFA SRP generated enormous volumes 
of data, which are still being analyzed. Focal studies of individual 
animal behavior were conducted with received levels ranging from 125 dB 
to 155 dB. The most immediate and striking observations were the 
failure to observe any obvious response during the experiments., In 
terms of behaviors, movements, and the distributions of animals in the 
study area, no salient reactions to the LFA broadcasts were noted by 
large teams of observers. The reactions we can document emerged after 
months of detailed analyses of these data.
    For example, after months of detailed analysis we were able to 
document that on average, humpback whales changed their song length by 
about 50 seconds in response to LFA broadcasts at close range. Humpback 
songs are inherently variable in length. Successive songs sung by 
individuals differed by 2.5 minutes in length on average, with the mean 
song length being 13.5 minutes. We found no association between the 
start of transmissions and the end of songs, so humpbacks did not 
artificially terminate their songs upon hearing the LFA broadcasts. 
However, the response we did measure was contingent on the portion of 
the song being sung at the time of the transmission. Humpbacks 
sometimes shortened, and sometimes lengthened their songs upon hearing 
an LFA broadcast. None of the responses we measured persisted for more 
than a few hours after the last transmission.
[GRAPHIC] [TIFF OMITTED] 75640.008

    Plot of humpback song length against minutes since last LFA 
broadcast. The line indicates the best fit, after accounting for 
seasonal, diurnal, and source level factors. The points in the 
neighborhood of 1000 minutes and beyond serve as the control measures 
here; the apparent anomaly for the rightmost five points is an artifact 
of small sample size.
[GRAPHIC] [TIFF OMITTED] 75640.009

    Tracks of migratory gray whales observed from shore stations (two 
dots above and left of the center of the plots). A 185 dB re 1 mu PA at 
1 m sound source (single dot amidst the track lines) was moored in or 
near the migration corridor. Panels on the left represent tracks when 
the source was off, panels on the right represent tracks when the 
source was on. Note that the reaction to the source disappeared when it 
was moored farther offshore.

    This gray whale experiment was modeled on an early study that 
helped establish the original 120 dB received level guideline that NMFS 
used to identify behavioral harassment from sound exposure. The 
original results were confirmed by the results obtained with the source 
in the middle of the migration path. The surprising new result was that 
this reaction disappeared when the source was moved offshore. This 
latter result was strengthened by additional offshore broadcasts at 
source levels of 200 dB. Again, no changes in tracks were observed. 
This means that the response is not conditioned on received level 
alone; it depends on the position of the source relative to the desired 
movement pattern of the animal. The failure of offshore animals to 
react at all either reflects the importance of other factors like water 
depth and distance from shore, or the reduced sensitivity of the 
offshore migrating animals relative to those in the migration corridor.
    Four baleen Whale species were closely studied in these 
experiments, and the distributions of more than ten other species were 
documented by visual surveys during two of the field studies. There was 
no evidence of a decrease in sighting rates for any species. So, close 
behavioral studies of tens of animals, combined with more distant 
observations of hundreds of animals, failed to reveal any reaction that 
would plausibly cause a significant change in survival or reproduction. 
This research decisively demonstrated that the response to these LFA 
broadcasts was much less salient than the scientific community had 
expected.
    These experiments could not resolve all questions, and it will 
never be possible to study every species. Although the species we 
studied were chosen because scientists judged them most likely to be at 
risk, there are other species that merit similar studies to expand our 
results. However, there is n 'o new evidence that suggests another 
species will exhibit stronger reactions to low frequency sounds than 
the species that we studied. These research results have focused 
attention on much higher exposure levels, above the levels that were 
initially judged safe for our experiments. However, such studies are 
not of primary importance for evaluating the environmental impact of 
LFA. Extensive modeling has demonstrated that the vast majority of 
animals will be exposed to levels below those tested in our experiments 
during normal LFA operations.
    I want to close with some general observations that have helped me 
understand why it is so easy to overestimate the impact of low 
frequency sounds on marine mammals. We forget that marine mammals 
experience a world of sound entirely different from our own, and with 
very different ears. Marine mammal ears must accommodate vastly greater 
changes in pressure than we do. Marine mammals also encounter much 
louder sounds in their lives than we do. Undersea seismic events 
produce enormously powerful sounds, for which the only terrestrial 
analog might be an explosive volcanic eruption. It would be rare for a 
human to be close to such an eruption, or survive it, but pelagic 
marine mammals probably pass by seismically active areas many times in 
their lives. Lightning strikes produce extremely loud sounds in air and 
water, but these sounds carry much farther underwater. Finally, marine 
mammals produce the loudest sounds in the animal kingdom. Their ears 
must have evolved to deal with their own sounds, and with the sounds of 
their close neighbors.
    Another critical difference between our experience and that of 
marine mammals results from the relative sizes of our acoustic 
neighborhoods. In general, sound carries much farther in the water than 
in air. When we hear a sound, we can be sure its source is close enough 
to have a potential impact on us. In contrast, all marine mammals can 
hear sounds from very distant sources that they will never encounter. 
This suggests that marine mammal attention mechanisms must incorporate 
the ability to gauge the distance to a sound source, to diminish their 
responses to sounds from distant sources that are irrelevant to them. 
The LFA SRP probably evoked stronger reactions than will take place 
during normal operations in the open ocean. We achieved the same 
received levels that animals would experience during normal operations, 
but we brought the ship quite close to the animals (with lower transmit 
power levels) to do so. Some of the reactions we documented were 
probably amplified by the proximity of the source.
    The LFA SRP established a high scientific standard for studying and 
estimating noise impacts, and significantly advanced our understanding 
of marine mammal responses to noise. New questions 'about Navy 
operational impacts on marine mammals have arisen, and the LFA SRP 
offers a good initial model for the process that should be used to 
address the most significant data gaps. I also advocate broadening the 
circle of scientists who participate in this research.
                 The LFA Environmental Impact Analysis
    Although the LFA SRP generated an enormous amount of data, and 
answered' several critical questions, many areas of uncertainty remain. 
This will always be the case, no matter how much time: and effort are 
devoted to filling data gaps. This is why I am unsympathetic to general 
claims that more time and research -are needed before a decision can be 
reached regarding deployment of LFA. As a scientist, I am always 
enthusiastic about more research, but I am skeptical then research 
alone can ever resolve these disputes. To make a valid claim that more 
research is needed, there must be -a-clear specification of how the 
data would significantly change our mutual assessment that the system 
can be safely operated. As an aside, I cannot imagine how the results 
of the LFA SRP could have been any more conclusive in, reducing our 
concerns about the system's, environmental impact.
    An unprecedented acoustic modeling effort was developed to 
translate the LFA SRP results into a cautious estimate of risk to 
marine mammals. The LFA SRP data were used to develop a lower bound for 
risk of biologically significant disruption of behavior, and realistic 
Navy operational scenarios were simulated to estimate the potential 
impact on all marine mammals known to occur in those areas.
    This LFA environmental impact analysis incorporated several 
conservative assumptions.
    1. LBaleen whales were used to model responses of all species. Most 
other species have much less acute low frequency hearing, and do not 
produce low frequency sounds.
    2. LModeled operational scenarios were placed at sites where 
significant potential for impact on marine mammal populations was 
possible. Stock estimates were biased to exaggerate effects.
    3. LThe effects of a series of LFA broadcasts were treated as 
cumulative, despite the intervals of silence between broadcasts and the 
fact that animals would not hear the signals when they were at the 
surface.
    4. LA 180 dB criterion for the possible onset of injury was 
adopted, based on evidence regarding temporary shifts in hearing 
thresholds and other precautionary warnings of physiological effects.
    5. LThe function describing risk as a function of received level 
was steeper than analogous functions derived from empirical studies of 
marine mammal behavior.
    The aggregate effect of these assumptions is a substantial 
overestimate of impact, which, is the prudent approach to uncertainty 
and. data gaps. Some of these individual assumptions may fail to be 
conservative, but it is very unlikely that the aggregate results would 
underestimate risk.
    It is crucial to ensure that the cascade of conservative 
assumptions does not yield a completely implausible estimate of risk. 
The consequence of grossly inflated risk estimates would be wasteful 
expenditure of .public capital and mindfulness -on one problem, when 
many critical environmental issues go begging. It would also undermine 
the legitimacy of the regulatory process, and encourage potential 
subjects to avoid regulation at all costs.
    I believe that marine noise pollution is a serious problem that 
merits comprehensive review. To effectively reduce marine noise levels, 
we will need to identify all activities that introduce significant 
sound energy in the oceans. We will need to devise equitable measures 
for reducing noise production, and ensure that all responsible parties 
consistently comply. Anything less will fail to achieve our shared goal 
of protecting marine mammals and conserving ocean habitats.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much. I just wanted to keep 
interrupting you and ask you a series of questions while you 
were talking, but I will wait until everybody is done with the 
testimony. Thank you very much.
    Dr. Ketten?

STATEMENT OF DARLENE R. KETTEN, ASSOCIATE SCIENTIST, DEPARTMENT 
 OF BIOLOGY, WOODS HOLE OCEANOGRAPHIC INSTITUTE, AND ASSISTANT 
   PROFESSOR, DEPARTMENT OF OTOLOGY AND LARYNGOLOGY, HARVARD 
                         MEDICAL SCHOOL

    Ms. Ketten. Chairman Gilchrest, ladies and gentlemen, thank 
you very much for allowing me to testify and for asking me to 
address what I hope will be useful information from my area of 
expertise, which is hearing and hearing loss. I am honored to 
be here, mostly because I think this is a very important issue, 
and I appreciate the fact that the Committee is willing to go 
forward with these testimonies.
    Hearing is a significant sense, not just because I work on 
it. It is indeed perhaps the most universal of senses. There 
are many environments in which some sensory cues are lacking; 
lightless environments which have inhabitants that are blind. 
Sound is universal. There is no environment except deep space 
that is without sound, and to the best of our knowledge there 
is no vertebrate that does not hear, no naturally deaf animal.
    In water, hearing is actually even more important. In 
water, sound is the one physical cue that carries over long 
distances with coherent information, with little degeneration 
or degradation of that signal. Therefore, many aquatic animals 
depend primarily for their sensory inputs on hearing.
    Consequently, concerns about impacts from particularly 
anthropogenic sound--I am from Harvard, I have to use five 
syllables--that is, sounds which humans are putting into the 
water, are appropriate. They are timely. But they must not be 
unbound. I am concerned that we should instead have our 
concerns about impacts focused by factual information and by 
reason, as Dr. Fristrup has already touched upon.
    The Committee hearing is appropriate and it is an important 
step forward to that end. There is a great deal of speculation 
around LFA in particular, and I would hope that we could start 
instead applying the information we do have.
    In terms of assessing risk, allow me to give a few basic 
bits of information about hearing and about how hearing is 
lost. All mammals have the same basic ear. It is designed to 
capture, filter and analyze sound.
    But, fortunately for people like me that are interested in 
other animals, not all ears are synonymous. They are not all 
alike. Structures differ in those ears. That makes for 
different hearing capacities, different frequencies and 
sensitivities, abilities to hear.
    Each species differs in what it hears. Each species has an 
ear tuned to its habitat, to its needs. It is the ``breed and 
feed'' theory of hearing. You have to hear your predators, find 
your mates, communicate with other members of your species.
    What harms one, for that reason, will not necessarily harm 
another. Hearing may overlap, but they are not synonymous. 
Sound is universal, as I have said, but hazards from sound are 
therefore not universal.
    We fortunately know a good deal about how hearing is lost, 
in part because it is so important to us. However, we know 
about hearing losses primarily from a human perspective. What 
we know about animal hearing loss is largely based on 
experimental animals that are used as analogs for human 
hearing.
    We know hearing is lost by disease, that it is lost by 
trauma, and it is lost by noise. Some mention has been made 
about sound being used to damage other tissues. I would like to 
set that aside. That is an extraordinary sound signal. It is 
not what we are talking about in terms of received signals from 
sonars or other anthropogenic sound.
    Whether any one sound, as I have said, is harmful for one 
animal or another is actually a combination of three major 
factors. The acronym is IFS: intensity; frequency; and 
sensitivity, the ability of the animal to hear that signal. It 
has been said that even if you can't hear a sound, it can harm 
you. That is not entirely true.
    There is no single sound bite that I can give you that is 
safe or harmful to all marine animals. What do we know about 
marine mammals? Unfortunately, we know relatively little. In 
terms of research, as I said, we don't look at natural animal 
hearing. We look at them as analogs. Therefore, marine mammal 
hearing has been a poor stepchild in the auditory research 
domain.
    We have so far tested approximately 20 percent of the 110 
species of whales, dolphins, other marine mammals, total. They 
are all small captive animals, that is to say, smaller dolphins 
that usually are high frequency. Behaviorally, we know that 
they have a greater frequency range, better acuity. They are 
sensitive ears.
    From modeling, from anatomy, we know that the larger whales 
are the ones that are likely to hear at low frequencies. That 
is less than 10 percent of all marine mammals, 10 percent of 
species, are likely to be impacted because of their sensitivity 
to lower frequency signals. But again, it requires a 
coincidence of that species at an intensity that is harmful in 
a vicinity where it can cause a disruption, as Dr. Whitehead 
has so properly noticed about population level effects.
    There is also one other aspect to these ears that is very 
important. There is an interesting paradox. The seas are not 
silent. They evolve to tolerate noise. There is very good 
evidence now that particularly dolphins are somewhat resistant 
to acoustic trauma, and that is an area that we really need to 
pursue desperately.
    The last thing that I wanted to say is that, again, it has 
been said a deaf whale is a dead whale. That is not entirely 
true. We also know that they do lose hearing, as we do, from 
disease, from trauma, and from noise. Again, the possible 
impacts of manmade noise are important, but we must also not 
assume that every stranded animal has necessarily been impacted 
by sound.
    The Bahamian beached whale case has been brought up over 
and over again. I am a key component of that investigation. It 
is not related to LFA. I would be pleased to answer questions 
about that.
    My last point--and I apologize for going over, I will sum 
up--that is, there are multiple sounds and multiple effects 
that we are putting out there. Sonars are certainly one of 
them. I would much prefer that we direct ourselves to what I 
consider an occupational hazard, the long-term noise at lower 
levels that is constant and pervasive throughout our oceans.
    We are putting sounds into the oceans that are potential 
for harm, but I urge caution, not full stop, for any given 
program, particularly since if we begin that trend, we may 
deter development of useful or innovative sound tools that will 
assist us to preserve the animals. Rather, we should weigh each 
potential harm carefully, and rationally assess its probability 
of impact in the long and short term at population levels.
    Thank you very much for your attention.
    [The prepared statement of Ms. Ketten follows:]

Statement of Darlene R. Ketten, Ph. D., Associate Scientist, Department 
    of Biology, Woods Hole Oceanographic Institution and Assistant 
  Professor, Dept. of Otology and Laryngology, Harvard Medical School

MARINE MAMMAL AUDITORY SYSTEMS: A SUMMARY OF AUDIOMETRIC AND ANATOMICAL 
       DATA AND ITS IMPLICATIONS FOR UNDERWATER ACOUSTIC IMPACTS
Terminology
Audiogram: A graph of hearing ability charting frequency (abcissa) vs. 
sensitivity measured as sound pressure or intensity (ordinate).

Cetaceans: Whales and dolphins

decibel (dB): a scale based on the log ratio of two quantities. It is 
commonly used to represent sound pressure level or sound intensity. The 
value of the decibel depends upon the denominator used, or reference 
pressure. Therefore the decibel level of sound is properly stated in 
the form of n dB re n microPa . The microPascal is a unit of pressure; 
e.g., 100 dB re 20 microPa in air equals 160 dB re 1 mu microPa in 
water.

infrasonic: below 20 Hz, the lower limit of human hearing

kHz: kilo Hertz. A Hertz (Hz) is a measure of sound frequency equal to 
1 cycle/sec, therefore a kHz is one thousand cycles per second.

Mysticetes: Baleen or moustached whales, which include rorquals. The 
largest whales, all of which are opportunistic gulp or seine feeders. 
They are not known to echolocate.

Octave: An octave is broadly defined as a doubling of frequency. Thus, 
a one octave shift from 500 Hz is 1,000 Hz, and from 3,000 Hz, it is 
6,000 Hz. Adult humans have on average an 8-9 octave functional hearing 
range from 32 Hz to 16 kHz.

Odontocetes: toothed whales. All are believed to echolocate; i.e., to 
use a biosonar for imaging the environment via sound and sound 
analyses.

Pinnipeds: Seals, sea lions, walruses.

ultrasonic: above 20 kHz, the upper limit of human hearing.
Introduction
    Concomitant with man's increasing use of the oceans is an increase 
in the ocean's acoustic budget. In the mid 1970's, it was estimated 
that noise from human related activity was increasing in coastal areas 
and shipping lanes at 10 dB per decade. Given our ever increasing 
activity in all seas and at all depths, this figure is not surprising. 
It may even be too conservative., Anthropogenic noise is an important 
component of virtually every human endeavor in the oceans, whether it 
be shipping, transport, exploration, research, military activities, 
construction, or recreation. For some activities, such as military and 
construction, impulsive and explosive devices are fundamental tools 
that are intermittent but intense; for others, such as shipping, the 
instantaneous noise may be less, but sound is inherent in daily 
operations and is therefore a constant, pervasive by-product. Because 
these activities span the globe and produce sounds over the entire 
audible range of most animals, it is reasonable to assume that man-made 
noise in the oceans can have a significant adverse impact on marine 
species. Because marine mammals are especially dependent upon hearing 
and in many cases are endangered, the concern over noise impacts on 
these animals is particularly acute. Our concern is both logical and 
appropriate, but it is also, at this time, unproved and the range of 
concerns is unbounded. For responsible stewardship of our oceans it is 
imperative that we begin to measure and understand our impacts, and, 
more important, that we proceed with a balanced and informed view. To 
that end, this hearing is a significant, positive step.
    Hearing for any animal is an important sense. Many sensory cues are 
limited in their distribution and utility. Sound however is literally 
universal While many animals inhabit lightless environments and are 
blind, there are no known vertebrates that are naturally, profoundly 
deaf. There is no habitat, except space, that is soundless, and sound 
is such a significant cue, carrying such a wealth of information that 
hearing is well developed in virtually every animal group. We employ 
sound and hearing both passively and actively, listening not only in 
the dark but even while asleep. The cues are constant and diverse, 
providing information on the direction and nature of the sources and 
how they change through time. Sound is a key element for survival and 
hearing is a key component of communication, mate selection, feeding, 
and predator avoidance.
    For marine mammals, hearing is arguably their premier sensory 
system. It is obvious from their level of ear and neural auditory 
center development alone. Dolphins and whales devote three fold more 
neurons to hearing than any other animal. The temporal lobes, which 
control higher auditory processing, dominate their brain, and they 
appear to have faster auditory and signal processing capabilities than 
any other mammal. Since the late 1950's we have been aware that 
dolphins, at least, use very high ultrasonic signals as a form of 
biosonar. Using sound they can distinguish amongst different metals and 
detect differences as small as a few mm in two objects. To date, 
despite 50 years of research on dolphin biosonar, we are still 
incapable of duplicating some of their feats. However, despite the 
multifaceted evidence we have for exceptional and diverse hearing in 
marine mammals, we still know very little about how and what they hear.
    This statement summarizes and critiques existing auditory data for 
marine mammals. It was compiled primarily as a background document for 
assessing potential impacts of anthropogenic sounds, including long-
range detection or sonar devices. To that end, it has the following 
emphases: a description of currently available data on marine mammal 
hearing and ear anatomy, a discussion and critique of the methods used 
to obtain these data, a summary and critique of data based on hearing 
models for untested marine species, and a discussion of data available 
on acoustic parameters that induce auditory trauma in both marine and 
land mammals. In order to place these data in an appropriate context, 
summaries are incorporated also of basic concepts involved in 
underwater vs. air-borne sound propagation, fundamental hearing 
mechanisms, and mechanisms of auditory trauma in land mammals. Lastly, 
to maximize the utility of this document, a brief discussion has been 
included on the potential for impact on hearing from several recently 
proposed devices and an outline of research areas that need to be 
addressed if we are to fill the relatively large gaps in the existing 
data base.
Mammalian Hearing Fundamentals
    The term ``auditory system'' refers generally to the suite of 
components an animal uses to detect and analyze sound. There are two 
fundamental issues to bear in mind for the auditory as well as any 
sensory system. One is that sensory systems and therefore perception 
are species specific. The ear and what it can hear is different for 
each species. The second is that they are habitat dependent. In terms 
of hearing, both of these are important issues.
    Concerning the first issue, species sensitivities, all sensory 
systems are designed to allow animals to receive and process 
information from their surroundings which means they act as highly 
selective filters. If every environmental cue available received equal 
attention, the brain would be barraged by sensory inputs. Instead, 
sensory organs are essentially multi-level filters, selecting and 
attending to signals that, evolutionarily, proved to be important.
    Most animals have vocalizations that are tightly linked to their 
peak hearing sensitivities in order to maximize intra-specific 
communication, but they also have hearing beyond that peak range that 
is related to the detection of acoustic cues from predators, prey, or 
other significant environmental cues. Consider, in general, how 
predator and prey are driven to be both similar and different 
sensorially. Because their activities intersect in place and time, they 
need, for example, to have similar visual and auditory sensitivities, 
but, ideally, different fields of view and hearing ranges. Similarly, 
two species living within similar habitats or having common predators 
and prey have some hearing bands in common but will differ in total 
range because of anatomical and functional differences that are species 
dependent and reflect other ``species-specific'' needs. Thus, each 
animal's perceived world is a different subset of the real physical 
world; i.e., it is a species-specific model, constructed from the 
blocks of data its particular sensory system can capture and process. 
Two species may have overlapping hearing ranges, but no two have 
identical sensitivities. This is of course the case with piscivorous 
marine mammals, their fish targets, and with their prey competitors. It 
is also the case with whales and ships. They both have navigational and 
predator detection needs.
    In animal behavior, this concept is called the Umwelt (von Uexkull 
1934). As a technical term, Umwelt means an animal's perceptually 
limited construct of the world. In common usage, it means simply the 
environment. This dual meaning reflects the complex interaction of 
sensory adaptations and habitat, which leads us to the second issue; 
i.e., the relation or influence of habitat on sensory abilities. While 
senses are tuned to relevant stimuli by evolution they are nevertheless 
limited by the physical parameters of the habitat.
    Mechanistically, hearing is a relatively simple chain of events: 
sound energy is converted by bio-mechanical transducers (middle and 
inner ear) into electrical signals (neural impulses) that provide a 
central processor (brain) with acoustic data. Mammalian ears are 
elegant structures, packing over 75,000 mechanical and electrochemical 
components into an average volume of 1 cm3. Variations in the structure 
and number of ear components account for most of the hearing capacity 
differences among mammals.
    Hearing ranges and the sensitivity at each audible frequency 
(threshold, or minimum intensity required to hear a given frequency) 
vary widely by species). ``Functional'' hearing refers to the range of 
frequencies a species hears without entraining non-acoustic mechanisms. 
In land mammals, the functional range is generally considered to be 
those frequencies that can be heard at thresholds of 60 dB SPL, a 
decibel measure of sound pressure level. The basis for this measure and 
how it differs in air and water is explained in the next section.
    By example, a healthy human ear has a potential maximum frequency 
range of 0.02 to 20 kHz but the normal functional hearing range in an 
adult is closer to 0.040 to 16 kHz (Fig. 1). In humans, best 
sensitivity (lowest thresholds) occurs between 500 Hz and 4 kHz, which 
is also where most acoustic energy of speech occurs (Schuknecht 1993, 
Yost 1994). Sounds that are within the functional range but at high 
intensities (beyond 120 dB SPL) will generally produce discomfort and 
eventually pain. To hear frequencies at the extreme ends of any 
animal's total range generally requires intensities that are 
uncomfortable, and frequencies outside or beyond our hearing range are 
simply undetectable because of limitations in the ear's middle and 
inner ear transduction and resonance characteristics. Through bone 
conduction or direct motion of the inner ear, exceptionally loud sounds 
that are outside the functional range of the normal ear can sometimes 
be perceived, but this is not truly an auditory sensation.
    ``Sonic'' is an arbitrary term derived from the maximal human 
hearing range. Frequencies outside this range are deemed infrasonic 
(below 20 Hz) or ultrasonic (above 20 kHz) sonic. We know that many 
animals hear sounds inaudible to humans; consider the training whistles 
in common use that are silent to humans but clearly audible by dogs . 
Most mammals have some ultrasonic hearing (i.e., can hear well at 
frequencies >20 kHz) and a few, like the Asian elephant, Elephas 
maximus, hear and communicate with infrasonic signals (<20 Hz).
[GRAPHIC] [TIFF OMITTED] 75640.031

Figure 1. Zones of hearing vs. potential impact areas are shown for 
human hearing. The bottom curve shows the average human threshold in 
air vs. frequency (Yost, 1994). The white zone represents the generally 
safe zone. The gray zone represents the region in which temporary 
hearing loss is likely, but depends upon a combination of intensity vs. 
length of exposure. Note that the border for probable onset of 
temporary threshold shift is generally 80 dB over minimum threshold and 
essentially parallels the normal human hearing curve. Discomfort and 
pain are by contrast essentially flat functions independent of hearing 
threshold, with onsets near 120 dB re 20 microPascal (approximately 182 
dB re 1 microPascal equivalent).

    That brings us to three major auditory questions: 1) what are the 
differences marine and land mammal ears, 2) how do these differences 
relate to underwater hearing, and 3) how do these differences affect 
the acoustic impacts?
    To address these questions requires assimilating a wide variety of 
data. Behavioral and electrophysiological measures are available for 
some odontocetes and pinnipeds, but there are no published hearing 
curves for any mysticete. We have anatomical data on the auditory 
system for approximately one-third of all marine mammal species, 
including nearly half of the larger, non-captive species. These data 
allow us to estimate hearing based on physical models of the middle and 
inner ear. To some extent it also allows us to address potentials for 
impact. For marine mammals it is necessary to bring both forms of data, 
direct from behavioural tests and indirect from models, to bear. Before 
beginning those discussions, however, it is necessary to explain a few 
of the ``rules'' for sound in water vs. air.
Sound in air vs. water
    Hearing is simply the detection of sound. ``Sound'' is the 
propagation of a mechanical disturbance through a medium. In elastic 
media like air and water, that disturbance takes the form of acoustic 
waves. Basic measures of sound are frequency, speed, wavelength, and 
intensity. Frequency, measured in cycles/sec or Hertz (Hz), is defined 
as:
    f = c/lambda
where c = the speed of sound (m/sec) and lambda is the wavelength (m/
cycle).
    The speed of sound is not invariable; it depends upon the density 
of the medium. Because water is denser than air, sound in water travels 
faster and with less attenuation than sound in air. Sound speed in air 
is approximately 340 m/sec. Sound speed in sea water averages 1530 m/
sec but will vary with any factor affecting density and any ocean 
region can have a highly variable sound profile that may change both 
seasonally and regionally. For practical purposes, in water sound speed 
is 4.5 times faster and, at each frequency, the wavelength is 4.5 times 
greater, than in air.
    How do these physical differences affect hearing? Mammalian ears 
are primarily sound intensity detectors. Intensity, like frequency, 
depends on sound speed and, in turn, on density. Sound intensity (I) is 
the acoustic power (P) impinging on a surface perpendicular to the 
direction of sound propagation, or power/unit area (I=P/a). Intensity 
for an instantaneous sound pressure for an outward traveling plane wave 
in terms of pressure, sound speed, and density is defined 
mathematically as:
[GRAPHIC] [TIFF OMITTED] 75640.032

where Pm is the pressure measured and Pr is an arbitrary reference 
pressure. Currently, two
    standardized reference pressures are used. For air-borne sound 
measures, the reference is dB re 20 gPa rms, derived from human 
hearing. For underwater sound measures, the reference pressure is dB re 
1 mu Pa.
    Decibels are a logarithmic scale that depends on reference 
pressure. In the earlier hypothetical example, with identical reference 
pressures, the animal needed a sound level 35.5 dB greater in water 
than in air. However, if conventional references for measuring levels 
in air vs. water are used, the differences in reference pressure must 
be considered as well. This means he underwater sound pressure level in 
water if measured with conventional reference pressures would need to 
be 61.5 dB re 1 mu Pa greater in water to be equivalent to the decibel 
in air or dB re 20 Pa in air. Thus, the rule of thumb is that to 
compare air vs underwater sound intensities, the numerical value of the 
water sound pressure level must be thought of as being reduced by 61.5 
dB to be comparable numerically to an intensity level reported in air.
    It is important to remember that these equations describe idealized 
comparison of air and water borne sound. In comparing data from 
different species, particularly in comparing air based land mammal and 
marine mammal hearing, experimental condition differences are extremely 
important. We have no underwater equivalent of anechoic chambers, often 
results are obtained from one individual that may not have normal 
hearing, and test conditions are highly variable.
Mechanisms of Acoustic Trauma
Temporary vs, Permanent Threshold Shifts
    Because of our considerable interest in human hearing and how 
hearing is lost or may be ameliorated, noise trauma is a well-
investigated phenomenon. For the sake of completeness in the following 
discussion, noise trauma has been divided into lethal and sublethal 
impacts, although only sublethal impacts are likely to be relevant in 
the case of long-range sonar devices. Lethal impacts are those that 
result in the immediate death or serious debilitation of the majority 
of animals in or near an intense source; i.e., profound injuries 
related to shock wave or blast effects which are not, technically, pure 
acoustic trauma. Lethal impacts are discussed briefly at the end of 
this section. Sublethal impacts are those in which a hearing loss is 
caused by exposures to sounds that exceed the ear's tolerance to some 
acoustic parameter; i.e., auditory damage occurs from exhaustion or 
over-extension of one or more ear components. Of course, sublethal 
impacts may ultimately be as devastating as lethal impacts, causing 
death through impaired foraging, predator detection, communication, 
stress, or mating disruption, but the potential for this type of 
extended or delayed impact from any sound source is not well understood 
for any mammal.
    Essentially whether there is any hearing loss and, if so, what 
portion of hearing is lost, comes down to three interactive factors:
Intensity, frequency, and sensitivity.
    To determine whether any one animal or species is subject to a 
sublethal noise impact from a particular sound requires understanding 
how its hearing abilities interact with that sound. Basically, any 
noise at some level has the ability to damage hearing by causing 
decreased sensitivity. The loss of sensitivity is called a threshold 
shift. Not all noises will produce equivalent damage at some constant 
exposure level. The extent and duration of a threshold shift depends 
upon the synergistic effect of several acoustic features, including how 
sensitive the subject is to the sound. Most recent research efforts 
have been directed at understanding the basics of how frequency, 
intensity, and duration of exposures interact to produce damage rather 
than interspecific differences: that is, what sounds, at what levels, 
for how long, or how often will commonly produce recoverable (TTS - 
Temporary Threshold Shift) vs permanent (PTS) hearing loss.
    Three fundamental effects are known at this time:
    1) Lthe severity of the loss from any one signal may differ among 
species.
    2) Lfor pure tones, the loss centers around the incident frequency.
    3) Lfor all tones, at some balance of noise level and time, the 
loss is irreversible.
    Hearing losses are recoverable (TTS - temporary threshold Shift) or 
permanent (PTS) primarily based on extent of inner ear damage the 
received sound and received sound level causes. Temporary threshold 
shifts (TTS) will be broad or punctate, according to source 
characteristics. The majority of studies have been conducted with cats 
and rodents, using relatively long duration stimuli (> 1 hr.) and mid 
to low frequencies (1-4 kHz) (see Lehnhardt, 1986, for summary). Inner 
ear damage location and severity are correlated with the power spectrum 
of the signal in relation to the sensitivity of the animal. Virtually 
all studies show that losses are centered around the peak spectra of 
the source and are highly dependent upon the frequency sensitivity of 
the subject. For narrow band, high frequency signals, losses typically 
occur only in or near the signal band, but intensity and duration can 
act synergistically to broaden the loss.
    The point cannot be made too strongly that this is a synergistic 
and species-specific phenomenon. Put simply, for a sound to impact an 
ear, that ear must be able to hear the sound, and, equally important, 
the overall effect will depend on just how sensitive that ear is to the 
particualr sound. For this reason there is no single, simple number; 
i.e., no one sound byte, for all species that accurately represents the 
amount of damage that can occur.
    In effect, the duration of a threshold shift, is correlated with 
both the length of time and the intensity of exposure. In general, if 
the duration to intense noise is short and the noise is narrow, the 
loss is limited and recoverable. In most cases a signal intensity of 80 
dB over the individual threshold at each frequency is required for 
significant threshold shifts (see Fig. 1). This finding led to the 
current OSHA allowable limit of 90 dB re 20 tPa for human workplace 
exposures for broad spectrum signals (Lehnhardt, 1986).
    Unlike TTS which is highly species dependent, PTS onsets are more 
general. One important aspect of PTS is that signal rise-time and 
duration of peak pressure are significant factors. Commonly, if the 
exposure is short, hearing is recoverable; if long, or has a sudden, 
intense onset and is broadband, hearing, particularly in the higher 
frequencies, can be permanently lost (PTS). In humans, PTS results most 
often from protracted, repeat intense exposures (e.g., occupational 
auditory hazards from background industrial noise) or sudden onset of 
intense sounds (e.g., rapid, repeat gun fire). Sharp rise-time signals 
have been shown also to produce broad spectrum PTS at lower intensities 
than slow onset signals both in air and in water (Lipscomb, 1978; 
Lehnhardt, 1986; Liberman, 1987). Hearing loss with aging (presbycusis) 
is the accumulation of PTS and TTS insults to the ear. Typically, high 
frequencies are lost first with the loss gradually spreading to lower 
frequencies over time.
    In experiments with land mammals, multi-hour exposures to narrow 
band noise are used to induce both TTS and PTS and initial shifts are 
often in the 10's of decibels. Work to date on marine mammals has been 
much more conservative with relatively short exposures that induce less 
than 10 dB of shift which is considered invariably temporary. 
Consequently there are serious concerns that the numbers from current 
experiments cannot be used to extrapolate PTS from TTS data as the 
current curves are not yet at the conventional or comparative TTS 
frontier as defined for land mammals and humans. As noted above, most 
mammals with air-adapted ears commonly incur temporary losses when the 
signal is 80 dB over threshold. The only other available data for 
underwater shifts are from experiments that produced TTS in humans for 
frequencies between 0.7 and 5.6 kHz (our most sensitive range) from 
underwater sound sources when received levels were 150-180 dB re 1 mu 
Pa (Smith and Wojtowicz 1985, Smith et al. 1988). Taking into account 
differences in measurements of sound pressure in air vs. water 
(equations 4 and 5), these underwater levels are consistent with the 
80-90 dB exposure levels that induce TTS in humans at similar 
frequencies in air.
Blast Injury
    Simple intensity related loss is not synonymous with blast injury. 
Acoustic trauma induced by sudden onset, loud noise ( a ``blast'' of 
sound) is not synonymous with blast trauma, nor are noise and blast 
effects of the same magnitude. Blast injuries generally result from a 
single exposure to an explosive shock wave which has a compressive 
phase with a few microseconds initial rise time to a massive pressure 
increase over ambient followed by a rarefactive wave in which pressure 
drops well below ambient.
    Blast injuries may be reparable or permanent according to the 
severity of the exposure and are conventionally divided into three 
groups based on severity of symptoms, which parallel those of 
barotrauma:
[GRAPHIC] [TIFF OMITTED] 75640.033

    Moderate to severe stages result most often from blasts, extreme 
intensity shifts, and trauma; i.e., explosions or blunt cranial impacts 
that cause sudden, massive systemic pressure increases and surges of 
circulatory or spinal fluid pressures (Schuknecht, 1993). Hearing loss 
in these cases results from an eruptive injury to the inner ear; i.e., 
with the rarefactive wave of a nearby explosion, cerebrospinal fluid 
pressures increase and the inner ear window membranes blow out due to 
pressure increases in the inner ear fluids. Inner ear damage frequently 
coincides with fractures to the bony capsule of the ear or middle ear 
bones and with rupture of the eardrum. Although technically a pressure 
induced injury, hearing loss and the accompanying gross structural 
damage to the ear from blasts are more appropriately thought of as the 
result of the inability of the ear to accommodate the sudden, extreme 
pressure differentials and over-pressures from the shock wave.
    At increasing distance from the blast, the effects of the shock 
wave lessen and even though there is no overt tissue damage, mild 
damage with some permanent hearing loss occurs (Burdick, 1981, in 
Lehnhardt, 1986). This type of loss is generally called an asymptotic 
threshold shift (ATS) because it is the result of saturation or in 
simpler terms extension past the breaking point of body and certainly 
auditory tissues.
    There is no well defined single criterion for sublethal ATS from 
blasts, but eardrum rupture, which is common to all stages of blast 
injury, has been moderately well investigated. Although rupture per se 
is not synonymous with permanent loss (eardrum ruptures can repair 
spontaneously if less than 25% of the membrane is involved or can be 
repaired surgically with no hearing loss if greater areas are 
compromised), the incidence of tympanic membrane rupture is strongly 
correlated with distance from the blast (Kerr, & Byrne, 1975). As 
frequency of rupture increases so does the incidence of permanent 
hearing loss. In zones where >50% tympanic membrane rupture occurred, 
30% of the victims had long term or permanent loss. Trauma to other 
areas of the auditory system such as the outer canal and middle ear 
bones are not nearly as well investigated. In light of concerns from 
the Bahamian beaked whale incident, this is an area warranting more 
research.
    Concerning survivable blast trauma, in general, complex and fast-
rise time sounds cause ruptures at lower overpressures than slow-rise 
time waveforms, and smaller mammals will be injured by lower pressures 
larger animals. Of the animals tested to date, sheep and pig have ears 
anatomically closest to those of whales and seals. The air-based data 
for pigs and sheep imply that overpressures >70 kPa are needed to 
induce 100% tympanic membrane rupture. However, cross-study/cross-
species comparisons and extrapolations are risky because of radically 
different experimental conditions as well as differences in acoustic 
energy transmission in the air and water. The data available for 
submerged and aquatic animals imply that lower pressures in water than 
in air induce serious trauma (Myrick et al., 1989; see also summary in 
Richardson, et al. 1991). For submerged terrestrial mammals, lethal 
injuries have occurred at overpressures-->55 kPa (Yelverton, 1973, in 
Myrick, et al., 1989; Richmond, et al., 1989). In a study of Hydromex 
blasts in Lake Erie the overpressure limit for 100% mortality for fish 
was 30 kPa (Chamberlain, 1976). The aquatic studies imply therefore 
that overpressures between 30 and 50 kPa are sufficient for a high 
incidence of severe blast injury. Minimal injury limits in both land 
and fish studies coincided with overpressures of 0.5 to 1 kPa.
Marine Mammal Hearing
    Hearing research has traditionally focused on mechanisms of hearing 
loss in humans. Animal research has therefore emphasized experimental 
work on ears in other species as human analogues. Consequently we 
generally have investigated either very basic mechanisms of hearing or 
induced and explored human auditory system diseases and hearing 
failures through these test species. Ironically, because of this 
emphasis, remarkably little is known about natural, habitat-and-
species-specific aspects of hearing in most mammals. With marine 
mammals we are at an extreme edge of not only habitat adaptations but 
also of ear structure and hearing capabilities.
    The same reasons that make marine mammals acoustically and 
auditorally interesting; i.e., that they are a functionally exceptional 
and an aquatic ear - also make them difficult research subjects. Marine 
mammal hearing has for many decades been the poor stepchild of our 
country's auditory research program. Consequently, we now find 
ourselves for multiple reasons in need of precisely the basic research 
information that we lack. Nevertheless, we can address some issues 
about marine mammal hearing, both directly and inferentially from the 
data in hand. While there are large gaps remaining in our knowledge, 
progress has been made on some fronts related to sound and potential 
impacts from noise.
    Marine mammals, and whales in particular, present an interesting 
hearing paradox. On one hand, marine mammal ears physically resemble 
land mammal ears. Therefore, since many forms of hearing loss are based 
in physical structure, it is likely hearing damage occurs by similar 
mechanisms in both land and marine mammal ears. On the other hand, the 
sea is not, nor was it ever, even primordially, silent. The ocean is a 
naturally relatively high noise environment. Principal natural sound 
sources include seismic, volcanic, wind, and even biotic sources. 
Whales and dolphins in particular evolved ears that function well 
within this context of high natural ambient noise. This may mean they 
developed ``tougher'' inner ears that are less subject to hearing loss. 
Recent anatomical and behavioral studies do indeed suggest that whales 
and dolphins may be more resistant than many land mammals to temporary 
threshold shifts, but the data show also that they are subject to 
disease and aging processes. This means they are not immune to hearing 
loss, and certainly, increasing ambient noise via human activities is a 
reasonable candidate for exacerbating or accelerating such losses
    Unfortunately, existing data are insufficient to accurately predict 
any but the grossest acoustic impacts on marine mammals. At present, we 
have relatively little controlled data on how the noise spectrum is 
changing in oceanic habitats as a result of human activities. We also 
have little information on how marine mammals respond physically and 
behaviorally to intense sounds and to long-term increases in ambient 
noise levels. Our current inability to predict the impact of man-made 
sounds in the oceans has spawned serious and occasionally vituperous 
debates in the scientific community as well as costly legal battles for 
environmental and governmental organizations. Ironically, our data gaps 
may also be hampering the development and deployment of even simple 
devices such as effective acoustic deterrents that could decrease 
marine mammal by-catch. This testimony will not fill the gaps in our 
knowledge but rather will discuss our current data base on both 
acoustic trauma and on the sound profiles of ocean habitats in the 
context of what we know about species variations in marine mammal 
hearing. It will focus on how species vary in their potential for 
impact and on how we may go about determining whether auditorially 
fragile species coincide with ``acoustic hotspots'' where man's sonic 
activities, particularly sonars as an issue for this committee, may 
damage hearing and disrupt key behaviours.
    The data available show that all marine mammals have a 
fundamentally mammalian ear which through adaptation to the marine 
environment has developed broader hearing ranges than are common to 
land mammals. Audiograms are available for only 10 species of 
odontocetes and 11 species of pinnipeds. All are smaller species which 
were tested as captive animals. However, there are 119 marine mammal 
species, and the majority are large wide-ranging animals that are not 
approachable or testable by normal audiometric methods. Therefore we do 
not have direct behavioral or physiologic hearing data for nearly 80% 
of the genera and species of concern for coastal and open ocean sound 
impacts. For those species for which no direct measure or audiograms 
are available, hearing ranges are estimated with mathematical models 
based on ear anatomy obtained from stranded animals or inferred from 
emitted sounds and play back experiments in the wild.
    The combined data from audiograms and models show there is 
considerable variation among marine mammals in both absolute hearing 
range and sensitivity. Their composite range is from ultra to 
infrasonic. Odontocetes, like bats, are excellent echolocators, capable 
of producing, perceiving, and analyzing ultrasonics frequencies well 
above any human hearing. Odontocetes commonly have good functional 
hearing between 200 Hz and 100,000 Hz (100 kHz), although some species 
may have functional ultrasonic hearing to nearly 200 kHz. The majority 
of odontocetes have peak sensitivities (best hearing) in the ultrasonic 
ranges although most have moderate sensitivity to sounds from 1 to 20 
kHz. No odontocete has been shown audiometrically to have acute; i.e., 
best sensitivity or exceptionally responsive hearing (<80 dB re 1 mu 
Pa) below 500 Hz.
    Good lower frequency hearing appears to be confined to larger 
species in both the cetaceans and pinnipeds. No mysticete has been 
directly tested for any hearing ability, but functional models indicate 
their functional hearing commonly extends to 20 Hz, with several 
species, including blue, fin, and bowhead whales, that are predicted to 
hear at infrasonic frequencies as low as 10-15 Hz. The upper functional 
range for most mysticetes has been predicted to extend to 20-30 kHz.
    Most pinniped species have peak sensitivities between 1-20 kHz. 
Some species, like the harbour seal, have best sensitivities over 10 
kHz. Only the elephant seal has been shown to have good to moderate 
hearing below 1 kHz. Some pinniped species are considered to be 
effectively double-eared in that they hear moderately well in two 
domains, air and water, but are not particularly acute in either. 
Others however are clearly best adapted for underwater hearing alone.
    To summarize, marine mammals as a group have functional hearing 
ranges of 10 Hz to 200 kHz with best thresholds near 40-50 dB re 1 mu 
Pa. They can be divided into infrasonic balaenids (probable functional 
ranges of 15 Hz to 20 kHz; good sensitivity from 20 Hz to 2 kHz; 
threshold minima unknown, speculated to be 60-80 dB re 1 mu Pa); sonic 
to high frequency species (100 Hz to 100 kHz; widely variable peak 
spectra; minimal threshold commonly 50 dB re 1 mu Pa), and ultrasonic 
dominant species (200 Hz to 200 kHz general sensitivity; peak spectra 
16 kHz to 120 kHz; minimal threshold commonly 40 dB re 1 mu Pa).
[GRAPHIC] [TIFF OMITTED] 75640.034

Figure 2. Underwater audiograms for odontocetes and pinnipeds. For some 
species, more than one curve is shown because data reported in 
different studies were not consistent. Note that for both the 
bottlenose dolphin and the sea lion, thresholds are distinctly higher 
for one of the two animals tested. These differences may reflect 
different test conditions or a hearing deficit in one of the animals. 
(Summary data compiled from Popper 1980; Fay 1988; Au 1993; Richardson 
et al. 1995. Beluga: White et al. 1978; Awbrey et al. 1988 and Johnson 
et al. 1989. Killer Whale: Hall & Johnson 1971 and Hall & Johnson 1972. 
Harbor Porpoise: Anderson 1970 and Anderson 1970a. Bottlenose Dolphin: 
Johnson 1967 and Ljungblad et al. 1982b. False Killer Whale: Thomas et 
al. 1988a. California Sea Lion: Schusterman et al. 1972; Kastak & 
Schusterman 1995 and Schusterman, Balliet & Nixon 1972. Northern Fur 
Seal: Moore & Schusterman 1987; Babushina et al. 1991 and Schusterman & 
Moore 1978a. Harbor Seal: Mohl 1968; Mohl 1968a; Kastak & Schusterman 
1995 and Terhune & Tumbull 1995. Ringed Seal: Terhune & Ronald 1975a. 
Harp Seal: Terhune & Ronald 1972. Monk Seal: Thomas et al. 1990b.).
[GRAPHIC] [TIFF OMITTED] 75640.035

Impacts and Sonar
    Since the development and use of SONAR in World War II, acoustic 
imaging devices have been increasingly employed by the military, 
research, and commercial sectors to obtain reliable, detailed 
information about the oceans. On one hand, these devices have enormous 
potential for imaging and monitoring the marine environment. On the 
other hand, because echo-ranging techniques involve the use of intense 
sound and because hearing is an important sensory channel for virtually 
all marine vertebrates, existing devices also represent a potential 
source of injury to marine stocks, both predator (marine mammals) and 
their prey. Therefore, a reasonable concern for any effort involving 
active sound use in the oceans is whether the projection and repetition 
of the signals employed will adversely impact species within the 
``acoustic reach'' of the source. Realistically, because of the 
diversity of hearing characteristics among marine animals, it is 
virtually impossible to eliminate all acoustic impacts from any 
endeavor, therefore the key issues that must be assessed are: 1) what 
combination of frequencies and sound pressure levels fit the task, 2) 
what species are present in an area the device will ensonify at levels 
exceeding ambient, and 3) what are the potential impacts to those 
species from acoustic exposures to the anticipated frequency-intensity 
combinations.
    In order to assess potential impacts, it is necessary to obtain the 
best possible estimate of the coincidence of acoustic device parameters 
and auditory sensitivities for animals that may be exposed. Because 
marine mammals are both an important group in terms of conservation and 
are generally considered to be acoustically sensitive, the primary goal 
of this document is to provide a detailed summary of currently 
available data on marine mammal hearing and auditory systems, and where 
possible to put that data into a functional or comparative context. The 
key issues addressed are: 1) how do marine mammal ears differ from 
terrestrial ears, 2) how do these differences correlate with underwater 
sound perception, 3) what is known from direct measures about marine 
mammal hearing sensitivities, 4 ) what can be reliably extrapolated 
about the frequency sensitivity of untested species from currently 
available auditory models, and 5) how sensitive to acoustic impacts are 
these ears.
Conclusions
    The consensus of the data is that virtually all marine mammal 
species are potentially impacted by sound sources with a frequency of 
300 HZ or higher. Any species can be impacted by exceptionally intense 
sound, and particularly by intense impulsive sounds. However, at 
increasing distance from a source, which is the realistic scenario as 
opposed to at source, the effects are a composite of three aspects: 
Intensity, Frequency, and Individual Sensitivity. Briefly, if you 
cannot hear the sound or hear it poorly, it is unlikely to have a 
significant effect. If however, you have acute hearing in the range of 
a signal, be it prop noise or a sonar, there is a potential for impact 
at a greater range than for a source you hear poorly. Because each 
species has a unique hearing curve that differs from others in range, 
sensitivity, and peak hearing, it is not possible to provide a single 
number or decibel level that is safe for all species for all signals.
    Relatively few species are likely to receive significant impact for 
lower frequency sources. Those species that currently are believed to 
be likely candidates for LF acoustic impact are most mysticetes and the 
elephant seal as the only documented lower frequency sensitive 
pinniped. Most pinnipeds have relatively good sensitivity in the 1-15 
kHz range while odontocetes have peak sensitivities above 20 kHz. It 
must be remembered that received levels that induce acoustic trauma, at 
any one frequency, are highly species dependent and are a complex 
interaction of exposure time, signal onset and spectral 
characteristics, as well as received vs. threshold intensity for that 
species at that frequency.
    Pilot studies show that marine mammals are susceptible to hearing 
damage but are not necessarily as fragile as land mammals. The 
available data suggest that a received level of approximately 140 dB re 
1 microPascal which is in the 80-90 dB range over species-specific 
threshold for a narrow band source will induce temporary for hearing in 
and near that band in pinnipeds and delphinids (Ridgway, pers. comm.; 
Schusterman, pers. comm.). Estimates of levels that induce permanent 
threshold shifts in marine mammals can be made, at this time, only by 
extrapolation from PTS and trauma studies in land mammals.
    Blasts are cardinal sources, capable of inducing broad hearing 
losses in virtually all species but some resistance or tolerance may 
occur based on body mass of marine mammals compared to most land 
mammals tested.
    For all devices, the question of impact devolves largely to the 
coincidence of device signal characteristics with the species 
audiogram. Because the majority of devices proposed use frequencies 
below ultra or high sonic ranges, odontocetes, with relatively poor 
sensitivity below 1 kHz as a group, may be the least likely animals to 
be impacted. Mysticetes and pinnipeds have substantially greater 
potential than odontocetes for direct acoustic impact because of better 
low to mid-sonic range hearing.
    Behavioral perturbations are not assessed here but a concern is 
noted that they are an equal or potentially more serious element of 
acoustic impacts. While auditory trauma, particularly from short or 
single exposures may impair an individual, that is unlikely to impact 
most populations. Long term constant noise that disrupts a habitat or 
key behaviour is more likely to involve population level effects. In 
that sense, the question of individual hearing loss or animal loss form 
a single intense exposure is far less relevant to conservation than 
more subtle, literally quieter but pervasive source that induces broad 
species loss or behavioural disruption.
    Mitigation of any source or estimation of impact requires a case by 
case assessment, and therefore suffers from the same chronic lack of 
specific hearing data. To provide adequate assesments, substantially 
better audiometric data are required from more species. To obtain these 
data requires an initial three-pronged effort of behavioural 
audiograms, evoked potentials recordings, and post-mortem examination 
of ears across a broad spectrum of species. Cross-comparisons of the 
results of these efforts will provide a substantially enhanced 
audiometric data base and should provide sufficient data to predict all 
levels of impact for most marine mammals. To achieve this goal without 
bias involves advocacy and funding from a broader spectrum of federal 
and private sources. That in turn is likely to require a significant 
effort in public education about the real underlying issues that will 
supplant current misdirections or precipitous reactions on the part of 
many groups concerned with marine conservation.
Summary
    Major impacts from noise can be divided into direct physiologic 
effects, such as permanent vs. temporary hearing loss, and those that 
are largely behavioral, such as masking, aversion, or attraction. 
Although there is no substantial research accomplished in any of these 
areas in marine mammals, behavioral effects have been at least 
preliminarily investigated through playback and audiometric 
experiments, while marine mammal susceptibility to physiologic hearing 
loss is virtually unexplored. Despite increasing concern over the 
effects on marine mammals of man-made sound in the oceans, we still 
have little direct information about what sound frequency-intensity 
combinations damage marine mammal ears, and at present there are 
insufficient data to accurately determine acoustic exposure guidelines 
for any marine mammal.
    Is acoustic trauma even moderately debatable in marine mammals? 
Recalling the paradox mentioned earlier, there are a variety of reasons 
to hypothesize that marine mammals may have evolved useful adaptations 
related to noise trauma. Vocalizations levels in marine mammals are 
frequently cited as indicating high tolerance for intense sounds. Some 
whales and dolphins have been documented to produce sounds with source 
levels as high as 180 to 220 dB re 1 mu Pa (Richardson et al., 1991; 
Au, 1993). Vocalizations are accepted indicators for perceptible 
frequencies because peak spectra of vocalizations are near best 
frequency of hearing in most species, but it is important to recall 
that the two are not normally precisely coincident.
    It must be borne in mind also that animals, including humans, 
commonly produce sounds which would produce discomfort if they were 
received at the ear at levels equal to levels at the production site.
    Arguments that marine mammals, simply by nature of their size and 
tissue densities, can tolerate higher intensities are not persuasive. 
First, mammal ears are protected from self-generated sounds not only by 
intervening tissues (head shadow and impedance mismatches) but also by 
active mechanisms (eardrum and ossicular tensors). These mechanisms do 
not necessarily provide equal protection from externally generated 
sounds largely because the impact is not anticipated as it is in self-
generated sounds.
    Our active mechanisms are initiated in coordination and in 
anticipation of our own sound production. Just as the level of a shout 
is not indicative of normal or tolerable human hearing thresholds, 
source level calculations for vocalizations recorded in the wild should 
not be viewed as reliable sensitivity measures. Further, the large head 
size of a whale is not acoustically exceptional when the differences in 
pressure and sound speed in water vs. air are taken into account. As 
noted earlier, ear separation in a bottle-nosed dolphin is acoustically 
equivalent to that of a rat when the distances are corrected for the 
speed of sound in water. Exactly how head size in water affects 
attenuation and even reception of incoming sounds has not been 
investigated and remains an important open question.
    Data from several pilot studies may, however, provide some useful 
insights into both facets of the paradox. In one investigation 
(detailed below, Ketten et al, 1993; Lien et al. 1993), ears from 
humpbacks that died following underwater explosions had extensive 
mechanical trauma while animals that were several kilometers distant 
from the blasts and at the surface showed no significant behavioral 
effects. These findings indicate adaptations that prevent barotrauma do 
not provide special protection from severe auditory blast trauma, but 
it remains unclear whether lower intensity purely acoustic stimuli 
induce temporary and/or acute threshold shifts in marine mammals.
    A second study compared inner ears from one long-term captive 
dolphin with a documented hearing loss with the ears of one juvenile 
and two young adult dolphins (Ketten et al., 1995). Studies of the 
oldest dolphin ears showed cell loss and laminar demineralization like 
that found in humans with presbycusis, the progressive sensorineural 
hearing loss that accompanies old age. The location and degree of 
neural degeneration implied a substantial, progressive, hearing loss 
beginning in the high frequency regions, precisely the pattern commonly 
observed in humans. A review of the animal's behavioral audiogram 
subsequently showed that over a 12 year period this dolphin's hearing 
curve shifted from normal threshold responses for all frequencies up to 
165 kHz to no functional hearing over 60 kHz prior to his death at age 
28. For this animal at least, the conclusion was that significant 
hearing loss had occurred attributable only to age-related changes in 
the ear. Similar significant differences in the hearing thresholds 
consistent with age-related loss in two sea lionshave also been 
reported by Kastak and Schusterman (1995).
    The problem of hearing loss has not been realistically considered 
prior to this point in any systematic way in any marine mammal. In 
fact, the most studied group, odontocetes, have generally been thought 
of as ideal underwater receivers. A captive animal's age or history is 
not normally considered in analyzing its auditory responses, and, in 
the absence of overt data (e.g., antibiotic therapy), we assume a test 
animal has a normal ear with representative responses for that species.
    It is not clear that this is both reasonable and realistic. 
Particularly when data are obtained from one animal, it is important to 
question whether that hearing curve is representative of the normal ear 
for that species. The pilot studies noted above clearly suggest age 
and/or exposure to noise can significantly alter hearing in marine 
mammals, and in some cases (compare the two curves shown in figure 2A 
for bottlenosed dolphins), it is clear that some individual differences 
have been observed in ``normal'' captives that may be the result of 
permanent hearing loss. The fact that some studies show losses in 
marine mammals consistent with age-related hearing changes. Disease 
also complicates the assumptions that any animal has normal hearing or 
that the only source of a loss found is from anthropogenic sources 
based on small samplings of populations.
    Natural loss should be considered in any animal for which there is 
little or no history, therefore the finding of a single animal with 
some hearing decrement in the vicinity of a loud source cannot be taken 
as a clear indicator of a population level hazard from that source. On 
the other hand, because of the importance of hearing to these animals, 
it is also unlikely that a high incidence of loss will be normally 
found in any wild population, and a finding of substantial hearing loss 
from, for instance, a mass-stranding or fishery coincident with a long-
term exposure to an intense source would be appropriate cause for 
significant concern.
    Of course, acoustic trauma is a very real and appropriate 
physiologic concern. It is also one for which we can ultimately, given 
proper research, obtain a data that will allow us to provide a usable 
metric. That is, given that we know sound level X induces TTs while Y 
induces PTS, for frequency Z in a specific species, we can apply these 
data to the estimated exposure curve for that species and determine its 
risk of hearing loss. Because of the importance of hearing to marine 
mammals, understanding how man-made sources may impact that sense is an 
important and reasonable step towards minimizing adverse impacts from 
man-made sound sources in the oceans.
    However, it is equally important to consider that sub-trauma levels 
of sound can have profound effects on individual fitness. These effects 
can take the form of masking of important signals, including 
echolocation signals, intra-species communication, and predator-prey 
cues; of disrupting important behaviors through startle and repellence, 
or of acting as attractive nuisances, all of which may alter migration 
patterns or result in abandonment of important habitats. Unfortunately, 
these issues are beyond the scope of this document as well as the 
expertise of the author and therefore cannot be usefully discussed 
here. Nevertheless, it is important to at least note the concern, and 
above all to suggest that there is a substantial need for field 
monitoring of behaviors in wild populations in tandem with controlled 
studies directed at expanding our audiometric data and understanding of 
acoustic trauma mechanisms.
    As indicated earlier, there are no discrete data at this time that 
provide a direct measure of acoustic impact from a calibrated, 
underwater sound source for any marine mammal. Preliminary data from 
work underway on captive cetaceans and pinnipeds (Ridgway, pers. comm.; 
Schusterman, pers. comm.) suggest that odontocetes may have higher than 
typical tolerances for noise while pinnipeds are more similar to land 
mammals in their dynamic range for threshold shift effects. This 
response difference as well as the difference in hearing ranges - if 
these data are shown to be robust - suggest that pinnipeds are the more 
acoustically fragile group from most anthropogenic sound sources and 
that odontocetes are relatively immune or require substantially higher 
sound levels to incur TTS.
    In terms of the sonars or in effect any human acoustic device, the 
principal concerns are to determine a balance of frequencies vs. level 
vs. duty cycle that will effectively detect targets at long ranges but 
will not repel nor harm marine mammals within that sound field. To 
accomplish these goals it is necessary to determine and balance the 
following components:
    1. LWhat are the effective frequencies for operation.
    2. LWhat are the hearing curves for species within the sound field?
    The fundamental concern is to avoid impact or harassment in the 
short term, as well as preventing long-term, multiple exposure effects 
that can compound the probability of hearing loss.
    For all species, the first issue in the proposed devices is signal 
shape, or rise time and peak spectra. As discussed earlier, impulsive 
sound has substantial potential for inducing broad spectrum, compounded 
acoustic trauma; i.e., an impulsive source can produce greater 
threshold changes than a non-impulsive source with equivalent spectral 
characteristics. Consequently, impulse is a complicating feature that 
may exacerbate the impact. Conventional suggestions for minimizing such 
effects are to ramp the signal, narrow the spectra, lower the pressure, 
and/or alter the duty cycle to allow recovery and decrease impact. Once 
again, however, it must be recalled that which if any of these measures 
is important to the marine mammal ear has not been determined. Further, 
it is also important to consider the trade-offs each implies in 
operational effectiveness of the sonars in question. If decreasing one 
aspect increases the parameters of another, the composite effects must 
always be kept in mind.
    High intensity, ultrasonic devices of course have enormous 
potential for serious impact on virtually every odontocete and their 
deployment in pelagic fisheries raises the greatest concern after 
impulse or explosive sources. Such devices are relatively unlikely, 
however, because they are unsuitable for longer range detection. With 
high frequency sonic range devices, the possibility of profound impact 
from disruption or masking of odontocete communication signals must 
certainly be considered, as well as the possibility of coincident 
impacts to pinnipeds. Because the majority of devices proposed use 
frequencies below ultra or high sonic ranges, odontocetes may be the 
least likely to be impacted species.
    Most odontocetes have relatively sharp decreases in sensitivity 
below 2 kHz (see fig. 3). If frequencies below 2 kHz are employed with 
a non-impulsive wave-form, the potential for impacting odontocetes is 
likely to be drastically reduced, but it must also be borne in mind 
that it is non-zero. In every case, the difference between some to 
little or no significant physiologic impact will depend upon received 
levels at the individual ear. For the purposes of general discussion, a 
theoretical comparison is shown in Figure 3 for marine mammals 
audiograms compared with a human audiogram.
[GRAPHIC] [TIFF OMITTED] 75640.036

    Because mechanisms and onset levels of TTS and PTS are still 
unresolved for marine mammals, this curve is presented largely for the 
purposes of gross comparisons of spectra of different sources with 
animal hearing ranges and is not intended to suggest mitigation 
guidelines. What the figure suggests is that the Mysticetes (which are 
speculated to have a hearing curves similar to but at lower frequencies 
than odontocetes)and the majority of pinnipeds have substantially 
greater potential than odontocetes for direct acoustic impact from low 
to mid-sonic range devices. However, depending upon the diving and 
foraging patterns of these animals in comparison to the sound field 
propagated by LF sonars or other devices, the risks to mysticetes and 
the majority of pinnipeds may be substantially less than a simple sound 
analysis would imply. That is, given that substantial numbers of these 
marine mammal groups are either not present or are infrequently found 
in the areas and depths ensonified there is little probability of any 
one animal encountering a signal with an intensity and a period of time 
that will induce acoustic trauma, despite their better absolute 
sensitivity to the signal.
    Mitigation, like estimation of impact, requires a case by case 
assessment. At this time we have insufficient data to accurately 
predetermine the underwater acoustic impact from any anthropogenic 
source. Consequently, it is not possible to definitively state what 
measures will ameliorate any one impact.
    For the immediate future and in the absence of needed data, a best 
faith effort at mitigation must be founded on reasoned predictions from 
land mammal and the minimal marine mammal and fish data available. It 
is reasonable to expect, based on the similarities in ear architecture 
and in the shape of behavioral audiograms between marine and land 
mammals, that marine mammals will have similar threshold shift 
mechanisms and will sustain acute trauma through similar mechanical 
loads. Therefore, fast-rise impulse and explosive sources are likely to 
have greater or more profound impacts than narrow band, ramped sources. 
Similarly, we can expect that a signal that is shorter than the 
integration time constant of the odontocete, mysticete or pinniped ear 
or which has a long interpulse interval has less potential for impact 
than a protracted signal; however, simply pulsing the signal is not a 
sufficient strategy without considering adequate interpulse recovery 
time. Strategies, such as compression, that allow the signal to be near 
or below the noise floor are certainly worth exploring. Certainly, no 
single figure can be supplied for these values for all species. Because 
of the exceptional variety in marine mammals ears and the implications 
of this variety for diversity of hearing ranges, there is no single 
frequency or combination of pulse sequences that will prevent any 
impact. It is however, reasonable, because of species-specificities, to 
consider minimizing effects by avoiding overlap with the hearing 
characteristics of species that have the highest probability of 
encountering the signal for each device deployed.
    To that end, substantially better audiometric data are required. 
This means more species must be tested, with an emphasis on obtaining 
audiograms on younger, clearly unimpaired animals and repeat measures 
from multiple animals. Too often our data base has be undermined by a 
single measure from an animal that may have some impairment. It is 
equally important to obtain some metric of the hearing impairments 
present in normal wild populations in order to avoid future over-
estimates of impact from man-made sources. To obtain these data 
requires a three-pronged effort of behavioural audiograms, evoked 
potentials on live strandings, and post-mortem examination of ears to 
determination of the level of ``natural'' disease and to hone 
predictive models of hearing capacities.
    The most pressing research need in terms of marine mammals is data 
from live animals on sound parameters that induce temporary threshold 
shift and aversive responses. Indirect benefits of behavioral 
experiments with live captive animals that address TTS will also test 
the hypotheses that cellular structure in the inner ear of odontocetes 
may be related to increased resistance to auditory trauma. Combined 
data from these two areas could assist in determining whether or to 
what extent back-projections from land mammal data are valid.
    Biomedical techniques, such as ABR and functional MRI, offer 
considerable potential for rapidly obtaining mysticete and pinniped 
hearing curves. Evoked potential studies of stranded mysticetes are of 
considerable value but must also carry the caveat of determining how 
reliable is a result from a single animal that may be physiologically 
compromised. Post-mortem studies should be considered on any animal 
that is euthanized after an ABR with the goal of both providing data 
about the normality of the ear and supplying feedback to modeling 
studies of hearing ranges. Otoacoustic emission experiments are not 
considered to be a viable approach for cetaceans; they may provide 
basic hearing data in pinnipeds but are technically difficult.
    Playback studies are a well-established technique but because of 
the uncertainties about individually received levels they may not 
considerably advance our knowledge of acoustic impact per se unless 
tied to dataloggers or very accurate assessments of the animal's sound 
field. Tagging and telemetry are valuable approaches particularly if 
linked to field or video documentation of behavior that is coordinated 
with recordings of incident sound levels at the animal. Telemetric 
measurement of physiological responses to sound; e.g., heart rate, may 
be valuable, but little is currently known of how to interpret the data 
in terms of long term impact.
    Permanent threshold shift data may be obtainable by carefully 
designed experiments that expose post-mortem marine mammal specimens to 
either intense sound and explosive sources since these effects are 
largely detectable through physical changes in the inner ear. These 
studies would also substantially increase the species diversity of the 
available data base because most marine mammal species will not be 
testable with conventional live animal audiometric techniques. Lastly, 
because many impact models depend upon assumptions about received 
levels at the ear, these projections would clearly be enhanced by basic 
measures on specimens of the underwater acoustic transmission 
characteristics of marine mammal heads and ears.
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                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Dr. Ketten.
    Admiral McGinn?

  STATEMENT OF VICE ADMIRAL DENNIS V. McGINN, DEPUTY CHIEF OF 
NAVAL OPERATIONS FOR WARFARE REQUIREMENTS AND PROGRAMS, UNITED 
                          STATES NAVY

    Admiral McGinn. Thank you, Mr. Chairman, members of the 
Subcommittee. I am Admiral Dennis McGinn, the Deputy Chief of 
Naval Operations for Naval Warfare Requirements and Programs. 
Prior to coming to Washington 1 year ago, I was the commander 
of the United States Third Fleet, with an area of 
responsibility in the eastern Pacific from the Date Line to the 
high tide mark of the North American coast, and before that I 
have commanded carrier battle groups and an aircraft carrier. 
All of that by way of saying that my presence here in 
Washington is significant as a Deputy Chief of Naval 
Operations, but my heart belongs at sea and I have spent some 
time there.
    I welcome this opportunity to appear before you today to 
testify on sonar, the SURTASS Low Frequency Active program, the 
Marine Mammal Protection Act, and Navy research. I also want to 
thank you for your interest in the readiness of our armed 
forces, in particular our United States Navy.
    Let me start by saying that we in the Navy take our legal 
obligations to protect the world's oceans, marine mammals and 
endangered species, very, very seriously. We are proud of the 
cutting edge scientific research we have conducted and funded 
on the potential effects of acoustic sources on marine mammals.
    Important as it is, our environmental stewardship has come 
at a price, such as increased monetary expenditures, extended 
time away from home for our sailors, restrictions on training, 
as well as lengthy delays in deploying weapons systems such as 
LFA that are considered essential to national security. I must 
emphasize that at this critical time in our Nation's history, 
trends toward increasing encroachment on military training and 
operations, excessive regulation and unnecessary litigation 
clearly hamper our ability to achieve and maintain critically 
needed readiness that our citizens expect and deserve from our 
armed forces.
    The United States Navy has used sonar for more than six 
decades. Sonar is generally broken into two methods of use: 
active and passive. Active sonar is a signal or a ping 
transmitted, and then the reflection of that sound is received. 
Passive is simply listening for sounds emitted by ships or 
submarines, such as engine vibrations.
    Active sonar can be divided into three categories based on 
sound frequency: low, less than 1 kHz; medium, 1 kHz to 10 kHz; 
and high frequency, above 10 kHz. The lower the frequency, the 
less the sound signal and the return are attenuated as they 
pass through the water column and the further they will travel, 
as has been noted.
    We currently operate several variants of our standard hull-
mounted and mid-ranged sonar on both surface ships and 
submarines. These sonars have been used since the 1960's. We 
also use sonar to detect mines and to guide torpedoes and other 
weapons systems. We use it on fathometers to measure ocean 
depth. We use side scan sonar to perform oceanographic mapping. 
It is used to navigate. It is used to find shipwrecks. We use 
systems similar to sonar for underwater communications, to 
measure global warming, and in many other types of research. We 
have a great deal of experience with sonar and have rarely 
observed any significant, long-term environmental impact that 
has been adverse.
    Sonar is an extremely vital source of information for a lot 
of purposes, and most importantly, sonar-based mine and 
antisubmarine warfare systems allow us to keep Americans, our 
sons and daughters, out of harm's way on Navy ships.
    The SURTASS LFA system is a key national security asset 
required to protect our forces at sea. The United States and 
its military forces must have the ability to ensure access to 
key strategic areas and to project power decisively throughout 
the world, at sea, in the air, and on land, in space and 
cyberspace, in order to prevail in peace and in time of 
conflict such as that in which we are currently engaged.
    A key to our Navy's ability to project power is our ability 
to protect our forward-deployed naval forces against threat of 
opposing force submarines. With the sound quieting capability 
of potential threat submarines nearing parity with our own, the 
Navy embarked on an extensive research program to develop new 
technology to detect submarines.
    A very effective technology to emerge from this effort is 
Low Frequency Active sonar. When combined with the SURTASS 
passive sonar capability, we have an effective long-range 
detection platform to meet the rising threat from modern quiet 
diesel submarines.
    A fleet commander or a joint force commander needs an 
effective active and passive sonar total sensor system that we 
can bring to bear against opposing forces. And even with our 
current and projected capabilities, including SURTASS LFA, we 
face a tremendous challenge to counter the threat posed by 
modern quiet diesel and nuclear-powered submarines, especially 
in the challenging littoral areas of the world where our 
Nation's interests lie.
    As a long-range sensor, LFA provides naval commanders with 
a valuable tool that allows us to conduct surveillance of the 
undersea battle space and to alert our ships to the presence 
and location of threat submarines at ranges that provide 
sufficient reaction time to neutralize that threat.
    I know that the undersea picture is sometimes difficult to 
envision, so I will use an air threat analogy to illustrate the 
importance of SURTASS LFA. When we send aircraft into hostile 
areas, they are accompanied by our Hawkeye E2C aircraft or Air 
Force AWACS surveillance platforms which use high power, long-
range air search radar systems to provide long-range detection 
of potential enemy threats and then to direct friendly forces 
to neutralize those threats. As a battle group commander, I 
would not send my aircraft into harm's way without the use of 
surveillance aircraft wherever and whenever possible.
    The same holds true for our ships sent into harm's way 
against diesel submarines. LFA is required to ensure threat 
submarines are detected, tracked and destroyed prior to 
reaching a weapon release point against our ships.
    Another key point is that the Navy has conducted a 
comprehensive environmental review on the effects of LFA on 
marine mammals. Leading scientists in the field of underwater 
acoustics and marine mammal biology have conducted independent 
studies that carefully examine how LFA sonar would affect 
marine mammals, those marine mammals most likely to be 
affected, and the potential effect on human divers. These 
studies have concluded, and we concur, that we can use LFA 
safely and effectively to carry out critical missions without 
any significant or long-term adverse effects on the marine 
environment or on marine mammals.
    Some concerned parties claim we have not done enough to 
study this issue, and cite the lack of long-term effect 
studies, the number of marine mammals studied, and other real 
world limitations of the testing performed to date. The cost of 
that additional testing that these parties demand to conduct 
studies on every possible potential impact to marine mammals 
and humans, tens of years, tens of millions of dollars, is 
exorbitant and unreasonable and constitutes yet one more form 
of encroachment on our ability to deliver the kind of readiness 
this Nation needs.
    I would note on a philosophical note that few significant 
endeavors in life, from embarking on a campaign to eradicate 
the scourge of terrorism or passing significant new legislation 
or even choosing a place to live or work, can be embarked upon 
with the absolute certainty that these parties demand of the 
United States Navy in deploying LFA. We believe that the right 
and balanced course of action is to conduct thorough studies to 
understand the most significant likely potential effects and 
then, informed by that knowledge, to decide whether to move 
forward in a responsible way, using reasonable and effective 
mitigation efforts and carefully monitoring the results to 
detect any unforeseen effects over the long term.
    While LFA is a new Navy warfighting application, we have 
concluded through this independent scientific research that the 
use of LFA with appropriate mitigation measures is highly 
unlikely to affect the health of marine mammal populations and 
human divers. We are fully committed to a long-term monitoring 
plan to verify the results of that research and to evaluate the 
impacts of LFA. We have set aside funds to continue this 
effort.
    I ask you to carefully consider the Navy's high priority 
requirement for LFA, the extensive research and analysis 
carried out to date, and the independent scientists' opinions, 
as you deliberate upon the use of this valuable national asset.
    Additionally, and on a final note, the Navy supports 
efforts of the Department of Commerce, NOAA, and the National 
Marine Fisheries Service to reauthorize the Marine Mammal 
Protection Act, and we have worked closely with NOAA to prepare 
an amendment to the definition of ``harassment'' in that act. 
The current definition is overly broad and ambiguous, allowing 
for any potential disturbance of marine mammals by naval 
activities, including sonar operations, to be considered 
harassment.
    The proposal, which follows recommendations from a recent 
report for Congress conducted by the National Research Council, 
will tie harassment to abandonment or significant alteration of 
behavior patterns related to important biological functions 
such as migration, feeding, or nursing. With this amendment, 
the Navy will have increased clarity regarding application of 
the Marine Mammal Protection Act, and therefore greater 
operational and training flexibility.
    Finally, with regards to research, the Navy funds the 
majority of all marine mammal research in the world. Your Navy, 
through our Environmental Consequences, Underwater Sound, and 
Effects of Sound on a Marine Environment programs, provided 
approximately $7 million in fiscal year '01 for research 
directly related to assessing and mitigating the effect of 
noise from Navy activities in the marine environment. The 
funding planned for '02 calls for an increase of that amount of 
over $2 million, a total of over $9 million. To date, Navy's 
research efforts in support of global environmental concerns 
have provided tremendous insight on acoustic phenomena in the 
oceans.
    Once again, Mr. Chairman and members of the Committee, I 
welcome the opportunity to appear before you today, and I look 
forward to answering your questions. Thank you, sir.
    [The prepared statement of Admiral McGinn follows:]

   Statement of Vice-admiral Dennis V. McGinn, Deputy Chief of Naval 
      Operations for Warfare Requirements and Programs, U.S. Navy

    Good afternoon Chairman Gilchrest, Delegate Underwood, members of 
the Fisheries Conservation, Wildlife and Oceans Subcommittee, and 
ladies and gentlemen. I am here today to provide testimony on Navy 
Sonar, the Surveillance Towed Array Sensor System Low Frequency Active, 
or SURTASS LFA sonar, the Marine Mammal Protection Act and future Navy 
research into the effects of underwater sound on the marine 
environment. As the Director of Warfare Requirements and Programs, I am 
responsible for equipping our sailors with the most capable weapon 
system so that they can carry out their missions in most effective 
manner. This is my duty under the President, the Commander in Chief, 
and I mean to fulfill that obligation to the best of my ability. The 
topic I am here to address today is very important to fulfilling that 
charge. That duty took on new relevance one month ago today (September 
11, 2001). While the Navy takes its environmental responsibility 
seriously, working to protect and enhance natural resources and 
endangered species in our fleet operating areas and training ranges, 
there must be a balance between environmental concerns and our national 
security. We are ready today to help defend this nation, but current 
regulatory trends and litigation are worrisome. Our ability to work 
around environmental challenges is not infinite and our future 
readiness could be placed at risk.
    The United States Navy has used SOund NAvigation Ranging or 
``SONAR'' for more than five decades. Sonar is generally broken into 
two methods of use, active and passive. Active sonar is a signal or 
``ping'' transmitted and then a reflection of that sound is received. 
Passive is simply listening for sounds emitted by ships or submarines, 
such as engine vibrations. Active sonar can be divided into 3 
categories; low (< 1kHz), medium (1kHz-10kHz) and high frequency 
(>10kHz). The lower the frequency, the less the signal and the return 
are attenuated as they pass through the water column and the further a 
they will travel. We currently operate several variants of our standard 
hull mounted mid-ranged sonar on both surface ships and submarines. 
These have been in use since the later 1960s. We also use sonar to 
detect mines, to guide torpedoes and other weapon systems. We use it on 
fathometers to measure ocean depth, to perform oceanographic mapping, 
for navigation, and to find shipwrecks. We use systems similar to sonar 
for underwater communications, to measure global warming, and many 
other types of research. We have a great deal of experience with sonar 
and have rarely observed any significant adverse effect on the 
environment. Sonar is an extremely vital source of information, and 
most importantly, it allows us to keep our sons and daughters out of 
harms way.
    My staff and I have studied the relevant data and information on 
SURTASS LFA--we have read the Environmental Impact Statement (EIS), 
listened to briefings from the sponsor and program office and, of 
course, have read counter-arguments from environmental organizations on 
why the Navy should abandon SURTASS LFA. My testimony today is divided 
into four sections:

     LThere is an immediate and critical national security need 
for the SURTASS LFA technology in the Fleet's arsenal. The Chief of 
Naval Operations and the Fleet Commander in Chiefs have reviewed and 
validated the urgent military need for this sensor system.
     LThe SURTASS LFA EIS is the most comprehensive and 
exhaustive scientifically-based EIS ever undertaken by the Navy for a 
major seagoing combat system. This will be clear when I take you 
through each step of the EIS process that we have been conducting since 
1996.
     LNext, I will address the extensive scientific research, 
studies and analyses that went into the EIS process and, most 
importantly, the conclusions reached by the independent scientists that 
conducted the research.
     LFinally, the Navy is planning to implement a long term 
monitoring plan, which will continue independent research on possible 
effects from underwater low frequency sound.

    The bottom line: SURTASS LFA can be operated safely and 
effectively.

    1. The Navy has an immediate, critical need for SURTASS LFA. By 
law, the Navy's primary mission is to maintain, train and equip combat-
ready Naval forces capable of winning wars, deterring aggression and 
maintaining freedom of the seas. Antisubmarine warfare, or ASW, is a 
critical part of that mission. The Chief of Naval Operations (CNO) has 
stated that ASW is essential to sea control and maritime dominance. 
Many nations throughout the world can employ submarines to deny access 
to forward regions or to significantly delay the execution of crucial 
Navy operations. Because of its inherent stealth, lethality, and 
affordability, the submarine is a powerful threat. In 1998 the Chief of 
Naval Operations emphasized the importance of ASW in protecting our 
national security and set the direction for achieving operational 
primacy in ASW. He stated that the Navy's goal is to have the best-
trained ASW force in the world, with the right set of tools to prevail 
in any type of conflict, including the kind we are now facing in the 
Middle East. My goal here today is to show you why I believe one of the 
primary ASW tools must be SURTASS LFA.
    Many of the opponents of SURTASS LFA say that the Cold War is over 
and question the need for the SURTASS LFA system. Despite the end of 
the Cold War, the submarine threat remains real and in some ways has 
become more challenging. Of the approximately 500 non-U.S. submarines 
in the world, 224 are operated by non-allied nations. Many of these are 
the more advanced, quieter diesel-electric submarines that present a 
real threat to U.S. forces. The Russian Federation and the People's 
Republic of China have publicly declared that the submarine is the 
capital ship of their navies. Many potential adversarial countries have 
essentially done the same, including Iran and North Korea. A former 
Indian Navy submarine admiral has commented that developing nations 
desire submarine forces because they are the most cost-effective 
platform for the delivery of several types of weapons; they counter 
surface forces effectively; they are flexible, multi-mission ships; 
they are covert and can operate with minimal political ramifications; 
and they can operate without supporting escorts. Submarines are ideal 
weapons for states that lack, or cannot afford, the capability to 
assert sea control in their own (or others') waterspace. They can 
operate in an opponent's backyard. Even in the face of determined sea 
control efforts, they can conduct stealthy and intrusive operations in 
sensitive areas, and can be inserted early for a wide range of tasks 
with a high degree of assured survivability. When equipped with mines, 
advanced torpedoes, anti-ship or land-attack missiles, a submarine is a 
potent tactical and political weapon. Ladies and gentlemen, in today's 
unpredictable world, we must recognize that the advanced, quiet 
submarine is potentially a terrorist threat. A single diesel-electric 
submarine that is able to penetrate U.S. or multinational task force's 
defenses could easily undermine military efforts to thwart hostile 
enemy forces and change the balance of political support for U.S. 
involvement in armed conflict.
    A recent U.S.-Australian ASW exercises with the new Australian 
Collins-class diesel-electric submarine demonstrated that new 
technology is needed to detect a modern diesel-electric submarine 
operating on battery power. We have to reduce the limits of detection 
for the submarines of today and tomorrow, and SURTASS LFA does that. 
Nations of concern continue to build and sell new classes of highly 
capable submarines, and to operate its newest vessels outside of home 
waters.
    These nations are also investing heavily in submarine technology, 
including designs for nuclear attack submarines, strategic ballistic 
missile submarines, and advanced diesel-electric boats. The President's 
National Research Council has projected that by 2035, U.S. military 
forces may be seriously and competently challenged by submarines from 
major powers like Russia and China, or from a number of potentially 
unfriendly nations. By 2030, it is projected that 75 percent of the 
non-U.S. submarines will have advanced capabilities, including air-
independent propulsion that allows 30-50 days of submerged operations 
without surfacing or snorkeling. When these units are in a defensive 
mode, that is, not having to travel great distances or at high speed, 
they have a capability nearly equal to that of a modern U.S. nuclear 
submarine. At minimal cost, this capability can be readily obtained, 
including highly capable weapons, in some cases consisting of nuclear 
devices.
    Quieting technology continues to proliferate, which will render 
these advanced diesel submarines difficult, if not nearly impossible to 
detect, even with the latest passive sonar equipment. This is where 
SURTASS LFA comes in--its state-of-the-art towed array provides the 
Navy with the world's best deep and shallow-water (littoral zone) low 
frequency passive acoustic sensor, called SURTASS. When SURTASS by 
itself proves inadequate in detecting and tracking submarines, its 
active component, LFA, is used--which is a set of acoustic transmitting 
source elements suspended by cable beneath the ship. These elements, 
called projectors, produce the active sound pulse, or ``ping,'' which 
allows for such long-range detections of otherwise concealed 
submarines. Its extended detection ranges are achieved using low-
frequency signals in the 100-500 Hertz frequency band, and high-gain 
receivers in the SURTASS towed array to pick up the returning echoes 
from the ping reflecting off the target submarine. Thus, SURTASS LFA 
meets the U.S. need for improved capability to detect quieter and hard-
to-find foreign submarines at long range, and provides adequate time to 
react to and defend against potential submarine threats.
    As an example of the importance of ASW, we need only return to the 
1982 Falklands conflict. The Royal Navy established regional maritime 
dominance in the Falklands with a single submarine attack, the sinking 
of the Argentine cruiser General Belgrano by the nuclear-powered attack 
submarine Conquerer. Had the single Argentine Type 209 diesel-electric 
submarine that got underway been successful in just one of several 
attacks and sank or seriously damaged one of the British small-deck 
aircraft carriers or logistics ships, the outcome of that conflict 
might have been very different.
    The Navy chose to develop LFA sonar because it is superior to 
alternative technologies. Examination of the potential threat led Navy 
to identify a need for long-range detection, before a hostile submarine 
could maneuver into its weapon-release range. The use of conventional 
technologies to accomplish this is infeasible from tactical and 
economic perspectives. The Navy also recognized that passive sonar 
would be insufficient for long-range detection against advanced 
submarines.
    The Navy also studied several non-acoustic ASW technologies in the 
1980's as potential candidates for use in detecting submarines, 
including radar, laser, magnetic, infrared, electronic, electric, 
hydrodynamic, and biologic detection systems. While some of these have 
demonstrated limited utility in detecting submarines, none has provided 
U.S. forces with long-range detection and the necessary longer reaction 
times.
    The Navy concentrated on LFA because it is well established that 
low frequency sounds (below 1,000 Hertz) propagate in seawater more 
effectively and at greater distances than mid-frequencies (1,000 to 
10,000 Hertz) and high frequencies (10,000 to 100,000 Hertz). The 
Navy's evaluation of how LFA sonar could be configured and employed to 
provide for long-range submarine detection.
    The SURTASS LFA EIS is the most comprehensive and exhaustive 
scientifically-based EIS ever undertaken by the Navy for a major 
seagoing combat system. Moreover, the Navy has gone to virtually 
unprecedented lengths to inform and involve the public. Since the 
release of the Notice of Intent in the Federal Register five years ago, 
the Navy has held three public scoping meetings in 1996, eight public 
outreach meetings in 1997-98, and three public hearings on the Draft 
EIS in 1999. Written and oral comments on the Draft EIS were received 
from over 1,000 commentors, including federal, state, regional and 
local agencies, environmental groups and associations, as well as 
private individuals. In addition, the Navy established the SURTASS LFA 
Scientific Working Group in 1997. This distinguished panel was made up 
of independent scientists from a wide variety of marine laboratory and 
academic organizations, as well as a representative from the non-
governmental environmental groups opposed to LFA. The panel met 
periodically to determine the critical data gaps that needed to be 
addressed to evaluate the effects of low frequency sound on the marine 
environment, and to review the results from the SRP field experiments.
    The Navy is the lead agency for the proposed action, with NOAA 
Fisheries acting as cooperating agency due to their expertise on marine 
mammal issues. At the outset of the process, the Navy delineated five 
Principles for development of the EIS:

    1. LConduct scientific studies on the potential effects of low 
frequency sound on marine life and human divers.
    2. LMaintain scientific rigor throughout development of the EIS.
    3. LUse an independent scientific team to review and edit the EIS.
    4. LPreserve an open process with maximum public engagement.
    5. LProvide adequate funding for scientific research to address 
critical data gaps and furnish a meaningful and understandable EIS to 
the public.

    The Analytical Process for development of the EIS included the 
following:

    1. LScientific literature review and determination of data gaps.
    2. LScientific screening of marine animal species for potential 
sensitivity to low frequency sound.
    3. LScientific research on the effects of low frequency sound on 
humans in water and marine mammals.
    4. LDevelopment of a scientific method for quantifying risk to 
marine mammals.
    5. LAnalytical acoustic modeling of representative cases for the 
deployment of SURTASS LFA.
    6. LEstimation of marine mammal stocks potentially affected and the 
effects on fish and sea turtles.
    7. LEstablishment of mitigation and monitoring to minimize effects 
to a negligible level.

    In developing the framework for the EIS, the Navy recognized that 
it needed to address some outstanding issues. First, there were 
concerns over the adequacy of scientific information on the impacts of 
LFA sounds upon human divers. Because data on the effects of low 
frequency sound on humans is limited, the Navy sponsored independent 
scientific research to study the effects of low frequency sound on 
human divers. This research was conducted by the Office of Naval 
Research and the Naval Submarine Medical Research Laboratory, in 
conjunction with scientists from the University of Rochester, Georgia 
Institute of Technology, Boston University, the University of 
Pennsylvania, Duke University, the Applied Research Laboratory, the 
University of Texas, and Divers Alert Network. Based upon the results 
of this research, the Naval Submarine Medical Research Laboratory--the 
same organization responsible for the dive tables used by all 
recreational and commercial divers--established a 145-dB received level 
criterion for recreational and commercial divers.
    There was also the issue over the adequacy of scientific 
information on the impacts of sound upon marine animals. Because data 
on the effects of low frequency sound on marine animals in general, and 
particularly on certain sensitive marine mammals species, is limited, 
the Navy conducted a series of original scientific field research 
projects to address the data gaps on the effects of low frequency sound 
on the marine environment.
    Recognized world experts in the fields of marine biology and 
bioacoustics were allowed to independently plan and organize a series 
of Navy-sponsored scientific field research projects to address the 
most critical of the data gaps on the effects of low frequency sound on 
the behavioral responses of free-ranging marine mammals. This research 
effort was the 1997-98 Low Frequency Sound Scientific Research Program, 
or SRP. The goal of the SRP was to evaluate avoidance reactions to 
SURTASS LFA sounds by sensitive species during critical biological 
behaviors. At the time of the SRP field tests, the prevailing theory 
was that a 140 dB received level would drive marine mammals away. 
Testing was conducted in three phases:
    a) Phase I was conducted with blue and fin whales feeding off the 
southern California coast, using three research vessels, including the 
Cory Chouest with the LFA system on it, small aircraft for aerial 
surveys, autonomous seafloor acoustic recording units, and the Navy's 
sound surveillance system, or SOSUS. This was the most extensive real-
world field experiment using large baleen whales that has ever been 
undertaken. Initial analysis of SRP Phase I data indicated a slight 
decrease in whale vocal activity during LFA transmissions. However, 
subsequent, more detailed analysis using data from all three types of 
passive receivers on ships and the seafloor showed no significant 
differences in vocal activity between the LFA transmission periods and 
the non-transmission periods.
    b) Phase II was conducted with gray whales migrating southward 
along the central California coast, using a boat with a single LFA 
source element deployed over-the-side, an observation boat with 
hydrophones deployed over-the-side to verify received levels at the 
whales, and shore observers using state-of-the-art theodolite 
telescopes to track the whales. Phase II was conducted by some of the 
same scientists who conducted similar testing in 1983 and 1984, which 
showed the gray whales reacting to 120 dB received levels. During Phase 
II, when the sound source was placed directly in the path of the 
migrating gray whales, they showed a modest avoidance reaction by 
deflecting a few hundred yards around the source at received levels of 
138 to 144 dB. However, when the source was moved one nautical mile 
farther out to sea and the source level adjusted so that the exposure 
level at the animals in the migration corridor remained the same, the 
whales did not exhibit avoidance of the signal.
    c) Phase III was conducted with breeding humpback whales off the 
Kona coast of the Big Island of Hawaii, using Cory Chouest with the LFA 
system, a Navy SURTASS ship with its passive towed array, an 
observation boat to verify received levels at the whales, and shore 
observers with theodolite telescopes. During Phase III, about half of 
the singing humpback whales showed what at first appeared to be 
avoidance level responses and cessation of singing when exposed to LFA 
signals at received levels of 120-155 dB. However, an equal number of 
singing whales exposed to the same levels of LFA signals showed no 
avoidance or cessation of song. Of the whales that did stop singing, 
there was little response to subsequent LFA transmissions, as most 
joined with other whales or resumed singing within less than an hour of 
exposure to the LFA sounds. Those that did not stop singing, sang 
longer songs during LFA transmissions, and returned to their baseline 
levels after LFA transmissions stopped. The independent scientists who 
designed and conducted this experiment determined that this brief 
interruption, followed by resumption of normal interactions, is similar 
to that seen when whales interrupt one another or when small vessels, 
like whale-watching boats, approach an animal. If whales are in a 
breeding habitat and such vessel interactions are frequent, the 
aggregate impact of all disruptive stimuli could effect significant 
biological functions. However, LFA will be operated well offshore of 
humpback breeding areas. It is highly likely that the cumulative impact 
of numerous inshore vessel interactions will cause significantly 
greater impact on these animals than that caused by infrequent offshore 
LFA transmissions.
    In summary, this $10 million SRP, conducted independently by world-
renowned marine biologists and bio-acousticians, collected much-needed 
data on the reaction of marine mammals considered to be most 
susceptible to low frequency sounds--baleen whales. The results of 
these field studies led to the determination that the LFA sonar system 
could be operated safely with the restrictions and mitigation proposed 
in the EIS.
SURTASS LFA can be operated safely and effectively.
    Marine mammals are constantly exposed to natural and man-made 
underwater sounds. We must look at the range of effects and the factors 
that are likely to cause responses in marine mammals. A sound must be 
perceived by the animal to evoke any behavioral response. However, it 
must be recognized that many sounds that are heard by marine mammals 
may evoke no response. Some sounds may evoke aversive responses at low 
received levels, but all sounds will evoke aversive responses when the 
received levels are sufficiently high to be uncomfortable. At even 
higher levels, such sounds can cause physical injury.
    Marine mammals have evolved over millions of years with exposure to 
a wide range of acoustic signals at various levels of sound. Much of 
this exposure is from biological sources. However, natural sounds 
produced by volcanism, lightning strikes and weather (wind and rain) 
also contribute to the natural noise floor of the ocean. Since many 
marine mammals rely on underwater sound for communication and echo-
location, this would imply that they have very good hearing recognition 
and localization ability. It is also safe to assume that marine mammals 
cannot hear below the lowest background (ambient) noise level in the 
ocean and will not incur physical injury from sound levels that their 
ancestors likely experienced on an annual basis.
    For marine mammals, a signal must be 10 to 15 dB above the ambient 
noise level (per Hertz) for it to be recognized. Unless a signal is 
perceived to be very close or threatening, another 10 to 20 dB increase 
in sound level would most likely be required to evoke behavioral 
reactions. For a 200-Hertz signal, average ocean ambient noise values 
range from 60 to 95 dB. Depending on background noise, for a marine 
mammal to hear and recognize a signal, it would have to be at a 
received level of 70 to 110 dB at the animal. At received levels of 80 
to 130 dB, behavioral reactions are possible, depending on the 
characteristics of the signal. Sounds that portend lethal dangers, such 
as predators, ice breaks and marine mammal alarm calls, are likely to 
evoke strong behavioral reactions. In these examples, flight and 
interruption of significant biological behavior is almost a certainty. 
The 1997-98 SRP field experiment results show that blue, fin, humpback 
and gray whales did not perceive LFA signals as threatening.
    When a sound is perceived as potentially dangerous, its loudness is 
probably not the overriding factor. The proximity of the signal to the 
marine mammal and the rate of approach are most significant in 
determining the immediacy of the threat. An example of the importance 
of source location was shown in the SRP Phase II experiments off the 
central California coast where a sound source was placed directly in 
the path of migrating gray whales, which follow a relatively 
predictable corridor close to shore. The animals showed a modest 
avoidance reaction by deflecting a few hundred yards around the sound 
source. When the sound source was moved one mile farther out to sea 
(even when the source level was adjusted so that the received level to 
the animals in the migration corridor remained the same) the whales did 
not exhibit avoidance of the signal.
    In the absence of a threatening signal, marine mammals are not 
expected to alter their behavior unless and until sound levels become 
uncomfortable or significantly impair the perceptions of sounds that 
are critical for their behavior. Impairment of a marine mammal's 
perception of critical sounds is called masking. Masking effects in 
marine mammals caused by LFA would be temporary and negligible because 
LFA's bandwidth is limited to approximately 30 Hz, signals do not 
remain at a single frequency for more than 10 seconds, and the system 
is off at least 80 percent of the time. For humans, discomfort is 
highly dependent on the type of signal. Soft, mellow sounds are 
regarded as comfortable and sharp, pitched sounds (e.g., fingernails on 
a chalkboard) are uncomfortable. The SRP field study measured the 
response or, lack of response, of marine mammals to discomforting LFA 
sounds at exposure levels up to 155 dB. The onset of mild discomfort, 
for a 200 Hz signal lasting up to 100 seconds and transmitted 
approximately every 15 minutes, is estimated, using a human model in 
air, to be 50 to 60 dB above hearing threshold. This equates to 
approximately 130 to 140 dB received levels for baleen whales--the 
species believed to possess the best hearing capability in the LFA 
frequency band. For a 200 Hz signal lasting up to 100 seconds and 
transmitted every 15 minutes at 130 dB to 140 dB received levels, some 
marine mammals may temporarily avoid the sound, but more than likely 
will tolerate it. When the received level at the animal increases to 
approximately 165 dB, scientists estimate that up to 50% of baleen 
whales are likely to experience sufficient discomfort that they will 
take measures to avoid the sound. However, the reaction is dependent 
upon the behavior involved. If engaged in a critical behavior, such as 
feeding, they may choose to tolerate the discomfort for the nutritional 
benefit. If the sound received level reaches 180 dB, it is doubtful 
that animals will tolerate the signal for any reason. Above 180 dB, a 
200 Hz signal lasting up to 100 seconds and transmitted every 15 
minutes creates an increasing likelihood of injury as exposure levels 
rise. Included in this injury zone above 180 dB is the possibility of 
hearing loss and tissue damage from direct and resonance effects.
    Extensive mitigation and monitoring requirements will be levied on 
all LFA operations. Geographic restrictions dictate that received 
levels will always be below 180 dB within 12 nautical miles of any 
coastline, and any NOAA and Navy-designated offshore biologically 
important area. Received levels will not exceed 145 dB in the vicinity 
of any known commercial or recreational dive sites. Monitoring 
mitigation procedures include daylight visual monitoring for marine 
mammals and sea turtles, passive listening with the SURTASS towed array 
to detect sounds generated by marine mammals as an indicator of their 
presence, and high frequency sonar to detect, locate and track marine 
mammals, and possibly sea turtles, near the LFA vessel to ensure they 
do not enter the 180-dB LFA Mitigation Zone.
    The SRP field study results demonstrate that, while not impossible, 
the planned operations of LFA are highly unlikely to cause injury, 
especially given the operational restrictions and mitigation measures 
that will be employed in conjunction with all LFA operations. Extensive 
analysis has shown that a small number of animals will be exposed to 
levels above 165 dB, up to a maximum range from the source of 
approximately 30 nautical miles under optimal acoustic propagation 
conditions that may occur no more than 10 percent of the time. In 
general, exposure levels are more dependent on the depth of the animal 
than its range from the source. Therefore, the 30-nautical mile maximum 
needs to be tempered with the depth dependence of the sound field. 
Received levels up to 140 dB can range out to 300 nautical miles but, 
again, only under optimal conditions and assuming the animal is located 
in the narrow depth zone of highest sound level. At these ranges, the 
animal will move out of the small volume of high sound energy by simply 
changing depth. In ocean areas with water depths less than 4,000 feet, 
the ranges are significantly shorter (down to 10 percent of the above 
maximum ranges).
    It is possible to hear LFA at long ranges. However, merely hearing 
the LFA signal does not constitute an impact--an important point that 
LFA opponents fail to acknowledge time and again. Given that the LFA 
signal does not seem to be intrinsically threatening or annoying to 
marine mammals, in the case of simply being able to hear the signal, 
the animal will necessarily be far from the source. Thus, it will not 
find itself within the area where a significant change to a 
biologically important behavior could occur; more than likely animals 
will have no reaction at these low exposure levels.
    In summary, the potential impact on any stock of marine mammals 
from injury is considered negligible. The potential impact on any one 
marine mammal from significant change in a biologically important 
behavior--such as migrating, breeding, feeding, or sheltering--is 
considered minimal. Because there is some potential for incidental 
takes by harassment, the Navy is requesting a Letter of Authorization 
under the Marine Mammal Protection Act from NOAA Fisheries for the 
taking of marine mammals incidental to the employment of SURTASS LFA 
sonar. Additionally, the Navy is consulting with NOAA Fisheries under 
Section 7 of the Endangered Species Act.
    The Navy's Long Term Monitoring Plan. As discussion of these three 
important points shows, the Navy has done the research and analysis 
that demonstrates that it can deploy this vitally needed ASW system 
safely and effectively. Findings from the SRP field-testing did not 
reveal any significant change in a biologically important behavior in 
marine mammals. Additionally, risk analysis conducted in the EIS 
estimated very low risk to marine mammal species. The Navy's planned 
long-term monitoring efforts go even further, with its commitment to 
future monitoring, and research on possible effects from underwater low 
frequency sound. Upon issuance of a Letter of Authorization by NOAA 
Fisheries, the Navy will provide a detailed Long Term Monitoring Plan, 
which will include:

    1. LNavy and independent scientific analyses of the effectiveness 
of the proposed mitigation measures, including verification of the 
high-frequency monitoring sonar performance.
    2. LCareful measurement and modeling of the LFA sound field at 
various depths and ranges prior to and during operations to ensure 
compliance with the 180-dB geographic restriction and the 145-dB diver 
criterion.
    3. LAdditional research conducted in collaboration with other Navy 
oceanographic research laboratories and U.S. academia, such as Woods 
Hole Oceanographic Institution and Scripps Institution of Oceanography. 
The Navy will solicit the best-qualified independent marine biologists 
to help address the outstanding critical issues on the direct and 
indirect effects of man-made low frequency sound on marine mammal 
stocks. When security classification and SURTASS LFA ship operations 
scheduling allow, the Navy will encourage cooperative research efforts 
using SURTASS LFA sonar at sea.
    4. LIncident monitoring will comprise two parts. First, 
recreational and commercial diver incident monitoring, and secondly, 
marine mammal stranding incident monitoring. The Navy will maintain 
close coordination with the principal clearinghouses for information on 
diver-related incidents, namely the National Association of Underwater 
Instructors (NAUI), the Professional Association of Diving Instructors 
(PADI) and the Divers Alert Network (DAN). The Navy will also 
coordinate with NOAA Fisheries and the principal marine mammal 
stranding networks to correlate analysis of any whale strandings with 
LFA operations.

    Some members of the general public have taken an intense interest 
in the problem of underwater noise, particularly focusing on SURTASS 
LFA. Unfortunately, the concern and controversy over the SURTASS LFA 
sonar system is largely based on misinformation that has appeared in 
the press, direct mail, the Internet, and during public hearings. 
Professional marine biologists and bio-acousticians believe there is 
reason for concern about higher noise levels in the ocean, but not for 
the kind of unreasoned fear that SURTASS LFA now generates in the 
general public. Therefore, I would like to address some of the 
misrepresentations of SURTASS LFA. For the record, I owe this part of 
my testimony to NOAA Fisheries.
    1. LFA is the loudest human noise in the oceans, amounting to an 
acoustic holocaust. The maximum exposure an animal could possibly 
receive from LFA is 215 dB. This is not close to the loudest sound 
marine animals may be exposed to in their everyday environment. Each 
year about one trillion lightning strikes hit the ocean surface with 
sound levels around 260 dB. About 1,000 underwater earthquakes, 
landslides and volcanic eruptions exceeding 230 dB occur annually in 
the Pacific Ocean alone, and over 10,000 occur that exceed 205 dB. The 
loudest non-explosive anthropogenic noise in the ocean is from airgun 
arrays used in seismic exploration. There are about 150 seismic vessels 
operating worldwide this year, with source levels up to 255 dB, and 
capable of shooting every 10 seconds--any one of these can put more 
acoustic energy into the ocean annually than LFA. The most energetic 
noise in the oceans is from commercial shipping. If LFA and all other 
human-generated impulsive noises could be eliminated, noise levels 
would continue to rise because of shipping alone.
    2. LFA is a billion times louder than a 747 jet engine. Within 200 
yards, LFA is approximately the same as a 747 engine, if one could 
operate under water. Beyond 200 yards, LFA forms an omni-directional 
beam that is narrow in the vertical. Outside this beam, at any given 
distance, the LFA sound is comparable to a jet engine at the same 
range. Inside the beam, LFA is about 30 dB louder, which would be 
perceived by a human as about six times louder, not a billion times.
    3. The safety zone used for LFA, 180 dB received level, was 
invented for LFA, and is not based on science. The 180 dB safety zone 
was recommended by an expert panel in 1997 for seismic operations off 
California. Although it is true that no one study has proven the safety 
of this level for marine mammals, several lines of credible research 
suggest that 180 dB is a safe and conservative level for preventing 
injury from low frequency sound. Furthermore, the 180 dB level makes 
common sense, given the animals' environment. For example, 180 dB is 
about half the sound pressure level that an animal would receive from a 
nearby blue whale call, which is about 186 dB at the source.
    4. Sonar has caused beaked whale deaths, which proves that LFA will 
also. It is not possible that all sonars will affect all species of 
marine mammals equally. Sonars differ in operating characteristics, and 
marine mammal species differ in the sounds to which they are 
susceptible. Opponents of LFA intentionally obscure these facts in an 
attempt to prove by analogy that LFA poses specific dangers. The 
scientific truth about sonar and beaked whales is that tactical sonar 
may be implicated in the strandings of six beaked whales on nearby 
beaches in the Bahamas in March 2000. They then apparently died from 
exposure. Tissues from two of the animals are being intensely studied 
by the Woods Hole Oceanographic Institution and NOAA Fisheries for the 
mechanism that could have caused their deaths. Six other episodes are 
known when sonar is believed to have operated near where beaked whales 
died. However, no tissues were collected from any of these events, and 
nothing is known about the types of sonar, or the time or distance 
separating them from the dead whales. Without this information, science 
cannot prove whether sonar did or did not cause whale deaths. These 
events are important because they point out the scientific truth about 
LFA--that there is no evidence that LFA has ever caused a stranding, 
much less a mortality. Furthermore, its operation will come with 
extensive mitigation measures that will make strandings highly 
unlikely. It should be noted that no mitigation was used with any of 
the other seven events.
    5. Resonance explains all previous stranding events caused by 
military sonar and makes deaths from LFA inevitable. Resonance is an 
untested hypothesis about the cause of the deaths of six beaked whales 
in the March, 2000 Bahamas stranding incident. Resonance is only one of 
three different hypotheses about the Bahamas strandings that NOAA 
Fisheries and the Navy are addressing. It should be noted that there 
are currently no resonance data available from any marine mammal tissue 
of any marine mammal species. Mathematical calculations leading to a 
hypothesis that resonance might have caused the beaked whale deaths in 
the Bahamas are not acceptable evidence that resonance was in fact the 
cause. Only physical experiments, now under way, can show whether 
resonance may be implicated in the whales' mortality. Until then, we 
should not assume that all active sonar can cause whale deaths by 
resonance.

    In summary, the Navy recognizes that the potential impact of man-
made sound in the ocean is an issue of public and scientific concern. 
The Navy cares about the ocean habitat, and its efforts are directed 
toward marine conservation. The environmentally responsible deployment 
of SURTASS LFA is an important Navy priority. The Final EIS 
demonstrates that LFA can be used safely relative to both human and 
marine life by restricting where and when it operates and by using 
validated mitigation measures. The Navy has relied on a group of 
independent scientists from respected scientific research 
establishments, such as Woods Hole Oceanographic Institution, Cornell 
University, the University of California and the University of 
Maryland. These are internationally recognized experts in bioacoustics 
and marine animal behavior. Their reputations are based on many years 
of impeccable research and personal scientific integrity. They deal in 
scientific fact, not emotional rhetoric and the facts show that the 
deployment of SURTASS LFA sonar can be safely employed in our oceans.
    Finally, the Navy would like to add its support to the efforts of 
the Department of Commerce, NOAA, and NMFS to reauthorize the MMPA. The 
Navy will work with these and other federal agencies to ensure that any 
MMPA amendments proposed by the Administration will balance properly 
the goals of environmental protection and military readiness. The 
current definition of ``harassment'' is broken into two parts. The 
first part, known as ``Level A'' harassment, deals with physical injury 
to marine mammals. The second part, known as ``Level B'' harassment, 
deals with behavioral modifications to marine mammals. Under both 
parts, the potential to injure or disturb a marine mammal amounts to 
harassment of the marine mammal. Additionally, with regard to Level B 
harassment, the mere causing of a disruption to an animal's behavior 
patterns amounts to harassment. These overly broad and ambiguous terms 
allow for many naval activities, including operation of sonar, to be 
considered harassment. A recent National Research Council report to 
Congress recommended changes in the statutory definition of harassment. 
Changes along the lines of those recommended by the NRC could bring 
greater clarity to the MMPA, narrow the focus of harassment, and offer 
the Navy increased flexibility in its operations while still protecting 
marine mammals.
    With regards to research, the Navy funds the majority of all Marine 
Mammal research in the world. The Navy provided approximately $7M in 
fiscal year 01 for research directly related to assessing and 
mitigating the effect of noise from Navy activities on the marine 
environment. The funding plan for fiscal year 02 calls for an increase 
of approximately $2M to $7M, contingent on final budget approval and 
recent events.
    The Office of Naval Research (ONR) research program is divided into 
two major components: 1) Environmental Consequences of Underwater Sound 
(ECOUS) and 2) Effects of Sound on the Marine Environment (ESME). The 
goal of ECOUS is to develop data on marine animal hearing and 
behavioral response to sound with an emphasis on marine mammals as the 
group most likely to be sensitive to manmade noise, to encourage new 
technologies that will make this job easier (such as new listening 
technologies to detect marine mammal sounds) and to develop databases 
and educational resources to enable Navy personnel and the public to 
better understand and respond to this issue. ESME is a recent program 
that grew out of ECOUS, and has been funded at an annual level of about 
$2M since fiscal year 00. ESME is intended to take the information 
garnered from ECOUS, and other sources, and incorporate this 
information into a predictive modeling and planning toolkit for Navy 
and other users. The intent of ESME is to allow users to anticipate the 
likely outcome of a planned action, and design that action for minimal 
environmental impact.
    Over half of the ONR program funds go outside the Navy to 
independent research institutions and universities. All participants in 
the program are encouraged to publish their results in peer-reviewed 
open professional literature, and to report their findings at open 
professional meetings in relevant subject areas (e.g. acoustics, animal 
behavior, hearing, ecology). The ONR program is externally reviewed by 
an independent board of visitors approximately once a year, and 
receives input from the National Academy of
    Sciences, the Marine Mammal Commission and other independent 
oversight bodies. A complete list of research activities sponsored in 
fiscal year 00-01, containing a 2-5 page summary of each project, can 
be found at the ONR website (www.onr.navy.mil).
    In addition to the ONR S&T projects mentioned above, Navy invested 
$3M in FY01 and is planning a similar amount in fiscal year 02 to take 
advantage of our years of experience in sonar operations and our 
knowledge of underwater sound in an attempt to monitor marine mammals. 
Equipment and techniques originally developed to detect the sounds 
emitted from submerged submarines may have practical application in 
detecting and tracking marine mammals. This has significant potential 
since many marine mammals use calls, sounds of a various nature when 
under the surface, as a form of social communication, or to determine 
the location of prey, etc.
    Our attempts to detect these calls and determine what species of 
animal is calling, and under what circumstance may provide valuable 
information and understanding. First, we will be able to significantly 
improve our estimate of how many animals of a certain species are 
within a Navy ocean region of interest. This type data is critical to 
the analysis used to determine the potential effect of Navy operations 
on marine mammals. Second, we will be able to mitigate any potential 
effect by detecting the presence of a marine mammal within an area, and 
therefore cease or modify the scheduled operations.
    Third, by acoustically monitoring marine mammals we may be able to 
measure any changes in their behavior providing information on the 
potential long-term effects from various Naval activities.
    If it were possible to predict realistically how many marine 
mammals of a given species were expected in any given ocean region, 
Navy planners could, when there is an option, schedule training 
exercises at locations to limit any potential effect. A more realistic 
estimate of the number of animals expected must include knowledge of 
the factors which govern where marine mammal go in the ocean, and for 
what reasons. The Navy is investigating these habitats and attempting 
to correlate them with the known physical environment. When we have 
that information we will be able to predict or forecast marine mammal 
movement and abundance that will improve our ability to mitigate. The 
research to date has provided much insight on acoustic concerns in the 
ocean including the alarming overall rise of ambient noise and the 
potential masking of marine mammal communication by unregulated 
commercial shipping and seismic surveying.
    The Navy is a good steward of the ocean and we have maintained a 
reasonable balance between national security and environmental 
concerns. We hope to continue that relationship as we forge ahead in 
this new century.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Admiral.
    I guess what we are going to try to figure out here is, 
between this afternoon and the next several months, how does 
noise, human-caused noise in the ocean, affect the marine 
ecosystem as a whole? That includes fish, from my perspective, 
but this afternoon we are focused on marine mammals and whales 
in particular.
    And what we are looking for as Members of Congress is to 
gather the best available data on--I'm going to make an attempt 
at this, Dr. Ketten--anthropogenic noise, and ways that we can 
modify it so it doesn't have a negative impact. And we will not 
only work with the Marine Mammal Protection Act and all of you, 
but certainly we would like to work with the International 
Maritime Organization to see if we can get the international 
community, in the design of their ships, to find ways to modify 
the sound.
    I would guess, Admiral McGinn, that the Navy has already 
figured out how to run a ship with no noise. Maybe we can adapt 
those particulars and engineer that for the commercial sector 
of the marine transportation system.
    But, Dr. Ketten, you made a statement about LFA that I 
found interesting. You said it did not cause the beaching of 
those whales in the Bahamas, and I would like to know how you 
can say that categorically. Might it have been some other type 
of sonar, some other range of noise in the ocean? Do you have 
some idea of what caused those whales to be beached in the 
Bahamas?
    Ms. Ketten. Yes, sir. The reason I said LFA had nothing to 
do with it was, to the best of my knowledge there was no low 
frequency, LFA or another acronym for similar devices, exercise 
underway at the time. What we have is a case of 14 animals that 
beached. Of those, six died, eight were returned to the water 
successfully. The six that died were examined by me and other 
pathologists.
    I am getting to the answer. That is, we know what killed 
the animals, and it was the complications of beaching. That is, 
they died of hyperthermia, overheating under their own fat and 
body loads, as well as, in a few animals' cases, severe trauma 
from going across reefs or being bitten by sharks in beaching. 
That is the cause of death.
    What we did find in those animals, what I found in those 
animals, were a suite of traumas that were unusual, and in fact 
which we have not seen in other animals to date. Those were 
auditory traumas or acoustic induced traumas, we believe. The 
specific traumas are consistent with a pressure induced injury, 
and at the time what I asked for were records of the area, to 
determine if there had been explosions, which could also 
provide these same damages, or other sounds.
    I believe it has been generally acknowledged by the Navy as 
well as by NOAA Fisheries, who sponsored me to do the work, 
that the coincidence of the sonars in what was called an 
unusual sound duct, that is, an unusual sound profile that 
developed in the water, so that there was very little 
degradation of the sound as you would normally find, very 
little attenuation of it, the animals found themselves in 
essentially a spherical area where they were not getting away 
from an intense signal.
    It was a combination also, please note, these were beaked 
whales that stranded, that died, and they are the only ones 
with these traumas. None of the other species, there were two 
other species that stranded, had any of those traumas. So there 
is a specificity to the trauma, and it is to just beaked 
whales. It was a mid-range sonar, again.
    Mr. Gilchrest. What were the other whales that were 
beached?
    Ms. Ketten. There were two Minke whales and one spotted 
dolphin. Minke whales and spotted dolphins are not uncommon 
stranders in those areas, and the two Minke whales survived. 
They just came on shore briefly and went right back off. The 
spotted dolphin did die. The pathology on that was that it was 
an emaciated, very weak animal with a lot of infections. It 
stranded on the opposite side of the island, and we decided--
    Mr. Gilchrest. That might have been a coincidence, you are 
saying?
    Ms. Ketten. Exactly. Right. Precisely, a coincidental 
stranding.
    Mr. Gilchrest. The beaked whales that did have the trauma, 
was the trauma in the ear? Was there a rupture in the ear, a 
damage to their tissue? And then can you determine what was--
well, it seems that you are saying that the damage to the 
tissue in those whales that were beached happened perhaps as a 
result of some type of sonar being emitted, but that they were 
caught in, I don't know, an underground chasm in which, if they 
could have gone to the right or left, they may have escaped the 
trauma?
    Ms. Ketten. I apologize for the complexity of this. The 
situation is that they had hemorrhages in the brain area, 
outside the brain, in the fluid surrounding it. It is called 
the subarachnoid space. It is the fluid cushion that surrounds 
our brains. The brains themselves were not compromised. So 
there were some hemorrhages in that space. There were 
hemorrhages in--
    Mr. Gilchrest. And what would cause a hemorrhage like that?
    Ms. Ketten. Allow me to just say there were two other 
areas, and that is the key to this, is there were some 
hemorrhages around the ears and some hemorrhages in fats in 
their jaws that are associated with channeling sound to their 
ears.
    You do see the same type of bleeding, except not in the fat 
since we don't have them, in humans, and in experimental 
animals that have been exposed to some forms of sound. In 
humans we see the same suite of traumas also, however, in 
individuals that are prone to bleeding, hemophiliacs, end stage 
leukemics.
    You can see it--there were a possible seven causes that are 
consistent with this suite of traumas. We eliminated some, like 
birth trauma from forceps. I don't think there is an obstetrics 
ward out there. That one I was pretty sure was not the case.
    As I mentioned, explosions are a possibility. There were no 
explosions that anyone could detect. Intense impulse noise, 
sonic booms, intense impulsive sonars which are not 
attenuating, at exceptional high levels. Anything that was a 
high impulse noise. A gun going off alongside your head can 
induce this.
    However, and here is the key element, why I am not saying 
absolutely sonar per se did it, is an animal that is simply 
stressed, which is prone to bleeding, may also have had those 
same hemorrhages. And it is very complex for us right now to 
say which thing it was or if it is a combination.
    I have two other pathologists who are experts in the 
appropriate area looking into the question of whether or not 
beaked whales in fact have some tendency to bleeding. It is 
called diathetic disease. It may be that it is a combination of 
beaked whales being sensitive to the sonars, being in a sound 
field that stressed them, and then going on shore.
    One thing that I need to mention is that we don't know 
about the entire population. We know only about the six animals 
that died on shore. As I mentioned, eight were returned to the 
water successfully.
    Mr. Gilchrest. Eight beaked whales?
    Ms. Ketten. Yes, and also we did patrol the area by air and 
boat for over a week, and no other whales were found stranded 
or dead in the vicinity. You would expect if they had died that 
they would have come to the surface.
    Mr. Gilchrest. Thank you very much. I have some other 
questions, but I will yield now to Mr. Faleomavaega.
    Mr. Faleomavaega. Thank you, Mr. Chairman. I am most 
impressed with the distinguished members of the panel this 
afternoon. And there have been some interesting differences of 
opinion, too, about the issues, and I would like to ask Admiral 
McGinn, there is a very obvious disagreement with the purpose 
of the Navy's experimentation. You have indicated that for some 
60 years the Navy has had extensive experience in understanding 
sonar. I am not very familiar with SURTASS LFA that you had 
indicated earlier in your statement. Is the Navy still 
continuing research using dolphins for purposes of carrying 
mines and things of that sort?
    Admiral McGinn. Yes, sir. We have a variety of marine 
mammal programs, some of them unclassified, some of them 
classified. I would welcome any member of the Committee, if you 
wanted to visit us, to visit our facilities to talk to the 
marine biologists that work with these wonderful animals, and 
we can also provide you a briefing on any of our programs along 
those lines.
    Mr. Faleomavaega. Where is your facility?
    Admiral McGinn. Principally in the San Diego area.
    Mr. Faleomavaega. Mr. Chairman, I want to be the first 
volunteer of the Committee to go to San Diego.
    [Laughter.]
    Admiral McGinn. Sir, if I could make a recommendation, I 
recommend January as the best time to go out there.
    Mr. Faleomavaega. I absolutely agree with you on that.
    Mr. Gilchrest. Mr. Faleomavaega, Mr. Underwood and I have 
already planned a trip, and you can accompany us, but our trip 
is to the northern part of Alaska to study the polar bears. So 
you are welcome on that one.
    Mr. Faleomavaega. Mr. Chairman, you are welcome to go see 
the polar bears, but I am going to San Diego.
    [Laughter.]
    Mr. Faleomavaega. But as you had indicated, Admiral McGinn, 
on questions of national security, I don't think there is any 
question in anybody's mind the importance of that, the security 
of our Nation. The thought that came to my mind, is it any 
different using dolphins for the purposes in the same way that 
we use dogs? I don't know if that is a proper way to describe 
it. In heat of battle and the situation, they are just as much 
subject to dangerous situations as you would have dolphins 
carrying mines of the sort. Do you see any distinctions? Are 
they about the same, or do you think it is inhumane to use 
dolphins for the same purposes?
    Admiral McGinn. I do not, sir, and I think the analogy to 
using canines for the variety of purposes that we see them used 
right now in this national crisis, whether it is for finding 
survivors or remains, whether it is for detecting explosive 
devices, whether it is for security, protecting key areas and 
citizens, we use animals in a very humane way, and we use them 
because they have abilities and senses that we simply do not 
have. That is certainly the case in our use of marine mammals. 
They are absolutely wonderful animals, well cared for and 
humanely treated, and they are invaluable in the areas that we 
use them in.
    Mr. Faleomavaega. Was the Navy involved in any research, as 
it was suggested earlier by Dr. Ketten, about the beaching of 
these whales in the Bahamas? Can you--
    Admiral McGinn. Yes, sir, we con--
    Mr. Faleomavaega. --share with us what your findings is in 
terms of--
    Admiral McGinn. --we conducted what I would describe as a 
more operational investigation related to that grounding in the 
Providence Channel in the Bahamas, and as a result of that, we 
changed our operational pattern and procedures in there. That 
was an area that was unique to our operations. We were moved to 
that area because of restrictions on the ability to train in 
the Vieques, Puerto Rican area, in the Virgin Island Channel, 
which is a much wider channel and has much better 
characteristics for sound attenuation than in the Providence 
Channel. So as a result of our operationally oriented 
investigation, which was supported in part by the scientific 
investigation, we have placed restrictions on operations of 
ships and the types of operations that you can do in the 
vicinity of the Providence Channel.
    Mr. Faleomavaega. Now, it is Dr. Whitehead's best opinion 
that it was because of naval operations that caused the deaths 
of these whales, and of course there is disagreement with Dr. 
Ketten, as well, but what is the Navy's position in that 
allegation?
    Admiral McGinn. In that particular case, in that particular 
well-documented and scientifically researched case, where we 
can make fact-based opinions, we believe that the possibility 
was strong enough to cause us to alter our operational 
patterns. We would not want to apply that rule broadly, if we 
did not have the facts to do so.
    Mr. Faleomavaega. But did you scientifically also do a 
study like Dr. Ketten did, actually cutting up the whale to 
find out exactly the auditory system, what caused it or 
possibilities that--
    Admiral McGinn. No, sir, we did not, but I will defer to 
Dr. Ketten to give you the relationship with the Navy 
investigation and the scientific research. But we made 
available funds to do that, to follow on this investigation to 
its full conclusion.
    Mr. Faleomavaega. Does the Navy also provide funds to Dr. 
Whitehead and Dr. Rose on a conservation basis about their 
studies of mammals and--
    Admiral McGinn. I would like to defer to them. Perhaps they 
could give you a better answer, sir. I am not aware of any that 
we do.
    Mr. Faleomavaega. But probably more than any Federal agency 
in the whole government that I am aware of, the Navy is 
probably the repository of just about everything and anything 
dealing with sound systems, sonar, both machine operated as 
well as using animals for--
    Admiral McGinn. Yes, sir, that is true. And as a result, as 
you probably know, of the end of the Cold War, we have been 
able to increase the sharing of marine data, information, 
scientific data with a much broader community in an 
unclassified way, and that has helped us all to learn more 
about this planet and the 70 percent of it that is covered by 
water.
    Mr. Faleomavaega. I am sorry my time is up, Mr. Chairman, 
but I will be your first volunteer to go to San Diego.
    Mr. Gilchrest. We will accept that, Mr. Faleomavaega. We 
will probably have another round, so you will be able to ask 
more questions if you have them.
    Mrs. Mink?
    Mrs. Mink. Thank you very much for the courtesy of inviting 
me here to the podium. I have been with this issue a long time, 
through various name changes of the various experiments that 
have been conducted in the ocean for acoustic impacts.
    I would like to get back to the beaching of the 16 whales 
in the Bahamas. From the Navy point of view, Admiral McGinn, 
can you conclude for us what the Navy found as the reasons for 
those 14 whales being beached in the Bahamas?
    Admiral McGinn. To the extent of my present knowledge on 
that, the results are inconclusive to this date. There is still 
a report that we are awaiting from, I believe, Dr. Ketten and 
perhaps others, that has more scientific data. But to my 
knowledge, we have not come to a conclusion, a definitive 
conclusion, that it was the use of mid-frequency range sonars 
that directly caused that beaching of the whales.
    Mrs. Mink. Yet the information that you did receive caused 
you to alter your plans, you testified, so there must have been 
data there that was of sufficient merit to conclude that the 
operations that you had conducted could have contributed to 
this event, and therefore you changed. All I am trying to find 
out is--
    Admiral McGinn. Yes, ma'am.
    Mrs. Mink. --what was that data that caused you to make 
that shift in policy?
    Admiral McGinn. I would characterize it as we took the 
prudent and conservative course of action, based on the 
circumstantial evidence surrounding that beaching. And it was 
for that reason, erring on the side of the conservative, that 
we imposed that. It wasn't any specific, fact-based conclusion 
that caused us to do that.
    Mrs. Mink. So what level of sonar soundings were in place 
at that time, that could have been responsible for the 
beaching?
    Admiral McGinn. I am sorry, madam, could you--
    Mrs. Mink. What was the level of the sounds that were 
produced by your particular testing or whatever, that could 
have led to the beaching?
    Admiral McGinn. I would like to--
    Mrs. Mink. I am trying to get a distinction between LFA and 
medium level. What, in your data sheets, what was the level of 
soundings that--
    Admiral McGinn. I would like to take that question for the 
record, but I would like to comment on the distinction between 
the kinds of operations that were being conducted in the 
Bahamas, in the Providence Channel, and this whole issue of 
LFA. We are talking about two different frequency bands with 
quite different propagation characteristics in the water 
column.
    The LFA issue is not related to what happened in the 
Providence Channel in the Bahamas. There was no LFA operation. 
It is not relevant in terms of the sound amplitude of LFA 
regarding that incident. But I will get back to you on 
precisely, to the extent of our knowledge, the level of sound, 
of the sonars that were being used in those naval operations.
    I have been handed a note that there is a joint Navy-NOAA 
investigation. NOAA has the lead on it. We are supporting them. 
And the results are pending, and I think they will be released 
in a matter of weeks, and certainly not more than a couple of 
months.
    The reason that I emphasized our cessation of operations in 
that particular area was based on an operationally oriented as 
opposed to a scientific investigation as to the cause of the 
beaching.
    Mrs. Mink. To the extent that you have concluded that the 
beachings of the 14 whales had nothing to do with low frequency 
matters, what was the frequency that was recorded in the 
Bahamas that led to the beaching in the first place?
    Admiral McGinn. I would request that I take that question 
for the record, and we will provide you with a response with 
all of the parameters that we know about that sound signal.
    Mrs. Mink. Now, is any part of the LFA testing considered 
classified information, to which you cannot provide a public 
hearing such as this the information that we might need?
    Admiral McGinn. Well, some of it is, because we don't want 
to advertise, especially in a public forum, the effectiveness 
against various types of underwater targets like diesel 
submarines. But a great deal of it, as it relates to protecting 
the marine environment and protecting marine mammals, is a 
matter of public record, and we are more than happy to share 
whatever data we can.
    Mrs. Mink. Well, I know my time is up but I have one more 
question of Dr. Whitehead, because it is your testimony that 
really concurs with mine, in which you categorically state that 
it is clear that the naval exercises and LFA were responsible 
for the whales being beached in the Bahamas. So can we have 
your comment to the series of questions that relate to that 
particular incident, so it might have some clarity on the 
matter?
    Mr. Whitehead. Yes. As all of us I think have pointed out, 
the ocean is a hard place to figure out what is going on, but 
the sequence of events in the Bahamas was as clear a proof of 
the cause, the ultimate cause of what happened, as you are ever 
likely to get in the ocean.
    Dr. Ketten says it wasn't the sonar that caused them to 
die, but as Dr. Balcomb, who did the studies, has pointed out, 
to say that the whales died from beaching is rather like saying 
that if you chase buffalo over a cliff, it is falling on their 
noses that killed them rather than being chased.
    So to me the Bahamas evidence is very clear, and when that 
is backed up with evidence from previous naval exercises, for 
instance an exercise which took place in Greece a few years 
ago, that there was another multiple stranding of beaked whales 
soon after the use of sonars, in this case low-frequency 
sonars, and the statistical evidence, looking back over the 
historical record, of the congruence between these strandings 
of several species of beaked whale together with military 
activities, I think we have got something we have really got to 
worry about.
    And I appreciate that you here in the United States and all 
of us have to be concerned about protecting your Nation at the 
moment, but we must also be concerned with what we do as we do 
that, and I hope you will. Thank you.
    Mrs. Mink. In the case of the Mediterranean incident, how 
many whales were beached and how many died? Do you have those 
figures, for the record?
    Mr. Whitehead. I don't have them with me at the moment, I 
am afraid.
    Mrs. Mink. If he might provide that, just to complete the 
record, I think you very much, Mr. Chairman.
    Mr. Gilchrest. Yes, ma'am.
    Mrs. Mink. Oh, I have the statement from my colleague from 
Hawaii, Congressman Abercrombie, who asked me to insert it at 
this point in the record.
    Mr. Gilchrest. Mr. Abercrombie. It will be, without 
objection.
    Mrs. Mink. Thank you.
    [The prepared statement of Mr. Abercrombie follows:]

 Statement of Hon. Neil Abercrombie, a Representative in Congress from 
                          the State of Hawaii

    Mahatma Gandhi once said that the greatness of a nation can be 
judged by the way a society treats its animals.
    The United States, and Hawaii in particular, have been blessed with 
a tremendously rich and diverse array of whales, dolphins, and other 
marine mammals that inhabit our oceans. These animals have lived here 
for millions of years and many of them, especially the whales and 
dolphins, are extremely intelligent.
    I am concerned about recent allegations that there is inconclusive 
scientific evidence that supports the U.S. Navy's contention that the 
Surveillance Towed Array Sensor System Low Frequency Active Sonar 
(SURTASS LFA) is not harmful to these species. Some groups have 
proffered evidence indicating that low frequency active sonar may be 
linked to internal bleeding, disorientation, hearing loss, and other 
negative consequences for whales and other marine life. And recent 
beaked whale strandings in the Bahamas demonstrated that active sonar 
may even have lethal effects on these animals.
    For many years our marine mammals have suffered from hunting, 
pollution, overfishing, and other human disturbances. This has placed 
many species on the Endangered Species Act's endangered list. Now it 
appears that we may be making matters worse for our marine mammal 
populations with the introduction of harmful sonar technology. The 
Marine Mammal Protection and Endangered Species Acts ensure that future 
threats to these species are minimized. There is reason to believe that 
low frequency active sonar presents just such a threat.
    As a result of the National Marine Fisheries Service's (NMFS) 
proposed rule, which would allow the Navy to proceed with deployment of 
this sonar system, I have heard an outcry from constituents who are 
concerned about the rule's impact. The NMFS recently received public 
comments from eighty organizations and individuals from the scientific 
and environmental communities in response to its proposed rule for the 
taking of marine mammals incidental to Navy operations of the SURTASS 
LFA sonar. All of these responses were opposed to the deployment of the 
LFA sonar system. Needless to say, there is widespread concern in these 
communities that the use of the SURTASS LFA sonar in our oceans 
presents an unacceptable risk to marine species and their habitat. Such 
strong and credible comments from organizations like the Marine Mammal 
Commission, the Natural Resources Defense Council and the Humane 
Society of the United States cause me to be skeptical about the 
deployment of this sonar at this time. I urge NMFS to delay the 
decision on this matter until there is conclusive scientific evidence 
that this technology will not negatively impact marine mammals.
    Over the years I have worked very hard to protect, conserve and 
restore our marine species. For some species, such as humpback whales, 
these efforts have been extremely successful. The tremendous popularity 
of whale-watching cruises are an indication of just how much public 
support and interest there is in the well-being of these magnificent 
creatures. I also believe in a strong national defense and have 
previously supported funding for the Navy to explore new sonar 
technology. However, I am concerned that we may be too hasty in 
deploying a sonar that may prove injurious to marine mammals. I believe 
that there are serious questions that need to be answered before such 
deployment. It would be wrong to deploy the low frequency active sonar 
system until we know that it will not harm our marine mammal community. 
Perhaps more research into marine mammal hearing could provide answers 
to these questions.
    It is my understanding that there may be opportunities to develop 
advanced passive sonar systems that would not have the same sort of 
consequences for marine mammals. I believe the Navy has testified 
before Congress that some of these new passive systems are able to 
detect targets to a degree previously thought unobtainable. I encourage 
the Navy to exhaust these options before pushing forward with a 
technology that appears to be harmful.
    Finally, I am concerned about the totality of human induced noise 
that is currently polluting our oceans. Over the years ocean noise has 
greatly increased as fishing, shipping and mineral exploration has 
expanded globally. When this noise is combined with the noise caused by 
existing military hardware such as the mid-frequency sonar I find 
myself asking just how much noise can we introduce into our oceans 
before it seriously affects our marine environment. I believe that all 
noise pollution that currently exists in our oceans should be examined 
in conjunction with the SURTASS LFA sonar.
                                 ______
                                 
    Mr. Gilchrest. Just a couple of follow-up questions to get 
it clear in our mind a little bit more, and I understand that 
some of these questions that we ask, we are not asking you to 
multiply 10 by 10, where there is no question what the answer 
is. I guess what I am trying to figure out is--well, first of 
all, LFA, SURTASS LFA, was not used, it is my understanding, 
during that operation.
    Admiral McGinn. No.
    Mr. Gilchrest. LFA wasn't used, but there was a more 
traditional mid-range sonar used?
    Admiral McGinn. Yes, sir.
    Mr. Gilchrest. And during this operation there was a type 
of--which isn't normally used by the Navy in this particular 
vicinity for naval operations, but because of something that 
happened, I guess in Vieques, the operation was moved to a 
different location--but there was a type of a channel that the 
ships were going through, that if there were in fact marine 
mammals or whales in that channel, they didn't have an easy 
escape route.
    Now, Dr. Fristrup, you made a comment earlier about a 
series of research activities that you were involved in to see 
which type of range of frequency had a reaction to whales in 
various places. Based on that research and your understanding 
of the type of range that different size marine mammals will 
find damaging, what would you say--and we in Congress very 
often go on guesses, so I would just ask you your best 
assessment--under this circumstance in the Bahamas, where there 
were numerous beached whales, most of which were beaked whales, 
based on the range of acceptable frequency in a beaked whale 
before it causes some type of damage or trauma, could mid-level 
sonar, under the conditions of that naval operation in that 
channel, if the beaked whales were in that channel and couldn't 
escape, could that sonar have caused them trauma so they became 
disoriented and beached themselves?
    Mr. Fristrup. I have to resist a considerable temptation to 
pass this to Darlene because it is really more her area of 
expertise, but I would like to say one thing, and that is, I 
don't think anyone should overstress the unique physical 
conditions that take place in the ocean, because there may be 
other times and places in the ocean where similar conditions 
occur.
    What needs to happen is for us to learn, rather than 
speculate about whether those unique conditions caused the 
problem or whether this particular species has a problem, we 
just need to go about this in a fairly systematic, rational way 
and find out what the critical factors are. The fact that there 
are Navy operations all over the world that don't correspond 
with strandings suggest that it is not a universal feature of 
Navy operations.
    And every Navy operation probably has a unique combination 
of factors involved--different instruments, different sonars, 
different operational procedures, different numbers of ships--
and so the process of teasing apart what the critical issues 
are, it is fundamentally sort of a research problem. It is not 
the kind of research problem I intend to, I would like to 
pursue, but how you pursue that problem is known.
    And I think the report, the joint Navy-NOAA report, 
probably is going to go a long way to answering part of these 
questions, and that areas, it should also clearly identify the 
data gaps where we can't resolve the issues, and that 
identifies a really obvious point of new research. And I think 
the best way to resolve these issues is to continue to bring in 
larger, you know, expand the group of scientists who are 
brought to bear to work on this, so that the results that we 
develop are not resting too heavily on any one set of 
shoulders, and also to benefit from the broader range of 
perspectives and expertise that could be brought to the 
problem.
    Mr. Gilchrest. Thank you very much. I guess you would at 
least, you would probably conclude that the Navy's action was 
prudent.
    Mr. Fristrup. Yes, absolutely, and I would also conclude 
that if we are talking today about a direction of future 
research, where we should worry about the impacts, human 
impacts, noise in the ocean, we have clearly identified one 
area that merits attention.
    Mr. Gilchrest. And that is?
    Mr. Fristrup. And that would be these higher frequency 
sonar issues.
    Mr. Gilchrest. Higher frequency as opposed to lower 
frequencies?
    Mr. Fristrup. Right. My guess would be that the--well, I 
will back up 1 second and say that clearly what we have to be 
concerned about when it comes to ocean noise is the number of 
sound sources that are involved in any one particular activity 
and what their movement patterns are, where they occur relative 
to the animals we are concerned with.
    I think you can fairly quickly do some sort of back-of-the-
envelope calculations and figure out which programs or which 
human activities, commercial shipping among them, really merit 
some careful attention. So I think it is pretty clear we can 
look at the ocean noise budget, we can sort of break out what 
the top five potential issues are, and let's just begin working 
on them the same way we have worked on other ocean noise 
problems.
    Mr. Gilchrest. Are you aware if that is being considered 
by--
    Mr. Fristrup. I believe actually that one of the 
constructive changes I have seen at NOAA over the last 5 years 
is that they are very much taking this approach to identifying, 
in a general way, what the ocean noise problems were. I think 
NOAA used to confront a problem where they had a very severe 
regulatory requirement in the original Marine Mammal Protection 
Act, one that was probably impractical to apply uniformly or 
equitably, and so they restricted their attention to the few 
cases that were easily managed. And I think they and the Marine 
Mammal Protection Act have been moving in the direction of more 
reasonable regulations, more reasonable basis for assessing 
risk, and therefore have been able to expand the scope of their 
consideration to address the entire problem.
    Mr. Gilchrest. I see. Is there a difference? What is worse 
on marine mammals--and I know it will vary from the size of the 
mammal, physiology, and I guess I suppose even fish--is the 
noise from an oil tanker or a bulk carrier of sugar or coal to 
an ocean liner to a Navy sonar, or drilling from an oil drill, 
which one of those would be considered worse, or are they just 
different depending on the species, or is the fact that the 
noise budget has increased in the ocean at an accelerating rate 
in this century?
    And, Dr. Ketten, you made a comment earlier about dolphins 
can evolve quickly. Can they evolve quickly enough to accept 
the noise of the 20th and the 21st century?
    Ms. Ketten. Thank you. I was hoping I would get that one. 
Some of this I know.
    In terms of increases in noise in the environment, there is 
in fact a National Academy of Sciences panel that is addressing 
the question of ambient noise. It just began, and it is trying 
to determine exactly what are the manmade sources going into 
the ocean and how they have changed over time.
    There is one publication from the 1970's that suggests, and 
it is very likely to be a conservative number now, that noise 
in the ocean is increasing at the rate of 10 dB per decade, 
which is a substantial increase, all from shipping. To put some 
of this noise into perspective, and some of the side effects to 
put into perspective, if we can go back to the beached whales 
for just a moment, I neglected to say that those traumas that I 
described in the experimental animals and in humans are not 
fatal, and any hearing loss is temporary.
    That is why I am not saying that the sonar activity, even 
if it directly caused the hemorrhages, was not the cause of 
death. I don't know that it wouldn't do it, but at least in all 
other animals, including humans, it would not.
    Mr. Gilchrest. I will ask you later about Rush Limbaugh.
    [Laughter.]
    Ms. Ketten. I know that one, too.
    In terms of what is worse--and thank you, Mr. Chairman, you 
have mentioned fish, also turtles, there are a great many 
animals out there that can be impacted. I think it is not just 
marine mammals, and indeed if we begin to affect their prey 
species, it could be a far more important impact than just on 
the marine mammals themselves. It depends on each species.
    A very high frequency sound is most likely to impact 
dolphins, the animals that use ultrasonics, which frankly hear 
really poorly at the end of something like a low frequency 
sonar. Dolphins do not hear well in the 500 Hz, which is one of 
the areas of the range of LFA.
    As opposed to that, though, some baleen whales, elephant 
seals, do hear well in those lower frequencies, but the 
majority of marine mammals are high frequency to very high, 
ultrasonic sensitive animals. Therefore, for them we are more 
concerned about very high frequency sources, or for all 
animals, impulse noise.
    You mentioned airguns and drilling. That is a universally, 
close to universally potentially damaging signal, if you are 
close enough to it. And in fact, again to put the beaked whales 
into perspective, Dr. Whitehead mentioned six incidences which 
are over the last 45 years, and the total number of animals 
impacted in that case has been approximately 85.
    In the last 5 years, in the North Sea we are seeing animals 
with clearly serious stress, probably from the drilling and 
seismic oil exploration activity combined with shipping. Those 
animals are coming on shore. We have had over 200 animals in 
the last 5 years, with various pathologies in their ear areas. 
So that is why it is on the verge of OSHA. It is a question of 
trade-off of the exposure to the signal that you are sensitive 
to versus time.
    And again, we have all brought in questions of shipping. 
Tankers, because it is 24/7, 24 hours a day, 7 days a week, 
throughout the North Atlantic and Northern Pacific waters. 
There is only one area of the oceans that we think are probably 
not so severely impacted, and that is the far South Pacific, 
and I recommend going there to check that out.
    Mr. Gilchrest. The Antarctic? Well, maybe we can--
    Ms. Ketten. No, Tahiti.
    Mr. Gilchrest. Oh, Tahiti. Oh, I guess the Antarctic is the 
real South Pacific. We could go to the Ross Sea--
    Ms. Ketten. Yes.
    Mr. Gilchrest. --and watch the killer whales.
    Admiral?
    Admiral McGinn. Mr. Chairman, I think this line of thinking 
about perspective and scale is really, really an important one. 
I have a few factoids about noise in the ocean, and I think 
just about all of us witnesses have said in one way or another 
that it is a noisy world we live in, and that applies to our 
oceans as well.
    But commercial shipping is responsible for over 90 percent 
of the low-frequency ambient noise, manmade ambient noise, in 
the ocean, and it is currently effectively unregulated. I am 
referring back to a comment that you made earlier, that perhaps 
we could apply research dollars to that problem and affect the 
marine environment in a much, much more effective way than we 
are doing in focusing on one weapon system for one service.
    I think this point of us being responsible stewards, we 
answer the telephone, we answer the mail. We are there 24/7, 
and as a responsible service and a responsible armed service, 
we take seriously our obligation to address these issues. But 
because of that sense of responsibility that we have, I think 
we tend to become more of a target for these types of 
inquiries, injunctions, lawsuits, legislation, policy 
regulation, than others, just because we can be held to a 
higher standard.
    That is not to say that I disagree with the standard. We 
want to be good stewards. We are. We have a good record of 
stewardship. But we need to put these things in perspective. We 
can spend a tremendous amount of time and money on Low 
Frequency Active, and the world effectively is crashing down 
upon us in terms of noise in the ocean.
    In a given year, over a trillion lightning strikes hit 
somewhere in the ocean, producing sound levels of up to 260 
decibels. Underwater earthquakes and other phenomena on the 
ocean bottom occur annually in the Pacific, 1,000 in a typical 
year in the Pacific, exceeding 236 decibels. That is naturally 
produced noise.
    The Navy operates less than 4 percent of the total ship 
traffic in U.S. waters, and far less than that on a percentage 
basis in international waters. We are down to 310 ships from a 
high of nearly 600 in the times of the Cold War, and we operate 
them more responsibly each year as a result of us learning from 
our research dollars and the research of others.
    So I think this idea of perspective, and not just focusing 
on one area to protect marine mammals, is a very, very good 
line of inquiry. Thank you, sir.
    Mr. Gilchrest. Thank you, Vice Admiral McGinn.
    My time has expired, and I don't know, Mrs. Mink, did you 
have any follow-up questions? No, I will let Dr. Rose say 
something, but first I will yield to you, Mrs. Minke.
    Mrs. Mink. I wanted to follow up on the Admiral's comments. 
I have here a GAO report that was issued in 1992, which 
undertook an analysis of the SURTASS program, and in it it says 
that it was designed for acoustic signals in the very deep open 
oceans. But with the end of the Cold War and the collapse of 
the Soviet Union, it points out, the SURTASS turned to the 
current coastal shallow waters for their acoustic experiments.
    And I am impressed by all the noise clutter that you just 
testified to. It was almost deafening to imagine what it sounds 
like, with all the ships and everybody going by. Of what value 
is the LFA studies for the Navy if you are colliding with all 
these other noises in the coastal areas?
    Admiral McGinn. There are two significant things that have 
happened since 1992 when that GAO report was made. One is that 
we have learned a great deal more about the characteristics and 
the functionality, the capabilities and limitations of Low 
Frequency Active sonar used in conjunction with the SURTASS 
system, and we find that it has applicability not just in the 
deep blue water environment but indeed in littoral areas, not 
necessarily right up close to shore or where most marine 
habitats are, but in the approaches to choke points in deeper 
water, where it is very, very effective.
    The other thing that has happened significantly since that 
1992 report is the production and proliferation, to nations 
unfriendly to the United States, of ever more quiet diesel 
submarines, and the increase of the threat level of the 
weapons, the torpedoes, the missiles that they carry and the 
mines that they can disperse, to deny not just military 
shipping but commercial shipping from these essential 
commercial waterways and on the high seas. So those are the two 
things that happened.
    Were LFA SURTASS not an effective ASW sensor, we would not 
be spending a dollar on it. We can't afford to waste dollars on 
things that we know don't work or aren't relevant to not just 
the present conditions we find ourselves in, but to the future. 
So we believe, based on good experimentation, on threat 
analysis, that LFA has a great deal of relevance to future 
threats.
    Mrs. Mink. The report also says that between '92 and '98 
the Navy spent $1.2 billion on the SURTASS program, and you had 
19 ships at that time and you were planning to build more. 
Could you tell me how many are now in operation, and what the 
annual cost of the program is? You noted that $9 million only 
was going for research, so what is the total cost of the 
program of which $9 million is for research?
    Admiral McGinn. I would like to take that question for the 
record. I don't have specific facts on that, and I want to make 
sure we are accurate on that.
    Mrs. Mink. Thank you, Mr. Chairman.
    Mr. Gilchrest. Thank you, Mrs. Mink.
    Dr. Rose? We will give you the last word.
    Ms. Rose. I appreciate that very much. I always like 
getting the last word. I just wanted to make two points.
    One is on the probability that we would even be here 
discussing what happened in the Bahamas, were it not for the 
rather extraordinary coincidence of having a marine mammal 
researcher who happened to have one of those beaked whales 
beach right on his, basically his front yard.
    In other words, going back to my testimony where I pointed 
out that it is quite possible, I don't know what the 
probability is at all, but it is possible that these sorts of 
things have been happening for some time and nobody has been 
aware of it because nobody has been looking.
    It has been pointed out, you know, the extraordinary, you 
know, physical circumstances of this stranding, that is, the 
sound duct and the Providence Channel and all of that, but the 
additional extraordinary element of this stranding was that Ken 
Balcomb was there in the Bahamas, you know, and he saw a beaked 
whale come up on his beach, and then subsequently throughout 
the day kept finding more and more, and was running around and, 
if I may be a little gruesome here, cutting their heads off and 
sending them, very fresh, to Dr. Ketten and others.
    The fact is that there have been, you know, a number of 
strandings of beaked whales, some of which have been in fact 
with nearby naval activities, where by the time anybody got to 
the bodies, they were highly decomposed. That is the norm. That 
is the way it usually is.
    And I guess what I am trying to point out is that the level 
of certainty that perhaps Admiral McGinn is asking for proof 
that LFA isn't safe, is also an unreasonable request. I mean, 
you really can't get more of a smoking gun than I think you got 
in the Bahamas, and if you are asking for more proof than that 
or more certainty than that, I am very concerned about how we 
are going to move forward with management of sound in the 
oceans.
    The second point I would like to make is that we may very 
well be holding the Navy to a fairly high standard, and I 
appreciate the point that the Admiral was making, but the fact 
is, is that what they are pursuing in some of the National 
Environmental Policy Act procedures and processes they are 
going through and that NMFS is going through, is they are 
establishing a noise standard that will have very broad 
application, not just for the Navy's sound activities but 
perhaps for shipping and for seismic exploration and for a 
number of other acoustic activities in the ocean, and that 
sound standard at the moment is hovering at about 180 decibels 
for continuous intermittent noise in low frequencies.
    And I just again would turn back to my testimony to 
emphasize that there are no empirical data between about 155, 
which is as high as the SRP went, and 180, and that is a large 
leap in terms of acoustic energy. So to say that that 180 dB is 
a safe exposure level, it concerns me, because it may very well 
have broad application, not just to the Navy. It is not just 
the Navy we are talking about here. We are talking about 
standards for noise, anthropogenic noise in the environment, 
that may have very broad applications under the MMPA.
    Mr. Gilchrest. Well, thank you very much.
    Dr. Ketten, you want to respond to that?
    Ms. Ketten. I would like to correct some misstatements, 
possibly because the information has not yet come out from NOAA 
Fisheries report. There have been a couple of things that have 
been said which I believe were maybe misunderstood publicly.
    In the first case, as far as the probabilities being an 
important issue, the unfortunate--fortuitous, though--finding 
by Mr. Balcomb of the beaked whales, that is not how the 
incident came about. And indeed there are a great many people 
who follow strandings in the Bahamas. We do know from the 
stranding records that this is an unusual stranding. There has 
only been one other beaked whale that stranded in 50 years in 
the Bahamas.
    It was not he that first reported it. The strandings were 
first reported through Dr. Bater, who is a veterinarian in 
charge of strandings in Grand Bahama. It did not have anything 
to do with Mr. Balcomb in that case. The first reports came to 
me 24 hours before Ken Balcomb contacted me. He did not cut off 
the heads and send them to me. As most strandings occur, people 
like me are notified and if we can t all, often pro bono, we go 
to the strandings, and that was the case here. Some heads were 
brought to my laboratory by me for examination later, with his 
assistance.
    So in terms of it could have just been coincidence that 
they were found, that is clearly not an element in this case. 
There were over five different reports of the strandings on the 
very first day, within a few hours, and indeed I would find it 
very surprising if beaked whales would not be noticed, 
particularly in a tourist area like Grand Bahama. They were 
noticed.
    That was the one thing that in particular I wanted to make 
sure was made aware to the Committee. That is, we have not had 
an exceptional finding based on we lucked into seeing them, but 
rather the exception in this case was that, in part because of 
the Greek strandings, there is a worldwide awareness 
particularly about beaked whales and sonars.
    The other thing I would like to correct is, the LFA 
exercise that was coincident with the beaked whale strandings 
in Greece--there were 12 animals, incidentally, that stranded 
at that time--there was also a concerted use of mid-range 
sonars simultaneously with the LFA case on that exercise, and 
there is a panel that reviewed it. Unfortunately, none of the 
animals were examined, so we didn't have any concrete data. All 
we had was just the coincidence, and the panel at that time was 
concerned.
    It is not LFA, however, was our finding after the Bahamian 
incident. It is necessary to look at these things in the 
perspective of time.
    Thank you very much for allowing me to make those comments.
    Mr. Gilchrest. You are very welcome.
    Dr. Rose has her hand up.
    Ms. Rose. Just a quick response to Dr. Ketten. I wasn't 
trying to toot Ken Balcomb's horn. That is fine. I totally 
understand that, that there was an awareness, because this was 
a very public, if you will, stranding in a tourist area, and 
there was a stranding network there that responded to that. I 
still think that is relatively unusual, because most strandings 
apparently of beaked whales occur in areas where by the time 
they reach the animals, they are in fact rather decomposed. So 
the fact that she was able to collect, herself and through the 
assistance of others, you know, these fresh heads--I keep 
saying that, and it sounds so gruesome--but these fresh heads, 
was in fact relatively unusual, and I do stand by that.
    The other thing is that I am not saying that we are not 
concerned about mid-frequency sonars. We certainly are, you 
know. We are here to talk about LFA, however, so we are 
concentrating on that.
    Mr. Gilchrest. What is the range of a beaked whale? Where 
does it go?
    Mr. Whitehead. We know very little about beaked whales, but 
my group has carried out the longest and most detailed study of 
any beaked whale population. And one of the features of the 
population we study is that it has a very limited range. 
Whereas animals like sperm whales or humpback whales will range 
over thousands of kilometers, these beaked whales stay in 
relatively small ocean areas a few tens of kilometers across.
    Mr. Gilchrest. So it could be a beaked whale population in 
the South Atlantic or Mid-Atlantic, it could be another beaked 
whale population in the Mediterranean?
    Mr. Whitehead. Very much so, and even on smaller scales. We 
find that the beaked whales we study, which have a population 
size of 130 and are genetically different from the nearest 
other population, inhabit three nearby canyons along the edge 
of the Continental Shelf, which is one of the reasons I am 
concerned that the Navy stresses that these sonars will be 
particularly useful in those kinds of environments.
    Mr. Gilchrest. I see. Well, we will continue to proceed 
with all this. Maybe the next time we can talk about jet skis 
and noise.
    [Laughter.]
    Mr. Gilchrest. Maybe we can eliminate those little 
critters. But thank you all very much for your testimony, and 
we probably, in the next couple of days--we don't want to 
overburden all of your activities, certainly--but we would like 
to send you a series of follow-up questions over the next 
couple of weeks. Thank you all very much.
    The hearing is adjourned.
    [Whereupon, at 4:26 p.m., the Subcommittee was adjourned.]

    [The prepared statement of the Animal & Plant Health 
Inspection Service follows:]

Statement of Dr. Chester Gipson, Acting Deputy Administrator for Animal 
     Care, Animal & Plant Health Inspection Service, United States 
                       Department of Agriculture

    Mr. Chairman and Members of the Subcommittee, I thank you for the 
opportunity to testify on behalf of the U.S. Department of Agriculture 
on the Marine Mammal Protection Act (MMPA) and the 1994 Amendments to 
the Act. USDA has had no significant problems implementing the 
reauthorized MMPA (1994). We continue to work with our counterparts at 
the Department of Commerce and the Department of the Interior to 
improve and enhance compliance with the MMPA.
    The Department's Animal and Plant Health Inspection Service (APHIS) 
is responsible for the administration and enforcement of the Animal 
Welfare Act (AWA). The Department of Commerce's National Marine 
Fisheries Service (NMFS) and the Department of the Interior's Fish and 
Wildlife Service (FWS) share responsibility for the administration and 
the enforcement of the MMPA.
    The AWA requires, among other things, the humane care, handling, 
treatment, and transportation of regulated animals within the United 
States and its territories. APHIS maintains sole jurisdiction under the 
AWA for establishing and enforcing standards for the humane handling, 
care, treatment, and transportation of marine mammals in captivity by 
dealers, research facilities, exhibitors, intermediate handlers, or 
carriers.
    The MMPA requires that marine mammals that are taken or imported 
must be under permits issued by NMFS and/or FWS and that the permits 
must specify the methods of capture, supervision, care, and 
transportation that must be observed pursuant to taking or importation. 
The MMPA specifies that a permit may be issued to take or import a 
marine mammal for the purposes of public display only to a person who 
is registered or holds a license under the AWA. The MMPA also requires 
that persons maintaining marine mammals in the United States for 
purposes of public display be registered or hold a license under the 
AWA. APHIS notifies NMFS and FWS of all new AWA license applications 
which involve marine mammal species and provides their representatives 
the opportunity to accompany the APHIS inspector to the facility to 
ascertain if all MMPA requirements are understood and met by the 
licensee. Foreign facilities receiving marine mammals that are or have 
been subject to U.S. jurisdiction must, among other things, meet 
standards comparable to the captive care and maintenance standards of 
the AWA. The FWS and NMFS must be notified at least 15 days in advance 
of the sale, purchase, export, or transport of captive marine mammals.
    To further the purposes of the MMPA and the AWA as they relate to 
the humane care, handling, treatment, and transportation of marine 
mammals and to the export of marine mammals from the United States to 
foreign facilities, the NMFS, FWS, and APHIS have signed a memorandum 
of understanding (MOU), dated August 1998, outlining their respective 
independent and collaborative roles in these areas. This MOU provides 
clear implementation strategies for the MMPA that ensure that the 
proper care of these mammals is a top priority. The MOU also formalizes 
information sharing among the agencies. This formalized information 
sharing has led to better and more strategic enforcement actions and 
opportunities for all the agencies and has resulted in greater 
compliance with both the AWA and MMPA.
    APHIS has also been working with NMFS to address how to handle the 
definition of an exhibitor when applied to several seal and sea lion 
stranding and rehabilitation facilities. These facilities frequently 
carry out activities, like allowing the public to view rehabilitating 
animals, that potentially fall under the jurisdiction of both APHIS and 
NMFS. At this time, NMFS is developing internal guidelines for 
stranding facilities. Once these guidelines are completed, APHIS will 
review and coordinate with NMFS to ensure relevant provisions are 
consistent with the spirit of the AWA and NMFS requirements under the 
MMPA.
    Recently, NMFS issued a proposed rule that addressed public display 
rules for marine mammals. The comment period for the proposed rule 
closes on November 2. APHIS will be commenting on the rule; our goal is 
to prevent any unnecessary overlap between agencies.
    APHIS has also embraced the negotiated rulemaking process as we 
continue to amend the AWA regulations for marine mammals, a process 
begun in 1994. The Federal Advisory Committee Act was used to put 
together a group of stakeholders and regulators that were able to come 
to consensus on 13 of the 18 sections of the AWA regulations that 
needed to be updated. The Advisory Committee worked together to develop 
the revised regulations, which were based on advances made in care and 
handling of marine mammals over the last 14 years. The regulations 
reflect new standards in marine mammal care based on current general, 
industry, and scientific knowledge. The changes touch on many aspects 
of captive marine mammal care including handling, veterinary care, and 
facility operations. The final regulations were published in January, 
2001, and have been implemented by APHIS.
    The remaining five of the 18 provisions of APHIS' marine mammal 
regulations will be amended using standard rulemaking procedures. We 
anticipate issuing an advance notice of proposed rulemaking (ANPR) 
shortly.
    Changes under the 1994 MMPA amendments affirmed that APHIS has sole 
jurisdiction over ``swim with the dolphin'' (SWTD) programs than 
involve captive marine mammals. Traditionally SWTD programs are ones 
where people interact in the water with marine mammals, most commonly 
bottlenose dolphins. In the absence of the NMFS permitting process, 
which changed in the 1994 MMPA, APHIS issued a proposed rule in January 
of 1995 to close any regulatory gaps pertaining to how AWA standards 
applied to these programs. A final rule was published in 1998. However, 
in the time that had elapsed, significant changes had occurred in the 
kind of SWTD programs being offered. There are now more of them, and a 
new type of shallow water interactive program has emerged.
    These shallow water or ``wading'' programs needed to be 
appropriately and fairly integrated into the regulations to be 
consistent with the MMPA's and AWA's goal of ensuring the safety and 
proper care of marine mammals in captivity. Accordingly, after much 
deliberation and consultation with various interested parties, APHIS 
suspended enforcement of the regulations in 1999. A comment period 
followed and APHIS has reviewed all information collected to date. This 
issue will be included on the ANPR for the remaining five provisions of 
APHIS' marine mammal regulations.
    We will continue to work to enhance implementation of the MMPA and 
the AWA. That concludes my prepared remarks. I would be happy to 
respond to any questions you may have.
                                 ______
                                 
    [Responses to questions submitted for the record follow:]

    Responses from Dr. William Hogarth, Assistant Administrator for 
  Fisheries, National Marine Fisheries Service, National Oceanic and 
        Atmospheric Administration, U.S. Department of Commerce

               questions from chairman wayne t. gilchrest
    1. The MMPA defines harassment very broadly, including minor 
behavioral modifications. Should the definition be changed to include 
only those activities that may present long-term impacts to individuals 
or to populations?
    The current definition of ``harassment'' in the MMPA must be 
clarified in order to (1) provide greater notice and predictability to 
the regulated community, and (2) improve the enforceability of the 
prohibition. However, it is important that any clarifications not 
compromise conservation measures. Additionally, the definition should 
be clarified and focused to address activities directed at marine 
mammals to prevent cumulative adverse effects of behavioral 
modifications. Cumulative short-term disturbance may lead to long-term 
impacts to individuals or populations, such as disturbances caused by 
the recent expansion of irresponsible and dangerous wildlife viewing 
practices. However, it is not practical to regulate all marine 
activities that have the potential to cause occasional incidental 
disturbance, but not injury of the animals (e.g., routine vessel 
traffic).
    In negotiations with other affected federal agencies, NMS has 
formulated a revised definition of ``harassment'' that accounts for 
short-term impacts directed at specific individuals, species, or stocks 
of species and for long-term impacts associated with behavorial 
modification. This revised definition is part of the MMPA 
reauthorization proposal that is currently undergoing interagency 
review and that will be presented soon to the Congress.
    It is important that the definition of harassment not be restricted 
to activities that present long-term impacts, because such impacts may 
not be observed or measured until they have already occurred. By then, 
it is too late to take steps to protect the animals.

    2. The feeding of wild dolphins is considered a `take' under the 
MMPA. The NMFS had been conducting outreach and educational programs in 
the Gulf of Mexico and in the South Atlantic where these feedings tours 
have occurred. What is the status of these activities? Does Congress 
need to make additional changes to the Act to regulate or prevent such 
activities?
    Despite NMFS' considerable efforts over the past decade to educate 
the public that feeding activities are harmful to the animals, 
dangerous to people, and illegal under the MMPA and its implementing 
regulations, feeding of wild dolphins by the public persists in some 
areas. Specifically, feeding activities have been known to occur in 
Florida (Panama City, Nokomis/Venice, Key West, Indian River), South 
Carolina (Hilton Head), and Texas (Corpus Christi).
     LIn 2001, NMFS contracted with dolphin researchers from 
the Mote Marine Laboratory to conduct an education and outreach docent 
program in the Nokomis/Venice, FL area to address chronic dolphin 
feeding activities in the local waterways. The researchers observed 
boaters routinely feeding and harassing a particular adult male dolphin 
who bit several people trying to feed him. The researchers approached 
boaters who were violating the MMPA, advised them that their activities 
were illegal and offered copies of NMFS' ``Protect Dolphins'' outreach 
materials. However, 61% of the people who were approached indicated 
that they already knew their activities were illegal. The researchers 
documented that violations of the MMPA were infrequent when marked 
enforcement vessels were present. NMFS enforcement efforts in the 
Nokomis/Venice area to date have resulted in more than 472 vessel 
operator contacts, including two citations issued for ``harassment,'' 
four Notices of Violation and Assessment issued for feeding with fines 
of $100 each, and three written warnings.
     LIn 2001, NOAA issued a Notice of Violation and Assessment 
against a commercial operator in Panama City, FL for feeding dolphins. 
The operator did not contest the charges and paid a $600 civil fine.
     LIn 2000, NMFS sent a letter of concern to a corporation 
that owns a nationwide chain of hotels regarding that corporation's 
advertisements in Panama City, FL and Hilton Head, SC that depicted 
guests feeding and harassing wild dolphins. In response to NMFS' 
concerns, the corporation agreed to remove the advertisements and 
delete the photographs depicting dolphin feeding from their image 
library.
     LIn 1999, an Administrative Law Judge upheld a $4,500 
civil fine against a Panama City, FL boat rental company and its boat 
operator for illegally feeding wild dolphins. The incident occurred 
during a June 1998 excursion off Panama City's Shell Island and nearby 
jetty, a destination popular with residents and tourists for feeding 
the local dolphin population. Ruling from the bench, the judge called 
the charges ``serious,'' upheld the fine assessed by NOAA, and ordered 
the boat company to post a federal ``no dolphin feeding'' sign and a 
poster on the grounds and counter of its facility. In addition, charges 
were brought against the vessel operator for these violations in a 
separate proceeding, since he was operating under and had violated the 
provisions of his U.S. Coast Guard licence.
    NMFS' regulations implementing the MMPA are clear that feeding wild 
marine mammals is illegal. However, problems remain with commercial 
entities publishing advertisements in magazines and on the Internet 
that depict feeding and harassment activities. Due to other important 
priorities that also require enforcement, NMFS has been unable to 
devote significant enforcement and litigation resources on a sustained 
basis in areas where dolphins have become habituated to people and beg 
for handouts.

    3. How has the NMFS dealt with criticisms regarding concerns that 
while NMFS worked with the Take Reduction Teams, in some cases, the 
measures the Teams recommended were ignored. Does the Agency believe 
this was an isolated incident occurring with only one Team? Has the 
Agency developed measures to prevent this from happening again?
    NMFS works very hard to implement Take Reduction Team (TRT) 
recommendations and has not ignored any of the TRTs' recommendations. 
However, due to a variety of factors, such as funding, staff, or 
logistical considerations, it is not always possible to implement each 
of the recommendations made by a TRT immediately or exactly in the way 
recommended by the TRT. Due to the wide scope and number of 
recommendations made to NMFS by TRTs, it is generally necessary to 
prioritize the recommendations upon which to focus both effort and 
resources.
    For example, TRTs have recommended increased observer coverage. 
NMFS agrees that observer coverage is important for estimating marine 
mammal bycatch for some fisheries. However, observer programs are 
expensive and NMFS may not have the resources available to observe a 
fishery at the level recommended by a Take Reduction Team. NMFS does 
work to ensure that observer coverage is statistically appropriate. In 
other situations, placing observers on a vessel may not be feasible. 
For example, some fisheries operate with small vessels that are not 
capable of carrying an observer in addition to the necessary crew. In 
such instances, NMFS has worked to develop alternative methods of 
collecting the necessary data.
    In another instance, NMFS determined it was necessary to modify a 
recommendation made by the Mid-Atlantic Harbor Porpoise TRT in order to 
implement the recommendation as a regulation. The TRT recommended gear 
restrictions for the fish species targeted. However, bycatch occurred 
according to the type of gear used, which is associated with but not 
specific to target fish species. Regulations addressing gear used in a 
specific time and area are enforceable, but it is much more difficult 
to both comply with and enforce regulations based on target species. As 
a result of these two factors, NMFS modified the recommendation 
submitted by the TRT, and explained the reasons for modifying the 
recommendation during the process of developing the regulations as 
required by the MMPA. NMFS believes that the ultimate outcome addressed 
the recommendation in a more effective manner.
    In the case of the Atlantic Offshore Cetacean TRT, the TRT and NMFS 
staff devoted much time and energy to developing a take reduction plan. 
However, in the course of developing the regulations to implement the 
plan, two of the three fisheries addressed by the plan were closed 
through fishery management actions. Some of the recommendations 
developed by the TRT to address the third fishery (Atlantic pelagic 
longline) were included as part of the Highly Migratory Species Fishery 
Management Plan, instead of through a separate Take Reduction Plan. 
Although NMFS did not implement an Atlantic Offshore Cetacean Take 
Reduction Plan by regulation, some of the measures were implemented and 
others were no longer appropriate because of changes in the fishery. 
Since the TRT met, the Atlantic pelagic longline fishery has undergone 
a number of changes due to both fishery management and protected 
species management for turtles. NMFS continues to monitor the fishery 
through the observer program and, if needed, will convene a TRT to 
address its effects in relation to marine mammals.

    4a. How often does the Agency conduct stock surveys for marine 
mammal populations?
    NMFS conducts an extensive stock assessment effort every year, but 
this does not mean that new data are collected every year for each of 
the nearly 150 stocks of marine mammals for which NMFS is responsible.
    The annual effort for each stock varies according to conservation 
necessity. For some stocks that are small and are declining, or have 
declined in the recent past, such as western north Atlantic right 
whales, Cook Inlet beluga whales, and Hawaiian monk seals, NMFS 
conducts a full survey annually. At the other extreme, there are stocks 
of marine mammals, such as Hawaiian cetaceans or cetaceans in waters 
surrounding U.S. territories in the Caribbean and Pacific that have 
never been assessed reliably due to a lack of resources. Other stocks, 
such as Alaska harbor seals, are surveyed every several years. For 
harbor seals, NMFS surveys part of Alaska each year and completes a 
rotation at the end of five years.
    NMFS apportions its limited resources to conduct stock surveys 
based on its determination of the level of risk to the stock from human 
activity. For those stocks that are not perceived to be at a high level 
of risk from human activity, the abundance surveys are completed on a 
very long time frame (e.g., not more often than every 10 or 15 years). 
For those stocks that suffer mortality at or near their Potential 
Biological Removal level (or those that can be surveyed at the same 
time as such a stock), NMFS is able to maintain a four-year schedule 
for abundance estimates. As long as the stock is not declining or 
increasing dramatically, such a rotation is sufficient for tracking 
population trends.

    4b. There has been some concern that the Atlantic coastal 
bottlenose dolphin population has increased and may not need to be 
designated as a strategic stock and hence, not need a take reduction 
plan. What type of data is being used as the basis for NMFS' 
determination?
    As defined by the MMPA, there are several means by which a marine 
mammal stock may be designated as strategic. The term ``strategic 
stock'' is defined in section 3(19) of the MMPA to mean a marine mammal 
stock ``(A) for which the level of direct human-caused mortality 
exceeds the potential biological removal level; (B) which, based on the 
best available scientific information, is declining and is likely to be 
listed as a threatened species under the Endangered Species Act [ESA] 
of 1973 within the foreseeable future; or (C) which is listed as a 
threatened species or endangered species under the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.), or is designated as depleted 
under this Act [MMPA].''
    Atlantic coastal bottlenose dolphins qualify as strategic for two 
reasons: (1) the stock is designated as depleted, and (2) direct human-
caused mortality, in this case from commercial fishing activities, 
exceeds the potential biological removal level. NMFS has begun to re-
evaluate the depleted status of Atlantic coastal bottlenose dolphins on 
a stock-by-stock basis. New scientific data indicates that the stock 
structure may be much more complex than once believed, and once such 
information is fully developed and peer reviewed it would be 
appropriate to re-evaluate the depleted determination. However, even if 
the stock was determined not to be depleted, the level of fishery-
related mortality in relation to the potential biological removal level 
is such that the stock would still be considered strategic, and 
therefore NMFS would be required under the MMPA to develop and 
implement a Take Reduction Plan.
    NMFS designated the stock as depleted based on an analysis of 
historical stranding patterns relative to strandings during a large-
scale mortality event that occurred in 1987-1988. This analysis also 
took into account natural mortality rates and birth rates. NMFS 
determined that the annual natural mortality increased by over 65% 
during the mortality event, and that even if the natural birth rate 
remained constant (i.e., assuming the mortality event did not reduce 
birth rates), the increase in mortality was over 50% of the population.
    NMFS' determination that human-caused mortality exceeds the 
potential biological removal level is based on stock structure, 
abundance, and mortality data. Stock structure for bottlenose dolphins 
has been developed using genetic, telemetry, isotope ratio, and photo-
identification methodologies. Currently, seven seasonal ``management 
units'' have been identified, although additional stock structure may 
be found with more research. Except for the long time series of 
photographs of dolphins used in photo-identification, all of the data 
used to determine stock structure have been collected since 1997, and 
much of it during 1999-2000. Abundance estimates for each management 
unit were based on six survey programs that were conducted between 1995 
and 2000. Additional coast-wide abundance surveys are planned for the 
winter and summer of 2002, if funding is available. If logistically 
feasible, genetic biopsies will also be collected. The resulting 
potential biological removal level is calculated using the best 
abundance estimate for each management unit. Bycatch for each 
management unit is determined from observer coverage in the fisheries 
which interact with this stock; the Mid-Atlantic coastal gillnet 
fishery and Southeastern U.S. shark gillnet fishery.

    5. NMFS has released its report Impacts of California Sea Lions and 
Pacific Harbor Seals on Salmonids and West Coast Ecosystems. Does the 
Agency recommend implementing the recommendations of the report? Will 
these recommendations be included in an Administration bill? Has the 
agency made any further progress in developing new, non-lethal means of 
chasing off California sea lions and Pacific Harbor Seals?
    NMFS continues to support three of the recommendations. The first 
recommendation is to ``Implement site-specific management authority 
that would allow state and federal officials to lethally remove 
pinnipeds where necessary to protect ESA listed salmon and other marine 
resources.'' Although NMFS continues to support the concepts related to 
site specific management measures, we do not expect to include these 
measures in the upcoming Administration bill. Existing provisions of 
the MMPA allow NMFS to address the known applications where lethal take 
authority has been needed, such as to protect Lake Washington steelhead 
as they migrate through Ballard Locks. Other instances of predation, 
where the scientific record is not as full as the one at Ballard Locks, 
have not been identified at this time. The provisions in section 101(c) 
that allow people to take marine mammals if ``imminently necessary'' 
would apply to human safety concerns. It may also be possible to apply 
the authorities within section 109(h) to protect human health and 
welfare; however, application outside the stranding response program 
has not been attempted or tested.
    The second recommendation to ``Develop safe and effective non-
lethal deterrent technologies'' has been pursued by NMFS. But, we have 
found through studies that acoustic technology, which initially 
appeared promising, may not provide a safe, effective approach to long-
term deterrence of sea lions in open water applications due to affects 
on other marine species. However, in limited, restricted areas, such as 
at the Ballard Locks in Seattle, WA, non-lethal acoustic deterrence 
measures appear effective in addressing California sea lion predation 
on steelhead. NMFS is currently supporting a new line of studies by 
Moss Landing Marine Laboratory to conduct basic behavioral studies on 
sea lions to determine what ``cues'' they use to find hooked fish. 
These studies would describe the ``cues'' involved in interactions with 
fishing operations and ways to possibly ``mask'' or eliminate those 
cues to avoid interactions.
    The third recommendation to ``Reconsider the prior MMPA 
authorization that allowed commercial fishers to lethally take 
pinnipeds as a last resort to protect their catch and gear in specific 
fishery areas where economic impacts are occurring'' is no longer 
supported by NMFS and will not be included in the Administration bill. 
As described in my testimony, this recommendation was the subject of 
most negative comments from the public, but it remained in the Report 
so that Congress would have background information if it chose to 
reconsider the 1994 amendments that eliminated the prior authorization 
that allowed commercial fishers to kill marine mammals as a last 
resort. Following the submission of the Report, NMFS learned that many 
participants in current commercial and recreational fisheries do not 
necessarily desire to have this authority. Rather, these parties have 
expressed the need to have safe, effective non-lethal deterrents 
available to them, and authority for state and federal managers to 
remove problem animals where necessary when non-lethal measures are not 
effective.
    The fourth recommendation to ``Implement the studies necessary to 
obtain additional information on the expanding pinniped populations and 
their impacts on other resources, especially ESA listed salmonids'' has 
been underway by NMFS and the States since fiscal year 1998 with 
Congressional action to increase NMFS' base funding for studies on 
pinniped impacts on salmonids and West Coast ecosystems. These studies 
have resulted in new information, since the 1999 Report to Congress, on 
1) pinniped predation on salmonids in several river systems on the West 
Coast; 2) updated population status of harbor seals and sea lions which 
are noted for showing that harbor seals in Washington and Oregon are at 
their optimum sustainable population level (OSP); 3) updated 
information on sea lion interactions with the salmon troll fishery and 
the southern California partyboat fishery; and, 4) information on the 
effectiveness and utility of acoustic devices as non-lethal deterrents.

    6. The Navy's use of SURTASS LFA sonar has been linked by some to 
marine mammal stranding events. What information does the Agency have 
on these events and can the Agency make a determination that this sonar 
technology was responsible for the stranding?
    SURTASS LFA sonar has never been linked to any marine mammal 
stranding event. Only one vessel is presently equipped with SURTASS 
LFA, and it was in the Pacific and not operating at the time of a 
stranding event in the Bahamas in March 2000. The Navy and NMFS noted 
that the stranding of 17 beaked whales in the Bahamas in March 2000 
coincided with the Navy's use of tactical mid-frequency sonars in a 
unique undersea topography during an anti-submarine warfare exercise. 
These mid-frequency sonars operate in a different frequency band than 
SURTASS LFA (3,500 to 5,000 Hz compared to less than 500 Hz for LFA), 
produce shorter pings at shorter intervals than SURTASS LFA, and have a 
faster rise time (speed of the onset of the sound). These technical 
differences suggest that species which could potentially be affected by 
tactical sonars would not be affected by LFA. Some environmental groups 
have glossed over the differences in operating characteristics of 
sonars in arguments for stopping the deployment of SURTASS LFA. They 
assert, without evidence, that LFA will have the same effects as mid-
frequency tactical sonar because of a process called acoustical 
resonance. This assertion lacks merit. No data have ever been published 
on resonant frequencies for any species of marine mammal. Warnings of 
tissue damage from resonance are all based on mathematical 
calculations. Experts in the field believe that these calculations use 
incorrect assumptions and constants, and are therefore not valid 
forecasts of tissue effects. The mitigation measures proposed for LFA 
are currently adequate to protect marine mammals from resonance effects 
that are based on more reasonable assumptions and constants.

    7. Sharon Young of the Humane Society testified that the Atlantic 
Large Whale Take Reduction Team ``has been a resounding failure.'' Do 
you agree?
    NMFS does not feel that the Atlantic Large Whale Take Reduction 
Team has been ``a resounding failure.'' The TRT process is extremely 
complex, involving multiple stakeholders and serving as a forum to have 
all views aired. The goal of the Atlantic Large Whale Take Reduction 
Team (ALWTRT) is to reach a consensus on modifications to the Atlantic 
Large Whale Take Reduction Plan (ALWTRP) that will reduce right whale 
mortality and serious injury. It is a challenging process and NMFS has, 
to the best of the agency's ability, implemented the recommendations of 
the team.
    Up through 2000, the death rate of the North Atlantic right whale 
has exceeded the birth rate. The 2000/2001 season has been the most 
promising to date, with 31 calves born (4 deaths). Because no 
population can sustain a high death rate and low birth rate 
indefinitely, the current combination places the North Atlantic right 
whale population at high risk of extinction. Entanglements of right 
whales in gillnet and lobster gear continue to occur despite measures 
developed in the initial ALWTRP.
    On May 4, 2000, NMFS reinitiated consultation on several fishery 
management plans, following new entanglements that resulted in serious 
injuries and at least one right whale mortality. NMFS completed 
consultation on June 14, 2001, and concluded that the current ALWTRP 
needed to be revised. NMFS Protected Resources Division has developed 
one Reasonable and Prudent Alternative (RPA) with multiple management 
measures that collectively are designed to avoid the likelihood of 
jeopardy for right whales from the continued implementation of the 
multispecies, spiny dogfish, monkfish, and lobster fisheries. The RPA 
will minimize the interaction with right whales and multispecies, spiny 
dogfish, monkfish, and lobster gear and expand gear modifications to 
the Mid-Atlantic and Southeast waters. The RPA includes gear 
modifications, seasonal area management, and dynamic area management. 
Final rules on these management measures were sent to the Federal 
Register on December 31, 2001.

    8. Sharon Young of HSUS testified that ``NMFS has undermined their 
functioning by bowing to political manipulation.'' What is your 
reaction?

    Many groups, including resource users and conservationists, 
regularly criticize NMFS' actions as either not going far enough to 
safeguard a protected species or going too far in regulating the 
resource-using community. These groups are all, to some extent, part of 
the politics inherent in the policy making process. NMFS will always be 
exposed to and pressured by partisan interests, but political 
considerations are not used in making decisions. Rather, NMFS continues 
to listen to the views of all interested and affected parties and to 
make policy and stewardship decisions based upon careful consideration 
and the best available information.

    9. Can you give us some information on the geography of beaked 
whales and inform the Subcommittee on whether there is a local 
population that resides near the Bahamas? At the hearing, Dr. Hal 
Whitehead made a statement that he thought this population was 
destroyed by the military activities undertaken by the Navy. Do you 
have any information on the status of this population?
    NMFS has no specific information on the status of beaked whales in 
Bahamian waters. Worldwide, the numbers and behavior of beaked whales 
are not well known because the animals tend to be shy and avoid survey 
vessels. NMFS recognizes a Western North Atlantic stock of beaked 
whales, which includes animals in the Bahamas. However, the agency does 
not recognize beaked whales in Bahamian waters as a separate or local 
population.

    10. Is the NMFS researching the overall noise budget of the Ocean? 
If so, can you give the Subcommittee information on how loud ship 
traffic, oil drilling, small boat traffic and other anthropogenic 
noises are in the ocean? Can you also give the frequency of these 
activities and the hearing frequencies of marine mammals so the 
Subcommittee can get a better understanding of what activities occur in 
the hearing frequencies of marine mammals and other marine animals like 
fish and turtles.
Noise budget
    NOAA is not presently researching the noise budget of the oceans, 
but it has plans to do so if funds become available. The agency has the 
technical tools needed, but such research is costly. NOAA maintains 
three acoustic arrays that monitor earthquakes and other geological 
activity, whale calls, and some human sounds, such as seismic 
exploration (airgun) sounds. NOAA also receives a data stream from 
several of the Navy's Sound Surveillance System (SOSUS) sites. These 
combined capabilities are the start of a proposed global acoustic 
monitoring network that will produce a proper noise budget for the 
oceans, as well as long-term measurements of the ambient noise level.
Loudness of human sources
    NOAA has no information on the loudness (in scientific terms, the 
sound pressure level, or level) of human sources that is any different 
from that published in Richardson et al.1995 [Marine Mammals and Noise, 
1995. Academic Press, NY]. The loudest human sounds, other than 
explosions, come from seismic airgun arrays that may operate at 255 dB. 
Military sonars produce levels of 235-240+ dB, and various kinds of 
sidescan sonars, bottom profilers, and fish finders may operate at 225 
to 235 dB. The loudness of a sound, while easy to understand, is not 
necessarily the most important measure of the danger a sound could 
potentially pose to marine mammals. The length of time the sound lasts, 
the rate at which it is repeated, the frequency, and the rise time are 
also important considerations. For example, an airgun shot may have a 
sound pressure level of 255 dB but it only lasts for milliseconds. 
Supertankers or icebreakers may produce a sound of 215 dB, but this 
sound may last for days. Since total sound energy is a combination of 
peak pressure and the time the sound is on, the supertanker produces 
much more energy than an airgun and creates problems that shorter, 
louder signals do not, such as masking (one sound covering another). 
Frequently repeated loud sounds are probably more dangerous than single 
loud sounds, and sounds that begin suddenly (like an explosion) are 
usually more harmful than sounds that begin slowly. As a result, in 
order to judge the dangers of human noise, much more information than 
level (loudness) is needed.
    The loudness of human sources must be compared to other sounds in 
the oceans. Blue, fin, and humpback whales all produce calls at around 
185 dB. Beluga, false killer whales, bottlenose dolphins, and sperm 
whales all make echolocation clicks at about 225 dB, and they often 
produce these sounds in the near vicinity of others. In addition, there 
are about a trillion lightning strikes per year in the oceans (about 
260 dB), thousands of earthquakes of various loudness, and storm-driven 
waves. The oceans have always had more background noise than humans 
experience in air. Finally, marine mammals have various adaptations for 
great changes of pressure when they dive (sometimes over 1,000 m). 
Evolution in a noisy environment and adaptation to extreme pressure 
change are two reasons why human hearing is a poor model for marine 
mammal hearing.
Frequencies of human sources
    Human sounds vary from 10 Hz to several hundred kHz (1 kHz = 1,000 
Hz), depending on the application. No animal can hear this entire range 
of frequencies. Low frequency sounds (below 1,000 Hz) are produced by 
shipping, seismic exploration, drilling, and explosions. Higher 
frequencies (3.5 kHz to 300 kHz) are used in various kinds of sonar, 
fish finders, sidescan sonar, and the like. The lower the frequency the 
farther the sound propagates before being absorbed by sea water. The 
higher the frequency the more resolution it gives as a sonar source.
    Marine mammals fall into about four groups in terms of ear 
function. Low frequency specialists have the greatest sensitivity 
(meaning they require less sound to detect that a sound is present) at 
frequencies between 10 and 250 Hz. The large whales make up this group. 
High frequency specialists have their greatest sensitivity from 50 kHz 
to 100 kHz. Some, like harbor porpoise and river dolphins, echolocate 
in the 200 to 250 kHz range. Mid frequency specialists comprise two 
groups, seals and toothed whales, separated mainly by anatomy. Their 
``best'' frequencies are between 1.2 kHz and 30 kHz.
    Turtles and most fish hear exclusively in the low frequency range 
(less than 1,000 Hz). A few fish, like herring and shad, hear quite 
well at 20 kHz.
    As in the question of loudness, one needs much information other 
than frequency to judge the danger of a human sound. Animals generally 
do not respond to frequencies above or below their hearing range. The 
reader should consult Richardson et al., 1995, for a more thorough 
background on the marine mammals and noise issue.

    11. How many veterinarians, marine biologists, marine mammal 
specialists are on staff at NMFS that could be used to inspect public 
display facilities?
    The 1994 amendments substantially limited the responsibilities of 
NMFS with regard to public display and as a result the agency has 
devoted very limited staff resources to this aspect of the MMPA. NMFS 
staff do not conduct inspections of public display facilities and we 
depend fully on APHIS to conduct inspections to monitor animal care and 
maintenance. When we receive complaints about animal care matters, we 
notify APHIS, and they arrange for inspections. On rare occasions, we 
have sent enforcement agents or marine mammal specialists to a facility 
to investigate or take action on matters of MMPA compliance, in 
consultation with APHIS, or when that agency has not had authority to 
take action (e.g., when a facility closes its doors and no longer has 
an active exhibitor's license). We devote approximately one FTE 
position to maintaining the inventory of captive marine mammals, 
responding to FOIA requests, conducting liaison with FWS, APHIS and the 
Marine Mammal Commission with regard to public display, and drafting 
regulations for this program. With such limited staff, it would be 
unrealistic for us to take a more active role in facility inspections. 
However, our proposed public display regulations specify that holders 
of marine mammals must make animals and animal records available to 
NMFS for inspection, so that on the rare occasions when we need to take 
such action, we have clear authority to do so. Such inspections would 
focus on MMPA compliance alone (such as inventory reporting), and not 
on areas that would overlap with the Animal Welfare Act (AWA), such as 
animal care and handling concerns. These are some examples of occasions 
when NMFS has made site visits since 1994:
     LWhen a small facility in Maine went out of business, 
APHIS contacted NMFS to assist, using MMPA authority, in the transfer 
of several harbor seals to a zoo that could care for them permanently. 
Services of both a NMFS enforcement agent and a biologist were needed 
on site to assure that this transfer went smoothly.
     LBoth agencies were involved in issues surrounding a 
facility in the Florida Keys that violated both the AWA and the MMPA. 
Dolphins were not appropriately cared for, and were released from their 
enclosure to the open water on a number of occasions. MMPA authority 
was needed to carry out rescue of released dolphins, and seizure of the 
remaining dolphins.
     LA NMFS biologist accompanied an APHIS inspector to visit 
a facility holding California sea lions. The NMFS biologist was able to 
verify the marine mammal inventory reporting and also provided 
information on the species that was helpful to the APHIS veterinarian.

    12. When might the Administration bring forth a bill on the 
reauthorization of the Marine Mammal Protection Act?
    NMFS anticipates that an Administration proposal may be transmitted 
to Congress soon.
           questions from ranking member robert a. underwood
    1. Dr. Hogarth, you mentioned briefly the issue of definitions 
within the MMPA, specifically the definition of ``harassment'' as it 
relates to a taking. Does NMFS feel this definition needs to be 
changed, or just clarified? Should harassment be legal?
    The current definition of ``harassment'' in the MMPA must be 
clarified in order to (1) provide greater notice and predictability to 
the regulated community, and (2) improve the enforceability of the 
prohibition. Additionally, the definition should be clarified and 
focused to address activities directed at marine mammals to prevent 
cumulative adverse effects of behavioral modifications. However, it is 
important that any clarifications not compromise conservation measures. 
Cumulative short-term disturbance may lead to long-term impacts to 
individuals or populations, such as disturbances caused by the recent 
expansion of irresponsible and dangerous wildlife viewing practices. 
However, it is not practical to regulate all marine activities that 
have the potential to cause occasional incidental disturbance, but not 
injury of the animals (e.g., routine vessel traffic).
    ``Harassment'' is an important element of the definition of 
``take'' and should remain part of this definition for the conservation 
of marine mammals and their populations.

    2. Why was the Take Reduction Team for Bottlenose Dolphin initial 
meeting cancelled and when will it now meet?
    The first Bottlenose Dolphin Take Reduction Team meeting was 
originally scheduled for September 12-14, 2001. However, due to the 
terrorist events that occurred on September 11, NMFS canceled that 
meeting, both because of the effect of the attacks on people and the 
resulting travel difficulties. The rescheduled meeting was held on 
November 6-8, 2001.

    3. As stated in Dr. Reynolds testimony, the AOCTRT was disbanded 
after two of the fisheries ceased to operate. There is still a TRP in 
effect. What are the monitoring plans for this Plan and what will be 
done to ensure that it is still followed and effective?
    A Take Reduction Plan was submitted to NMFS but was not implemented 
into regulation as the ``Atlantic Offshore Cetacean Take Reduction 
Plan.'' However, aspects of the plan submitted by the Atlantic Offshore 
Cetacean Take Reduction Team (Team) to address the Atlantic pelagic 
longline fishery were incorporated into the Highly Migratory Species 
Fishery Management Plan. NMFS recently disbanded the Team because many 
changes have occurred to the fisheries intended to be addressed by the 
Team. Two of the three fisheries to be addressed by the Team were 
disbanded due to fishery management actions. The third fishery, the 
Atlantic pelagic longline fishery, has undergone a number of changes 
due to fishery management and protected species management for turtles.
    NMFS has continued to place observers in the Atlantic pelagic 
longline fishery, and Congressional appropriations for Atlantic and 
East coast observers in fiscal year 01 and fiscal year 02 have allowed 
the agency to further increase observer effort in the fishery. As a 
result, monitoring of the interactions between the fishery and marine 
mammals continues. If that monitoring indicates that effects on marine 
mammals are occurring at levels of concern, NMFS will take action to 
convene a Take Reduction Team to address those issues.

    4. I noted with interest that you say in your written testimony 
that NMFS has finally published regulations to implement the 1994 
amendments as they pertain to the management responsibilities for 
captive marine mammals held for public display purposes. Could you 
please explain why it has taken NMFS nearly 7 years to prepare these 
regulations? What issues have contributed to this delay?
Summary
    Most of the provisions of the 1994 amendments, now reflected in the 
proposed regulations, have long since been implemented through interim 
procedures. NMFS' emphasis since 1994 has been on developing a database 
system for the marine mammal inventory; meeting with the other 
cooperating agencies (USDA's Animal and Plant Health Inspection Service 
[APHIS], the U.S. Fish and Wildlife Service [USFWS] and the Marine 
Mammal Commission) to reach a common understanding of most aspects of 
the 1994 amendments; and working with holders of marine mammals to 
develop procedures for notifications of transfers and other 
requirements of the amendments. Delay in publication of the proposed 
regulations occurred due to limited staffing for public display and the 
Presidential election and transition, which placed lower priority on 
routine procedural regulations.
Background
    A proposed rule was published in October 1993 to consolidate into a 
single set of regulations all permitting requirements under the MMPA, 
the Endangered Species Act, and the Fur Seal Act to take, import, or 
export protected species under NMFS jurisdiction for purposes of 
scientific research, enhancement, or public display. However, the 
amendments to the MMPA that were enacted in April 1994 significantly 
changed the scope and extent of permitting authority for public display 
purposes, thus eliminating the basis for many of the provisions 
concerned with public display in the proposed rule, as well as the 
regulations then in effect. A final rule was prepared and published in 
May 1996 to implement certain parts of the 1993 proposed rule that were 
not as significantly affected by the 1994 amendments. That final rule, 
effective on June 10, 1996, established basic reporting, record-keeping 
and other permit requirements under the Act to take, import and export 
marine mammals for purposes of scientific research, enhancement, 
photography and, where captures and initial imports are involved, for 
public display. Because of the magnitude of the changes that were made 
in the Act's public display provisions, it was decided that most 
requirements specifically concerned with capturing, importing, 
exporting, or transporting marine mammals for public display under the 
MMPA as amended could only be addressed in the form of a new proposed 
rule.
    To implement the 1994 amendments as effectively and consistently as 
possible, our initial emphasis was on developing procedures for the 
inventory/notification system, and on negotiating a revised Memorandum 
of Agreement (MOA) with USFWS and APHIS for consistent implementation 
of public display requirements. The MOA was signed by all three 
agencies on July 21, 1998, clearing the way for drafting proposed 
regulations.
                                 ______
                                 

Responses from Marshall Jones, Acting Director, U.S. Fish and Wildlife 
                Service, U.S. Department of the Interior

               questions from chairman wayne t. gilchrest
    Question 1: Has the Service reviewed the Suarez Brothers Circus 
case and made any determinations on whether illegal documents were used 
to get the animals into United States territory? Will the Service 
withhold a CITES export permit until such determinations are made? What 
actions will the Service take if illegal documents were used?
    Answer: On May 5, 2001, the Service issued a permit to Circo 
Hermanos Suarez S.A. (Suarez Brothers Circus) for the import of seven 
polar bears for public display purposes. At the time of issuance, the 
Service did not have any reason to believe the animals were possibly 
being moved under false documents. As required by the Marine Mammal 
Protection Act (MMPA), when the Service reviewed the application, it 
required the Circus to provide documentation demonstrating that the 
bears were not taken while pregnant; nursing, or less than eight months 
old, whichever occurs later; obtained from a depleted stock; or taken 
in an inhumane manner. The Circus provided certification statements 
from the foreign zoological institutions for the foreign captive-born 
bears, and a certification statement from the Government of Manitoba, 
Canada, that allowed the Service to determine that the animals were not 
obtained in a prohibited manner. These certification statements 
satisfied the Service regarding the source and origin of the bears for 
purposes under the MMPA.
    Under CITES, no import authorization is required for Appendix II 
species as long as a valid re-export certificate has been issued by the 
country of export. When the Service reviewed the MMPA application, it 
noted that the CITES documents for the bears' travel between the 
Dominican Republic and Jamaica appeared to have minor discrepancies not 
uncommon for multiple re-exports. Within this context, the Service 
determined that the discrepancies were not substantive in nature, and 
were not suggestive of questions concerning the true identity of any of 
the bears. The Service concluded that the discrepancies were not 
germane to the decision to issue an MMPA import permit, and notified 
the permittee that these discrepancies should be rectified prior to 
importing the animals.
    Approximately one month after the Service issued the permit and the 
bears were imported to Puerto Rico, it received a letter from Dr. Terry 
L. Maple, President and CEO of Zoo Atlanta, Atlanta, Georgia, regarding 
the origin of one of the bears, ``Alaska.'' Dr. Maple's June 7, 2001, 
letter noted that ``Alaska'' appeared to be traveling on questionable 
documentation, and he expressed concern that the bear may actually have 
died in a German zoo. The information provided by Zoo Atlanta was 
further investigated by the Service. The German CITES Management 
Authority was contacted regarding the CITES document they had issued to 
re-export this bear from Germany. The Management Authority noted that 
they had issued the CITES re-export certificate for ``Alaska'' and 
could not confirm that the bear had died in Germany. The Service's 
Division of Law Enforcement also forwarded a request for investigative 
assistance to INTERPOL and the U.S. Customs Service Attache Office in 
Berlin, Germany. The Service also undertook DNA analysis of the bear 
and has determined, through that analysis, that the bear imported by 
the Circus was not the animal described on the CITES re-export 
certificate from Jamaica. On March 6, 2002, the Service executed a 
court-ordered seizure of that bear. An investigation continues.
    The Service also recently received an application from the Suarez 
Brothers Circus for the re-export of these animals. The Service will 
evaluate it under all relevant provisions of the laws governing these 
animals.
    Once the Service's investigation has been completed, it will review 
the information on the degree and specifics of any violations. If the 
Service investigation reveals that the Suarez Brothers Circus 
deliberately submitted false paperwork, the Service will consult with 
the U.S. Department of Justice regarding appropriate legal action. The 
Service appreciates your concerns and will keep the Committee updated 
as this matter progresses.

    Question 2: When might the Administration bring forth a bill on the 
reauthorization of the Marine Mammal Protection Act?
    Answer: The Service and the National Marine Fisheries Service have 
been working diligently, along with other Federal agencies, to develop 
a proposal to submit to Congress. This proposal is under final review 
within the Administration so that it will be ready to transmit to the 
Congress.

    Question 3: Is a reassessment of the M'Clintock Channel population 
due to lower population estimates and its subsequent removal from the 
Service's approved population list, that allows for the import of polar 
bear trophies, an indication that Canada is not managing its polar bear 
populations appropriately?
    Answer: The Service does not believe that the population decline in 
the M'Clintock Channel population implies Canada is not managing its 
polar bear populations on a sustainable basis. Canada has a robust 
management program that is periodically reviewed by polar bear 
scientists and managers through meetings of the Federal-Provincial 
Polar Bear Technical Committee (PBTC), Polar Bear Administrative 
Committee, and the IUCN (World Conservation Union) Polar Bear 
Specialist Group. There has been considerable discussion of Canada's 
population management, and Canada continues to look at new models and 
research data to better manage their polar bear populations. Canada is 
examining options that include scaling back harvest rates in small 
populations while performing more frequent inventories of larger 
populations. It also anticipates that new models will help it identify 
where it needs to modify harvest levels, prior to the next population 
inventory, due to changing environmental conditions or optimistic 
population estimates. The Service participates in the annual PBTC 
meeting and continues to work with Canada to receive the most recent 
information on Canada's management program to ensure that the import of 
polar bear trophies is allowed only from populations that are being 
maintained at sustainable levels.

    Question 4: Many would argue that if managed correctly sport hunts 
of polar bears can be a useful management tool. The focus of these 
hunts being the large bull males, instead of the females or cubs. In 
addition, Canadian sport hunts, for example, bring needed funds into 
native villages in Canada where the meat of the animal is left for 
subsistence use by the natives. Does the Service agree that if managed 
correctly sport hunts of polar bears can be a useful management tool?
    Answer: The Service recognizes that sport hunting has been 
demonstrated to be compatible with sound conservation practices, and 
can be a useful management tool under certain conditions. Canada has 
incorporated sport hunting as one aspect of its management program for 
polar bears. The selective harvest of 2 males to 1 female is utilized 
to conserve the population by reducing the impact of the harvest of 
females. Sports hunters prefer to harvest large males in lieu of 
females, and hunts that focus on males allow for a greater harvest than 
a harvest that takes an equal number of males and females. The Service 
uses scientific criteria to evaluate Canadian sport-hunting programs 
for polar bear populations, and issues permits to import trophies based 
on sustainable harvest.
    The Service also recognizes that sport hunting plays an important 
economic and cultural role to local Canadian people. This system has 
been responsible for providing an economic infusion to many 
economically depressed communities. Communities widely support sport 
hunting, and village Hunter and Trapper Associations are responsible 
for determining the portion of the annual harvest to be allocated for 
sports hunters.
    From a management perspective, the foundation for any sport hunt or 
subsistence harvest is accurate population information on which to base 
a sustainable harvest level. Accurate information regarding the harvest 
is also essential to evaluating the effect of the harvest; as harvests 
approach the maximum sustainable level, the need for accurate 
information becomes more critical. Resource managers, when provided 
with accurate population and harvest information, are able to determine 
harvest limits which are sustainable under either a subsistence 
harvest, sports harvest, or combination of these hunt types. The 
Service uses a statistical analysis to determine the level of 
uncertainty for population data. Where uncertainty is high, greater 
caution must be used in making management decisions.
    In the United States, the MMPA establishes a moratorium on take of 
polar bears; however, Section 101(b) of the MMPA provides an exception 
to the moratorium on taking for coastal Alaska Natives for subsistence 
purposes.
               questions from congressman walter b. jones
    Question 1: There are a number of compelling questions, related to 
the case of the polar bears owned by the Suarez Brothers Circus, that I 
believe need to be answered. Regardless of the fact that polar bears 
probably do not belong in a traveling, tropical menagerie, I am alarmed 
by the threat to human safety revealed in the US Animal and Plant 
Health Inspection Service (APHIS) report dated June 7. The report 
describes that the polar bears were confined in a facility that had a 
wall flimsy enough for the inspector to push over with one hand. Upon 
APHIS's return for a second inspection on June 21, the flimsy wall had 
not been fixed. There was apparently no follow-up inspection by APHIS 
in July, until the Puerto Rican Department of Natural Resources filed 
cruelty charges against the circus. I would like to hear APHIS's 
explanation on all of this. I have a letter from Dr. Terry Maple of Zoo 
Atlanta written to APHIS, in which Dr. Maple describes his surprise 
that APHIS would grant the Suarez operation a permit for exhibition. 
Dr. Maple points out that the Suarez Brothers Circus uses doctored 
records to identify their animals and the Suarez Brothers claimed that 
one of their bears came from Zoo Atlanta, when in fact, that bear had 
died in a German Zoo in 1994. The use of falsified records is grounds 
for denying the owners a permit for exhibition. So why was one granted? 
APHIS, while invited to testify, declined the Committee on Resources 
request, so I pose this question to my friends with the United States 
Fish & Wildlife Service. I understand that accurate records describing 
the history of the bears is required for import and export permits (as 
well as permits for exhibition). Why was this deceptive organization-
complete with falsified records--given an import permit for these 
animals? And what is the status of the export permit?
    Answer: The Service appreciates the concerns raised regarding the 
adequacy of facilities used by Suarez Brothers Circus to house polar 
bears. The Service is working closely with APHIS to ensure that the 
bears are held in compliance with requirements of the Animal Welfare 
Act.
    As discussed above in our response to Chairman Gilchrest's Question 
1, the Service received information regarding the questionable origin 
of a polar bear ``Alaska'' approximately one month after we had issued 
an import permit. When the Service reviewed the application, the 
documentation regarding the source of the polar bears provided by 
Suarez Brothers Circus appeared to be authentic. In light of Dr. 
Maple's correspondence, the Service's Division of Law Enforcement 
investigated the assertion that ``Alaska'' was imported under false 
documentation. Based on subsequent DNA analysis, the Service executed a 
court-ordered seizure of the bear on March 6, 2002. The investigation 
continues.
    If the Service's investigation provides evidence that a permit for 
import was secured based on the submission of deliberately false and/or 
misleading information, the U.S. Department of Justice will be 
consulted regarding appropriate legal action.
    The Suarez Brothers Circus recently applied for a permit to re-
export these animals. The Service will evaluate the application under 
the appropriate criteria for permit issuance under CITES. Further, any 
violations found against the Suarez Brothers Circus will also be 
considered in the review of the application for re-export of these 
animals. The Service will keep the Committee informed as the 
investigation progresses.
           questions from ranking member robert a. underwood
    Question 1: Do we have accurate stock information for those that 
will be affected by the U.S. - Russia Agreement on Polar Bear 
conservation? How will enforcement against poaching and stock 
information be maintained on these remote populations?
    Answer: Issues of population size, harvest limits, and enforcement 
programs would be addressed by the U.S.-Russia Polar Bear Commission to 
be created under terms of the bilateral conservation agreement. The 
Commission is also charged with forming a scientific advisory group to 
provide technical advice and guidance to the Commission as it designs 
management and enforcement programs to implement the bilateral 
agreement.
    A variety of information will be available for the Commission and 
its scientific advisory group, including historic harvest rates and 
data on population growth in adjacent polar bear populations that are 
believed to be similar to the Chukchi/Bering Seas population. Much of 
this information will be compared to the situation in the Beaufort Sea, 
where long term population data are available from mark and recapture 
programs conducted since 1968. Other information includes the results 
of aerial polar bear surveys conducted in the Eastern Chukchi Sea 
during August 2000.
    Historically, during the 1960s and early 1970s, statewide harvest 
rates of 260 bears per year are now known to have been unsustainable. 
Both the Beaufort Sea and Chukchi/Bering Seas populations were 
depressed due to excessive harvest rates. The Beaufort Sea population 
rebounded in the 20-year period following cessation of sport hunting in 
1973 and a greater than 50 percent reduction in total take. The 
population is thought to have reached the carrying capacity of the 
environment and leveled off during the 1990s. The Chukchi/Bering Seas 
population is thought to have experienced the same growth pattern.
    In August 2000, the Service successfully conducted aerial surveys 
to estimate the abundance of polar bears in the Eastern Chukchi Sea and 
portions of the Beaufort Sea. The survey indicates that approximately 
1,500 polar bears were present in the area. These data are believed to 
corroborate population recovery in the Chukchi Sea region. 
Statistically defensible quantitative information on the size of the 
Chukchi/Bering Seas polar bear population is currently unavailable. The 
most recent estimate of the population size is 2,000 to 5,000 bears, 
based on an extrapolation of the annual number of dens that occur on 
Wrangel Island, Russia, where the vast majority of polar bear cubs in 
this population are born.
    To assist in enforcement, a marking, tagging, and reporting system, 
similar to one successfully used by the Service in Alaska since 1988, 
is anticipated to be instituted in Chukotka, Russia. The Service's 
program requires hunters to tag the skulls and hides of harvested bears 
with unique serialized tags, which allows for enforcement against 
individuals in possession of untagged hides. If the treaty is ratified 
and implemented, the number of tags issued during any given year would 
be based on the sustainable harvest limits and allocations as 
determined by the Commission. The Commission would also review and 
approve programs to enforce provisions against illegal take or trade in 
violation of the U.S.-Russia polar bear conservation agreement and to 
verify that harvest monitoring programs are operating effectively.

    Question 2: What is the status of the supplemental environmental 
impact statement (SEIS) for southern sea otters that the Fish and 
Wildlife Service is currently developing? Are you on track to complete 
this SEIS by September, 2002?
    Answer: The Service expects to complete the draft supplemental 
environmental impact statement in 2002. Following public hearings, a 
written comment period, and revision as necessary, a final document is 
expected sometime next year. The supplement will update information, 
reevaluate the existing translocation program, and analyze our options 
for the program.

    Question 3: You generally state in your written testimony that co-
management with Native Alaskans has been a successful venture and note 
the cooperative agreements in place, including the agreement with the 
Alaska Sea Otter and Steller Sea Lion Commission. Considering the fact 
that Steller sea lions have been listed on the ESA for some time due to 
a steep decline in the stock, and also that Alaska sea otters are now 
under review by the Service for potential listing under the ESA because 
this population too, has dramatically declined, I am somewhat surprised 
to hear your bullish optimism about co-management. Would you please 
comment on this?
    Answer: The Service believes that co-management with Alaska Native 
continues to be a useful partnership. While the basis for co-management 
is to address issues related to subsistence harvest, the cooperative 
projects provide a wide range of information important for 
understanding marine mammal species and the environment in which they 
live. For example, Alaska Native hunters collect tissue samples used 
for contaminant analysis, genetic studies, and evaluation of other 
health and population parameters. A compilation of traditional 
knowledge about polar bear habitat use provides useful insight into 
this far-ranging species that is difficult to study. Given the remote 
areas and broad geographic ranges inhabited by Arctic marine mammals, 
the information gathered by Native hunters who live, hunt, and travel 
through the same remote environment significantly contributes to our 
understanding of these environments and animals.
    It is true that Steller sea lion populations and the Aleutian 
Island population of Alaska sea otters are declining. However, in 
neither case is the level of subsistence harvest a factor in the 
decline of the species. The subsistence take of Aleutian sea otters is 
less than a dozen animals a year, whereas the documented sea otter 
decline throughout the Aleutians, due to as yet undefined causes, is a 
loss of tens of thousands of animals in the past decade.
                questions from congressman frank pallone
    Question 1: Under the MMPA, parties must apply for import permits 
before bringing marine mammals or their parts into the country. 
Recently, a Mexican circus with 7 polar bears wishing to enter Puerto 
Rico requested an MMPA import permit from the Fish and Wildlife 
Service, providing CITES documentation and other required materials. 
Based on this documentation, there appears to be a serious question as 
to the provenance of at least one if not all of these bears. 
Subsequently a letter from Terry Maple of Zoo Atlanta confirmed that 
the identity of at least one bear--the one called ``Alaska'' in the 
CITES documentation--was falsified. What does the agency do to verify 
the provenance of animals (or parts) to be imported? If there are 
serious questions about provenance, how is it possible for an import 
permit to be issued? Given that these questions regarding provenance 
remain to this day, how will the agency address these questions when 
the circus applies for an export permit under CITES? Is it in fact 
possible for an export permit to be issued while such questions remain?
    Answer: The Service's review of the Suarez Brothers Circus 
application for the import of the polar bears included an evaluation of 
the documents on the actual source of the bears. This information 
included supporting documents from the relevant foreign sources, e.g., 
the Government of Manitoba, Canada. At the time the Service reviewed 
the application, there was no reason to believe that the animal known 
as ``Alaska'' was any other than the one indicated. One month after the 
permit was issued, the Service received new information that brought 
into question the provenance of that animal. The Service undertook 
further investigation of the identity of the bear in question. That 
investigation resulted in the court-ordered seizure of the bear on 
March 6, 2002. If it is determined that Suarez Brothers Circus 
submitted deliberately false and/or misleading information, we will 
consult the U.S. Department of Justice regarding appropriate legal 
action against the Circus. The Suarez Brothers Circus recently applied 
for a CITES certificate to re-export the remaining bears. The Service 
is currently evaluating this application and will not make a final 
decision on the re-export certificate until it is satisfied regarding 
the origin and provenance of these animals.

    Question 2: The MMPA requires that facilities keeping marine 
mammals in captivity offer an education or conservation program based 
upon professionally recognized standards of the public display 
community. On May 5, 2001, the U.S. Fish & Wildlife Service authorized 
the Suarez Bros. Circus to import seven polar bears into Puerto Rico. 
The bears are used in circus routines where they are forced to balance 
on an oversize ball, walk upright on their hind legs, climb steps, and 
go head first down a slide while a trainer repeatedly hits them with a 
stick and whips them on the face, back, sides, and hindquarters. 
Baltimore Zoo Executive Director Roger Birkel reviewed videotape taken 
of these performances and stated in a letter that ``[The use of 
physical force coupled with the obvious lack of message...leaves the 
observer with a negative impact and a complete lack of respect and 
understanding for the animals.'' Knoxville Zoo staff veterinarian Dr. 
Ed Ramsey reviewed videotape and stated in a letter, ``I think the only 
thing the public learned from watching this act is that it is okay to 
force bears to do things by hitting them.'' Additionally, the circus is 
not distributing educational material about polar bears, allowing the 
public to view the polar bears between shows with informational signs, 
or conveying an educational message during the show as specified in the 
permit. Why has the U.S. Fish & Wildlife Service not revoked the 
circus' import permit for failing to offer an education or conservation 
program in violation of the MMPA?
    Answer: The Suarez Brothers Circus provided a detailed program and 
information packet with their application regarding their intended 
outreach and conservation message to be used in association with the 
public display of the polar bears. This included information regarding 
polar bear biology as well as relevant laws and international treaties 
associated with this species. The Service provided comments to the 
Suarez Brothers Circus regarding deficiencies in their message. The 
Suarez Brothers Circus acknowledged our comments and provided 
supplemental information in support of their application, and it was 
determined that the information met the criteria for the public display 
of these animals. On October 23, 2001, the Suarez Brothers Circus 
provided us with a copy of their informational handout (please see 
Attachment 1) produced in Spanish, as well as a video of a performance 
of the bears which included a discussion on polar bear conservation. 
The Service believes that the information that the Suarez Brothers 
Circus provided demonstrates that they are providing a conservation 
message that is consistent with the MMPA requirements for the public 
display of the bears. Should the Service determine that the Suarez 
Brothers Circus is no longer providing a conservation message, and is 
not reasonably likely to do so in the near future, as required by 
Section 104(c)(2)(D)(ii) of the MMPA, then appropriate action would be 
initiated, including a possible revocation of the permit.
                                 ______
                                 

Responses from John E. Reynolds III, Chairman, Marine Mammal Commission

               questions from chairman wayne t. gilchrest
    1. The MMPA defines harassment very broadly, including minor 
behavioral modifications. Should the definition be changed to include 
only those activities that may present long-term impacts to individuals 
or to populations?
    First, it should be recognized that there are differing 
interpretations of the existing definition of harassment under the 
Marine Mammal Protection Act. This is discussed more completely in our 
response to Mr. Underwood's first question, which is provided below. 
For purposes of this question, we note that the definition of Level B 
harassment refers to the disruption of ``behavioral patterns.'' Thus, 
it is unclear that all minor behavioral modifications (e.g., those that 
elicit a one-time response) fit within the definition. It is also 
unclear precisely when disturbance is severe enough or frequent enough 
that it rises to the level that it constitutes a disruption of a 
behavioral pattern (as opposed to a behavior).
    As we explained at the October 11 hearing, it would be 
inappropriate for the Commission to recommend or endorse specific 
legislative proposals until an Administration position has been 
formalized. Inasmuch as a proposed Administration bill is still 
undergoing interagency review, we remain unable to offer specific 
changes or to make specific recommendations with respect to revisions 
we would like to see made to the harassment definition. We nevertheless 
will try to respond, at least generally, to your question within these 
constraints.
    The Commission is aware that the National Research Council convened 
a panel on marine mammals and low frequency sound that, among other 
things, looked at the MMPA's definition of harassment (National 
Research Council 2000). One of the recommendations of the panel was to 
change the coverage of the definition away from short-term responses to 
focus on ``longer-term, significant physiological and behavioral 
effects...'' (Id. at 67.) In the abstract, this is a worthwhile 
proposal. Were we able to distinguish readily between those impacts 
that are transitory and that, by themselves, or in combination with 
other disruptions, will have no long-term adverse effects on the 
survival of an individual marine mammal or its reproductive success, 
and those that will have more significant ramifications, such a 
proposal would be rather attractive.
    However, when assessing activities that cause behavioral 
modification, we often cannot distinguish between those activities that 
will have significant, long-term effects and those that will not. For 
example, a disturbance that causes what might appear to be a relatively 
minor change in a marine mammal's migratory route could have 
unforeseen, and possibly significant, consequences by causing increased 
energy expenditures or by exposing the animal to an increased risk of 
predation. Until we have the capability to distinguish reliably between 
what is and is not significant, or what will or will not have long-term 
consequences, the Commission believes that it would be ill-advised to 
adopt a definition that excludes consideration of short-term impacts 
entirely.
    It is also worth noting that humans are inclined to judge the 
severity of a disturbance to a marine mammal based on our perception 
and understanding of the nature and intent of the disturbing action. 
Marine mammals are not able to make those same judgments and may 
perceive a potentially disturbing stimulus very differently. Further, 
the sensitivity of marine mammals to disturbance may vary in ways that 
we do not fully appreciate, as a function of their age and sex, the 
season, their reproductive condition, their physiological condition, 
their previous experience with the disturbance, the nature of the 
disturbance, its persistence, the number of times disturbed, and other 
factors that, when taken cumulatively, may alter the sensitivity of an 
individual animal to disturbance.

    2. Is a reassessment of the M'Clintock Channel population due to 
lower population estimates and its subsequent removal from the 
Service's approved population list, that allows for the import of polar 
bear trophies, an indication that Canada is not managing its polar bear 
populations appropriately?
    The situation with respect to the M'Clintock Channel population of 
polar bears illustrates both the strengths and weaknesses of Canada's 
polar bear management program. on the one hand, managers relied on an 
outdated population estimate to establish quotas, thereby setting 
unsustainable harvest limits that probably helped to drive down the 
abundance of polar bears within the M'Clintock Channel management unit. 
on the other hand, once the problem was identified, Canadian officials 
responded fairly quickly by taking steps to institute revised harvest 
limits.
    In its 1995 comments on the Fish and Wildlife Service's proposed 
findings concerning the importation of polar bear trophies from Canada, 
the Commission raised several concerns. The Commission indicated that 
the greatest uncertainty regarding the formula being used to set 
harvest limits was the reliability of the population estimates being 
used. If a population estimate has low precision or is too high, the 
Commission noted that use of the formula could lead to overharvesting. 
This appears to be precisely what has happened in the case of the 
M'Clintock Channel population.
    The Commission recommended that the Service consider at least two 
ways to address the problem of positively biased population estimates. 
First, we indicated that, rather than relying solely on qualitative 
assessments of the reliability of these estimates (i.e., good, fair, 
poor), quantitative estimates of standard errors and, where possible, 
identification of likely biases should be provided. In this way, 
informed decisions could be made about the risks associated with 
reliance on particular population estimates. Second, the Commission 
believed that, in the face of such uncertainty, it would be more 
appropriate to use minimum population estimates in setting taking 
limits (as the United States has done in calculating potential 
biological removal levels), rather than mid-point estimates.
    The Commission also noted that the program established by Canada 
for assessing the size and trends of its polar bear populations is 
based on a 20-year cycle. Thus, it may be several years before possible 
problems related to overharvest are detected and may be several decades 
before reliable data on population trends for all management units are 
developed. The population estimate used to establish quotas for the 
M'Clintock Channel population was derived from a 1978 survey. The new 
abundance estimate that brought the depletion of the population to 
light is based upon a study conducted during 1998-2000. Had Canada been 
relying on a more recent, but equally flawed, population estimate to 
establish the harvest limit for the M'Clintock Channel population, it 
might have been a decade or more before the overharvesting problem was 
identified.
    One of the safeguards against overharvesting identified by the 
Service in its final rule authorizing polar bear imports that made it 
more willing to accept the 20-year assessment cycle was the familiarity 
of local hunters with the relative abundance of bears in the areas 
where hunting occurs. It was believed that the hunters would likely 
detect any significant increase or decrease in polar bear numbers. If 
the recent population estimate is correct, then our experience with 
M'Clintock Channel seems to undermine the basis for such reliance. 
Either the number of bears had been significantly overestimated in 1978 
(underscoring the need to use minimum population estimates when there 
is considerable uncertainty), and the population remained relatively 
stable over the ensuing 20 years, or local hunters were unable to 
detect a decline of nearly 60 percent within that time span.
    Another point made by the Commission in its 1995 comment letter was 
that the model being used by Canada to set harvest limits would result 
in conservative management for populations near carrying capacity, but 
would allow populations below their maximum net productivity level to 
remain depleted indefinitely. Thus, now that the M'Clintock Channel 
population is considered to be depleted, it should be permitted to 
recover before the full harvest established using Canada's model is 
allowed to be taken.
    Information from the more recent population surveys also indicates 
that the sex ratio of the M'Clintock Channel population is skewed, with 
65 percent of the adult bears being female. While the natural sex ratio 
may be skewed toward females in species with polygynous breeding 
strategies, the observed ratio may also reflect the effects of the 
increasing number of sport hunts in the area, which tend to target the 
larger male bears. Data provided by the Canadian Wildlife Service 
indicate that sport hunts in the M'Clintock Channel management unit 
were almost nonexistent prior to 1995, and increased markedly (to 17) 
in 1997, after the regulations authorizing the importation of trophies 
to the United States were published. In 1997 and 1998, sport hunting 
accounted for 60 percent and 50 percent, respectively, of the polar 
bears harvested in M'Clintock Channel during those years. As discussed 
further in our response to the next question, targeting large males or 
skewing sex ratios could have both beneficial and adverse consequences, 
indicating the need for careful monitoring of the population under such 
circumstances.
    We note that the Fish and Wildlife Service's original proposal 
would have limited the taking of polar bears in sport hunts to 15 
percent of the total number of bears taken in the Northwest 
Territories. Such a provision was dropped by the Service in the final 
regulations. If, however, sport hunting accounts for a substantial 
percentage of the removals, hunters are preferentially targeting large 
male bears, and the sex ratio becomes skewed to the point that it 
results in conservation problems, then the Service may need to revisit 
its proposal by considering, at least for the smaller populations, 
setting a cap on the proportion of takes that be allocated to sport 
hunters.

    3. Does the Commission agree that if managed correctly sport hunts 
of polar bears can be a useful management tool? The focus of these 
hunts being the large bull males, instead of the females or cubs. In 
addition, Canadian sport hunts bring needed funds into native villages 
in Canada, where the meat of the animal is left for subsistence use by 
the natives.
    Hunting can be an effective tool for managing wild populations. 
Hunting is a form of predation and predation has been recognized as one 
of the factors controlling wild populations. However, it does not 
necessarily follow that hunting is always useful or appropriate.
    The size of wild animal populations is a function of the addition 
of new animals through immigration and reproduction, and the removal of 
animals through mortality and emigration. Assuming that emigration and 
immigration are about equal, factors that increase mortality or 
decrease reproduction may impede population growth or recovery, whereas 
factors that decrease mortality or increase reproduction may contribute 
to population growth or recovery. Males contribute to population growth 
by breeding, but also may impede growth by killing juveniles. In 
polygynous species like polar bears, some males may not be required for 
breeding, as other more dominant males may assume all breeding 
privileges. In such cases, the loss of some males may not necessarily 
be an impediment to population growth and may actually facilitate 
growth if it leads to a reduction in male-related juvenile mortality. 
On the other hand, removal of the large, most reproductively successful 
males from a small population may be problematic if (1) selective 
removal of large males affects the dominance hierarchy, allowing 
smaller, less biologically fit males to reproduce, or (2) removal 
occurs to such an extent that insufficient numbers of males are 
available for breeding and the reproductive rate declines. Conceivably, 
then, both beneficial and adverse consequences could result from the 
selective hunting of large adult males. Although hunting may be used to 
achieve conservation objectives and to provide a source of revenue for 
Native communities, it must be monitored and managed carefully to 
ensure that adverse effects do not exceed beneficial effects, both to 
polar bear populations and to the Native communities that depend upon 
them.

    4. How does the cumulative effect of all of the noise in the ocean 
affect the environment? How loud is the ocean without human-caused 
noise?
    It is difficult to say how loud the ocean would be without human 
noise. Due to the sound-transmission properties of water, human-caused 
noise may be heard over great distances. In addition, levels of both 
naturally occurring and human-caused noise vary over time and area, 
making it difficult to generalize about sound levels in the absence of 
human noise. An assessment of naturally occurring levels may be easiest 
in areas like the Antarctic, where relatively little human-caused noise 
is generated. But again, sound travels great distances in the ocean and 
both proximate and distant human sounds may be detected even in the 
remote Southern Ocean.
    We do not know what cumulative effect human sources have had on the 
marine environment. Although noise is an integral part of the ocean 
environment, our understanding of its role in the environment and the 
effects of added human-caused noise is still relatively rudimentary. 
Naturally occurring sources of noise include, among other things, 
seismic activity, lightening strikes, ice movements and cracking, 
storms, wind, precipitation, waves, and marine organisms. Taken 
together, sounds from naturally occurring and human sources comprise 
the ambient or background levels of noise in the environment. Ambient 
levels vary by frequency, season, and region as a function of the 
occurrence of these sources of noise, their distance, and sound 
transmission properties of the affected ocean environment. Ambient 
levels may vary from 20 to 40 decibels (dB)1 (based on the 
Wenz curves with units of 1 mu Pa 2/Hz) at mid to higher frequencies, 
but increase to as much as 80 to 90 dB at low frequencies and, under 
unusual conditions (e.g., earthquakes), increase to 140 dB or more. An 
increase in wind speed from 5 to 10 knots causes a 5 dB increase in 
ambient ocean noise across most frequencies of biological relevance.
---------------------------------------------------------------------------
    \1\ ``Decibels'' are used to indicate the ratio of sound pressure 
levels at the source relative to 1 microPascal (mu Pa) at one meter 
from the source. In our responses below, the notation ``dB re 1 mu Pa @ 
lm'' has been shortened to ``dB''.
---------------------------------------------------------------------------
    The introduction and increase of anthropogenic sound in the marine 
environment can have many effects, depending on the nature of the 
sound, its source location, and the marine organisms exposed to it. 
These effects, as they relate to marine organisms, can be divided into 
four categories. First, the sound may be of such high energy that it 
causes physical injury or death to marine organisms within certain 
distances from the source. Possible sources of such sounds include 
explosive blasting (e.g., channel widening), seismic testing (e.g., for 
oil and gas exploration), and sonar systems. Second, sound may be of 
intermediate levels where it does not cause physical injury but results 
in disturbance or stress, which could in turn have serious secondary 
consequences (e.g., disruption of breeding, feeding, or other important 
biological functions, changes in distribution and movement patterns, 
decreases in immune system function, and decreases in reproduction and 
survival).
    Third, the addition of human sounds to naturally occurring sound 
levels may diminish the effective use of sound by marine organisms. 
Some marine organisms, most notably cetaceans, have developed the 
ability to use sound for a variety of purposes such as communication, 
location and capture of prey, detection of predators, investigation of 
their surroundings, and orientation. They are able to do so only to the 
extent that they can distinguish particular sounds from background 
noise. ``Masking'' of sounds by introduced anthropogenic noise may 
diminish or interfere with these functions, with potentially serious 
consequences. Fourth, human sounds may affect marine mammals indirectly 
through their effects on other marine organisms, such as fish. The 
extent of such indirect effects is unknown.
    Although assessments of noise effects often focus on a single type 
of introduced noise, marine organisms must cope with the cumulative 
effects of all these sounds, plus the effects of other anthropogenic 
influences on the marine environment (e.g., pollution, competition with 
fisheries, vessel traffic). In addition, while the ability of marine 
organisms to use sound has evolved over millions of years, the changes 
resulting from anthropogenic input may be occurring at a rate that is 
greater than the ability of marine life to adapt.
    As noted earlier, we presently are unable to describe with 
confidence the full nature and extent of effects from anthropogenic 
noise in the marine environment. Our inability to describe these 
effects does not mean that such effects do not occur. Rather, it 
reflects our relatively rudimentary understanding of sounds in the 
marine environment and our limited ability to assess the impacts of 
introduced anthropogenic noise, even when considering single sources 
over relatively short periods. Much work needs to be done before we can 
begin to develop a reliable understanding of the long-term effects of 
the multiple sound sources to which marine organisms are exposed 
throughout their ranges.

    5. Has there been a pattern of increasing noise in the world's 
ocean over the past few decades? What are the sources. with the 
greatest contribution to this increase? How does this increase affect 
marine mammal populations, and how widespread are these effects?
    There is general agreement that ocean noise has been increasing 
over the past few decades. Ross (1976) estimated that ambient noise 
levels rose 10 dB between 1950 and 1975 due to increased shipping 
noise. The National Research Council (1997) estimated that ocean noise 
at 100 Hz has increased by about 1.5 dB per decade since the advent of 
propeller-driven ships. The increasing number and size of commercial 
ships is consistent with these estimates of increasing ambient noise in 
the ocean. Although noises can travel great distances in the ocean, the 
nature, volume, and effects of noise can vary over space and time, and 
much remains to be learned about spatial and temporal trends in noise.
    Commercial shipping appears to be the greatest source of 
anthropogenic noise in the ocean environment. Other important sources 
of ocean noise include seismic exploration for oil, gas, and other 
minerals; oil and gas drilling; marine construction; sonar systems used 
by fishing and military vessels; blasting for demolition, construction, 
and widening of ship channels; dredging; aircraft; icebreakers; and 
recreational vessels.
    As noted in our response to the previous question, marine mammals 
may be affected in at least four ways by the increase in anthropogenic 
noise: they may be physically injured or even killed, they may be 
stressed and have biologically important behaviors disrupted, they may 
be impaired in their use of sound-based sensing mechanisms by the 
masking of, and the diminished ability to detect, important sounds as a 
result of increased background noise, and they may be affected 
indirectly through noise-effects on other marine organisms. Populations 
of marine mammals may be adversely affected if the noise leads to a 
decrease in reproductive or survival rates. Such effects may occur not 
only as a result of direct injury, but in more subtle ways, such as 
changes in movement patterns, foraging, or other behaviors. These 
changes, for example, may affect the feeding success of individuals or 
increase the energy expenditures of animals along their migratory path 
in ways that ultimately manifest themselves at the population level.
    The available evidence suggests that marine mammals may change 
migratory paths as a result of noise, may abandon prime feeding areas, 
may abandon rookeries and haulouts, or display other responses that 
could compromise their reproduction and survival. However, it is not 
currently possible to state how widespread these effects are, as 
research on the effects of ocean noise on marine mammals is a 
relatively new endeavor and we are only beginning to understand the 
role of noise in marine mammal behavior and population dynamics. 
Nevertheless, there is growing concern that anthropogenic noise may 
pose serious risks to marine mammals and other marine organisms.
    In view of this concern, the National Academy of Sciences is 
preparing a report on ``Assessing Ambient Noise in the Ocean with 
Regard to Potential Impacts on Marine Mammals'' with the following 
charge:
        This study will evaluate the human and natural contributions to 
        marine ambient noise and describe the long-term trends in 
        ambient noise levels, especially from human activities. The 
        report will outline the research required to develop a model of 
        ocean noise that incorporates temporal, spatial, and frequency-
        dependent variables. Recommendations will be made on the 
        research needed to evaluate the impacts of noise from various 
        sources (natural, commercial activities, and acoustic-based 
        ocean research) on marine mammal species.
    This study was requested by the National Oceanographic Partnership 
Program with funds provided by the office of Naval Research, the 
National Oceanic and Atmospheric Administration, the National Science 
Foundation, and the U.S. Geological Survey. The report is due in 
January 2003 and should provide a comprehensive overview of the 
uncertainties and what will be required to resolve them.

    6. How do we evaluate long-term effects versus short-term effects 
of noise in the ocean on marine animals? Can ship noise be worse for an 
animal than an interaction with a sonar test?
    Generally both short- and long-term exposure to noise may result in 
injury, behavioral changes that may affect reproduction and survival, 
masking of noise that may disrupt important behaviors that depend on 
production or detection of sounds (e.g., predation, detection of 
predators, communication), or effects on other marine organisms 
ecologically important to marine mammals. Studies of short-term noise 
effects should include research related to all of these effects, such 
as the study by Schlundt et al. (2000) to investigate the onset of 
temporary hearing loss, and the behavioral studies conducted under the 
Navy's Low Frequency Sound Scientific Research Program. Behavioral 
studies focus on observations of individual animals or groups of 
animals to assess possible changes in foraging behavior, movement 
patterns, reproductive behavior, habitat-use patterns, or physiology 
(e.g. exhibited signs of increased stress). For example, short-term 
observations of the western Pacific population of gray whales in 2001 
suggested that those animals abandoned primary feeding habitat during 
nearby seismic testing for oil and gas, and then re-occupied that 
habitat when the testing stopped (National Marine Fisheries Service, 
pers. comm.).
    Studies of the long-term exposure to noise focus on population-
level effects that may or may not be obvious on a short-term basis. 
Such changes might include persistent or even permanent changes in 
foraging patterns or distribution (such as may occur with the western 
Pacific gray whale population just mentioned), long-term abandonment of 
otherwise preferred habitat (e.g., rookeries or haulouts), declines in 
reproductive rates or success, increased mortality, changes in animal 
condition, and, ultimately, population decline.
    Long-term studies are particularly important because they provide 
an opportunity to increase the rigor or power of research to detect 
significant effects if they occur. Short-term noise-induced changes in 
marine mammal behavior may be difficult to detect or may appear to be 
relatively subtle or insignificant to human observers, but their 
significance may be more apparent over time if seemingly small effects 
combine to result in significant changes in reproduction or survival. 
For example, the changes observed in migration of eastern Pacific gray 
whales during the Low Frequency Sound Scientific Research Program may 
seem insignificant in the context of a single season's migration, but 
long-term changes in movement patterns or habitat use could have 
significant consequences for this population. Similarly, the Navy's 
study of the sensitivity of humpback whales to sounds in their breeding 
habitat focused on short-term singing behavior of adult males. However, 
the long-term responses of adult female humpback whales is probably a 
better measure of noise effects, as the reproductive success of adult 
females is likely a more important determinant of population status and 
recovery. In addition, long-term studies are required to determine if 
repeated exposure to sound levels causing temporary threshold shift 
(hearing loss) is leading to permanent loss.
    Importantly, an effective program of long-term studies on the 
effects of noise will require careful planning to ensure the program is 
rigorous, comprehensive, effective, and reliable. The thoughtful 
development of a long-term plan would seem to be the first and perhaps 
most important step in addressing concerns about the long-term effects 
of anthropogenic noise in the ocean environment.
    With respect to the question about whether ship noise can be worse 
for an animal than an interaction with a sonar test, the answer depends 
largely on the conditions under which the animal is exposed. Ships 
generate loud noises and are a growing concern, although these sounds 
are generally audible from considerable distances and therefore animals 
may have an opportunity to respond before sound levels become 
intolerable (i.e., there is some degree of warning). Also, because ship 
travel may be more routine than sonar testing, animals may have 
adjusted to or otherwise learned to accommodate ship noise. Ship 
sounds, which have their primary energy at frequencies below 1 kHz, are 
believed to have little impact on small cetaceans and many pinnipeds, 
but may be much more critical for baleen whales and elephant seals. In 
general, important considerations for comparing the impacts of ship 
noise to those associated with sonar operations include the location of 
the sources, the loudness of the noises, their duration and frequency, 
the extent to which they may startle an animal, the animal's previous 
experiences with each noise, its activity, its age and sex class, its 
reproductive and physiological condition, the effects on ecologically 
related species, and other sources of noise in the animal's 
environment. Exposure to a single sonar test or the passage of a single 
ship may not have significant lasting effects. Repeated exposures, 
however, may cause significant permanent effects, such as abandonment 
of important habitat.
             questions from ranking member robert underwood
    1 . You only mention briefly that the definition of ``harassment'' 
may come up in the reauthorization bill. Could you please identify the 
Commission's stance on the definition?
    At the October 11 hearing, we explained that it would be 
inappropriate for the Commission to recommend or endorse specific 
legislative proposals until an Administration position had been 
formalized. Although considerable work has been done toward completing 
a proposed bill, concurrence on all issues under consideration has not 
yet been reached within the Administration. Thus, we are still unable 
to offer specific amendatory language with respect to the harassment 
definition. We can, however, identify, problems with the existing 
definition and possible alternatives being proposed by others that 
Congress might want to consider as it moves forward with 
reauthorization of the marine Mammal Protection Act.
    First, the introductory clause to the existing definition requires 
that harassment be caused by an ``act of pursuit, torment, or 
annoyance...'' Some have suggested that, under this provision, any 
action that annoys (i.e., disturbs) or could annoy (or disturb) a 
marine mammal fits within the definition. This limitation has led 
others to a much narrower interpretation. Some have suggested that 
harassment occurs only if the disturbance or injury to which a marine 
mammal is subjected is caused intentionally. That is, pursuing, 
tormenting, or annoying an animal is an action that requires intent. 
Clearly, this is not what Congress had in mind when it enacted the 
harassment definition in 1994. Otherwise, it would have made no sense 
to provide for the incidental taking of marine mammals by harassment 
(which generally occurs unintentionally), which Congress specifically 
did under section 101(a)(5)(D). From the marine mammal's perspective, 
it makes no difference whether any disturbance or injury that results 
from a person's actions was intentionally inflicted or not; it would 
have the same effect on the animal's behavior or health and, 
ultimately, on its survival and reproductive success. In light of the 
apparent ambiguity of. the existing provision, it seems that Congress 
may want to consider clarifying the types of actions that would 
constitute harassment.
    Second, to constitute Level A harassment, an action need not result 
in an injury to a marine mammal, or even create the likelihood that an 
injury might result, but only present the potential for such an injury. 
Similarly, the definition of Level B harassment does not require that 
disturbance occur or be likely, only that there be a potential for such 
disturbance. Some have argued that, by relying on a determination of 
potential injury or disturbance, the Act has created a highly 
subjective standard that could be interpreted as including even the 
remotest possibility that injury or disturbance might occur. Therefore, 
Congress might want to consider some clarification that would add an 
element of likelihood to the definition.
    Others, such as the National Research Council panel that reported 
on marine mammals and low-frequency sound (National Research Council 
2000), have taken issue with the breadth of the type of injuries or 
behavioral modifications that are included within the existing 
harassment definition. They believe that the definition should be 
modified to ``differentiate between immediate injury and longer-term, 
significant physiological and behavioral effects that may affect the 
growth, reproduction, or mortality of animals.'' (Id. at 67.) With 
respect to Level B harassment, the panel suggested the following 
redefinition:
        Level B - has the potential to disturb a marine mammal or 
        marine mammal stock in the wild by causing meaningful 
        disruption of biologically significant activities, including 
        but not limited to, migration, breeding, care of young, 
        predator avoidance or defense, and feeding.
    (Id. at 69.)
    While the Commission is sympathetic to the concerns raised by the 
panel, we believe that its proposal suffers from some of the same 
problems as the existing definition. It introduces two subjective and 
ambiguous terms - ``meaningful'' and ``biologically significant.'' Even 
were there a common understanding of these terms, their inclusion 
appears to be premised on an unrealistically high assessment of our 
ability to differentiate between biologically significant and 
insignificant responses. By doing so, the proposed definition 
effectively reverses the precautionary burden of proof that has been 
the hallmark of the Marine Mammal Protection Act since its inception in 
1972. For example, under existing law, a person seeking to undertake an 
activity that likely will incidentally take marine mammals is required 
to obtain an authorization and to demonstrate that the taking will have 
a negligible impact on the affected marine mammal stocks. Under the 
panel's proposed definition, this burden would be switched, such that 
it would be incumbent upon the regulatory agencies to demonstrate not 
only that marine mammals are likely to be disturbed, but that the 
effects of the disturbance are somehow likely to undermine the growth, 
survivorship, or reproductive success of those animals. Recognizing the 
limited resources available to the agencies responsible for 
implementing the Act, and science's limited ability to project the 
long-term impacts of short-term disruptions, there is a substantial 
risk that adverse, and possibly irreversible, impacts (e.g., 
abandonment of certain areas) might occur before the agencies are able 
to demonstrate that meaningful disruption of biologically significant 
activities is being caused by disturbance. The problem is further 
complicated when from repeated exposures to a single source of sources 
over a broader range, are factored into the existing level of 
uncertainty, it would be burden of proof to the regulatory agencies as 
the cumulative impacts, either disturbance or to multiple equation. In 
light of the inappropriate to shift the panel has recommended.
    The panel's proposed redefinition of Level B harassment also 
creates possibly insurmountable enforcement difficulties for the 
regulatory agencies. Under the most common scenario, an enforcement 
case brought for harassment would be based upon someone intentionally 
chasing, swimming with, or otherwise disturbing a marine mammal. Let us 
say, for example, that a person riding a jet-ski chases a dolphin 100 
yards downshore along a beach. When the dolphin stops, the jet-skier 
again pursues the dolphin, which moves farther down the shore. This 
scene is repeated two or three more times. In such an instance there 
should be no question that harassment has occurred. However, under the 
panel's proposal, the National Marine Fisheries Service could 
successfully bring an enforcement action only if it showed that the 
offender not only caused the disturbance, but that some biologically 
significant activity of the dolphin had been meaningfully disrupted. 
Arguably, causing a dolphin to swim an additional 400 or 500 yards 
during the course of a day does not rise to this level. Similarly, 
disrupting the animal's feeding, resting, or other such activities for 
10 or 15 minutes might not have any long-term effects that would rise 
to the level of meaningful disruption. Unless such a link were made, no 
taking would have occurred.

    2. Though you never mention it in your statement, the issue of Navy 
sonar systems is one that is extremely contentious and also before the 
Subcommittee today. I know that the Commission submitted detailed 
comments to NMFS and the Navy. Could you please outline the 
Commission's views of the Navy sonar systems, and the research that has 
been done to formulate both the draft and final environmental impact 
statements?
    We recognize that the issue of Navy sonar systems is extremely 
contentious and welcome the opportunity to comment on it. We have 
attached a copy of our 5 June 2001 letter to the National Marine 
Fisheries Service regarding the proposed implementation of the 
Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active 
(LFA) sonar system. The letter provides comments on an application from 
the Navy requesting an incidental take authorization under section 
101(a)(5) of the Marine Mammal Protection Act. Under that provision, 
the applicant and the National Marine Fisheries Service, as the 
proponent of the proposed regulations, carry the burden of 
demonstrating that deployment and operation of the SURTASS LFA sonar 
system will have no more than a negligible impact on the potentially 
affected marine mammal species and stocks. We confine our comments to 
the SURTASS LFA sonar system because we do not know the specifics of 
other Navy sonar systems. Nonetheless, we may have similar concerns 
about those other systems depending upon the sound characteristics of 
what is being deployed, where it is being used, what marine mammals 
might be affected and in what ways, and so on.
    The Navy, in cooperation with other research agencies and 
scientists, has done a commendable job of initiating useful 
investigations into the potential effects of SURTASS LFA sonar 
operations. This effort combined the resources and expertise of several 
participants and provides a model for cooperative efforts needed to 
address remaining questions about the potential effects of SURTASS LFA. 
Nevertheless, because important questions remain unresolved, the Marine 
Mammal Commission believes that considerable monitoring and additional 
research are warranted to provide a better understanding of possible 
effects. We present our concerns under four headings: 1) research 
related to injury and behavioral harassment, 2) mitigation of effects, 
3) monitoring and reporting of effects, and 4) general comments.
    Research related to injury and behavioral harassment - With respect 
to marine mammals, the Navy's program focused on the potential for 
SURTASS LFA sonar operations to injure marine mammals or cause 
behavioral harassment that could lead to population-level effects. The 
draft environmental impact statement suggested that 180 dB was a 
reasonable and conservative expected lower limit for temporary 
threshold shift (temporary hearing loss) based on evidence of hearing 
loss in humans, audiometric and anatomical data from some marine 
mammals, and a study by Ridgway et al. (1997; later expanded and 
reported by Schlundt et al. 2000). The study by Ridgway et al. (1997) 
provided the only evidence based on actual tests of hearing in live 
marine mammals (bottlenose dolphins), and was cited heavily in the 
proposed rule for the small take authorization. The results of the 
study were consistent with the hypothesis that 180 dB is a reasonable 
expected lower limit for temporary threshold shifts in marine mammals. 
However, as the investigators themselves pointed out, the study could 
not,.and did not, address all the pertinent questions related to the 
potential for injury. In this regard:
     LThe study used bottlenose dolphins, which may or may not 
be good indicators of hearing sensitivity and propensity for threshold 
shifts in other marine mammals.
     LThe sensitivity of the animals was tested to sounds of 
one-second duration, whereas SURTASS LFA sonar transmits sounds for 
periods of between 6 and 100 seconds, and it is known that the sound 
levels needed to cause temporary threshold shifts decrease as the sound 
duration increases.
     LFrequencies tested in the study were 3, 20, and 75 KHz, 
whereas SURTASS LFA sonar transmits sounds less than 1 KHz.
    The study was then expanded to include two beluga whales, and to 
include tests at 0.4 kHz and 10 kHz (Schlundt et al. 2000). Sounds 
projected at the lower frequency of 0.4 kHz comprise a better model for 
tests of the potential effects of SURTASS LFA, and increase our level 
of confidence that threshold shifts are less likely to occur as a 
result of SURTASS LFA sound transmissions at received levels less than 
180 dB. Nonetheless, as bottlenose dolphins and beluga whales may not 
be good indicators of the vulnerability of other species, and as the 
sounds used in these tests were only of one-second duration, the 
Commission believes that additional testing of this type is warranted.
    To address the question of behavioral harassment, the Navy 
established a Low Frequency Sound Scientific Research Program to 
investigate the effects of LFA transmissions on four species of large 
whales (blue, fin, gray, and humpback) during feeding, migration, and 
breeding. The following points illustrate the limitations of these 
studies and the need for additional monitoring and research on possible 
behavioral effects.
     LThe four whale species used in the study were thought to 
have the greatest hearing sensitivity at the frequencies used by 
SURTASS LFA. However, the sensitivity of some other species is poorly 
known. Although SURTASS LFA sonar uses lower frequency sounds than the 
mid-range sonars involved in the recent Bahamas incident, the 
occurrence of those strandings clearly indicates that much remains to 
be learned about the potential effects of sonar sounds in the variable 
marine environment.
     LChanges in behavior were observed in migrating gray 
whales and humpback whales, but the significance of those changes is 
unknown. While some were inclined to dismiss the changes as 
insignificant and temporary,. in our view, such a dismissal is 
premature based on the information currently available.
     LThe studies were short-term in nature and were not 
designed to determine the long-term significance of exposure to SURTASS 
LFA sounds.
     LThe whales in the studies were subjected to sounds of 
less than 155 dB, well below the levels to which they might be exposed 
(up to 180 dB) by SURTASS LFA operations. Although some whales may 
themselves generate sounds of 180 dB or more, it is not clear that they 
will respond in a similar fashion or be otherwise unaffected by the 
sounds of a comparable loudness produced by SURTASS LFA sonar.
    Here, too, the Commission believes that these studies provide 
useful information about potential behavioral responses of marine 
mammals to SURTASS LFA. The Commission does not believe, however, that 
without additional safeguards, these results are sufficient to ensure 
that significant adverse effects will not occur.
    Mitigation of effects - To limit the potential for injury or 
behavioral effects on marine mammals, the Navy proposed three 
mitigation measures: 1) halting transmissions whenever a marine mammal 
is known to be sufficiently close to the sound projectors to be exposed 
to sounds greater than 180 dB, 2) modifying nearshore operations so 
that sound levels do not exceed 180 dB within 12 nautical miles of 
mainland or island coastlines, 3) excluding operations within offshore 
areas of biological importance, including Arctic and Antarctic regions. 
Although these mitigation measures are likely to reduce the potential 
effects of SURTASS LFA sound transmissions, they do not provide the 
requisite assurances that the transmissions will have negligible 
effects on marine mammal populations. In a 5 June 2001 letter 
(attached) to the National Marine Fisheries Service on the small take 
authorization for SURTASS LFA, the Marine Mammal Commission identified 
the limitations of available information in assessing the possible 
effects of SURTASS LFA sonar and suggested further research to address 
these needs.
     LThe detection of marine mammals near the sound projectors 
depends on (1) visual observations, which are limited by daylight and 
sea surface conditions, (2) passive acoustic devices, which require 
that animals make detectable sounds as they pass near the projectors, 
and (3) high frequency marine mammal monitoring (HFM3) sonar, which is 
considered to be the most effective detection system, but which has not 
been fully tested and may itself have significant detrimental effects 
that warrant investigation.
     LLimiting the exposure of marine mammals to sound levels 
less than 180 dB may reduce the potential for injury to a negligible 
level, but does not necessarily reduce the potential for significant 
behavioral effects. Inasmuch as adverse effects may occur at received 
sound levels below 180 dB, additional studies are needed to provide 
insights into behavioral responses (both short- and long-term) to sound 
levels greater than 155 dB.
     LThe Navy and the National Ocean Service have offshore 
areas of biological importance, but areas merit such protection. 
Extensive data patterns and distribution apparently have not been 
designation of such areas and further review seems identified a total 
of four it is likely that many more on marine mammal movement 
considered in the warranted.
    Monitoring and reporting - The Navy's proposed monitoring program, 
as described in its environmental impact statement, consists of the 
three detection methods described above (visual observation, passive 
acoustic monitoring, and HFM3 monitoring), plus an effort to correlate 
stranding data with SURTASS LFA operations. In its 5 June 2001 letter 
to the National Marine Fisheries Service, the Commission expressed its 
concern that the proposed rule authorizing small takes of marine 
mammals was not adequate to provide the information necessary to (1) 
document how and how many marine mammals are taken incidental to the 
transmissions, or (2) validate the assumptions used to conclude that 
SURTASS LFA operations will have only negligible impacts on marine 
mammals. The limitations of monitoring near the sound projectors are 
described above. It is our understanding that the National Marine 
Fisheries Service and the Navy are working closely to assess the 
efficacy of the proposed mitigation measures. Nevertheless, at this 
time the efficacy has not been demonstrated and, even under the best of 
conditions, the monitoring program is designed only to detect short-
term impacts to animals that might be injured by sound transmissions. 
If the proposed monitoring methods are inadequate for detecting 
behavioral effects on a long-term basis, serious effects could occur 
but go unnoticed. Efforts to correlate stranding data with SURTASS LFA 
operations also will have limited utility as animals affected in 
offshore areas will be less likely to strand on beaches where they 
could be detected. In addition, the stranding data collected may not be 
adequate to detect all or even a portion of the animals that could be 
affected, and results of correlations are likely to be confounded by 
other factors that cause stranding.
    General comments - In a general sense, the concerns raised above 
are similar to those raised with respect to the potential ecological 
consequences of many human activities in the marine environment. An 
activity has been proposed that may have clear social, economic, or 
security benefits, but that also could result in potentially serious 
detrimental effects on marine ecosystems. Useful research has been 
conducted through commendable cooperative efforts by the Navy and other 
researchers. Nevertheless, the Commission believes that much remains to 
be learned before it is possible to conclude that detrimental, and 
possibly irreversible, effects are unlikely to occur. In resolving the 
questions of whether and how to proceed with such activities, the small 
take provisions of the Marine Mammal Protection Act reflect a 
precautionary approach, requiring the responsible agencies to proceed 
cautiously in the face of uncertainty. This might be accomplished by 
issuing a limited authorization coupled with a rigorous long-term 
research and monitoring effort that would allow for the development of 
SURTASS LFA operations while maximizing the probability that potential 
detrimental effects will be both identified and maintained at 
negligible levels. The model of cooperative research already developed 
could vastly improve our understanding of the potential effects of 
SURTASS LFA sonar operations if given sufficient support and continued 
under a well-directed research plan.
    Finally, the potential effects of SURTASS LFA sonar operations must 
be evaluated in the context of other human sources of noise in the 
oceans. Marine mammals and other marine life are confronted with a 
combination of natural and human-related sounds, and the effect of any 
one source must be evaluated in the context of all the others. As the 
amount of noise introduced into the marine environment is growing, a 
robust plan is needed to assess and prevent its potential detrimental 
effects.

    3. The recent marine mammal issue with the Suarez Circus in Puerto 
Rico has brought to light some problems within traveling facilities 
that display captive marine mammals, as well as with the administrative 
performance of both the Animal and Plant Health Inspection Service 
(APHIS) and the U.S. Fish and Wildlife Service (FWS). Could you please 
state the Commission position on the Suarez Circus polar bears? Does 
APHIS or FWS have sufficient regulatory ability under the MMPA or 
Animal Welfare Act to seize the polar bears? What should APHIS and the 
FWS be doing now to ensure the humane care and treatment of these 
animals, including if necessary, the seizure of these animals on behalf 
of the U.S. government?
    What regulatory errors occurred in the licensing or permitting of 
this facility that allowed these bears to be imported into the U.S. in 
the first place?
    Commission position - As reflected by the Commission's letters to 
the Animal and Plant Health Inspection Service and Fish and Wildlife 
Service, our general position with respect to the Suarez Circus polar 
bears is one of concern. Although no Commission representative has 
visited the facility, if the reports and video tapes that we have 
received from some of those who have visited the facility accurately 
portray the conditions under which the animals are being maintained, we 
are led to one of two alternative conclusions - either the facility has 
failed to meet the applicable care and maintenance standards or the 
``minimum standards'' promulgated by APHIS are too minimal to 
accomplish the stated goal of the Animal Welfare Act, which is to ``to 
ensure that the animals are provided humane care and treatment.''
    Among the Commission's key concerns are the temperatures at which 
the bears have been maintained, and the fact that the bears have 
apparently not always been kept in quarters that are sufficiently 
cooled or provided access to sufficiently chilled pools of water. In 
this regard, we note that the applicable regulations specify that 
marine mammals ``shall not be housed in outdoor facilities unless the 
air and water temperature ranges which they may encounter ... do not 
adversely affect their health and comfort.'' At several times during 
their stay in Puerto Rico, the bears at the Suarez Circus have been 
exposed, sometimes for prolonged periods, to temperatures in excess of 
80 F. This is well outside the normal temperature ranges to which polar 
bears are exposed and, unless there is some way for them to avoid such 
exposure, can be expected to adversely affect their comfort, and 
possibly their health.
    The controversy surrounding the Suarez Circus bears also 
underscores the problems associated with relying largely on subjective 
standards regarding areas of compliance under the Animal Welfare Act, 
as APHIS does with temperatures. There is no clear-cut demarcation of 
what constitutes an acceptable temperature range for maintenance of the 
animals. Thus, it is difficult for the Service, the facility, the 
Commission, and others to assess whether or not the facility is in 
compliance. The standard applied by APHIS may even vary if different 
inspectors are sent to the facility on different days. While the 
development of such universal objective standards may be a good idea as 
APHIS reviews and updates its marine mammal regulations, establishment 
of objective review criteria is essential to address specific problem 
situations such as that involving these bears. The bears have now been 
in Puerto Rico for more than half a year, and we still do not have a 
good understanding of what temperature range APHIS thinks is acceptable 
for maintenance of the bears or of the agency's rationale for such a 
determination.
    We also do not know how well the facility is complying with the 
requirement to keep temperatures within an acceptable range during 
those times when an APHIS inspector is not present. Based on the number 
of times that APHIS inspectors have noted high temperatures within the 
facility and the reports by others that cooling equipment has not been 
used continuously, the Commission questioned the appropriateness of 
relying exclusively on facility personnel to compile such records and 
recommended that the Service install or require the facility to install 
a tamper-proof thermometer to monitor temperatures within the facility 
on an ongoing basis. The Service responded that there is no regulatory 
requirement for a facility to record pool temperatures, and thus, 
apparently, no heightened requirement for a facility to demonstrate 
compliance even when repeated problems have been documented. The 
Service further replied that, because regulations regarding 
temperatures are ``performance-based,'' it would be inappropriate to 
require the facility to meet an ``engineering standard'' that would 
require it to implement around-the-clock temperature 
monitoring.2
---------------------------------------------------------------------------
    \2\ Despite the Service's characterization of these standards, it 
would seem that establishing a set temperature range for maintaining 
the bears would be performance-based, while specifying how those 
temperatures are to be achieved would be engineering-based.
---------------------------------------------------------------------------
    A related issue is whether and when polar bears need to be provided 
with access to pools of chilled water. The Animal and Plant Health 
Inspection Service has determined that denying the bears access to such 
pools (and air conditioning) for the 65 percent of the time they are in 
the transport vehicle is acceptable, provided (with one notable 
exception3) that access is given during the periods between 
8 a.m. and 5 p.m. Aside from the question of maintaining polar bears at 
appropriate temperatures, there is a separate requirement under the 
space requirements applicable to facilities maintaining polar bears 
that each primary facility include a pool of water of specified 
dimensions. Presumably this requirement means not only that such a pool 
be present, but that the bears be provided reasonable access to it. 
Further in this regard, the applicable regulations specify that an 
enclosure that does not meet the minimum space requirements (which in 
this case includes the requirement pertaining to a pool of water) 
cannot be used for permanent housing purposes.
---------------------------------------------------------------------------
    \3\ For unexplained reasons, the Service has determined that the 
facility may keep the bears without access to air conditioning or pools 
of water on Sunday afternoons, during the hottest part of the day.
---------------------------------------------------------------------------
    The Commission also has raised concerns about the adequacy of the 
facility's veterinary program and the appropriateness of the training 
methods being employed. These are detailed in letters already provided 
to your office and will not be repeated here. APHIS has yet to respond 
to our questions concerning the legality of the reported training 
methods, which allegedly include striking and prodding the bears to 
induce them to perform. As for the issues concerning medical care, 
APHIS has determined that the facility was not at fault in the 1998 
death of one of its bears from dirofilariasis, a condition that, if 
treated promptly, should not have been life-threatening. The Service 
has yet to respond to the Commission's questions regarding the 
diagnosis and treatment of other possible medical conditions the bears 
may be experiencing.
    The Service did, however, decline to provide the Commission with 
copies of any medical records concerning the Suarez Circus bears. The 
Service noted that such records, although available for review by its 
inspectors, are not submitted to the Service and that it could not 
compel the facility to provide them to ``outside parties.'' This 
dismissal of our request fails to recognize the oversight function and 
unique role of the Commission concerning activities of Federal agencies 
pertaining to marine mammals. We believe that the Service could compel 
the facility to provide it with these records and, if obtained, that 
the Service would have to provide them to the Commission if requested, 
subject, of course, to the privacy and information protection 
provisions applicable to all Federal agencies. Without access to such 
information, the Commission's ability to carry out its responsibilities 
under the Marine Mammal Protection Act is compromised. Thus, to the 
extent that there is any ambiguity, the Commission believes that action 
should be taken to clarify that the Commission shall have access to 
such materials in situations where legitimate questions concerning the 
care and maintenance programs at a facility have been raised.
    Another of the principal recommendations made by the Commission 
regarding the Suarez Circus bears was for APHIS, in cooperation with 
the Fish and Wildlife Service, the Commission, and outside experts, to 
undertake a thorough, unannounced inspection of the facility so that 
the continuing allegations of non-compliance can be laid to rest. The 
Service has responded that, because of its ongoing investigation of the 
facility, it would be inappropriate to convene such a review panel at 
this time.
    Seizure authority - Both the Animal and Plant Health Inspection 
Service and the Fish and Wildlife Service can, under their respective 
authorities, seize animals under certain circumstances. The Animal 
Welfare Act, at 7 U.S.C. Sec. 2146, directs the Secretary of 
Agriculture to promulgate regulations as deemed necessary ``to permit 
inspectors to confiscate or destroy in a humane manner any animal found 
to be suffering as a result of a failure to comply with any provision 
of [the Act) or any regulation or standard issued thereunder...'' The 
Service has characterized its authority in this regard as follows
        Our authority to confiscate animals is limited to a narrow set 
        of circumstances in which a licensee refuses or otherwise fails 
        to provide proper care for animals that are found to be 
        suffering. The licensee must be notified of any intent to 
        confiscate the animals for noncompliance with the AWA 
        regulations and be allowed an appropriate period of time, as 
        determined by our Animal Care program, to correct the 
        noncompliance. If the facility corrects any cited problem and 
        provides the requested care, the animals are not confiscated.
    This description, however, varies somewhat from the applicable 
regulatory provision (9 C.F.R. Sec. 2.129), which could be interpreted 
as permitting confiscation prior to conducting a hearing, if a finding 
is made that an animal is suffering or distressed or the animal's 
health is in danger.
    In any case, however, the Service has notified the Commission that, 
while ``several problems'' have been recorded concerning the 
maintenance of the polar bears at the Suarez Circus, ``our inspector 
has not observed signs of animal suffering that would prompt 
confiscation of the animals.''
    Section 104(c)(2)(D) of the Marine Mammal Protection Act, 16 U.S.C. 
Sec. 1374(c)(2)(D), authorizes the Secretary of the Interior to revoke 
a public display permit and to seize the marine mammals maintained 
thereunder if (1) the Secretary finds that the facility no longer meets 
the requirements pertaining to education or conservation programs and 
public accessability, or (2) the Secretary, with the concurrence of the 
Secretary of Agriculture, finds that the facility no longer meets the 
requirements pertaining to licensing under the Animal Welfare Act and 
is not reasonably likely to meet those requirements in the near future. 
With respect to this last criterion, the Animal and Plant Health 
Inspection Service has taken the position, albeit in a different 
context, that license suspension (as opposed to license revocation) is 
all that is required to make such a finding, provided that there is a 
reasonable basis for believing that the facility will not come into 
compliance with all Animal Welfare Act requirements in the near future.
    In revoking a permit under the Marine Mammal Protection Act, the 
Fish and Wildlife Service is required to follow the procedures set 
forth in section 104(e) of the Act, which affords the permittee a right 
to a hearing prior to any such revocation. Although Constitutional due 
process requirements would also apply to a seizure of animals for 
noncompliance, the Act does not specifically require that such an 
action is subject to the procedural requirements of section 104(e). 
Thus, the statute arguably provides sufficient latitude for the Service 
to seize animals if their health or welfare is jeopardized by the 
noncompliance, and to conduct a hearing after the animals are in the 
Service's custody.
    Needed actions - The most crucial thing that we believe the 
Services should be doing is reviewing the adequacy of the facility's 
care and maintenance program. As noted above, because of the questions 
that have been raised with respect to the adequacy of APHIS' monitoring 
of the facility, we believe that the best way to accomplish this would 
be to conduct an interagency inspection involving the Services, the 
Commission, and appropriate outside experts. While we do not know the 
precise details of the inspections that have been conducted, from the 
records available to the Commission, it appears that they have been 
carried out by a single inspector. Because of the subjectivity involved 
in determining compliance with several components of the care and 
maintenance standards (such as what constitutes an acceptable 
temperature range), it would make sense to have a broader review. 
Further in this regard, we note that APHIS inspectors have a wide range 
of responsibilities concerning the care and maintenance of a variety of 
species. While we have no information concerning this particular 
inspector's areas of expertise, it may be that he is not a polar bear, 
or even a marine mammal, specialist. Thus, it would seem prudent to 
include veterinarians and others with such expertise in an inspection 
of the facility to obtain their advice in making the required findings. 
Among other things, they would be able to assess the health of the 
bears and review the adequacy of the medical, as well as the husbandry, 
program.
    Also, as noted above, APHIS should take steps to enhance its 
ability to monitor compliance by the facility during those times when 
its inspectors are not present. While this is not something that is 
routinely done, it seems to be the only way in this instance to address 
the numerous complaints concerning the conditions under which these 
bears are being maintained. At a minimum, the Commission believes that 
the temperatures of the enclosures in which the bears are housed and 
the temperatures of the pools of water they are provided should be 
monitored by an independent source on an ongoing basis. The Commission 
has recommended that this may best be accomplished by installing 
tamper-proof recording thermometers.
    The Commission also has recommended that APHIS review the 
appropriateness of maintaining polar marine mammals in outdoor 
facilities in tropical environments. If, based on such a review, the 
Service determines that such displays are appropriate in some 
instances, it should provide additional guidance to delineate 
specifically the conditions under which these exhibits are allowed. 
Further, the Service should undertake a review of its standards in 
light of the problems that have arisen in the Suarez Circus in an 
effort to make them more objective, and thus more enforceable and more 
easily understandable by the regulated community and the public. At the 
very least, the Service should take action to set specific performance 
criteria with respect to allowable temperatures for the maintenance of 
the Suarez Circus polar bears. The Service should also review with the 
facility when the bears are expected to be housed in the primary 
facility and when, and under what conditions, they may be maintained 
elsewhere.
    APHIS also needs to respond to the questions raised in the 
Commission's 4 October letter concerning the legality and 
appropriateness of using training methods that involve the striking or 
prodding of the animals. Depending upon the Service's response, it 
should either take action to enforce this prohibition at the Suarez 
Circus or take action to reinstate the specific prohibition against 
such practices that had, until recently, been included in section 3.108 
of its marine mammal regulations.
    With respect to actions needed to be taken by the Fish and Wildlife 
Service, the Commission recommends that the Service move promptly to 
conclude its investigations of the identities and origins of the Suarez 
Circus bears and take any remedial action that might be warranted based 
upon those results. The Service also needs to conclude its efforts to 
resolve the issues concerning the facility's compliance with the 
education or conservation program requirements of the Marine Mammal 
Protection Act. Further, and perhaps more important, the Service should 
encourage the Animal and Plant Health Inspection Service to undertake 
the interagency inspection of the facility recommended by the 
Commission and should assist in facilitating such a review.
    Permitting and licensing issues - There are at least two things 
that the Commission believes the reviewing agencies should have done 
prior to authorizing the importation of the Suarez Circus polar bears 
that they apparently did not do. With respect to the Fish and Wildlife 
Service, we believe that it should have done more to resolve questions 
concerning the accuracy of the CITES documentation and the identities 
and origins of the bears prior to issuing a permit. In this regard, the 
Commission and others who commented on the permit application 
identified several discrepancies and inaccuracies that we believe 
should have been resolved before permit issuance. Nevertheless, it 
appears to the Commission that the Service issued the permit before 
fully resolving these matters. In its 8 May 2001 response to the 
Commission's comments, the Service noted -
        We share the Commission's concern regarding these apparent 
        inconsistencies, and have communicated our concern to the 
        applicant. Further, in our letter to the applicant ... we have 
        noted these apparent inconsistencies and informed the applicant 
        that it is his responsibility to ensure that the CITES re-
        export documents, needed to export these animals from Jamaica, 
        should correspond to the correct CITES original documents...
    Subsequently, in a 4 October 2001 letter to the Service, the 
Commission raised concerns about the identity of one of the bears, 
based on a statement from the director of Zoo Atlanta that one of the 
bears allegedly born at the zoo had in fact died years earlier. This 
issue is currently being investigated by the Service. While this is 
appropriate, the Commission believes that, had the Service thoroughly 
investigated the irregularities in the documentation at the outset, 
this problem, and perhaps others, would have been detected prior to 
permit issuance. That was the appropriate time to resolve such issues. 
Knowing the true identities of the bears is key to making informed 
determinations regarding the required findings under the Marine Mammal 
Protection Act, e.g., whether the bears were or might have been 
pregnant or nursing, or less than eight months old, at the time of 
taking, or possibly were taken in violation of the laws of their 
countries of origin. While it is possible that the Service conducted 
enough of an inquiry to have addressed these questions prior to issuing 
the permit, the Service, after much prompting, has yet to provide any 
information to the Commission to indicate that this was the case.
    The second area of concern involves the pre-licensing inspection of 
the facility conducted by the Animal and Plant Health Inspection 
Service. The Commission believes that the Service should have made a 
more concerted effort to ascertain compliance with all aspects of the 
applicable care and maintenance requirements at the outset. For 
example, during the first inspection of the facility after the polar 
bears arrived in Puerto Rico, no mechanical ventilation or cooling was 
being provided in the primary enclosure; the pools of water, although 
present, were not being cooled; and, although the transport vehicle 
where the bears are being housed much of the time has an air 
conditioner, it was not being used. Presumably, these problems could 
have been foreseen and prevented if, during the pre-licensing 
inspection, the Service pursued with the facility the temperatures at 
which the bears would be maintained while in Puerto Rico and its plans 
for achieving them. The answers to such questions also should have 
prompted inquiries about the facility's plans concerning the extent of 
time the bears would be housed in the transport vehicle, rather than 
the primary enclosure. Also, the death of a polar bear from heart worm 
while the facility was touring in Mexico should have alerted the 
Service to possible problems with the medical care program, sufficient 
to prompt additional inquiry. Yet, based on the initial on-site 
inspection report, the inspector noted that one of the bears was 
suffering from some sort of infection on its face (possibly mange), but 
had not been examined by the attending veterinarian. Apparently, it was 
only at the inspector's prompting that an examination was conducted. 
Moreover, the inspector found that medical records were lacking or 
incomplete for that animal.
                               citations:
National Research Council. 1997. Technology for the United States Navy 
        and Marine Corps, 2000-2035: Becoming a 21st century force.
National Research Council. 2000. Marine Mammals and Low Frequency 
        Sound, Progress since 1994. National Academy Press, Washington, 
        D.C.
Ridgway, S.O., D.A. Calder, R.R. Smith, T. Kamolnick, C.E. Schlundt, 
        and W.R. Elsberry. 1997. Behavioral responses and temporary 
        shift in masked hearing threshold of bottlenose dolphins, 
        Tursiops truncatus, to 1 second tones of 141 to 201 dB re i Pa. 
        Technical Report 1751, July 1997. Naval Command, Control and 
        Ocean Surveillance Center, RDT&E Division, San Diego, CA.
Ross, D. 1976. Mechanics of underwater noise. Pergamon, New York.
Schlundt, C.E., J.J. Finneran, D.A. Carder, and S.H. Ridgway. 2000. 
        Temporary shift in masked hearing thresholds of bottlenose 
        dolphins, Tursiops truncatus, and white whales, Delphinapterus 
        leucas, after exposure to intense tones. Journal of Acoustical 
        Society of America 107(6):3496-3508.
                                 ______
                                 

 Response from Margaret F. Hayes, Director of Office of Ocean Affairs, 
    Bureau of Oceans and International and Scientific Affairs, U.S. 
                          Department of State

            question from ranking member robert a. underwood
    l. In regards to the U.S./Russia polar bear treaty, is it your 
opinion that the Russian Federal Government will provide the necessary 
resources for research, enforcement and management? Is it implied in 
this agreement that the U.S. will shoulder the financial burden to 
support this new polar bear commission?
    ANSWER: Article 8, Paragraph 4 of the Agreement stipulates: ``The 
Contracting Parties shall be responsible for organizing and supporting 
the activities of their respective national sections as well as the 
joint activities of the Commission.'' By signing the Agreement the 
Russian Federation made a commitment to ``take such steps as are 
necessary to ensure implementation of this Agreement.'' (Article 10, 
Paragraph l.)
    The draft legislation necessary for the U.S. to implement the 
Agreement includes a section (Section 9) on ``Authorization of 
Appropriations'' to meet the new obligations the Agreement creates. We 
anticipate that a portion of these funds could support joint research 
and management activities identified by the Commission, including 
certain collaborative programs between the two countries. The funding 
situation in Russia is less clear; however, we understand that some 
level of financial support has already been given to the Chukotka 
Branch of the Pacific Ocean Institute for Fisheries and Oceanography 
(TINRO) to plan and design a harvest monitoring and enforcement 
program.
                                 ______
                                 

   Responses from Charles Johnson, Executive Director, Alaska Nanuuq 
                               Commission

               questions from chairman wayne t. gilchrest
    1) What is the status of the polar bear populations in Alaska and 
Russia? Do you have any knowledge on the status of polar bear 
populations world wide?
    There are two populations of polar bear in Alaska, the Southern 
Beaufort Sea population and the Chukchi/Bering Sea population.
    The Southern Bering Sea population is shared by the North Slope of 
Alaska and Western Northwest Territories and the Yukon in Western 
Canada. This population has been heavily studied and closely monitored. 
Using new methods Steve Anstrup of USGS, who has conducted much of the 
studies, has revised the minimum population estimate upward from 1800 
to 2250 animals. It is thought that the population grew during the 70's 
and 80's and leveled of during the 90's as the numbers neared carrying 
capacity.
    This view is also reflected in the observations and encounters of 
villagers and hunters in their reports of more bears coming near the 
villages.
    The hunting of this population is managed by an agreement between 
the Inupiat of the North Slope Borough and the Inuvialuit of the 
Northwest Territories. This is a voluntary agreement that sets equal 
harvest quotas for Alaska and Canada. The agreement also seeks to 
protect females and females with cubs. During the last ten years out of 
a total quota of 800 animals, 680 have been taken. The percentage of 
females taken has declined to a third of the take. The success of this 
agreement has insured that the population of polar bears in the 
Southern Beaufort Sea remains healthy and vibrant.
    The Chukchi/Bering Seas population has not been as heavily studied 
as the Southern Beaufort Sea population. The range of this stock has 
been established by radio collar satellite tracking and extends from 
west of Wrangel Island in Chukotka to Point Barrow in Alaska and south 
to St. Lawrence in Alaska. Based on harvest data, observations of 
density and other observations it is thought this population has grown 
similarly to the Southern Beaufort population. It is estimated at 
between 2000 and 5000 animals and appears to be healthy.
    Not as much is known of the other populations in Russia. The 
Barents Sea population is shared with Norway and is estimated at 
between 2000-5000 animals. The Kara Sea population is largely unknown 
and is in a relatively unproductive area. The Laptev Sea is estimated 
at between 800-1200 animals, but with a high degree of uncertainty.
    As for the status of polar bear populations world wide, the IUCN 
Polar Bear Specialist Group met in Greenland in June 2001 to review 
polar bear status. Based on historical harvest levels and current 
management practices the world population is estimated at between 
21,500-25,000. Most of the population levels are stable with the 
exception of the Northern and Southern Beaufort Seas, which are thought 
to be increasing, and the Baffin Bay and Davis Straits population, 
which are thought to be decreasing due to climate change. As the report 
of the meeting is finalized we can send you a copy.

    2) Do think the sport hunting of polar bears, as Ms. Young stated 
in her testimony, has been the cause of the decline in polar bear 
populations throughout their range worldwide? Isn't it true that sport 
hunts bring in much needed money to native villages in Canada and focus 
primarily on males, not females or cubs, and can help in the survival 
of these populations?
    Sport hunts are only conducted in Canada. Each village is allocated 
a quota, which is part of a sustainable harvest limit for each 
population. Each village can use its quota for subsistence or it can 
set aside part of the quota for sport hunting. These quotas are 
strictly enforced. Sport hunting can only be done with a village guide 
and dog teams. The use of snow machines is not allowed. The level of 
the harvest is the meaningful statistic, not who harvests the animal. 
As long as harvest levels, including sport hunting, are within the 
sustainable harvest limit, the polar bear populations should remain 
stable and healthy.
    Sport hunters want trophies and the trophies are big males. By 
targeting big males pressure is taken off the females and females with 
cubs. Since big males are the primary predator of cubs, reducing their 
numbers may have a positive effect on the survival of cubs.
    Sport hunts are an economic boost for the villages. The villages of 
northern Canada get up to $17,000 USD for a hunt. To bring an observer, 
such as a cameraman costs another $10,000 USD. From the reports of the 
hunter associations, the sports hunts are sold out as much as five 
years in advance.

    3) What assurances have the Russians given to ensure that 
subsistence hunts will remain within the quotas determined by the 
International Commission established by the Treaty? If there are 
overage, how will they be handled? Should there be any concern for 
unauthorized hunts occurring in Russia?
    Russia has signed the treaty and thus has obligated itself to abide 
by the terms of the treaty. The Ministry of Natural Resources and the 
government of Chukotka have been working with the Association of 
Traditional Marine Mammal Hunters of Chukotka (ATMMHC) to develop 
regulations to manage the hunt of polar bears. These regulations will 
include marking and tagging of legally taken hides, enforcement 
measures, seasons and licensing.
    One of the methods of managing quota overages may be to set block 
quotas for a five year period such as is done by the Alaska Eskimo 
Whaling Commission. If a quota is exceeded in one year it can be 
adjusted for a following year.
    The U.S. Fish and Wildlife Service and the Alaska Nanuuq Commission 
will conduct a marking and tagging workshop for our Russian colleges 
this winter in Nome.
    Illegal hunting in Russia is of great concern. Many Russians are 
under the miss conception that hunting is now legal since the treaty 
has been signed. They don't understand that it must be put in force by 
legislation in the U.S. or by decree in Russia. Another concern is that 
reports indicate military personnel who may be difficult to prosecute 
are doing some of the hunting.
    The Alaska Nanuuq Commission and the Association of Traditional 
Marine Mammal Hunters of Chukotka are undertaking a public education 
campaign in Chukotka to promote polar bear conservation and to educate 
the hunters about the treaty and its provisions. Calendars, which are 
popular in Russia, are being developed for this purpose.
            question from ranking member robert a. underwood
    1) Mr. Johnson, with the provisions of the draft Polar Bear Treaty 
between the United States and the Russian Federation, how capable do 
you feel is the ability for the native managers to prevent poaching and 
enforce the provisions of the Treaty?
    When Ambassador Ushikov signed the Treaty in October 2000 he noted 
that this is the most democratic treaty Russia has ever agreed to. For 
the first time native peoples participated in the negotiations and the 
implementation of a treaty.
    The native peoples of Chukotka were severely repressed by the 
Stalinist government of Governor Nazarov. He ordered the Yupik Society 
of Chukotka dissolved for failing to comply with reporting requirement 
he secretly ordered. He would close airports where we had planned 
workshops with the ATMMHC. He would impose licensing requirements that 
could not be met by our USFWS biologists working with the Association 
and Nanuuq Commission.
    The U.S. Fish and Wildlife Service has published a report on polar 
bear habitat use in Alaska taken. from the observations of native 
hunters. This report contains denning areas, hunting and feeding areas 
and migration and movement routes by seasons. This report covers half 
of the Chukchi/Bering Sea population.
    In 1997 the Alaska Nanuuq Commission received a three year grant to 
conduct the same study in Chukotka by interviewing knowledgeable native 
hunters. We decided that with proper training the study could be 
conducted by the ATMMHC. This would give them the experience and 
credibility to be involved in management. We are now in the last year 
of that study.
    In January of this year a new Governor took office in Chukotka. 
Governor Abramovich has publicly and privately given his strongest 
support to native groups and their involvement in project such as ours. 
While there is still many of the old regime beaurocrats still in place 
the ATMMHC and we have been given hope for the future.
    The ATMMHC will be meeting with representatives of the government 
of Chukotka and the Ministry of Natural Resources in Anadyr in January 
2002 to develop regulations and enforcement procedures for the polar 
bear hunt. This is a new process and has the full public support of the 
very popular governor of Chukotka, who has gone out of his way to 
promote involvement of native peoples of Chukotka in his government. 
With his support the Director of our habitat study program in Chukotka, 
a Chukchi native, Dr. Vladimir Etylin, has been elected to the National 
Duma (Parliament). He is essentially Chukotka's answer to Alaska's Don 
Young. We are counting on his support and influence to help the ATMMC 
successfully enforce the provisions of our Agreement.
    For these reasons the Alaska Nanuuq Commission feels that the 
Association of Traditional Marine Mammal Hunters of Chukotka will be 
able to transition from banned hunting with poaching to a successfully 
managed legal hunt.
    We thank you for the opportunity to provide more information and 
will gladly answer any other questions.
    [Attachments to Mr. Johnson's responses follow:]
    [GRAPHIC] [TIFF OMITTED] 75640.038
    
    [GRAPHIC] [TIFF OMITTED] 75640.039
    
                                 ______
                                 

  Responses from Sharon Young, Field Director for Marine Issues, The 
                  Humane Society of the United States

               questions from chairman wayne t. gilchrest
    1. Your testimony discusses the Canadian polar bear hunt and its 
adverse effects on populations. Is your organization opposed to hunting 
in general?
    The Humane Society of the United States (HSUS) is opposed to 
hunting for sport, trophy and recreation but understands the need for 
subsistence hunting. We believe the characterization of wild animals as 
``game'' denies their intrinsic value and belittles their ecological 
importance. It is the goal of the HSUS to ensure the ethical 
stewardship of wildlife and its environment.
    The HSUS recognizes that the welfare and responsible management of 
animals may, on occasion, necessitate the killing of wildlife. When 
such killing is permitted, it must be used as a last resort, be 
demonstrably necessary, be conducted by responsible officials and the 
methods utilized must result in an instantaneous and humane death.
    The HSUS also recognizes that the legitimate needs for human 
subsistence may necessitate the killing of wildlife. In such cases, 
killing must be accomplished in a humane and non-wasteful manner and 
must not involve endangered or threatened animals. Nor should such 
hunting result in the de-stabilization of populations.

    2. You testified that Alaskan Native harvest, in some cases, has 
exceeded PBR for that population. Other than the situation with Cook 
Inlet beluga whale harvests that have been addressed, can you give the 
Subcommittee any examples?
    Endangered Steller sea lions have a Potential Biological Removal 
(PBR) level of 208. This stock continues to decline. The level of 
native hunting of Steller sea lions exceeds PBR. The most recent kill 
estimate in the official National Marine Fisheries Service (NMFS) stock 
assessments is for the year 1997. No data on native hunting has been 
provided since that time; however, as of 1997, natives killed an annual 
average 353 animals from this declining stock. We have no way of 
knowing how many were killed in the past 4 years.
    Similarly, several hundred spotted seals are killed each year by 
natives, with no harvest data available for Alaska as a whole since 
1993. Spotted seals have no known PBR, so hunting may be occurring at a 
level that is detrimental to the population.
    Although the egregious situation of hunting of Cook Inlet beluga 
whales has been addressed for the time being, beluga whales are hunted 
elsewhere as well. Beluga whales in the Eastern Bering sea stock are 
hunted in levels above their PBR. These belugas have a PBR of 129 and 
native hunting of this stock exceed PBR in four of the five years 
between 1993 and 1997 which is the most recently available data. We do 
not know how many may have been killed since 1997.
    The NMFS Alaska regional stock assessments state that for virtually 
all marine mammal stocks hunted by natives, estimates of native hunting 
should be considered underestimates, so hunting of other species may 
also be occurring at levels of concern. We believe it is critical that 
hunt data be more current (stock assessments generally have data no 
more recent than 1997) and that Native villages provide a full 
accounting for kills as well as struck and loss levels to assist in 
understanding the true status of marine mammal stocks in Alaska.

    3. Mr. Marks testified that the six-month requirement for action 
once a TRT has been convened prevents often necessary research 
initiatives on things like gear modifications to be tested for their 
efficiency. Do you agree that there should be more flexibility in that 
requirement?
    There have been cases in which the six-month time period for the 
TRT meetings has been limiting, but not with regard to hindering gear 
research. In the case of the Atlantic Large Whale TRT, the team was 
close to reaching consensus on important measures to protect endangered 
whales, but NMFS refused to allow an additional meeting. As a result, 
there was no agreement possible. This in turn resulted in divisive 
lobbying and heated public hearings that may well have been 
unnecessary.
    I do not agree with Mr. Marks that flexibility in the six-month 
requirement will allow development of take reduction strategies that 
would not otherwise be available within the six-month time period. 
Innovative gear research requires systematic testing that generally 
takes more than a year to provide reliable results. A delay of this 
amount of time would be unconscionable, since most take reduction teams 
are already convened well after they were mandated. For example, the 
take reduction team for coastal bottlenose dolphins in the mid-Atlantic 
was mandated in 1995, but not convened until 2001. Because of these 
delays in convening teams, both the government and the fishing industry 
are aware that strategies need to be developed long before the team is 
convened to discuss them. This time could be (or could have been) used 
to devise and test strategies, rather than waiting until after a team 
is convened.
    The HSUS opposes changing the language of the MMPA to delay the 
deadlines in the Act. This would simply compound the existing 
propensity of the NMFS to ignore legal deadlines.
    The take reduction teams generally recommend a suite of options, 
often including additional gear research and testing. Some of this gear 
research can be conducted subsequent to the meetings under experimental 
fishing permits, even in areas closed to fishing. An example of this is 
the harbor porpoise take reduction team and the testing of acoustic 
deterrent devices known as pingers which are now in broad use. In this 
manner, gear modifications can be iterative. Some, based on current 
knowledge and available technology, can be immediately implemented; 
while others are tested and implemented as they prove effective. This 
obviates the need for extending the initial take reduction team 
process.

    4. You discuss actions and inaction taken by the National Marine 
Fisheries Service and failures of budgeting and enforcement. Has it 
occurred to the environmental community that some of its own lawsuits 
against the Agency may be causing some of the inaction due to its 
budget being used for court costs instead of management and 
conservation measures?
    The HSUS does not believe that this sort of criticism is valid. 
Inaction is not the result of lawsuits. Lawsuits are the result of 
inaction. The HSUS and other environmental organizations do not bring 
suit against an agency until all other options have been exhausted and 
the Agency's lack of response has created a crisis situation. If the 
agency were to do its job, there would be no lawsuits; and in the case 
of our MMPA-related suits, the courts have been quick to order the NMFS 
to comply with the law.
    It is a sad commentary that increased attention and funding 
generally are not directed toward species in crisis until lawsuits area 
filed or threatened. Cases in point are Steller sea lions, northern 
right whales, manatees and bottlenose dolphins in the mid-Atlantic. The 
federal government should be proactive, not reactive.
    The situation of the harbor porpoise TRT exemplifies this. So dire 
was the level of mortality to the stock, that Congress recognized it 
specifically in Section 120 of the 1994 amendments to the MMPA, which 
provided specific dates for reducing mortality of harbor porpoise. 
Recognizing the difficulty of reducing such a high level of mortality, 
the mandated deadlines would have given the New England gillnet fleet 
six additional months to reduce the mortality levels. Despite this, the 
harbor porpoise take reduction team was not convened when mandated. 
When it was convened, the Team reached consensus on its 
recommendations. The NMFS did not publish these recommendations 
according to the schedule in the MMPA, instead, over a year later, it 
issued proposed regulations that were never finalized nor implemented. 
Despite repeated promises to publish a take reduction plan, the NMFS 
did not do so. It was not until court intervention that resulted from a 
lawsuit filed by the HSUS and the Center for Marine Conservation, that 
the NMFS published the plan it had written well over a year before.
    Since that time, the NMFS has reported to the harbor porpoise team 
that mortality levels have declined, and they are now at or below PBR. 
They have also reported that federal fishery observers have documented 
harbor porpoises killed in areas that are supposed to be closed to 
fishing and in nets that do not have ``pingers'', even though they are 
required. Despite a unanimous recommendation by the Take Reduction Team 
that enforcement action should follow violations of the Act, the NMFS 
has done nothing to prosecute these violations, nor to ensure that 
others do not occur. Funds for enforcement are from a different line 
item in the budget from funds used for MMPA implementation.
    The crisis of budgeting results, in part, from the fact that the 
NMFS has taken money from the MMPA implementation funds to use for base 
operating costs (administrative support salaries, building costs, etc.) 
thereby reducing the funds available for implementation of the goals 
and mandates of the MMPA and recommendations of Take Reduction Teams.

    5. If the take of harbor porpoise was reduced, why should it matter 
if this was the result of the take reduction plan or actions by the 
fishery management council?
    Take Reduction Plans should be implemented under the authority of 
the MMPA. Fishery Management Council (FMC) actions are taken for the 
purpose of groundfish conservation. The New England FMC has seen fit to 
coincide some of its mandates for fishing effort reduction and closures 
to protect spawning groundfish, with times and places that result in 
reduced harbor porpoise mortality. It need not have done so, and may at 
any time change these closures if it feels that groundfish conservation 
would be better served by changing the timing and placement of the 
closures.
    For example, harbor porpoise bycatch was extremely high in the mid-
coast area in the vicinity of an offshore feature called Jeffreys 
Ledge. This is a year-round closed area for groundfish conservation 
which the council is considering re-opening for some or all of the 
year. If it does so, the NMFS itself acknowledges that it is quite 
likely that harbor porpoise mortality will increase once again. Actions 
implemented under the MMPA are intended to protect the marine mammals 
and are not necessarily changed as a result of changing FMC mandates 
for fish conservation. Many of the current measures that have been 
implemented under the auspices of the FMC should be implemented under 
the MMPA.

    6. You discuss the merits of having a marine mammal inventory in 
your testimony and state that if Mexico had a similar inventory for its 
animals those animals would be better protected. How exactly would an 
inventory protect captive marine mammals? Isn't it the guidelines and 
requirements of the MMPA and Animal Welfare Act that protect marine 
mammals in captivity? Shouldn't Mexico adopt these types of Laws, not 
just implement an inventory?
    I do not believe that the HSUS suggested that it would be 
sufficient merely to have a marine mammal inventory in Mexico. In our 
testimony, we pointed out that the lack of an inventory caused a 
serious problem for Mexico's regulators as they attempted to track 
mammals in captivity. Clearly they also need to pass protective laws 
and regulations.
    The principal way an inventory helps protect captive animals is 
that it allows independent evaluation of mortality and survivorship. If 
the information on the number of animals in a facility and information 
on births and deaths of their animals is considered proprietary, then a 
large (and statistically valid) database will be lost - a database that 
can be used to evaluate the efficacy of regulations to protect captive 
animals in keeping with the desire of the American public to assure 
humane treatment.
    Since 1985, there have been at least three separate independent 
evaluations of survivorship of typically held captive marine mammals. 
Two were conducted by US government biologists and one by a non-
governmental animal welfare organization. All would have been 
impossible without the marine mammal inventory reports mandated by the 
MMPA. These evaluations showed persistent, higher mortality rates in 
captive cetacean species vs. their wild counterparts, although 
bottlenose dolphin differences were no longer statistically significant 
by the mid-1990s. As a result, we know that there was much room for 
improvement in the husbandry practiced by certain facilities and we 
know that current levels of regulation had thus far not led to 
improvement of survivorship in those facilities.
    In addition to facilitating tracking of trade in marine mammals, a 
marine mammal inventory allows regulators to note trends (for instance, 
in causes of death) that may assist in refining regulations. Again, if 
this type of information is considered proprietary, it would be 
impossible to put together a complete picture of health trends in 
captive marine mammals. In fact, all zoo species should have to submit 
this type of information to a central database (whether governmental or 
non-governmental), but unfortunately most non-endangered and non-
threatened animal species are not specially protected by law. Marine 
mammals ARE, for obvious reasons (their unique aquatic habitat, 
ecological niches, and physiological adaptations). It is both 
appropriate and vital that the marine mammal inventory be maintained - 
the data it provides are essential if regulators are truly to protect 
these vulnerable animals.
    The HSUS is concerned that the captive display industry wishes to 
abolish this inventory. As a matter of good husbandry, such data would 
normally be kept by any facility. The HSUS wonders why the captive 
display industry wishes it to be considered proprietary and unavailable 
to researchers or the public for scrutiny.
             questions from ranking member robert underwood
    1. You expressed concern in your statement in regards to the delay 
by NMFS in publishing a take reduction plan for the Gulf of Maine 
harbor porpoise. However, you also acknowledge that despite this delay, 
actions taken by the New England Regional Fisheries Management Council 
had reduced incidental mortality of harbor porpoise to approximately 
the PBR level. My question is, if the results are what matters most, 
and if as you say, mortality declined due to actions taken by the same 
management body that would be responsible for implementation of the 
take reduction plan anyway, why are you so concerned with delays in the 
process if the outcome was successful?
    As was explained in question 5 above, the New England Fishery 
Management Council (FMC) has coincided some of its closures for 
groundfish conservation with times and areas of historically high 
harbor porpoise mortality. If the council changes the configuration of 
these closures to better conserve the fish, they may inadvertently 
increase the mortality of the harbor porpoise, whereas a plan 
implemented by NMFS under the MMPA would assure adequate protection of 
the mammals.
    The delay may seem irrelevant since, by the end of 1999, mortality 
of harbor porpoise was successfully reduced to a level that is 
approximately the PBR level; but it is not irrelevant at all. The MMPA 
mandated that a take reduction team be created in 1995, when the annual 
fishery-related mortality of harbor porpoise was close to 2,000 
porpoise a year and PBR was 483 animals per year. Instead, the Team was 
not convened for the Gulf of Maine until February 1996 and not until 
February of 1997 for the mid-Atlantic. Both teams reached a general 
consensus on take reduction measures that the NMFS neither published 
nor enacted until 1999; a delay of three and two years respectively.
    In 1996, approximately 1,500 harbor porpoises died. In 1997, almost 
1,400 harbor porpoises died. In August of 1998, the HSUS and the Center 
for Marine Conservation filed suit against the NMFS. In 1998, the 
mortality was 788 porpoises. Currently, the mortality level is 
approximately at the PBR level. If the NMFS had implemented its plan 
under the MMPA, and on schedule, it would have been in place in 1996. 
As a result of the delay, instead of approximately 500 harbor porpoises 
dying each year--for a total of 1,500 animals during 1996-1998; more 
than 3,600 porpoises died in that same time period. Over two thousand 
animals needlessly lost their lives because the NMFS delayed 
implementing a take reduction plan. We find this a matter of great 
concern.

    2. I think your clarification of the intent of the zero mortality 
rate goal is helpful. However, if it is clear that the intent of the 
language is not to actually achieve zero mortality, but rather, to 
reduce marine mammal mortalities to levels that are biologically 
insignificant, should not the language of the Act be changed to 
acknowledge this reality?
    I believe that the Act is clear. It states that fishery-related 
mortality should be reduced to ``insignificant levels that are 
approaching a zero mortality and serious injury rate.'' It does not say 
zero. The current language states that it should be insignificant, and 
the stipulation that it should be ``approaching zero mortality and 
serious injury'' is simply an acknowledgment of the desire of the 
American public to see that marine mammals are not killed in fisheries 
up to their maximum biologically sustainable level (PBR), but at a 
level that is as low as is feasible. We do not believe that the 
language of the Act needs to be changed.

    3. You are highly critical of the Atlantic Large Whale Take 
Reduction Team, noting that in your opinion the TRP has been ``a 
resounding failure,'' especially for North Atlantic right whales. 
Considering, as you say in your testimony, that efforts at 
disentanglement and the promise of research have been inadequate, and 
that other newly proposed measures are of questionable promise, what 
alternative measures can the Humane Society propose to reduce 
incidental mortality of right whales?
    First I wish to state that the HSUS is NOT critical of Atlantic 
Large Whale Take Reduction Team; we are critical of the plan that the 
NMFS has developed. The Team has worked in good faith to produce 
recommendations and suggested modifications to the plan. It has also 
provided suggestions for research and recommendations for enforcement. 
The NMFS has ignored many of the team's recommendations. For example, 
in 1999 the TRT recommended deleting the use of 7/16'' diameter line as 
a risk reduction measure. Not until fall of 2001 did NMFS act on this 
recommendation, and even then it does not propose that this be done 
until 2003. It is this sort of action or inaction, of which we are 
particularly critical.
    In our testimony, the HSUS pointed out that disentanglement is an 
important tool, but scientists involved in disentanglement repeatedly 
caution the NMFS and the TRT, that it is sometimes unsuccessful when 
attempted (as was true with ``Churchill'' this summer), and most 
animals die unseen and without benefit of disentanglement effort (as 
was the case with a right whale that was found dead this fall near 
Magdalene Island). The HSUS has also been critical of the fact that the 
NMFS has taken money from MMPA implementation funds to pay for base 
operating expenses and, for some time, took the salary of its fishery 
liaison person from the gear research money. As a result of this, money 
available for gear research has been depleted. Only with intervention 
from Congress, has there been an increase in gear research budgets in 
the past two years.
    Representative Underwood also asked what we believe can be done. 
There is much that can be done. Many fishermen have innovative ideas 
that they have used experimentally themselves and that require broader 
field testing but have not received attention from granting bodies 
(such as the NMFS or Northeast Consortium) because scientific format 
and jargon were not used in the proposals. Instead, most of the funding 
was given to academic institutions. The Eubalaena Award (judged by 
scientists) provided private funding for an innovative buoy release 
system that has been overlooked by the NMFS and other conventional 
bodies. Encouraging this sort of research should be the job of the 
NMFS. Another promising measure is the use of neutrally buoyant line 
(first suggested by fishermen). It has been tested and shows great 
promise in reducing the profile of the line floating in the water and 
thereby reducing risk of a whale encountering the line. Many fishermen 
are already using it voluntarily. The recent NMFS proposed rule states 
only that it may be an option in 2003.
    We believe that the NMFS must be much more aggressive in seeking 
and funding innovative measures and in implementing promising 
developments in a timely manner.
    4. Is the lethal removal of a nuisance pinniped ever an acceptable 
management alternative? Has the Humane Society sponsored or funded 
research to develop new non-lethal deterrent technologies or methods?
    The HSUS participated in the Gulf of Maine Pinniped Interaction 
Task Force, which was mandated by Congress in the 1994 amendments. The 
NMFS submitted a report to Congress of the Task Force's deliberation. 
The Task Force, which included environmental groups, aquaculture 
industry representatives, state and federal managers and scientists 
found that three criteria needed to be met to consider lethal taking. 
They are:
    1) LThe consequences of the depredation must be severe and 
demonstrable;
    2) Llethal measures under consideration must be verified as an 
effective means of solving the predation problem; and
    3) Lno non-lethal alternatives are available.
    These conditions are very similar to those stipulated by Congress 
in the MMPA in Section 120. The HSUS has participated in task forces 
convened under this section.
    As stated above, in the answer to Chairman Gilchrest's first 
question, The HSUS recognizes that the welfare and responsible 
management of animals may, on occasion, necessitate the killing of 
wildlife. When such killing is permitted, it must be used as a last 
resort, be demonstrably necessary, be conducted by responsible 
officials and the methods utilized must result in an instantaneous and 
humane death.
    However, in many cases, systematic research has found that the 
level of predation by pinnipeds is often not as dire as first feared. 
For example in the recent (November 2001) meeting of the Society for 
Marine Mammalogy, a number of scientists on the West Coast reported 
predation on wild salmon runs by seals and sea lions was occurring at 
levels of less than 10%, and generally less than 5% of the run. These 
levels are less than originally presumed. No intervention seems 
necessary. In cases where predation levels appear to have a greater 
impact, structural or other non-lethal mitigation often have not even 
been attempted.
    The HSUS has been a tireless advocate of non-lethal solutions. We 
have provided documents and access to expert opinions for groups 
discussing means of alleviating situations of perceived conflict with 
non-lethal alternatives (e.g. re-situating lights, re-configuring fish 
passage areas, using anti-predator netting and strategies in 
aquaculture sites). While it has not been explored to any extent in the 
US, research on immuno-contraception with pinnipeds has been conducted 
in Canada. The HSUS is the largest non-governmental funder of immuno-
contraceptive work with wildlife.
    We remain committed to finding humane resolution of situations of 
perceived marine mammal-human conflict.
                                 ______
                                 

 Responses from George Mannina, American Zoo and Aquarium Association 
         and the Alliance of Marine Mammal Parks and Aquariums

              questions from chairman wayne t. gilchrest -
    Question 1: In your opinion, do you think APHIS has the ability to 
focus on captive marine mammals and oversee their care in public 
display facilities?
    Response: The American Zoo and Aquarium Association (AZA) and the 
Alliance of Marine Mammal Parks and Aquariums (Alliance) have a solid 
working relationship with the staff at APHIS/Animal Care regarding 
their enforcement of the Animal Welfare Act (AWA) and Marine Mammal 
Protection Act (MMPA). Our two organizations strongly support the 
agency's continued, sole oversight of marine mammals in public display 
facilities.
    The philosophy of APHIS with regard to its mission is to correct 
animal welfare inadequacies while trying to effectively maximize 
severely limited resources. This philosophy has served the agency well 
as there has been no formal complaint under the AWA for the past five 
years as well as no formal AWA hearings, a sign of cooperation, trust 
and a strong commitment to enforcement.
    The agency holds regular public meetings with exhibitors and animal 
rights/welfare organizations to update them on agency activities and 
regulatory initiatives.
    For many years, APHIS/Animal Care has been woefully under-funded by 
Congress given the magnitude and scope of its mission. Between fiscal 
year 1992 and fiscal year 1999, the appropriation for the Animal 
Welfare program under Animal Care remained stagnant, which meant a 
decrease in spending power.
    In FYs 2000 and 2001, the budget for Animal Care (AC) rose by a 
cumulative $3 million. This increase has allowed a strengthening in the 
number of inspectors and an expansion in the number of annual 
inspections. Animal Care initiated innovative programs during those 
years of low funding. The agency focused a more vigorous enforcement 
effort on facilities that are in chronic violation of the law, as well 
as against those that are not licensed at all. The agency also 
instituted a risk-based inspection program that emphasizes inspections 
(in many cases, multiple inspections) of problem facilities.
    A $2.4 million increase in fiscal year 2002 will enable AC to 
maintain all current activities; strengthen its field staff by hiring, 
training, and equipping an additional 14 inspectors; increase 
inspections to approximately 11,600 and improve follow-up inspections 
to verify correction of violations; increase searches for unlicensed 
and unregistered operations and other illegal activities; handle animal 
care complaints more quickly; expand outreach to regulated industries 
and the public; develop industry-specific training courses and 
implement internal audits and inspector quality reviews to ensure 
consistent quality in inspections.
    AZA's support for the integrity of the Animal Care program is 
evident in that the Association is the only regulated entity on the 
APHIS/Animal Care Coalition for increased appropriations. The Coalition 
is primarily made up of animal protection groups (including ASPCA, HSUS 
and the Animal Welfare Institute) who share this similar belief.
    As for APHIS' ability to focus on marine mammals in public display 
facilities, AZA and AMMPA believe that APHIS/Animal Care has done an 
effective job of meeting its mandates under the 1994 MMPA amendments in 
light of historic budget shortfalls. APHIS has provided marine mammal 
training courses for its inspectors in 1988, 1993 and has another 
course planned for 2002. These courses are held at marine mammal 
facilities, which allows for hands-on tours and instruction, and 
utilize a broad range of marine mammal veterinarians and other experts.
    The agency has also done an effective job in working with the 
diverse marine mammal community to build consensus for regulating 
marine mammals in zoological parks and aquariums. On July 23, 1993, 
APHIS published in the Federal Register (58 FR 39458, Docket No. 93-
076-1) an advance notice of proposed rulemaking that solicited comments 
on appropriate revisions or additions to the standards for the humane 
handling, care, treatment, and transportation of marine mammals used 
for research or exhibition. The comments they received supported their 
intent to revise the regulations and suggested it would be highly 
desirable to involve all interested parties in developing appropriate 
regulations. APHIS determined that some consensus among interested 
parties was attainable and that they should proceed with a formal 
Negotiated Rulemaking. On May 22, 1995, APHIS published in the Federal 
Register (60 FR 27049-7051, Docket No. 93-076-3) a notice of intent to 
establish an advisory committee to advise the agency on how to revise 
the regulations.
    The negotiated rulemaking process provided a forum for animal 
rights/welfare organizations to meet with the zoo and aquarium 
community to create the Marine Mammal Negotiated Rulemaking Advisory 
Committee and devise appropriate regulations based on current general, 
industry, and scientific knowledge and experience. The Committee 
consisted of the following organizations:
    American Zoo and Aquarium Association
    Alliance of Marine Mammal Parks and Aquariums
    International Association of Amusement Parks and Attractions
    Marine Mammal Coalition
    United States Navy
    Center for Marine Conservation
    Humane Society of the United States
    Animal Welfare Institute, representing a broad coalition of animal 
concern groups
    American Association of Zoo Veterinarians
    International Association for Aquatic Animal Medicine
    International Marine Animal Trainers Association
    Animal and Plant Health Inspection Service
    Consensus language was reached on 13 of the 18 sections that 
comprise the regulations and on one paragraph in a 14th section. 
Sections 3.101, 3.104(a), 3.105, 3.107 through 3.110, and 3.112 through 
3.118. Sections 3.101 and 3.104(a) contain facility and operating 
standards. Section 3.101 contains general requirements for facilities 
housing marine mammals, including construction, water and power supply, 
drainage, storage, waste disposal, and washroom facilities. Section 
3.104(a) contains general space requirements for primary enclosures. 
Sections 3.105 and 3.107 through 3.110 concern animal health and 
husbandry. Section 3.105 contains feeding requirements; Sec. 3.107 
concerns sanitation and pest control; Sec. 3.108 sets standards for 
employees and attendants; Sec. 3.109 concerns separation of marine 
mammals; and Sec. 3.110 concerns veterinary care. Sections 3.112 
through 3.118 concern transportation of marine mammals. Section 3.112 
concerns consignment of marine mammals to carriers and intermediate 
handlers; Sec. 3.113 contains standards for primary enclosures used to 
transport marine mammals; Sec. 3.114 contains standards for primary 
conveyances used to transport marine mammals; Sec. 3.115 contains 
requirements for provision of food and water during transport; Sec. 
3.116 concerns the care of marine mammals by employees or attendants 
during transport; Sec. 3.117 concerns terminal facilities; and Sec. 
3.118 contains requirements for handling marine mammals during 
transport.
    On February 23, 1999, APHIS published a proposed rule in the 
Federal Register (64 FR 8735-8755, Docket No. 93-076-11) that contained 
the consensus language developed by the Committee for these sections of 
the regulations. On January 3, 2001, the final rule containing the 
consensus language was published in the Federal Register and the rule 
went into effect in April 2001. APHIS is currently working on a 
proposed rule for the non-consensus items that were not agreed upon by 
the Committee. That rule should be available for comment in 2002.
    In sum, APHIS/Animal Care has earned the trust of AZA and the 
Alliance through its fair and objective enforcement of the regulations 
and its successful outreach efforts.
    AZA and the Alliance do not support NMFS' attempt to share 
authority for marine mammal care and treatment responsibilities, as 
outlined in the agency's recent proposed rule. With passage of the 1994 
MMPA Amendments, Congress decided it was wasteful, cumbersome and 
redundant for two agencies to have identical responsibilities and that 
the public display community should not be subjected to double jeopardy 
by having two different agencies enforcing care and maintenance 
standards.

    Question #2. The NMFS has instituted the use of Comity agreements 
whenever a marine mammal is exported to another country. Where in the 
Act do they get this authority? How has it worked so far in your 
opinion?
    Response: There is no authority in the Marine Mammal Protection Act 
requiring letters of comity. Nor, for that matter, do any other laws or 
regulations for any other species of wildlife require letters of comity 
even if the animals are endangered or threatened. Moreover, in 1994 
Congress rejected a similar NMFS proposal requiring such letters and 
limited the agency's authority over exports as well as the oversight of 
facilities holding U.S. marine mammals in foreign nations.
    In fact, the Act provides NMFS with no authority to apply the MMPA 
in foreign nations. The agency and the courts understand this. NMFS 
stated in the preamble to the 2001 proposed rule that ``NMFS has no 
jurisdiction in foreign countries .'' Additionally, a December 10, 
1996, opinion from the Office of General Counsel, NOAA, stated the MMPA 
``does not confer U.S. jurisdiction over marine mammals in the 
territory of other sovereign states.'' In United States v. Mitchell, 
553 F.2d 996, 1003, 1005 (5th Cir. 1977), the Court held the MMPA does 
not apply within the territory of a foreign sovereign.
    Secondly, letters of comity do not work. The agency highlighted 
this in its 2nd/3rd Quarter 2000 MMPA Bulletin. Foreign nations have 
expressed their outrage over this requirement and the agency has often 
abandoned its own policy in accepting ``letters of comity.'' The agency 
has accepted a ``comity'' letter from a U.S. institution when a foreign 
government has maintained that it ``does not have the authority to 
subrogate its regulatory duties to any other Government.'' A letter of 
comity has been accepted from a mayor. The Fish and Wildlife Service 
recently sent a stranded, rehabilitated sea otter pup to an Alliance 
member in Canada on an ``emergency interim basis,'' circumventing 
comity requirements because Canada steadfastly claims that it will not 
submit to U.S. comity requirements.
    Comity requirements are an effort by NMFS to apply the MMPA 
internationally, something neither Congress nor the courts allow. The 
proposed regulations not only raise very serious international 
relations issues, but they also raise serious questions about whether 
NMFS should be using its limited resources to regulate non-U.S. 
facilities. In addition to thwarting breeding exchanges, the hardest 
hit by these requirements are low-profile pinnipeds stranded seals and 
sea lions that have been nursed back to health. While U.S. facilities 
have no space in their collections to continually include these 
animals, foreign facilities have been able to find them homes. If homes 
cannot be found for these animals, they will, most likely, be 
euthanized.
    Export to foreign nations is not without oversight. The 1994 
amendments provided that any person properly holding marine mammals for 
public display in the United States could export the animals ``without 
obtaining any additional permit or authorization.'' However, the 1994 
amendments did effectively address the export issue by stating that a 
marine mammal could be exported for public display only if the 
receiving facility met ``standards that are comparable to the 
requirements that a person must meet to receive a permit'' under the 
MMPA for public display. There are three such standards: the facility 
must (1) offer a program for education or conservation based on 
professionally recognized standards of the public display community; 
(2) have an APHIS registration or license; and (3) be open to the 
public on a regularly scheduled basis with access not limited except by 
an admission fee.
    It is important to understand that a foreign facility must go 
through an extensive review by the Animal and Plant Health Inspection 
Service before receiving the animals. APHIS ascertains that the 
facility has the proper enclosure sizes, a program of veterinary care, 
and appropriate staff for all animals in the facility's collection, 
among other regulatory concerns. The agency even checks mortality rates 
at the importing institution and requires that the foreign government 
certify that the information provided to the agency is accurate. APHIS 
standards are the most comprehensive and stringent in the world. 
Significantly, Congress applied this comparability test only to the 
facility that receives the animals from the United States and not to 
subsequent transfers between foreign facilities.
    Alarmingly, NMFS' 2001 proposed regulations replace the APHIS 
comparability test with the requirement that the foreign facility must 
meet not only the three statutory requirements but newly proposed rules 
saying that NMFS must independently determine that the foreign facility 
complies with APHIS' care and maintenance standards.
    But the Proposed Regulations do not stop here. NMFS interprets the 
MMPA provision requiring NMFS to maintain an inventory of marine 
mammals held under MMPA permits to mean that NMFS must maintain an 
inventory of those animals and their progeny in foreign facilities. 
Since the MMPA does not apply outside the U.S., it is hard to see how 
NMFS reaches the conclusion that NMFS is to apply the inventory 
reporting requirements to foreign citizens. Nevertheless, NMFS combines 
that interpretation with its new version of the comparability standard 
to conclude that NMFS can prohibit the export of a marine mammal until 
the government of the country in which the receiving facility is 
located signs a letter of comity agreeing ``to enforce requirements 
equivalent to the U.S. Marine Mammal Protection Act. . .'' The 
regulatory preamble makes it quite clear that equivalency means all of 
NMFS' regulatory requirements. Thus, the preamble states that NMFS' 
regulatory requirements apply ``to all holders of animals exported from 
the United States . . .''
    To understand the problem, a case example may be helpful. The 
proposed regulations, including the letter of comity, have the effect 
of providing that if an animal is exported from the United States to a 
French facility in 2001, and the French facility decides in 2011 to 
transfer the animal to a public display facility in Spain, then the 
French government and the French facility must determine that the 
Spanish facility meets the MMPA standards as interpreted by NMFS, 
including the requirement that the facility meets APHIS requirements 
and has an acceptable education or conservation program--- and NMFS 
must receive a transport notification and inventory report from both 
the Spanish and French facilities. If the animal at the Spanish 
facility gives birth 5 years later, the Spanish facility must file an 
inventory report with NMFS reporting the birth. If that progeny is 
transferred to a public display facility in Germany 10 years later, the 
Spanish government and the Spanish facility are to ensure that the 
German facility meets the requirements of the U.S. MMPA as interpreted 
by NMFS, including the requirement that the facility meets APHIS 
standards and has an acceptable education or conservation program--- 
and NMFS is to receive a transport notification and inventory report 
from both the Spanish and the German facilities. If 15 years later, now 
40 years after the original 2001 export from the U.S., the marine 
mammal originally transferred, now in a Spanish facility, dies, NMFS is 
to receive an inventory notice of that event together with an 
explanation of the cause of death. And if the progeny, now in Germany, 
dies in 2061, 60 years after the parent left the United States, NMFS is 
to receive an inventory notification including the cause of death.

    Question #3. The public display community must breed its animals 
wisely to ensure that its genetic pool remains viable. How have the 
agencies worked with the community to facilitate the most optimum 
breeding of the animals?
    Response: The zoological community has worked diligently through 
the commitment of substantial research dollars to develop successful 
breeding programs. These programs include many that are facilitated by 
AZA's taxonomic advisory groups (TAGs) that have oversight for cetacean 
and pinniped breeding. In addition, the Alliance of Marine Mammal Parks 
and Aquariums has established a Population Management Committee to 
broaden the success to date of cetacean reproduction at public display 
facilities by sharing information and providing technical assistance 
important to reproduction management and, when requested to do so, by 
facilitating the establishment of partnering agreements between 
individual Alliance members to enhance breeding and genetic diversity.
    Zoological institutions have seen tremendous advances in our 
breeding programs. In recent years, animals born in zoological parks 
and aquariums have represented between 43 and 70 percent of marine 
mammals in these facilities, depending on the species. This compares to 
3 to 6 percent in 1976. We are seeing second and third generation 
births. These breeding programs have also provided the opportunity to 
gather information on many aspects of marine mammal reproductive 
biology difficult to obtain from wild populations.
    And just this past year, we have seen an exciting development 
through the hard work of two Alliance and AZA members (SeaWorld and 
Ocean Park). Researchers have artificially inseminated a killer whale 
and two dolphins. These three successful births have tremendous 
implications for conservation efforts with these and other species.
    These breeding programs are voluntary initiatives undertaken by the 
zoological community. The government does not and should not play a 
role in these animal management programs. Indirectly, the government 
does play a role when the animals must be transported for breeding 
purposes. There have been instances where transfers within the country 
and abroad have been disrupted by governmental red tape. The zoological 
community on several occasions has experienced unnecessary delays as a 
result of the comity requirements established by NMFS. The community 
has experienced similar delays when transporting animals between U.S. 
facilities. (The comity issue is addressed in our written testimony and 
in our response to Chairman Gilchrest's Question 2 above.)

    Question #4. Can you inform the Committee on how the public display 
community had to conduct its business prior to the 1994 amendments and 
then after the passage of the amendments? Can you discuss a bit further 
how the proposed rule developed by NMFS (July 2001) disregards the 1994 
amendments and goes back to management prior to 1994?
    Response: Prior to 1994, all transports and exports of marine 
mammals had to go through a tedious, time-consuming and expensive NMFS 
permitting process. Additionally, NMFS claimed dual authority with 
APHIS for the care and maintenance of marine mammals, which caused much 
confusion between the agencies and for the exhibitors.
    Although NMFS' responsibilities under the MMPA are limited to 
maintaining the marine mammal inventory and activities relating to the 
collection of animals from the wild, the agency's pre-1994 regulation 
of marine mammal transports and exports hampered the community's 
efforts to transport animals for breeding in a timely manner. Lengthy 
Federal Register comment periods and requests for information caused 
facilities to miss windows of animal fertility, which resulted in 
missing breeding opportunities for that year. In essence, this gave the 
agency unneeded and unwanted control over regulated entities and 
restricted facilities' ability to manage their collections wisely. At 
the extreme, an organization could not even transport an animal to one 
of its own facilities without government approval.
    While permits are no longer required for export and transfer of 
marine mammals under the 1994 amendments, the 2001 proposed rules 
continue to require letters of comity from foreign nations before NMFS 
provides its concurrence to the Fish and Wildlife Service to grant the 
exporting facility a CITES permit. The problems with letters of comity 
are addressed somewhat in the response to Mr. Gilchrest's second 
question and addressed fully in the Alliance comments to the agency, 
which are attached.
    Additionally, the 2001 proposed regulations add another unnecessary 
and purposeless hurdle for exporting marine mammals. Under present 
regulations, APHIS requires that foreign facilities submit all relevant 
data for review to assure that the foreign facility is meeting 
standards comparable to those of the U.S. Under the new, proposed rule, 
NMFS has added a section that requires that NMFS independently 
determine that the facility complies with APHIS' care and maintenance 
standards.
    Similarly, while NMFS is not asking for a permitting process to 
transport marine mammals in the 2001 proposed rules as it has in the 
past, the agency is advocating a process that creates a huge paperwork 
burden and unnecessarily duplicates information already available to 
the agency. When the MMPA was amended in 1994, the public display 
community agreed to send a 15-day notice of transport to NMFS so the 
agency could meet its inventory requirements under the Act. This was 
envisioned as a simple, one-page letter that identified the animal(s) 
to be transported and gave the name of the receiving facility. The 2001 
proposed regulations replace this one notification with six forms. 
Three cover the exact same information already contained in the NMFS 
marine mammal inventory. Additionally, the agency is demanding that the 
sending facility certify, under force of criminal penalties, that the 
receiving facility meets the three criteria in the MMPA for holding 
marine mammals.
    Prior to 1994, NMFS would annually send its marine mammal inventory 
to each facility holding marine mammals for updating. The community 
believed that this simple, once-a-year mailing would continue and that, 
coupled with the 15-day notices, the year-end inventory update would 
provide facilities with the opportunity to notify the agency whether 
the animals had indeed been moved and of other required information 
such as births and deaths. That has not been the case. Since 1994, NMFS 
has required facilities to send a form for not only transports but for 
all other inventory changes. This is not the simplified process the 
community had sought nor the one Congress envisioned with the passage 
of the 1994 amendments.
    In addition, in 1994 Congress decided it was wasteful for two 
agencies to have duplicative oversight responsibilities for the public 
display of marine mammals. Congress rejected NMFS' attempt to claim 
dual authority to establish and enforce marine mammal care and 
maintenance standards and clarified that APHIS has sole responsibility.
    Nevertheless, in its 2001 proposal, NMFS attempts to reassert joint 
authority with APHIS to enforce APHIS' care and maintenance standards. 
NMFS' proposal could create an awkward double-jeopardy scenario whereby 
an APHIS inspector could find a facility in compliance with APHIS' 
regulations but a NMFS inspector finds the APHIS inspector is wrong. If 
NMFS finds the facility in violation of APHIS' regulations, NMFS can 
revoke the facility's right to display marine mammals. This latest NMFS 
proposal raises serious legal, budgetary, ethical, and good government 
questions as to why two different agencies should be enforcing care and 
maintenance standards for marine mammals.
    NMFS then compounds the problem by proposing to deputize ``any 
person'' to inspect a public display facility for compliance with APHIS 
regulations and to then inspect and copy any and all facility records. 
Allowing NMFS to designate any member of the public as an APHIS 
inspector and requiring public display facilities to turn over all of 
their records to that person raises very significant privacy issues.
            questions from ranking member robert underwood -
    Question 1: Could you please describe your working relationships 
with both APHIS and NMFS?
    Response: The American Zoo and Aquarium Association (AZA) and the 
Alliance of Marine Mammal Parks and Aquariums (Alliance) have had a 
wide range of experiences dealing with both APHIS and NMFS and their 
enforcement of the Animal Welfare Act (AWA) and Marine Mammal 
Protection Act (MMPA). We have generally found staff from APHIS and 
NMFS to be fair, objective and professional in their dealings with our 
accredited members.
    Efforts to further expand regulatory oversight of marine mammals 
often puts the community at odds with both agencies. AZA and the 
Alliance have strongly objected to many regulatory efforts proposed by 
NMFS and APHIS/Animal Care.
    However, APHIS/Animal Care has done an effective job in working 
with the diverse interests of the marine mammal community and the 
animal rights organizations to build consensus for revising the care 
and maintenance standards for marine mammals by supporting a negotiated 
regulating panel to address the issues. Additionally, the agency holds 
regular, public meetings for the community and activists on its 
regulatory agenda, keeping a positive dialogue between the regulators 
and the regulated exhibitors.
    AZA's support for the integrity of the Animal Care program is 
evident in that the Association is the only regulated entity on the 
APHIS/Animal Care Coalition for increased appropriations. The Coalition 
is primarily made up of animal protection groups (including ASPCA, HSUS 
and the Animal Welfare Institute) who share this similar belief.
    On the other hand, for seven years (since the reauthorization of 
the MMPA in 1994), AZA and the Alliance have communicated to NMFS that 
the agency's MMPA interim rules did not reflect the intent of Congress. 
The recent proposed rule by the agency made it clear that the agency 
does not agree.

    Question 2: Has AZA or the Alliance commented on NMFS recently 
published regulations that would implement the 1994 amendments to 
section 104 of the Act? If so, are these changes viewed favorably by 
the display community?
    Response: AZA, the Alliance, and numbers of members of both 
organizations have submitted lengthy comments to NMFS stating our 
concerns about the proposed rule. Both organizations find NMFS' new, 
proposed rule unacceptable as it overturns or repudiates the 1994 
amendments to the MMPA agreed to by Congress. For a complete 
understanding of our concerns, please see AZA and the Alliance comments 
on the NMFS' proposal, which are attached.

    Question 3: In regards to the recent controversy concerning captive 
polar bears currently being displayed in Puerto Rico by the traveling 
Suarez Circus, in your opinion does this operation or its facilities 
comply with the industry standards voluntarily adopted by AZA and 
Alliance members?
    Response: The American Zoo and Aquarium Association (AZA) is an 
accrediting body with accreditation standards and codes of ethics that 
govern membership in the Association. The Alliance of Marine Mammal 
Parks and Aquariums (Alliance) has initiated an accreditation process 
based on its Alliance Standards and Guidelines.
    Only institutions that meet the following definition of zoological 
parks and aquariums can receive AZA accreditation: ``a permanent 
cultural institution which owns and maintains wildlife that represent 
more than a token collection and, under the direction of a professional 
staff, provides its collection with appropriate care and exhibits them 
in an aesthetic manner to the public on a regularly schedules, 
predictable basis. They shall further be defined as having as their 
primary business the exhibition, conservation and preservation of the 
earth's fauna in an educational and scientific manner.'' Accreditation 
involves a review and inspection process by which zoos and aquariums 
are evaluated in order to become AZA members. Accreditation for both 
organizations takes place every five years and examines all aspects of 
an institution's operation, including the animal collection, veterinary 
care, physical facilities, safety, security, finance, staff, governing 
authority, support organization, education programs, conservation and 
research and adherence to the organizations' policies and standards. 
AZA's accreditation guidelines can be accessed at http://www.aza.org/
Accreditation/Documents/AccredGuide.pdf. The traveling polar bear 
exhibit (as part of the Suarez Circus) does not meet the definition of 
an AZA accredited member since the facility does not comply with AZA 
standards. Similarly, the Alliance does not believe, based on available 
information, that the traveling polar bear exhibit would meet Alliance 
standards for accreditation.
    Collectively, members of the AZA and the Alliance represent the 
greatest body of professional expertise and knowledge about the care 
and handling of marine mammals. Because of the concern about the care 
provided to these animals, we recommend that APHIS name a blue-ribbon 
panel of experts to conduct a thorough veterinary examination of these 
polar bears. Such a panel might include a representative with 
veterinary credentials from the AZA, the Alliance, the circus industry, 
an animal rights organization and APHIS.
                                 ______
                                 

Responses from Rick Marks, Member of Take Reduction Teams, Garden State 
                          Seafood Association

               questions from chairman wayne t. gilchrest
    In your testimony you discuss the precautionary measures the NMFS 
has incorporated into their use of PBR. Can you go over this again for 
Members so we can get a better understanding of just how precautionary 
the agency is being and whether you think these measures are based on 
sound scientific measures?
    The problem with MMPA's risk-averse approach starts with the major 
goals of the Act. They are not clearly defined:
        Marine mammals `` should not be permitted to diminish beyond 
        the point at which they cease to be a significant functioning 
        element in the ecosystem of which they are a part, and, 
        consistent with this major objective, they should not be 
        permitted to diminish below their optimum sustainable 
        population.'' (Sec 2.2)
    The Act offers no definition of what is a ``significant functioning 
element in the ecosystem.'' The Act does define OSP as the ``maximum 
net productivity of the species'' which is generally considered to be 
50%-70% of a known historical abundance but OSP for most mammal stocks 
is unknown as historic abundance and carrying capacity are rarely well-
understood.
    The 1994 MMPA reauthorization added a new requirement that NMFS 
develop estimates of Potential Biological Removal (``PBR''). PBR is the 
maximum number of animals, not including natural mortalities, which may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population.
    PBR is the product of three components: (1) the minimum population 
estimate (Nmin); half the maximum net productivity rate (0.5 x Rmax); 
and a recovery factor (Fr) and is expressed by the formula:
                       PBR = Nmin * 1/2 Rmax * Fr
    The Minimum Population Estimate (Nmin) is defined as the number of 
animals in a stock, which is supposed to be based on the best available 
information and provides reasonable assurance that the stock size is 
equal to or greater than the estimate. However, the Act contains no 
specific reference to what is ``a reasonable assurance'' that the 
population is equal to or greater than that estimate. This means that 
NMFS scientists were free to develop rationale for Nmin values to be 
less than the best estimate. Indeed, the best available population 
survey numbers are adjusted downward as the NMFS deems fit to account 
for undefined ``uncertainty.''
    ``Rmax'' is defined as one half of the maximum theoretical or 
estimated net productivity rate of the stock at a small population 
size. Net productivity rate is considered to be the annual per capita 
rate of increase in a stock due to reproduction. In most instances 
conservative default values are used, 0.04 (cetaceans) and 0.12 
(pinnipeds), even if different but known scientific estimates are 
actually published in the scientific literature. Hence, not only are 
conservative values employed as a starting point, but the Rmax values 
are reduced again by half to account for additional undefined 
``uncertainty.''
    Finally, a recovery factor termed ``Fr'' is applied to the PBR 
calculation. The intent of the recovery factor is to compensate for 
uncertainty and possible unknown estimation errors. Though the 1994 
amendments provided no specific guidance for values of Fr, values of 
0.1 to 1.0 are arbitrarily used to reduce the value of PBR. The value 
of Fr used in a given PBR formula may vary, such that Fr = 0.1 for 
endangered stocks; Fr = 0.50 for stocks of unknown status or listed as 
depleted or threatened; and Fr = 1.0 for stocks thought to be at OSP.
    Thus, a multi-tiered precautionary approach is incorporated into 
each and every PBR calculation, all reportedly for the same reason to 
account for ``uncertainty'' which remains undefined, to ensure that 
marine mammal populations are at OSP levels at least 95 percent of the 
time.
    The impact of such conservative assumptions on the estimate of PBR 
can be significant and is elucidated in the following harbor porpoise 
example. The HPTRT had only three years of survey data (1991, 1992, 
1995) available to calculate PBR in 1997. NMFS chose not to utilize the 
most ``recent'' 1995 survey of 74,000 exclusively, nor did they use the 
moving arithmetic average of the most recent three surveys which still 
would have underestimated the true stock size. In fact, NMFS chose not 
to drop the oldest and most dubious survey from 1991 which is 
inconsistent with scientific advice that five-year old surveys (and 
older) start to represent unreliable population estimates.
    Instead, NMFS reduced the population estimate to 54,300, using the 
inverse variance-weighted average of the three surveys. This 
effectively reduced the stock of harbor porpoise by 26 percent from 
current levels. The agency reduced the population estimate an 
additional 8.7 percent (taking the 20th percentile of the log-normal 
distribution) to arrive at 48,289, the final Nmin. Thus, the total 
reduction in population size was equal to 34.7 percent (74,000 to 
48,289) from the most recent survey count. This corresponds to a 
reduction in the PBR estimate from 740 to 483.
    Finally, the application of Rmax and Fr to the reduced value for 
Nmin forces a further low-balling of harbor porpoise PBR estimates. 
This is not a valid or necessary approach for a species such as harbor 
porpoise. These small cetaceans are reported in the scientific 
literature to have extremely short life spans, early maturity and very 
high reproductive rates, comparing favorably with those of pinniped 
species (See Read, A. & A. Hohn, 1995. Life in the Fast Lane: Life 
History of Harbor Porpoise from the Gulf of Maine).
    Arguably, applying one-half of a default Rmax value (i.e. Rmax = 
0.02 ; noting that 0.04 it is the exact same value used for large, 
slower growing whales) and the Fr default value (0.5) for a species 
with such r-selected life history characteristics may be 
philosophically justifiable, but not necessary from a scientific 
standpoint.
    Alternatively, calculating PBR using N = 59,667; Rmax = 0.04 and Fr 
= 1.0, leads to an estimation of PBR for harbor porpoise equal to at 
least 1,629 animals. This approach is valid when one considers that 
prior to implementing harbor porpoise protective measures, the NMFS 
1999 population estimate for harbor porpoise totaled 89,700 animals, up 
from 74,000 reported in 1995 and 37,500 in 1991 (Table 1: See also 
Palka, D., 2000. Abundance of the Gulf of Maine/Bay of Fundy Harbor 
Porpoise Based on Shipboard and Aerial Surveys during 1999).

    To your knowledge, how did NMFS come up with this method of 
determining PBR?
    The 1994 MMPA reauthorization added a new requirement that NMFS 
develop estimates of Potential Biological Removal (``PBR''). PBR is not 
based on or derived from any specific wildlife management population 
model. It was apparently developed by NMFS solely for implementing the 
1994 MMPA amendments. NMFS scientists (not managers) have incorporated 
several layers of precautionary assumptions into the only formula that 
serves as the nationwide standard for calculating PBR.

    The MMC has suggested a two-tiered approach that equates ZMRG with 
reducing mortalities and serious injuries to biologically insignificant 
levels, for example 10% for most stocks, but then establish a numerical 
cap for abundant stocks to ensure that large numbers of animals are not 
taken from the stock. Does this seem arbitrary to you? Do you think 
this is better than the current process? How would you pick such a cap? 
Is it really necessary to pick a numerical cap for abundant stocks?
    Reducing the entanglement of marine mammals in fishing gear is a 
rational and socially laudable objective. This should be a natural and 
continuing objective under the MMPA using gear mitigation research, 
changes in fishing behavior, education, and cooperative disentanglement 
programs. However, ZMRG as a legal requirement that is both time-
certain and point estimated is not necessary and will result in 
litigation.
    Stocks that are neither endangered nor threatened or stocks that 
are increasing should not be subject to a ZMRG. The ZMRG rule will 
result in artificially low thresholds, especially if based on 
negatively-biased survey estimates and PBR values. In addition, a one-
size-fits-all definition of ``10% of X'' is completely arbitrary and 
will result in needless socieo-economic costs.
    A more useful approach would be to apply ZMRG as a concept and an 
objective not a date-certain legal requirement, and only on a case by 
case basis for stocks in poor condition. In those instances, a soft 
target ZMRG could be defined as a valid percentage of current 
population size (based on high quality survey methodology) or 
quantifiable Rmax value, rather than on a precautionary PBR estimate. 
The practical implications of ZMRG would then have to be evaluated 
concurrently with social and economic concerns.
    In the case of robust stocks, setting a cap on the number of 
animals that can safely be removed is a reasonable approach to wildlife 
management. All stocks, be they minke whales, whitetail deer or fox 
squirrels, can safely sustain some specified level of removal. These 
caps could be dynamic, reflecting changes in carrying capacity and 
impact on the region ecology, and the population's ability to maintain 
some threshold population size, rather than requiring a 95% probability 
of maintaining OSP.
    That being said, the NMFS is not able to satisfactorily handle the 
current data demands for all species. NMFS is developing management 
plans with a paucity of information and constituents are suffering with 
the precautionary results. A more reasonable approach would be to 
prioritize stocks based on concern for long term health of the 
population and focus the management efforts accordingly. In this 
regard, a ``cap'' or threshold population level could be used as a 
``trigger'' for re-prioritizing management and data collection efforts 
to address potential problem situations.
             question from ranking member robert underwood
    You say that the Harbor Porpoise PBR is set under too much of an 
influence of the precautionary principle, and that the TRT demonstrates 
how NMFS has little regard for the social and economic impacts of the 
plan on fishermen. Could you please give us some examples of the 
effects of the TRT has on the fishermen. How specifically do they have 
to change their fishing behavior and what effects does this have on 
their livelihood?
    Unlike the Magnuson-Stevens Fishery Conservation and Management Act 
(MSA), the MMPA Section 118(f) has no formal requirements for the 
Secretary to balance conservation benefits with socieo-economic 
impacts. Therefore, severe management restrictions can, and are, 
instituted absent analyses of the impacts on a given community or group 
of constituents. Increasingly, we are seeing the agency and the 
conservation industry use MMPA-generated TRP's as a means to reduce 
fishing effort outside of the MSA process. MMPA TRP's contain elements 
designed to reduce fishing effort/catch (and revenues) through time/
area closures and gear limitations. These costs are never estimated in 
TRP's nor are they formally mitigated.
    In some cases, the mammal measures are additive to fishery 
restrictions resulting in a ``double dipping'' of restrictions. Often, 
fishermen are not provided ``PBR credit'' for fishing restrictions. For 
example, monkfish gillnetters were subject to a seasonal closure under 
the MSA FMP and were also subjected to additional closures pursuant to 
the HPTRP without receiving credit for the fishery closure.
    In the case of the spiny dogfish, the NMFS closed the entire east 
coast directed dogfish fishery but was not willing to estimate the 
savings in the form of reduced marine mammal interactions resulting 
from the fishing closure. This will result in needless and excessive 
restrictions on other fisheries.
    In addition to a layering of both MSA and MMPA regulations, 
productive fishing grounds are often closed via the TRT process. Thus, 
fishermen must find new areas to fish which may be further away and 
yield lower catch rates. If fishermen are under effort/gear limitations 
in the fishery already, they may not be able to recoup the lost income 
from being forced off the primary fishing grounds by the additional 
marine mammal conservation measures.
    Fishermen may also be required, or even agree, to alter their gear 
which could lead to increased cost. Acoustic devices such as 
``pingers'' are sometimes used as a means of marine mammal deterrence. 
Popular and effective as these alternatives may sometimes be, they 
always come at increased costs borne solely by the fishermen.
                                 ______
                                 

 Responses from Joe Scordino, Deputy Regional Administrator, Northwest 
    Region, National Marine Fisheries Service, National Oceanic and 
        Atmospheric Administration, U.S. Department of Commerce

               questions from chairman wayne t. gilchrest
    1. The NMFS has released its report Impacts of California Sea Lions 
and Pacific Harbor Seals on Salmonids and West Coast Ecosystems. Does 
the Agency recommend implementing the recommendations of the report? 
Will these recommendations be included in an Administration bill? Has 
the Agency made any further progress in developing new, non-lethal 
means of chasing off California sea lions and Pacific Harbor Seals 
during testing? Your testimony mentions that ``new information'' has 
become available since the 1999 report to Congress. Other than new 
populations assessments, what new information were you referring to?
    NMFS continues to support three of the recommendations.
    The first recommendation is to ``Implement site-specific management 
authority that would allow state and federal officials to lethally 
remove pinnipeds where necessary to protect ESA-listed salmon and other 
marine resources.'' Although NMFS continues to support the concepts 
related to site specific management measures, we do not expect to 
include these measures in the upcoming Administration bill. Existing 
provisions of the MMPA allow NMFS to address the known applications 
where lethal take authority has been needed, such as to protect Lake 
Washington steelhead as they migrate through Ballard Locks. Other 
instances of predation, where the scientific record is not as full as 
the one at Ballard Locks, have not been identified at this time. The 
provisions in section 101(c) that allow people to take marine mammals 
if ``imminently necessary'' would apply to human safety concerns. It 
may also be possible to apply the authorities within section 109(h) to 
protect human health and welfare; however, application outside the 
stranding response program has not been attempted or tested.
    The second recommendation to `` Develop safe and effective non-
lethal deterrent technologies'' has been pursued by NMFS. But, we have 
found through studies that acoustic technology, which initially 
appeared promising, may not provide a safe, effective approach to long-
term deterrence of sea lions in open water applications due to affects 
on other marine species. However, in limited, restricted areas, such as 
at the Ballard Locks in Seattle, WA, non-lethal acoustic deterrence 
measures appear effective in addressing California sea lion predation 
on steelhead. NMFS is currently supporting a new line of studies by 
Moss Landing Marine Laboratory to conduct basic behavioral studies on 
sea lions to determine what ``cues'' they use to find hooked fish. 
These studies would describe the ``cues'' involved in interactions with 
fishing operations and ways to possibly ``mask'' or eliminate those 
cues to avoid interactions.
    The third recommendation to ``Reconsider the prior MMPA 
authorization that allowed commercial fishers to lethally take 
pinnipeds as a last resort to protect their catch and gear in specific 
fishery areas where economic impacts are occurring'' is no longer 
supported by NMFS and will not be included in the Administration bill. 
As described in my testimony, this recommendation was the subject of 
most negative comments from the public, but it remained in the Report 
so that Congress would have background information if it chose to 
reconsider the 1994 amendments that eliminated the prior authorization 
that allowed commercial fishers to kill marine mammals as a last 
resort. Following the submission of the Report, NMFS learned that many 
participants in current commercial and recreational fisheries do not 
necessarily desire to have this authority. Rather, these parties have 
expressed the need to have safe, effective non-lethal deterrents 
available to them, and authority for state and federal managers to 
remove problem animals where necessary when non-lethal measures are not 
effective.
    The fourth recommendation to ``Implement the studies necessary to 
obtain additional information on the expanding pinniped populations and 
their impacts on other resources, especially ESA listed salmonids'' has 
been underway by NMFS and the States since fiscal year 1998 with 
Congressional action to increase NMFS' funding for studies on pinniped 
impacts on salmonids and West Coast ecosystems. These studies have 
resulted in new information, since the 1999 Report to Congress, on 1) 
pinniped predation on salmonids in several river systems on the West 
Coast; 2) updated population status of harbor seals and sea lions which 
are noted for showing that harbor seals in Washington and Oregon are at 
their optimum sustainable population level (OSP); 3) updated 
information on sea lion interactions with the salmon troll fishery and 
the southern California partyboat fishery; and, 4) information on the 
effectiveness and utility of acoustic devices as non-lethal deterrents.

    2. Your testimony indicates that seal and/or seal lion predation 
can have a negative impact on the recovery of depressed or declining 
salmonids. Can you quantify what percent of the mortality of the listed 
salmon is due to pinniped predation? How do these figures compare to 
direct human causes of mortality?
    Predation on ESA listed salmonids varies from site to site. In some 
river systems, such as the Umpqua River in Oregon, studies indicate 
that seal predation is unlikely to impact recovery of ESA listed 
salmonids. In other systems, such as Hood Canal, WA, where studies are 
still underway, preliminary information indicates harbor seal predation 
may be impairing recovery of summer chum salmon. Final analyses, which 
will quantify the percent of the listed chum salmon population taken by 
harbor seals through the three-year study period, should be available 
in the next year. Human causes of mortality on Hood Canal chum salmon 
are described below under Question 3. Through over 10 years of study at 
the Ballard Locks, NMFS determined in the mid-1990s that California sea 
lion predation on Lake Washington steelhead, which exceeded 60% of the 
returning adults in some years, did have a negative impact on the 
population. Direct human causes of mortality in the Lake Washington 
system included tribal fishing, which ceased in the 1980s, and 
improvements were made to fish passage at the Ballard Locks facility, 
thus sea lion predation was a principal factor in the decline of the 
steelhead population.

    3. Your testimony states that ``pinniped predation rates exceeding 
25 percent of spawning summer chum salmon in Hood Canal.'' What are the 
other impediments to this populations recovery and what percent of the 
mortality of these salmon is due to other factors?
    Hood Canal summer chum salmon mortality is attributable to 
fisheries, shifting environmental conditions, and the cumulative 
effects of habitat degradation. Total fishery exploitation rates on 
summer chum, which were listed as threatened under the ESA in 1999, 
averaged 44.5% from 1974-1994 (range = 12.2%-81.2%). Since that time 
exploitation rates decreased substantially as a result of fishery 
actions taken to protect summer chum and other salmonid species. Hood 
Canal fisheries are now managed to minimize incidental take of summer 
chum, which is now on average kept below 11%. Although in any one year 
fisheries may be managed for exploitation rates lower than this, the 
upper end of the exploitation rate may not be exceeded. Supplementation 
programs were instituted in 1992 for the Big/Little Quilcene, the Hamma 
Hamma and Lilliwaup stocks due to the assessment of high risk of 
extinction for these stocks without intervention. The Quilcene program 
has been quite successful at increasing the number of returning adults. 
The Hamma Hamma and Lilliwaup programs have been hampered by an 
inability to collect sufficient broodstock. Although there are 
recognized risks associated with hatchery programs, in this case these 
risks are offset by the potential benefits in facilitating recovery. A 
habitat assessment, conducted as part of the Summer Chum Salmon 
Conservation Initiative for Hood Canal and Strait of Juan de Fuca 
summer chum stocks, concluded that channel, riparian forest and sub-
estuarine conditions were moderately to severely degraded in all the 
watersheds due to a history of logging, road building, rural 
development, agriculture, water withdrawal, and channel manipulations. 
The data is not available to determine what proportion of total 
mortality on summer chum populations is directly attributable to 
habitat degradation and environmental factors.

    4. The NMFS has been looking for new technology to deter marine 
mammals such as California sea lions from fishing activities, yet they 
rejected permit applications to test pulse technology because of the 
threat of a lawsuit by certain environmental organizations. In fact, 
your testimony states that, ``only one avenue of deterrence 
technologies appeared to be promising...this avenue was acoustic 
devices.'' Why did the agency deny the permit based solely on a threat 
of litigation when the agency has cited a need for new technology and 
pledged to work with industry to find and test new technologies? Will 
this be the case for the future permit applications?
    High powered acoustic devices, such as the pulsed power device, may 
be effective non-lethal deterrents, but they also may affect other 
species or cause injury to the target animals (i.e., sea lions). NMFS 
was aware of these concerns in the development of the pulsed power 
device and they were also raised by environmental organizations that 
threatened lawsuits. The California Coastal Commission (CCC) rejected 
our coastal zone consistency determination for ocean testing of the 
pulsed power device because they viewed it as inconsistent with 
protective criteria that are used for other sources of sound, such as 
marine geophysical exploration, and because of concerns about impacts 
on other marine species. NMFS postponed the field testing of the pulsed 
power device to address CCC concerns, and required captive studies to 
determine what power levels would deter sea lions without causing 
injury or deafness to the sea lions. NMFS' interest was and is for 
development of deterrence technologies that can be applied on a broad 
basis (multiple fishing boats) in open waters with little or no adverse 
impacts on the environment, and without serious injury to the sea 
lions--these criteria will apply to any future permits for testing 
deterrence devices. The recent laboratory studies indicate that the 
pulsed power device may not be as effective in deterring California sea 
lions as initially hoped and may cause temporary effects on hearing; 
thus we need to seek new technologies and methods, beyond acoustic 
deterrence, to address fishery interactions with California sea lions.

    5. What does the MMPA direct marine mammal management agencies to 
do once a population reaches OSP? Will a population that has reached 
OSP continue to grow, although possibly at a slower rate of growth? Is 
OSP the same thing as the carrying capacity? How do we deal with a 
situation where a population has reached carrying capacity or OSP yet 
is significantly below the estimated historical population level?
    The MMPA states that marine mammal populations ``should not be 
permitted to diminish beyond the point at which they cease to be a 
significant functioning element in the ecosystem of which they are a 
part, and, consistent with this major objective, they should not be 
permitted to diminish below their optimum sustainable population'' 
(MMPA Section 2(2), 16 U.S.C. 1361(2)). Thus, we must monitor the 
status of marine mammal populations relative to their optimum 
sustainable population (OSP) level and assure that are not reduced 
below OSP. Once a population reaches OSP, there are no actions required 
of NMFS or the States, but management alternatives, such as waiving the 
moratorium or transferring management authority to the States, can be 
considered. OSP and carrying capacity are not the same but they are 
related. The MMPA does not provide a complete definition of OSP, so it 
was necessary for NMFS to clarify in regulations an operational 
definition for OSP. OSP is defined within the context of a hypothetical 
construct that represents the growth of a population that is 
constrained by density-dependent phenomenon (e.g., food or space 
limitation). The generalized logistic growth curve (see Figure 1 below) 
is used to describe population growth of marine mammal populations and 
OSP has been defined relative to generalized logistic growth. NMFS 
adopted the definition for OSP as a range of population sizes between 
carrying capacity and a smaller population size that provides maximum 
net productivity (MNPL) (41 FR 55536, December 21, 1976; codified at 50 
CFR 216.3). A population that has reached OSP may continue to grow; 
however, OSP is a range of population sizes, and as the population 
approaches carrying capacity, the growth will slow to zero. It is 
important to recognize that these definitions are based on a reasonable 
but theoretical model. The realized growth in a marine mammal 
population is governed by much more complex mechanisms than are 
considered in the generalized logistic growth curve. Carrying capacity 
is a hypothetical construct that is assumed to be constant in this 
model. We know this is unrealistic, and fully expect that carrying 
capacity can and will vary. Some of the variation will be short-term 
(e.g., El Nino) and other changes may be more long-term. It is 
reasonable to expect that populations at OSP will fluctuate and will 
not grow at some diminishing rate. Pacific harbor seals in Washington 
and Oregon have been determined to have reached OSP. However, we do not 
have reliable historical population estimates for west coast pinniped 
populations, so we cannot compare them to OSP or current carrying 
capacity.
           questions from ranking member robert a. underwood
    1. Going back to the recommendations made by the 1999 Report, the 
first recommendation would allow the lethal take of California Sea 
Lions and Pacific Harbor Seals, if preying on salmonids that are listed 
or are candidates for listing under ESA. Who would make the final 
decision that the lethal take would be allowed? How long could the 
lethal taking go on before it would affect the stocks of the Sea Lions 
and Harbor Seals? You say this would not be used as a culling method, 
but would there be a review of all lethal takes to ensure that this 
allowance is not co-opted?
    The recommendation is for a framework that uses a precautionary 
approach that would favor the protection of ESA-listed species (e.g., 
salmon) over absolute protection of healthy, robust and expanding 
pinniped populations. The recommendation includes a number of 
safeguards to prevent unwarranted lethal takes of pinnipeds. Takes that 
occur under this framework would be added to takes from all other 
sources of human caused mortality (including fishing), and thus would 
be limited to the ``potential biological removal'' (PBR) level 
established for the pinniped population. Annual reporting would be 
required to monitor that this and all other takes are kept below the 
PBR level, in order to ensure healthy populations of pinnipeds, while 
allowing removals in acute situations. Only in situations where 
pinnipeds are preying on ESA-listed salmonids would lethal removal be 
authorized without considering non-lethal means first, and only in 
cases where such removal is within the context of salmon recovery 
actions. In all cases, lethal removal of pinnipeds would be an action 
of last resort, and only by state or federal resource managers. This 
framework does not apply to fishers or the public.
[GRAPHIC] [TIFF OMITTED] 75640.037

                                 ______
                                 

   Responses from Steve Thompson, Acting Manager, California-Nevada 
               Operations, U.S. Fish and Wildlife Service

               questions from chairman wayne t. gilchrest
    Question 1: In 1987, the USFWS began to translocate an experimental 
population of southern sea otters as a recovery action in response to 
population declines and to avoid potential risks associated with 
possible oil spills. A provision within the authorizing legislation 
required USFWS to limit potential impacts to existing commercial 
fisheries. Animals from the experimental population are now leaving the 
translocation zone and are possibly affecting commercial fisheries. How 
has FWS managed this experimental population and what future plans does 
USFWS have for the experimental population and the affected commercial 
fisheries?
    Answer: The transplanted population at San Nicolas Island has 
remained small since 1990 and currently numbers about 28 individuals 
total in the translocation and management zones. While there is no 
evidence that sea otters are now leaving the translocation zone at San 
Nicolas Island, beginning in 1998 the Service observed up to 150 sea 
otters entering the designated sea otter management zone from the 
parent population. These animals appear to be males that move into the 
management zone in winter and return to the range of the parent 
population in late summer or early fall, a pattern consistent with 
natural range expansion.
    Nonetheless, Public Law 99-625 states that any sea otter found in 
the management zone, regardless of its origin, is to be considered a 
member of the experimental population. The Service was required to use 
all feasible non-lethal means to capture sea otters in the management 
zone and return them to the translocation zone or to the range of the 
parent population. However, the Service has determined that, at 
present, this is not consistent with the requirement under the ESA to 
avoid jeopardy to the species. This decision was based in part on 
evidence that there would probably be substantial adverse impacts to 
the parent population from translocating large numbers of otters from 
the management zone to within the range of the parent population. The 
Service has suspended further containment efforts while it reevaluates 
the program, and expects to complete a supplemental EIS and finalize 
our evaluation of the program sometime next year.

    Question 2: USFWS has not attempted to remove otters from the 
management zone since approximately 1993. One of the reasons for this 
was an acknowledged lack of funds. Did USFWS ever request funding for 
this program after 1993? Some have argued that USFWS ignored their 
obligations under the law to continue these removal efforts. Is this 
accurate?
    Answer: The Service did not request funding for the translocation 
program after 1993. When the Service stopped removing otters from the 
management zone in 1993, there were few otters remaining in the 
translocation zone and few otters in the management zone. In the 
management zone, conflict between commercial fishing operations and sea 
otters was minimal or non-existent. If it is found that continuing to 
maintain a management zone is feasible and consistent with recovery 
goals for sea otters and Public Law 99-625, the Service will likely 
request funding from Congress to implement the program.

    Question 3: Testimony was heard at the hearing that one of the 
impediments to sea otter recovery is parasites, including those 
transmitted by cat feces. Can you explain this problem and also comment 
on how parasites transported by cat feces are affecting marine mammals 
in the marine environment?
    Answer: Our National Wildlife Health Center determined that 
approximately 8 percent of stranded sea otters examined between 1992 
and 1995 died as the result of protozoal encephalitis, a condition 
caused by microscopic parasites in the brain. A parasite commonly found 
in domestic cats was identified in these otters. This parasite, 
Toxmoplasma gondi, can cause health problems in many species, including 
humans. How the parasites are transmitted to sea otters is unclear, but 
it is suspected that cat feces carrying the eggs of the parasites may 
be washed into the marine environment through street sewers or sewage 
treatment systems. The eggs may then be concentrated in filter feeders 
like mussels and clams that the sea otters consume. Research is 
currently being conducted to develop a better understanding of this 
potential source of contamination in the marine environment.

    Question 4: Is it true that the parasite problem is responsible for 
more Southern sea otter mortality than direct human causes such as 
commercial fishing? Can you rank the causes of mortality and give an 
estimate of the number of animals killed by each category per year?
    Answer: Our National Wildlife Health Center determined causes of 
death for a sample of fresh dead sea otters stranded between 1992 and 
1995. They found that approximately 38 percent of the otters died from 
infectious diseases including parasite infestations. Approximately 20 
percent died as the result of trauma that included shark bite, boat 
strikes, and gunshot wounds. Emaciation accounted for 10 percent of the 
mortalities, while 31 percent were placed in undetermined or 
miscellaneous categories. In many cases, mortalities that result from 
commercial fishing activities are difficult to detect because they 
often involve drowning of animals. For example, animals drowned in 
fishing gear may sink and often are not recovered.

    Question 5: One of the original factors for the listing of the 
southern sea otter was the concern that the entire population could be 
killed by an oil spill. Is this still a reasonable concern? Has the FWS 
taken a look at the original factors for the listing and reevaluated 
the potential risk for those factors?
    Answer: The possibility of an oil spill continues to be a 
significant threat to sea otters. The 1989 Exxon Valdez spill in Alaska 
demonstrated that large numbers of sea otters could be killed in one 
event, and that rehabilitation of oiled sea otters is of questionable 
benefit to the population. The Service recognizes that significant 
progress has been made to reduce the risk of oil spills. However, oil 
production and transportation continue off the California coast. The 
southern sea otter was listed because of its small population size and 
vulnerability to oil spills. A report on the potential impacts of oil 
spills on the southern sea otter population (Ford and Bonnell, 1995) is 
included in the draft recovery plan (January 2000).

    Question 6: P.L. 99-625 requires the FWS to remove all sea otters 
from the management zone. The FWS has now determined that removal of 
any otters from the zone constitutes jeopardy to the continued 
existence of the southern sea otter. Does that imply that the loss of 
any of the otters currently in the management zone constitutes a threat 
to the entire population's recovery? How many otters are currently 
estimated to be in the management zone? How does the FWS justify this 
position when P.L. 99-625 specifically states that the experimental 
population will not constitute jeopardy?
    Answer: The Service s recent biological opinion was based on 
effects on the parent population of returning sea otters from the 
management zone back to the range of the parent population. Our 
analysis focused on the effects these returned otters would have on 
other otters found in the parent population. Specifically, there is a 
concern that returning large numbers of male otters to areas occupied 
by females and pups will lead to widespread disruption of the 
population. Our original biological opinion for the program did not 
consider these effects.
    As of May 2002, the Service believes there are fewer than 5 sea 
otters in the management zone. However, since 1998 we have observed 
seasonal movement of otters into the management zone. We expect larger 
numbers of sea otters to continue to enter the north end of the 
management zone in winter, and depart the following spring. Given the 
uncertain stability of parent population counts, the Service believes 
it would not be prudent to move otters at this time.

    Question 7: In 1993, FWS made the unilateral decision that they 
could no longer reasonably remove otters from the management zone. This 
constitutes a violation of the spirit and the letter of the law. At no 
time has FWS returned to Congress to ask that the law be amended 
because it was unenforceable. In fact, on a number of occasions, this 
Committee has asked for more information on this issue with little if 
any response. Does the FWS make it a habit to knowingly violate their 
responsibilities under the law without notifying Congress that it 
believes the provisions of the law are unenforceable?
    Answer: No. The Service is first attempting to ensure that it 
identifies and addresses conflicts between the Endangered Species Act 
and Public Law 99-625. The sea otter translocation program was intended 
to be a primary recovery action for southern sea otters. By 1993, fewer 
than 15 otters remained in the translocation zone, a few otters were 
known to be in the management zone, and there was concern that several 
otters died as a result of being moved. At that time, the Service met 
with the California Department of Fish and Game to discuss management 
options as indicated by Public Law 99-625. The Service subsequently 
stopped moving otters to the translocation zone and removing sea otters 
from the management zone. When large numbers of sea otters began to 
seasonally move into the management zone in 1998, the Service conferred 
with the State and the Marine Mammal Commission, held public workshops, 
and initiated formal reviews of the translocation program. On January 
22, 2001, a notice of policy regarding capture and removal of southern 
sea otters in the designated management zone was published in the 
Federal Register (66 FR 6649). This notice identified conflicts between 
our mandates under the Endangered Species Act and Public Law 99-625, 
and our intent to fully reevaluate the translocation program through 
the National Environmental Policy Act process. If, after reevaluating 
the program, it becomes evident that Public Law 99-625 needs to be 
amended, the Service will certainly return to Congress with 
recommendations for such amendments.

    Question 8: This experimental population experience may be viewed 
by some as a precedent that should concern the FWS. The commercial 
fishing industry entered into negotiations which led to P.L. 99-625 
with the understanding that steps would be taken by FWS to minimize the 
impact of the experimental population on the commercial industry. It 
appears to some that FWS has ``walked away'' from those commitments and 
the law. If that is so, why will other industry groups, such as 
farmers, enter into agreements for experimental populations or 
reintroduction efforts by FWS if there is a potential that FWS will at 
some point ``walk away'' from commitments to protect those industries? 
How does FWS intend to deal with the cumulative impacts on the 
commercial fishing industry of the decision to stop enforcing 
provisions of the law requiring removal of sea otters from the 
management zone?
    Answer: The Service does not believe that it walked away from its 
commitments to the southern sea otter translocation plan. Instead, it 
is the Service's view that the plan must be reviewed in light of new 
information gained since the translocation began. As noted above, the 
plan was intended to be a primary recovery action for the southern sea 
otter and a strategy to minimize, to the maximum extent feasible, 
conflicts between the experimental population and fisheries in the 
management zone. The Service is committed to reevaluating the program 
under the NEPA process with ample opportunity for public input and 
participation. This ongoing decision-making process will fully involve 
all affected stakeholders, and will help frame the debate so that this 
matter can be resolved in a manner that is based on sound science.

    Question 9: What is the carrying capacity of the current range of 
the southern sea otter (since the regulations define the carrying 
capacity for the translocation zone, FWS should be able to calculate it 
for the current range)? Has FWS calculated the carrying capacity for 
the current range? If not, why not? Has the parent population exhibited 
the characteristics of a stable population?
    Answer: An estimate of carrying capacity for the California coast 
was recently calculated to be 15,941 sea otters (Laidre et. al. 2001). 
This estimate was based on the assumption that several sections of the 
current range of the sea otter are at carrying capacity.
    The parent population counts declined between 1995 and 1999, but 
appear to have stabilized somewhat in 2000 and 2001.

    Question 10: At what point will the population trends flatten out 
or begin to decline because of lack of food?
    Answer: Without restraints, it is expected that the population 
would continue to grow and expand its range until it reached the 
carrying capacity for the environment. As noted above, for California 
this is estimated to be approximately 16,000 animals. Laidre et. al. 
(2001) determined carrying capacity by reviewing recent counts of 
southern sea otters in their current range, identifying portions of the 
range that were believed to be at carrying capacity, and characterizing 
the available sea otter habitat throughout California. Their estimate 
is consistent with estimates based on scant historic records that 
indicate the historic population was between 16,000 and 20,000 animals.

    Question 11: Do sea otters feed on any endangered, threatened or 
candidate species of shellfish? Is there any evidence that this species 
is adversely affecting commercial fisheries?
    Answer: Sea otters are known to prey on abalone. The white abalone 
is currently listed as endangered and the black abalone is now 
considered a candidate species. The white abalone is found in deeper 
waters of southern California and was listed as the result of 
commercial over-harvesting. Black abalone numbers in southern 
California are severely depressed as the result of a disease called 
withering foot syndrome. The white abalone's deep water habitat may 
effectively protect it from significant predation by sea otters. Sea 
otters do prey on black abalone when available, but it is important to 
note that sea otters and abalone evolved together over thousands of 
years.
    Sea otters can have a profound effect on commercial shellfisheries. 
In areas where sea otters become established, commercial shellfisheries 
that target shallow water species are not likely to be successful. It 
appears that many of today's successful shellfisheries are the direct 
result of extirpation of sea otters from large portions of their range.

    Question 12: If the experimental population is declared a failure, 
the USFWS is then required to remove all sea otters from the management 
zone and the translocation zone. What plans does USFWS have to 
implement this relocation effort?
    Answer: The Service is currently re-evaluating this program through 
a supplemental EIS. When this process is complete, a determination will 
be made as to whether or not the experimental population has been a 
failure, and appropriate decisions will be made regarding the fate of 
the colony.

    Question 13: Mr. Rebuck testified that FWS is allowing the 
threatened southern sea otter's range to overlap with the habitat for 
the now endangered white abalone. If this is so, are the animals moving 
into the abalone habitat from the parent population or are they animals 
from the translocated population? How does the agency plan to deal with 
this situation? Will the agency begin removing sea otters from the 
habitat range of the abalone? If so, won't this be as difficult as the 
removal of the sea otters from the management zone which FWS determined 
it was unable to do? Won't this effort to remove animals from the 
habitat of the abalone jeopardize the continued existence of the 
southern sea otter? How does MMPA and/or the ESA deal with such a 
situation?
    Answer: The Service does not believe that there will be a conflict 
between recovery of the white abalone and the recovery of the southern 
sea otter. The white abalone is found in deeper waters of southern 
California and was listed as the result of commercial over-harvesting. 
The white abalone's deep water habitat may effectively protect it from 
significant predation by sea otters. Sea otters and abalone evolved 
together over thousands of years, thus it is unlikely that sea otter 
predation alone could lead to the extinction of abalone species.
    The National Marine Fisheries Service cited human harvest as the 
primary cause of decline of white abalone populations when they listed 
the species. White abalone generally inhabit deep rocky habitat from 60 
to 200 feet deep (California Department of Fish and Game, 2001) whereas 
southern sea otters usually forage at depths less than 75 feet (Wild 
and Ames 1974; California Department of Fish and Game, 1976; Estes, 
1980). Although there is some overlap between the foraging range of the 
sea otter and the habitat of the white abalone there is no evidence to 
suggest that sea otter predation would drive the white abalone to 
extinction. In a study of abalone species commonly found at sea otter 
foraging depths, Hines and Pearse (1982) presented evidence showing 
that the abundance, size, and species composition remained stable in an 
area occupied by sea otters for nearly 20 years, although density and 
average size of abalones were substantially reduced when compared to 
areas not occupied by otters. This indicates that sea otters may 
preclude commercial harvest of abalone without adversely affecting the 
viability of the abalone population.

    Question 14: Is there an estimate for the population at which the 
sea otters will be considered recovered?
    Answer: The current draft revised recovery plan estimates that a 
minimum population of 2,650 southern sea otters would be required to 
consider delisting under the Endangered Species Act. (Of course, 
evidence of attaining a minimum population size by itself is not 
ordinarily sufficient to justify a delisting action. All threats posed 
to the subspecies that cause it to be likely to become endangered in 
the foreseeable future throughout all or a significant portion of its 
range must be resolved before delisting occurs.) The Service continues, 
however, to consider public comments received on the draft plan.

    Question 15: How long will the evaluation take for the Service to 
make a determination on what to do with the translocated sea otter 
population?
    Answer: The Service expects to complete a draft supplemental 
environmental impact statement this year. Following public hearings, a 
written comment period, and revision as necessary, a final document is 
expected sometime next year. A decision on the future of the 
translocation program will be made upon completion of a final 
supplemental environmental impact statement.
           questions from ranking member robert a. underwood
    Question 1: You say that there is an on-going decision-making 
process on the issue of Public Law 99-625 to attempt to rectify the 
problems translocation has created. Could you please explain what this 
process is and if there is an associated timeline?
    Answer: The Service is currently preparing a supplement to its 
original environmental impact statement on translocation of southern 
sea otters, published in 1987. The supplement will update information, 
reevaluate the existing translocation program, and analyze our options 
for the program. We expect to complete that draft supplement this year. 
Following public hearings, a written comment period, and revision as 
necessary, a final document is expected sometime next year. A decision 
on the future of the translocation program will be made upon completion 
of that final document.

    Question 2: Environmental organizations have expressed the 
necessity for finalized plan for Southern Sea Otters to help facilitate 
cooperation been these groups and fishermen. Is there any current 
schedule for a finalized plan to be reviewed and released?
    Answer: The existing recovery plan for southern sea otters was 
published in 1982. The Service has already circulated several draft 
revised recovery plans for review and expects to publish a final 
revised plan sometime next year.
                                 ______
                                 

   Responses from Kaitilin Gaffney, California Central Coast Program 
                     Manager, The Ocean Conservancy

               questions from chairman wayne t. gilchrest
    1. P.L. 99-625 was created to deal with the conflict between 
fishermen and the translocated population. You now advocate canceling 
this agreement. How do you propose commercial fishermen be compensated 
for the cancellation of the agreement? Since you advocate allowing the 
sea otters to reclaim this territory that P.L. 99-625 designated as an 
``otter-free zone'' what would your organization be willing to bring to 
the table to accomplish this?
    Answer: P.L. 99.625 was enacted, first and foremost, as a means to 
promote the recovery of the southern sea otter, Within that context, it 
sought to address the interests and concerns of numerous interest 
groups, including environmental groups and fishing interests, among 
others. P.L. 99-625 envisioned a fundamental balancing act - successful 
establishment of a large and thriving population of sea otters at San 
Nicolas Island in exchange for a management zone. The San Nicolas 
Island population has not succeeded; indeed, it has unfortunately been 
a dismal failure. In addition, it is now recognized that enforcing the 
management zone will not only impede recovery, the very purpose of P.L. 
99-625, but also jeopardize the species with extinction. Under these 
circumstances, this does not amount to ``cancellation of the 
agreement.'' Bringing an end to zonal management under P.L. 99-625 is 
not, as the question implies, a decision by the environmental community 
to ``cancel'' a viable and continuing program established by agreement 
with the fishing industry. It is the result compelled by law due to the 
failure of the program itself and the devastating effects enforcement 
of the management zone would have on sea otters. To leave the program 
in place would give the fishing interests the benefit of P.L. 99-625 
and the artificial limitation on range expansion it established without 
any commensurate benefits bestowed on the species and environmental 
interests. We support enforcement of the law and termination of zonal 
management, as requited by the ESA and P.L. 99-625 and its implementing 
regulations.
    The Ocean Conservancy believes that it is premature to discuss 
compensation for fishermen for the revocation of P.L. 99-625. As noted 
above, P.L. 99-625 is not being ``cancelled.'' The program it 
establishes must be terminated as a matter of law. Certainly, the 
fishing groups are not entitled to any compensation, as they have no 
property rights at interest or that are affected. Should the Congress 
be interested in considering a compensation package, we would address 
such a possibility at that time, recognizing again there is no 
entitlement to such payment.
    With regard to negotiations with the fishing industry, The Ocean 
Conservancy's goal is to devise strategies that will meet the objective 
mutually agreed upon during talks with the fishing community: 
``maintain well-managed and abundant fisheries, healthy marine 
ecosystems, and recover the southern sea otter population.'' We are 
currently in discussions with representatives from the environmental 
and fishing community and Sea Grant about potentially resuming our 
earlier talks in the hope that we may refine and further develop the 
strategies outlined in our testimony. These talks had been proceeding 
productively until a segment of the fishing industry filed a lawsuit to 
enforce the management zone, despite the fact that such action would 
violate P.L. 99-625 and the ESA. Those groups have now withdrawn the 
case, and we are willing to engage in discussions again. Of particular 
importance is research to develop and test devices to enhance protected 
habitat for commercial shellfish-specifically pilot projects to create 
artificial shellfish refugia and cryptic habitat that is accessible to 
divers but inaccessible to sea otters. Projects such as this will allow 
fishermen and otters to coexist and avoid the need for compensation.

    2. Your organization advocates non-lethal technology for deterring 
California sea lions and harbor seals, yet you are opposed to the use 
of any technology that could ``harm'' other marine life, Has your 
organization suggested any potential technology to accomplish these two 
goals? Would your organization be willing to contribute to the 
development and testing of any new promising technologies?
    Answer: There has been an overall lack of dedicated research into 
non-lethal deterrents; as a result there is no single deterrent that 
will safely and consistently deter marine mammals from gear, catch, and 
predation on threatened and endangered salmon runs. While this is a 
shortcoming of both the MMPA and its implementation, The Ocean 
Conservancy continues to believe that the best hope to address pinniped 
interactions with salmonid stock and fishermen is to develop safe, non-
lethal deterrents. To further this goal, we recommended in our written 
testimony an amendment to the MMPA to provide for an aggressive and 
dedicated research program to develop and test safe, non-lethal 
deterrents. The amendment calls for the development of a research plan 
through the collaborative efforts of federal agencies, 
environmentalists, fishermen, pinniped biologists, and scientists with 
specialized technical backgrounds. The amendment would also require 
that National Marine Fisheries Service implement the research plan and 
provide a report to Congress. Finally, in addition to congressional 
appropriations, the amendment provides for private contributions. The 
Ocean Conservancy would be willing to contribute financially toward the 
testing of potential deterrents identified through this process.

    3. How do you develop a ``range'' of deterrents, as suggested at 
the hearing, when environmental groups threaten to sue the agency if it 
even issues permits to test certain technologies that have been shown 
to be effective in other countries?
    Answer: Since 1994 both marine mammal researchers and environmental 
groups have expressed concerns about the research protocols, plans, and 
testing of certain technologies to deter marine mammals pulse power and 
some acoustic deterrents). Therefore it is vital to devise a research 
plan that has been developed collaboratively among a broad array of 
user groups and that has their support. Formulating plans in this way 
will reduce the odds that there will be litigation to prevent the 
undertaking of agreed-upon research and may even result in broad 
support for the research plan's goals and objectives.
           questions from ranking member robert a. underwood
    1. The Ocean Conservancy has worked extensively with fishermen on, 
the issue of sea otters and their recovery and continued survival. What 
sorts of issues have the two groups agreed on and what actions do both 
agree need to be taken by FWS?
    Answer: The Ocean Conservancy and Friends of the Sea Otter 
participated in two meetings with the fishing industry. At the first 
meeting the group established as an objective: Maintain well-managed 
and abundant fisheries, healthy marine ecosystems, and recover the 
southern: sea otter population. At its second meeting the group began 
to outline tasks within an overall action plan to achieve the 
objective. The group has yet to determine the details associated with 
each task, but the general outline is as follows:
     LSupport State funding for ecosystem health monitoring to 
identify trends and events affecting otter and shellfish populations;
     LModify fishing gear to avoid sea otter entrapment;
     LDevelop and implement a sea otter health assessment to 
obtain valuable information on the health status of wild southern sea 
otters;
     LSecure Federal, State, and private funding to implement 
the Southern Sea Otter Recovery Plan;
     LEnhance shellfish recruitment and harvest within and 
beyond the sea otter range through the development of pilot projects 
for creation of artificial shellfish refugia and cryptic habitat;
     LMap fisheries and key facilities within current and 
potential otter range to effectively and cooperatively develop adaptive 
conservation and management strategies allowing for the co-existence of 
fisheries and sea otters;
     LUndertake research to develop predictive models to assess 
the impact of sea otter movements on fisheries and the ecosystem to 
devise adaptive management strategies to address otter range expansion; 
and
     LIdentify mitigation measures targeted at fisheries that 
could be adversely affected by sea otter range expansion to reduce 
potential adverse impacts on certain fisheries and mariculture 
projects.
    Both the fishing industry and the conservation community have 
expressed an interest in resuming these discussions that were stalled 
due to the litigation. The Ocean Conservancy believes that these action 
items provide a possible basis to continue these discussions. Should 
these talks resume, participants will likely involve the U.S. Fish and 
Wildlife Service as well as State management agencies in our efforts to 
reach consensus on an action plan that will benefit both sea otters and 
fisheries.

    2. The Ocean Conservancy is strongly opposed to site-specific 
management of pinnipeds. However, you support Section 120 and how it 
was used at Ballard Locks. Does this mean that The Ocean Conservancy 
does support lethal removal where necessary and proven?
    Answer: The Ocean Conservancy asserts that NMFS' proposal for site-
specific management is unnecessary and unjustified. NMFS's proposal 
would short-circuit the MMPA's existing provisions and significantly 
lower the burden of proof to justify lethal removal of pinnipeds. The 
Ocean Conservancy believes that a blanket authorization to States for 
the immediate use of lethal removal is contrary to the precautionary 
protection goals and objectives of the MMPA, will not guarantee that 
these pinnipeds receive the protections afforded by the MMPA, and fails 
to recognize that lethal removal is a flawed management tool. Section 
120 of the MMPA already establishes the appropriate procedures for 
lethal removal of California sea lions or Pacific harbor seals where 
specific animals are preying upon ESA-listed species The Ocean 
Conservancy firmly believes that Section 120 provides the flexibility 
to conserve salmonid stocks and establishes the appropriate burden of 
proof to demonstrate both that pinnipeds are having a significant 
negative impact on the decline or recovery of salmonid fishery stocks 
and that all reasonable and prudent non-lethal measures have failed. 
The Ocean Conservancy would only support the lethal removal of 
pinnipeds provided it is a consensus decision arrived at through the 
implementation of the provisions of Section 120.

    3. Has The Ocean Conservancy been involved in developing non-lethal 
deterrence measures for marine mammals, and if so, what sort of 
technologies have been studied?
    Answer: The Ocean Conservancy has not been directly involved in the 
development of non-lethal deterrence measures for marine mammals. 
However, we have participated in meetings with the fishing industry 
where we have reviewed the efficacy of existing measures. We believe 
that to invent a effective non-lethal deterrent, interest groups must 
develop and undertake a dedicated and aggressive research plan. In 
doing so, interest groups must engage scientists from other fields of 
study, such as acoustical and electrical engineering, to explore new 
technologies to achieve this goal.
                                 ______
                                 

    Responses from Dr. Hal Whitehead, Killam Professor of Biology, 
           Dalhousie University, Halifax, Nova Scotia, Canada

               questions from chairman wayne t. gilchrist
    1. How does the cumulative effect of all the noise in the ocean 
affect the environment? How loud is the ocean without human-caused 
noise?
    This depends on the frequency of the noise. At frequencies between 
about 20-300Hz human-caused noise dominates ocean noise. At lower, and 
higher, frequencies, human-caused noise sometimes dominates. As far as 
the loudness of the ocean without human-caused noise, I refer you to 
the work of Wenz (1962; ``Acoustic ambient noise in the ocean: spectra 
and sources'' JASA 34:1936-1956).

    2. Has there been a pattern of increasing noise in the world's 
oceans over the past few decades? What are the sources with the 
greatest contribution to this increase?
    Yes there has been an increase. Shipping and seismic activity are 
important sources.

    How does this increase affect marine mammal populations, and how 
widespread are these effects?
    We have almost no idea how this increase affects marine mammal 
populations, nor how widespread such affects, should they be occurring, 
might be. We have too little ability to monitor most marine mammal 
populations. There are a few populations which we know have been 
increasing over the last few decades (e.g., northern elephant seal, 
North Atlantic humpback whale). For these populations we can say that 
increased noise has not been a debilitating threat. Other populations 
are less healthy. For instance the northern right whale, living in a 
noisy environment, is in severe difficulty, whereas the southern right 
whale, living in quieter oceans, is recovering well. This difference 
might be due to noise or it might not, or noise may be just one of 
several contributory factors.

    3. The MMPA defines harassment very broadly, including minor 
behavioral modifications. Should the definition be changed to include 
only those activities that may present long-term impacts to individuals 
or populations?
    The problem is that apparently ``minor behavioral modifications'' 
may have long-term impacts, and, conversely, what appear to be major 
short-term reactions may have no long-term effect. An example of the 
former is the mild-startle reaction of caribou to low-altitude jets 
which was found to cause important long-term effects (F.H. Harrington 
and A.M. Veitch. 1991, 1992. Arctic 44: 318-327, 45: 213-218). My 
feeling is that the MMPA currently does a reasonable job of minimizing 
impacts on marine mammals, but clearly it needs to be used sensibly so 
that important human activities are not senselessly restricted because 
of what are obviously trivial impacts on marine mammals.

    4. How do we evaluate long-term effects versus short-time effects?
    Long-term effects are much harder to determine as they need long-
term data sets, which are rare.

    5. Can ship noise be worse for the animal than an interaction with 
a sonar test?
    We do not know. I suspect that it depends on the species, the 
location, and what the animal is doing. For instance ship noise might 
interfere with the breeding signals of a blue whale, whereas we know 
that sonars are particularly dangerous for beaked whales. The evidence 
is more conclusive for sonars, but that does not mean that ship noise 
is not dangerous.

    6. How are [the beaked whale stranding data] statistically relevant 
if they are over such long time periods?
    The length of the time period has no impact on the statistical 
relevance of the data. It might have an impact on the biological 
relevance. One could argue that, even if, as seems clear, military 
activities harm beaked whales, such numbers (49 beaked whale strandings 
and 6 mixed-species beaked whale strandings) over such a long time 
period would not have much affect on the populations of the species. 
However, if only a small proportion of the animals affected by military 
activity are reported as stranding, as seems highly likely, then these 
data represent the statistically significant tip of a lethal iceberg.
           questions from ranking member robert a. underwood
    1. As a scientist, how long would you need to collect data on a 
species before long-term effects of SURTASS LFA on a population would 
be able to be quantified?
    This depends on how strong the effect is and how well we are able 
to measure it. For instance, if we do annual surveys with a precision 
of CV=0.2 (this means we are roughly 95% certain that the estimate is 
within 40% of the true value; this is pretty good for a survey of 
whales or dolphins), then to detect population changes of a few percent 
per year (which are what we would normally expect for such a 
population) then we would need about ten years of surveys (T. 
Gerodette. 1987. Ecology 68:1364-1372).

    2. Working under a precautionary theory, how much could be done to 
various species of whales before an impact such as naval sonar would be 
too much for them to recover from, in terms of population size?
    This depends on how the sonar affects the whales. If it causes 
sudden mass mortality of localized populations, as suggested by the 
incident in the Bahamas, and other data on beaked whales, then one 
application of the sonar could be enough to destroy a population. With 
more dispersed populations (such as those of sperm whales), and/or less 
dramatic impacts (for instance if use of sonar increased miscarriage 
rates), then it might take many, and/or widespread, applications of the 
sonar to produce a non-reversible effect on the population.

    3. If you have followed the scientific evidence presented on navy 
sonar systems and SURTASS LFA, how much more research do you feel 
should be done before any conclusive decisions on future use are made?
    I think there is enough evidence available to strongly suggest that 
future use of SURTASS LFA is unwise. Because we cannot get at the main 
areas of concern with current scientific methodology, more research is 
unlikely to clarify things much.
                                 ______
                                 

  Responses from Dr. Naomi Rose, Marine Mammal Scientist, The Humane 
                      Society of the United States

               questions from chairman wayne t. gilchrest
    1. How does the cumulative effect of all of the noise in the ocean 
affect the environment? How loud is the ocean without human-caused 
noise?
    In 1996, the Marine Mammal Commission (MMC) summarized the 
potential range of impacts that the Navy's SURTASS LFA sonar could have 
on marine mammals. The MMC's summary is also useful in describing the 
general impacts that ocean noise might have on the marine environment:
        [A]ll species and populations of marine mammals could possibly 
        be affected. The possible effects could include: death from 
        lung hemorrhage and other tissue trauma; temporary or permanent 
        hearing loss or impairment; disruption of feeding, breeding, 
        nursing, acoustic communication and sensing, or other vital 
        behavior ; annoyance and subsequent abandonment or avoidance of 
        traditional feeding, breeding, or other biologically important 
        habitats ; psychological and physiological stress, making 
        animals more vulnerable to disease, parasites, and predation; 
        and changes in the distribution, abundance, or productivity of 
        marine mammal prey species and subsequent decreases in both 
        individual marine mammal survival and productivity and in 
        population size and productivity.
    There are relatively few places left in the ocean where 
environments are acoustically pristine. Researchers, in their search 
for such places, usually travel to the southern hemisphere, where 
commercial, military, and industrial noise is less prominent and 
widespread. The ambient noise spectrum that Wenz (1962) constructed, 
based on years' worth of data from the mid-20th century, suggests that 
low frequency noise drops below 40 dB re 1 mu Pa2, at least in calm 
seas. By comparison, in well-trafficked areas in the ocean, the average 
level of ambient noise in these low frequencies can easily exceed 90 
dB. At a recent conference on marine mammal biology, Dr. Peter Tyack 
suggested that on average world wide, human-caused noise has added 20-
30 dB to the ambient noise level of the ocean in the last century or 
so.

    2. Has there been a pattern of increasing noise in the world's 
ocean over the past few decades? What are the sources with the greatest 
contribution to this increase? How does this increase affect marine 
mammal populations, and how widespread are these effects?
    See above (1). There has definitely been a pattern of increasing 
noise in the world's oceans over the last century, with a substantial 
part of that increase occurring since World War II. Ross (1993) 
compiled data from a number of deep-ocean receivers in the US Navy's 
SOSUS system (a passive listening network that the Navy relied on to 
detect foreign submarines throughout the Cold War) and found that, on 
average, ambient noise in the low frequencies increased by 10 dB, or 
one full order of magnitude, between the years 1950 and 1975 alone. The 
data examined by Andrew et al. (2001), all taken from a single receiver 
located off Point Sur, California, indicate that an 8-dB rise occurred 
over the same frequencies between the years 1965 and 2000. It has been 
suggested that the average rise in ambient noise attributable to 
shipping alone may be as high as 16 dB, which represents a 40-times 
increase in magnitude (Clark et al. 1998).
    Shipping is believed to be the major contributor to this overall 
increase in ambient noise. It might be noted for context that the 
number of ships in the world's merchant fleet nearly tripled in the 
years since 1952; during the same period, the gross tonnage carried by 
these ships increased by a factor of five, indicating a trend toward 
the use of larger vessels (Cuyvers 1984), which would tend to have 
greater noise output.
    There are other sources of noise pollution that, while not as 
ubiquitous as shipping, tend to dominate the regions in which they are 
found. Oil, gas, and mineral exploration and production are 
concentrated in areas such as the Gulf of Mexico and the North Sea. 
Noise pollution created by this industry may increase in the next few 
years as new technology in seismic exploration, which allows industry 
to explore deeper fields on the outer continental shelf, comes on-line. 
There is also concern regarding the expanding use of high-intensity 
active sonar by the military, of course. This trend is characterized by 
the introduction of new active sonar systems (SURTASS LFA is only one 
of these), the proliferation of low frequency systems in NATO 
countries, and the expansion of active sonar into littoral (near-shore) 
waters, which are also principal habitat for many marine mammals.
    Dr. Peter Tyack, as noted above, gave a plenary address at the 
recent marine mammal biology conference (sponsored biennially by the 
Society for Marine Mammalogy) on ocean noise and its impact on marine 
mammal habitat. I would recommend contacting him for his notes on that 
address, as they gave an excellent overview of the current status of 
the marine environment vis-a-vis human-caused noise.
    Most of the research conducted thus far on the environmental 
impacts of human-caused noise has focused on short-term effects 
(usually measured as observable behavioral responses or temporary 
threshold shifts in hearing) in individual animals. Of course, short-
term effects are more easily observed than long-term effects and 
individual responses more measurable than those at the population 
level. Some data on population impacts have begun to emerge, however. A 
15-year study undertaken by Morton and Symonds (2001) found that, with 
the advent of acoustic harassment devices (AHDs) loud sound sources 
designed specifically to drive predators, in this case seals and sea 
lions, away from fish farm pens and other such sites a vulnerable 
population of orcas (killer whales) completely abandoned a primary 
feeding segment of its habitat. In addition, harbor porpoise also left 
the area. Neither of these species were the targets of the harassment 
they do not prey on farmed fish. Once the devices were turned off 
(after five years of use), some orcas began to return, but others have 
not.
    Habitat abandonment has also been observed in gray whales, 
attributable both to industrial noises simulated by researchers in Baja 
California (Jones et al. 1994) and, in a separate study, to the use of 
airguns for oil exploration in the Sea of Okhotsk (Brownell et al. 
2001). As Dr. Darlene Ketten noted in her testimony before the 
Subcommittee, preliminary data obtained from stranded animals in the 
North Sea suggests that man-made noise, including the industrial noise 
from oil and gas exploration and production, may be causing injuries 
and strandings across a number of species there.
    It is not necessary for noise pollution to endure for long periods 
in order for it to have adverse population-level impacts. Some marine 
mammal populations may be very seriously affected by intense transient 
sources. The best-known case of this is the March 2000 mass stranding 
of beaked and baleen whales I mentioned in my testimony. This mass 
stranding, as I noted, has been strongly linked to the use of mid-
frequency active sonar use by transiting Navy vessels (the final report 
on this incident is due on December 14). An entire resident population 
of Cuvier's beaked whale that had been photo-identified and followed 
for some years by researchers has since disappeared from the area 
(Balcomb and Claridge 2001).
    In summary, human-caused ocean noise appears already to have 
affected populations of marine mammals, whether through habitat 
abandonment, auditory injury, behavioral disruption, stress, or other 
causes.

    3. The MMPA defines harassment very broadly, including minor 
behavioral modifications. Should the definition be changed to include 
only those activities that may present long-term impacts to individuals 
or to populations?
    Amending the definition of harassment to include only long-term 
impacts would fundamentally alter the conservative and protective bias 
of the MMPA. When the MMPA was passed in 1972, Congressional intent was 
reflected in the statement in the Congressional Record that ``no steps 
should be taken regarding these animals that might prove to be adverse 
or even irreversible in their effects until more is known.'' Changing 
the harassment definition to require long-term observation before 
impacts (adverse or otherwise) could even be noted clearly conflicts 
with this intent, as well as with the Precautionary Principle. While 
the harassment definition is indeed broad, it also addresses the 
dilemma facing regulators when information is lacking. Rather than 
require scientific certainty before regulatory action can be taken, the 
current definition allows the agencies to act when there is the 
potential to injure or disturb; furthermore, it defines injury and 
disturbance in terms that are empirical, objective, and relatively 
ascertainable through existing methods of research. In other words, the 
current definition allows the agencies to regulate based on the type of 
activity that is proposed rather than on an activity's specific 
effects.
    Proposed amendments to the harassment definition (from the US Navy, 
NMFS and the National Research Council) all require some consensus 
understanding or definition of biologically ``significant'' or 
``meaningful'' disruption, disturbance, or change in behavior. Given 
how little is known about marine mammal biology and ecology, what 
constitutes ``significant'' or ``meaningful'' is a matter of lively 
debate and disagreement; there is no consensus on these issues within 
the scientific community, as the number of expert comments submitted to 
NMFS and the Navy on SURTASS LFA indicate. ,The result of these changes 
would be to introduce ambiguity into the statute, a situation that 
would undoubtedly makemaking the standard more difficult to enforce 
than it currently isregulatory agencies' job far and making it vague 
and uncertain more difficult than it currently isfor users and the 
public. The result is likely to be a reduction in regulatory oversight 
for protected species. The current definition is precautionary and 
requires only that the potential to injure or disturb exists. While 
this regulatory trigger may seem burdensome to members of the regulated 
community, it is also maximally protective of species about which 
little is known and whose responses to human activities in their 
environment is also largely unknown.

    4. How do we evaluate long-term effects versus short-term effects? 
Can ship noise be worse for the animal than an interaction with a sonar 
test?
    Long-term effects require long periods of time to evaluate this is 
a truism that is impossible to avoid. This is precisely why the 
Precautionary Principle was devised and embedded in many environmental 
laws, including the MMPA. Whatever process of evaluation researchers 
and regulators undertake, it must be granted sufficient time to provide 
answers that are adequate for regulatory purposes. At the least, long-
term effects will require longitudinal studies of specific populations 
and individuals, where researchers return to a group of animals 
(hopefully with many individually identified) season after season. Even 
then, it will undoubtedly be difficult to identify causes of any 
observed changes, at the level of the individual or population. A good 
example of this is the current situation with the Aleutian population 
of sea otters, whose numbers are crashing. The downward trend has been 
fairly clearly identified and verified, through long-term observation; 
however, the cause of the trend is still a matter of debate. Even if a 
proximate cause can be isolated, there may be ultimate causes that are 
far more difficult to identify. Unfortunately, science cannot always 
provide answers that will assist regulators, but this is not 
justification for regulators to fail to act.
    Regarding ship noise and sonar, any exposure to human-caused noise 
has the potential to harm marine mammals. Under certain circumstances, 
shipping noise may prove more harmful than sonar sounds, but the 
reverse could be true under differing circumstances, depending on the 
species present, the character of the habitat, the acoustic properties 
of the locale, and the acoustic characteristics of the sound source. I 
do not offer this response to be obstructive it is simply a fact. 
Clearly regulation is uneven at present the solution is not to ease 
regulation of one noise user because another is under-regulated but to 
pursue adequate and effective regulation of all noise users.

    5. Have the marine mammal stranding events that maybe have been the 
result of Navy sonar operations hand any long-term impacts to marine 
mammal populations?
    At this point, it is impossible to say if strandings associated 
with naval maneuvers have had long-term impacts on marine mammal 
populations. Far too little is known about the populations potentially 
impacted. Beaked whales are the least studied and most poorly 
understood of all cetaceans. Baseline population data are largely (and 
in some situations, wholly) lacking. However, in the Bahamas incident, 
a ``long term'' has not passed yet, and even so there is strong 
evidence that the impact was massive (see 2 above). The regional 
population of Cuvier's beaked whales had been relatively well studied 
and after the stranding, all known individuals disappeared from the 
area (and, a full 21 months later, have yet to be re-sighted). Killing 
or displacing an entire population segment can be considered a long-
term and very negative impact.

    6. You cite in your testimony that 8 out of 49 beaked whale 
strandings over a 161-year period (1838-1999) and 7 out of 7 strandings 
over a 25-year period (1974-1999) have been related to sonar activities 
and show that it has an adverse affect [sic] on marine mammals and 
beaked whales specifically. How are these events statistically relevant 
if they are over such long time periods?
    I refer you to Dr. Hal Whitehead's response to this question. I 
would mention that time (that is, the time period examined) in this 
case is not relevant to the data's statistical significance it is not a 
variable when calculating the statistical likelihood of these co-
occurrences. I would also clarify that my testimony did not state that 
these co-occurrences ``show'' that active sonar has an adverse effect 
on marine mammals or beaked whales. I indicated that they provide 
compelling evidence of an adverse impact. As noted above and below (see 
4 and 7), science (and statistics) cannot always provide answers 
science does not, nor can it prove hypotheses. However, the remarkable 
co-occurrence of beaked whale strandings with naval maneuvers only the 
number of observed occurrences is relevant, not the time frame over 
which they occurred , while not proof of cause-and-effect, is extremely 
compelling evidence for it.
            question from ranking member robert a. underwood
    1. Dr. Rose, do you feel enough research could ever be done to 
successfully prove or disprove that LFA sonar has an adverse short and 
long-term impact on marine mammals?
    As noted in my testimony and above (6), science does not prove 
hypotheses. It provides support for or disproves them, but it cannot 
prove them. In order to collect sufficient data to qualify as adequate 
evidence for regulatory purposes, I believe 3-10 years of longitudinal 
observations, following the effects of LFA transmissions on specific 
populations, would be a minimum requirement for any study hoping to 
provide defensible support for the premise that LFA sonar has no 
adverse impact on marine mammals. I have consistently maintained this 
position throughout the regulatory process surrounding LFA sonar. 
However, no study, however long it took, could ever prove LFA sonar had 
no adverse impacts (proving a negative is especially problematic). 
Long-term studies could, however, provide (or fail to provide) 
compelling evidence of such impacts.
    Again, science and technology cannot always (and should not always 
be asked to) provide answers for policy questions. It is becoming 
increasingly clear, from work already done, that human-caused noise in 
general, individually and cumulatively is having adverse impacts on the 
marine environment. Indeed, continuing to research the issue may be 
counter-productive. It may delay precautionary management decisions 
and, in some cases, the research itself may have adverse impacts. At 
some point, policy-makers may simply have to say that one more loud, 
pervasive sound source is too much. There are already too many loud, 
pervasive sound sources in the ocean. Not every impact can be 
adequately mitigated: some activities should simply not be authorized. 
LFA sonar may be one such activity it is not the only one, but it is 
the one currently in question.
                              references:
Andrew, R.K., B.M. Howe, J.A. Mercer, M.A. Dziechiuch, J.A. Colosi, 
        B.D. Cornuelle, B.D. Dushaw, R.C. Spindel, and P.F. Worcester. 
        2001. Ocean ambient sound: Comparing the 1960s with the 1990s 
        for a receiver off California. Paper and abstract presented at 
        the 141st meeting of the Acoustical Society of America, June.
Balcomb, K.C., and D.E. Claridge. 2001. A mass stranding of cetaceans 
        caused by Naval sonar in the Bahamas. Bahamas Journal of 
        Science 8(2): 2-17.
Brownell, R.L., Jr., A.M. Burdin, D.W. Weller, and G.A. Tsidulko. 
        Sakhalin gray whales: Concerns regarding the 2001 Exxon 
        Neftegas seismic surveys. Report to the Russian Ministry of 
        Natural Resources, September 1.
Clark, C.W., P.L. Tyack, and W. Ellison. 1998. QUICKLOOK: Low frequency 
        sound scientific research program, Phase I: Responses of blue 
        and fin whales to SURTASS LFA, Southern California Bight, 5 
        September 21 October 1997. Unpublished, February 27.
Cuyvers, L. 1984. Ocean uses and their regulation. John Wiley & Sons, 
        New York, NY.
Jones, M.L., S.L. Swartz, and M.E. Dahlheim. 1994. Census of gray whale 
        abundance in San Ignacio Lagoon: A follow-up study in response 
        to low whale counts recorded during an acoustical playback 
        study of noise-effects on gray whales. Marine Mammal 
        Commission, Report MM2911023-0.
Marine Mammal Commission. 1996. Comments. Submitted to the Office of 
        the Chief of Naval Operations, U.S. Navy, September 4.
Morton, A.B., and H.K. Symonds. 2001. Displacement of Orcinus orca (L.) 
        by high amplitude sound in British Columbia, Canada. ICES 
        Journal of Marine Science, November.
Ross, D. 1993. On ocean underwater ambient noise. Institute of 
        Acoustics Bulletin (UK) 18.
Wenz, G.M. 1962. Ambient noise in the ocean: Spectra and sources. 
        Journal of the Acoustical Society of America 37(5): 1936-56.
                                 ______
                                 

 Responses from Kurt Fristrup, Ph. D., Bioacoustics Research Program, 
                   Cornell Laboratory of Ornithology

               questions from chairman wayne t. gilchrest
    1. The military activities that occurred in Providence Channel near 
the Bahamas created a sound pressure level that didn't dissipate over 
time and may have trapped various marine mammals causing some to 
strand. Could this type of sound pressure vortex happen in the open 
ocean or was this specific to this type of channel?
    1. The Providence Channel, Bahamas stranding event of 15-16 March, 
2000 occurred under oceanographic conditions that promoted long-range 
sound propagation near the surface (a ``surface duct''). The ocean's 
surface is always a good reflector of sound (though the reflected 
signal is exactly out of phase with the incoming signal). In a surface 
duct, the reflective properties of the surface are combined with an 
upward refracting characteristic at shallow depths (when the speed of 
sound increases with depth near the surface). Thus, sound energy is 
``trapped'' in this surface layer, and the energy does not spread 
equally across all depths. These conditions are relatively common in 
open ocean waters during winter or spring, when strong winds and storms 
thoroughly mix the near-surface waters and solar warming is less 
intense (a thick layer of constant temperature).
    The phrasing of your questions urges a brief digression, for 
clarity. The key feature is that loud sounds do not dissipate with 
distance as they would when no duct is present. In the Providence 
Channel, and in virtually all marine environments of interest, loud 
sounds dissipate very rapidly--with time--when the source is turned 
off.
    In this important respect, sound pollution differs from chemical 
pollution, waste disposal, and global warming. There is no physical 
residue; turn off the source, and the potential for direct impacts 
disappears almost immediately. Extended biological effects can only 
arise from the internal dynamics of behavioral or physiological 
response. No one should dismiss the potential for a delayed response, 
and we have measured one in our humpback research. However, one 
advantageous aspect of regulating ocean noise pollution is that changes 
in policy can translate very quickly into changed environmental 
conditions. There is no physical residue to clean up.

    2. Dr. Ketten mentioned the difference between short-term harm and 
long-term harm to marine mammals caused by sonar. Can you elaborate on 
how the behavior of animals may be affected on the short-term versus 
the long-term? How do we evaluate long-term effects versus short-term 
effects? Can ship noise be worse for the animal than an interaction 
with a sonar test?
    2. Harmful behavioral responses are those that reduce survivorship 
or reproduction. Short-term examples might include flight reactions 
that cause animals to strand, that make animals especially vulnerable 
to predators, or that disrupt mating and nursery areas. Long-term 
examples might include abandonment of special foraging or breeding 
areas, shifts of diving patterns that reduce foraging success or 
migratory efficiency, or chronic stress reactions.
    Some of these examples are hypothetical; and the evidence for 
others is incomplete. However, abandonment has been documented. 
Stranding has occurred, though the mechanism is unclear. Stranding may 
be the behavioral consequence of injury or sensory dysfunction, or it 
could be a direct behavioral response to the acoustic stimulus. We have 
measured many short-term responses to sound broadcasts (brief changes 
in song structure, small changes in migratory paths), but none of these 
would plausibly cause a measurable decline in survivorship or 
reproduction.
    There should be no regulatory distinction between short- and long-
term behavioral impacts, if both are measured in terms of projected 
reductions in survivorship or reproduction.
    In the proposed use of LFA, the potential for long-term responses 
is diminished by the infrequent exposure regime. Chronic noise sources, 
like seismic profiling and shipping noise, raise my concerns regarding 
long-term effects. Long-term effects have been more difficult to 
measure, but new biological and engineering technologies are expanding 
opportunities for extended observations.
    I am more concerned about shipping noise than sonar tests because 
it is extremely difficult to find places and times where shipping noise 
is not a dominant feature of the underwater acoustic environment. Sonar 
tests are restricted in time and space; significant environmental 
degradation due to masking and chronic exposure is much less likely, 
and the number of animals that can be exposed is more limited.

    3. Dr. Ketten testified that marine mammals cannot be harmed by 
sounds that they cannot hear. Other witnesses did not seem to agree 
with that statement. Can you elaborate? Admiral McGinn testified that 
things like lightening and underwater earthquakes could harm the 
hearing of marine mammals. Does this imply that they can ``hear'' that 
sound so it can harm them or is there something other than the 
``sound'' of these natural events which causes the harm?
    3. Organs of hearing are designed to resonate at the frequencies 
the animals perceive, and these tissues are among the most delicate in 
the body. Anatomically, it is logical that these organs would be most 
susceptible to damage. This logic is supported by an evolutionary 
argument. How could an animal evolve an ear that could withstand sounds 
that cause fatal damage to other tissues? If all animals exposed to 
these levels died, how could those with more robust ears be favored by 
natural selection?
    However, it is likely that very intense sounds outside an animal's 
range of hearing can injure or kill. In my opinion, this possibility 
does not rank high as a priority for scientific conservation of marine 
mammals, because it will happen at sound levels above those that 
concern us because of hearing loss effects. In addition, we can 
anticipate that evolutionary and physical factors place limits on the 
potential for unanticipated harm. For frequencies below a species' 
range of hearing, marine animals have constantly been exposed to loud 
transient sounds from natural sources, and must have evolved some 
tolerance for them. For frequencies above the range of hearing, loud 
sounds cannot propagate very far because seawater absorbs their energy.

    4. How does the cumulative effect of all of the noise in the ocean 
affect the environment? How loud is the ocean without human-caused 
noise?
    4. In the Northern Hemisphere, the ocean can often be 10 to 100 
times noisier today than it would have been before power-driven ships 
were in use. The Northern Hemisphere oceans are 10 to 100 times noisier 
than their counterparts in the Southern Hemisphere (where shipping 
traffic is much less dense). It is difficult to ascertain the 
cumulative effects of noise from human activities, because most of our 
behavioral observations have been made in the presence of these sounds. 
Baseline data from ``quiet'' oceans are lacking. Studies contrasting 
marine mammal behavior between the Northern and Southern Hemispheres 
offer a promising opportunities to quantify this problem.

    5. Has there been a pattern of increasing noise in the world's 
ocean over the past few decades? What are the sources with the greatest 
contribution to this increase? How does this increase affect marine 
mammal populations, and how widespread are these affects?
    5. Most of the increase in ocean noise levels has occurred in the 
latter half of this century. Shipping is the dominant contributor, and 
the impulsive sounds from geophysical exploration are audible in a wide 
range of ocean areas. Any effects on marine mammals will be very 
widespread, but the nature and magnitude of these effects have not been 
clearly documented. Abandonment of coastal habitats has been 
documented, but effects in open ocean areas have not been measured. 
Scientific observations in open ocean areas are limited, and there are 
virtually no opportunities for citizen observations to contribute to 
this scientific enterprise.

    6. The MMPA defines harassment very broadly, including minor 
behavioral modifications. Should the definition be changed to include 
only those activities that may present long-term impacts to individuals 
or to populations?
    6. The prior definition of ``any change in behavior'' was a 
biologically unreasonable measure for Level B harassment. Such changes 
can be prompted by any stimulus that occurs above the threshold of 
perception, and many can have no plausible impact on the animals' 
welfare. The most biologically defensible standard for measuring impact 
would be reductions in survivorship or reproduction (as they relate to 
a demographic measure of fitness). However, this will be very 
challenging to measure or estimate. A biologically reasonable proxy 
would be based on energetics: estimating time or energy lost because of 
exposure, in relation to overall time and energy budgets. Risks must be 
evaluated in a comprehensive analysis, considering all human factors 
that degrade these energetic budgets.

    7. Is every avoidance action taken by the animal a bad thing? 
Animals move up and down the water column and do any number of things, 
how do we know that their actions are based on the ill-effects of sonar 
or other naval activities?
    7. Avoidance behaviors may mitigate the impact of human activities, 
by reducing the animal's exposure to the stimuli. However, avoidance 
behavior may also displace animals from critical resources or 
activities, and this ``opportunity cost'' may represent a serious 
threat to the viability of the species.
    It is challenging to determine all of the factors responsible for 
changes in an animal's behavior. However, there are many good examples 
of studies that have examined animal responses to sound broadcasts in 
the broadest possible context. These have clearly demonstrated that 
predictable changes in behavioral patterns can be measured, even for 
animals whose behavioral repertoire is quite diverse.

    8. Have the marine mammal stranding events that may have been the 
result of Navy sonar operations had any long-term impacts to marine 
mammal populations? Dr. Whitehead stated at the hearing that the local 
population of beaked whales was destroyed as a result of the Naval 
activities in Providence Channel. Do you have any knowledge of this 
population?
    8. The Bahamian stranding of beaked whales was unquestionably a 
major blow to the resident population, though reports of its total 
destruction exaggerate what we can confidently infer from the evidence. 
It is not difficult to believe that sighting rates in the area have 
reduced significantly. However, I have no direct experience with this 
habitat or its resident marine mammals.
    It is important to distinguish between the informal reference to a 
local group of animals (a ``population''), and important use of 
``population'' in the contexts of conservation and evolution. The 
latter usage refers to a sustainable group of interbreeding 
individuals. No one can argue that 20 or 30 individuals in a local 
habitat are a closed breeding population. Except for extremely 
endangered species (like the Northern Right Whale), no one can argue 
that infrequent loss of this many animals would have major consequences 
for the genetic diversity and survival of a species.
    As an isolated incident, the Bahamas stranding represents 
environmental damage that should be avoided. It does not represent an 
irreversible loss of evolutionarily significant biodiversity. However, 
if this kind of event were regularly repeated, then the cause would 
raise serious concerns for the scientific conservation of marine 
mammals.
            question from ranking member robert a. underwood
    1. According to your testimony, you are unsympathetic to claims 
that more time and research is needed before deployment of LFA, but no 
long term data has been gathered. If more research was just going to be 
done following the same procedures you used, studying the same time 
frame LFA was used, I might not be sympathetic either, but there still 
seems to be a huge data gap in what happens to marine mammals after 
exposure to LFA over the long-term. This could be coupled with your 
statement on how often a marine mammal might actually be in
    the vicinity of LFA sonar use. But in terms of usage and practice, 
the Navy frequently uses the same areas over again because they chose 
those areas initially for specific regions. Who is to say that some 
groups of whales will not be affected by LFA usage and practice over 
and over again? Why do you feel long-term data on the affects of LFA on 
marine mammals should be done only with the official usage of LFA, and 
not done beforehand?
    Thank you for the opportunity to comment further on the potential 
effects of anthropogenic sounds on marine mammals. As a scientist whose 
research introduces new questions even as it answers old ones, I am 
always enthusiastic about more research. It is my avocation as well as 
my job. My lack of sympathy towards the demands by some environmental 
advocates for more research arises from skepticism that any new results 
would be sufficient to cause these speakers to change their views. The 
essential attribute of science is that ideas and theories can be 
falsified, and are abandoned in favor of new theories that more 
consistently apply to the broadest possible range of observations. I 
can specify results that would cause me to recommend restrictions on 
LFA usage. I have never heard these environmental advocates specify 
results that would cause them to drop their objections. I strongly 
recommend a skeptical attitude towards any call for research (from 
scientists or environmental advocates) that is not accompanied by clear 
statements of how the outcomes could change our understanding of the 
world.
    I agree that we do not know what happens to a marine mammal months 
after exposure to LFA. However, all of the objective evidence suggests 
that there will be no measurable effect. The immediate responses we 
have observed were subtle. None of them were immediately salient to any 
member of our large teams of experienced field observers. Although we 
now have clear evidence of responses from detailed analyses of our 
data, many of these responses are near the fringe of what we can 
identify as statistically significant. None of the observed responses 
lasted more than a couple of hours (after a one hour schedule of 
transmissions). No cumulative effects have emerged from detailed 
studies of the numbers, distributions, and behaviors of animals during 
the several weeks we spent at each field site. Our findings are 
consistent with the extensive peer-reviewed research conducted on the 
effects of the ATOC sound sources.
    I am more concerned about the potential for long-term effects for 
chronic acoustical stimuli, like shipping and seismic profiling, than I 
am about LFA. In the first place, the LFA stimulus is intermittent even 
when the system is in use. Many minutes elapse between transmissions, 
and the sounds are intense in a very limited depth range. Except in a 
few cases, animals would be diving in and out of this range of depths, 
and thus would ``miss'' many of the transmissions. In the second place, 
the LFA system will not be in constant use. Historically, that program 
has been fortunate to mount two or three missions each year, with about 
20 days of broadcasts per mission. In view of the projected usage and 
our scientific findings, I believe that delayed or long-term effects 
are not the most important outstanding questions regarding the 
environmental impacts of SURTASS LFA training missions. (I believe the 
long-term research effort proposed by the Navy should focus on 
exposures at received levels from 150-180 dB, where we must presently 
assume there is risk of significant behavioral disruption, and on deep-
diving animals).
    I should digress briefly to communicate why it is more challenging 
to document a long-term than a short-term response. Many more factors 
must be measured in a long-term study. For example, the idiosyncrasies 
of each year's climatic patterns, fluctuations in food resources, and 
changes in patterns of ocean circulations will pose serious obstacles 
to making general inferences. ``Cultural evolution'' may be a 
significant confounding factor. For example, the songs of a breeding 
population of humpback whales incorporate new features and phase out 
old ones in the course of a season. Changes accumulate across years. 
Similar trends may be observed in other aspects of baleen whale social 
behavior. In addition to a longer temporal scale, such research would 
have to cover vastly greater spatial scales than the LFA Scientific 
Research Program. I do not argue that this research should be dismissed 
because it is so difficult; difficulty can actually increase the appeal 
of a project. However, I think the expenditure of limited scientific 
resources should be allocated based on a comprehensive review of the 
outstanding questions, and it should take advantage of the broadest 
possible base of scientific expertise.
    I do not know if the Navy has a compelling need to repeat training 
exercises at particular locations in the open ocean. I believe it would 
be appropriate for the National Marine Fisheries Service's Office of 
Protected Resources should stipulate certain restrictions on repeated 
use of an area within short spans of time, as a condition of the 
operating permit they issue.
    I do not see any reason why the research into long-term effects 
should not be coordinated with an operationally useful schedule of 
training operations. The same sound broadcasts are necessary for both 
activities. Our experience has shown that the Navy can adapt their 
procedures to meet the needs of research. I am sure that the NMFS 
operating permit will stipulate that operational usage must be 
suspended if credible evidence of biologically significant impact, 
including stranding events, emerges.
    I will close by restating a point I made at the top. It is crucial 
that you distinguish between those who advocate research as an 
expedient delaying tactic, and those who believe we can answer some 
questions and move on to others.
                                 ______
                                 

  Responses from Darlene R. Ketten, Ph.D., Associate Scientist, Woods 
                     Hole Oceanographic Institution

               questions from chairman wayne t. gilchrest
    1. At the hearing you discussed how the beaked whales that beached 
themselves in the Bahamas had trauma to their ears that included 
bleeding from associated tissues (fats in their jaw and tissue 
surrounding the ears). To get a better understanding of what physically 
occurs when a whale experiences sonar at its hearing frequency, is it 
correct to say that a whale's ear can be ruptured by the sonar?
    It would be inaccurate to say at this point that a whale's ear can 
be ruptured by sonar for several reasons. First, without dicing it too 
finely, ``ear'' is a non-specific term. If we break it into relevant 
parts, the question becomes simpler to address. The bony parts of the 
ear are not capable of direct disruption by conventional operating 
parameter sonar, even at the maximum receivable levels that have been 
published. That leaves the softer tissues of the ear, and particularly 
the eardrum and the inner ear elements. The eardrum of whales is 
structured differently from that of land mammals and is highly 
resistant to rupture. In the case of the animals examined, the eardrums 
were poorly preserved and we cannot say if any were damaged, but it is 
unlikely. Intense impulsive sounds can rupture eardrums, but generally 
it requires a sound pressure level that is significantly greater than 
has been estimated for the Bahamian exposures. As for the inner ears, 
no ruptures were found of the soft tissues in any of the ears examined 
from the Bahamian animals. Rather, the membranous divisions of the 
inner ear remained intact. What was found were hemorrhages within the 
inner ear and some associated tissues. These hemorrhages are indeed the 
result of blood vessel ruptures, but at this time it is still unclear 
what is the direct cause of these bleeds. Intense impulses can cause 
hemorrhages but there are also alternative causes possible for 
hemorrhages of this type in strandings. Unfortunately, the jury is 
still out on the precise causes in this case.

    2. You testified that marine mammals cannot be harmed by sounds or 
frequencies outside of its hearing range. Other witnesses did not seem 
to agree with that statement. Can you elaborate? Admiral McGinn 
testified that things like lightening and underwater earthquakes could 
harm the hearing of marine mammals. Does this imply that they can 
``hear'' those sounds so it can harm them or is there something other 
than the ``sound'' of these natural events which causes the harm? Can a 
frequency outside of its hearing range cause adverse effects to other 
parts of a whale's body?
    Taking each question separately:
    re: harmed by sound outside hearing ranges.
    My statement referred to sounds at intensities in the realm of 
sonar emissions. The ear in each species responds to sounds it can 
encode. The ear cannot hear sounds outside that range because the 
tissues are not structured to respond at those frequencies no matter 
what the intensity unless the sound is so intense that it is beyond 
acoustic and in the realm of shock level. To the best of my knowledge, 
there is no evidence of any sound outside the hearing range of animal 
that is damaging to the hearing of that animal, given that the sound is 
not so intense as to be beyond categorization as ``sound. It is 
possible to harm body tissues using sounds at extraordinary frequencies 
and intensities; e.g, in lithotripsy in which an electromagntic impulse 
of exceptional intensity produces a shock wave capable of disrupting 
kidney stones. While there is an acoustic component to this, the shock 
wave is the damaging element and the intensities are far beyond 
anything conceivable from a sonar or conventional acoustic source.

    re: can they ``hear'' those sounds so it can harm them or is there 
something other than the ``sound'' of these natural events which causes 
the harm?
    Certainly the frequencies of lightning cracks is well within the 
range of hearing of virtually all marine mammals. It is not clear how 
much of that sound in air would propogate underwater. As for 
earthquakes underwater, some of the sounds of quakes are likely to be 
perceptible to all species and others that are seismic would be audible 
to very few species. If the animal were in close proximity to such an 
event, there is the possibility of its hearing being damaged because it 
can hear the sound, but as with any sound, the overriding issue is what 
are the received sound characteristics at the animal's head, not what 
is the intensity of the source.

    re: Can a frequency outside of its hearing range cause adverse 
effects to other parts of a whale's body?
    Yes, as noted above, exceptionally intense impulses can traumatize 
other tissues, particularly those areas associated with air cavities.

    3. The military activities that occurred in Providence Channel near 
the Bahamas created a sound pressure level that didn't dissipate over 
time and may have trapped various marine mammals causing some to 
strand. Could this type of sound pressure vortex happen in the open 
ocean or was this specific to this type of channel?
    I am not qualified to answer this question and urge you to redirect 
the question to an acoustical or physical oceanographic expert. From 
what I have read of the hydrographic profiling done in the Bahamian 
case, it is possible for this lamination to occur elsewhere, but I have 
no means of estimating where nor how common or rare such an event may 
be.

    4. Dr. Whitehead testified that none of the beaked whales from the 
population potentially affected by the Bahamas exercise have returned 
to the area. Do you have any knowledge on the status of this 
population?
    To the best of my knowledge, there has been no official published 
report on the rate of resightings or lack of resighting of individuals 
in this population by any of the Bahamian research groups that monitor 
this area. There are several issues to consider in assessing Dr. 
Whitehead's comment. First , we would need to know how many animals 
were regularly sighted in this area, how many were long vs. short-term 
residents that year, and how that compared with previous years. Next, 
we would need to know the typical or at least average resighting rate 
over several previous years. In essence, we need to understand how 
common or how unusual it is to have a lack of resighting of some 
percentage of the population in order to determine the significance in 
this case, given that the animals indeed have not reappeared.

    5. You mentioned the difference between short-term harm and long-
term harm to marine mammals caused by sonar. Can you elaborate on this?
    I believe this is a reference to my comment that we should view any 
impact in terms of its biological significance. While it is regrettable 
for any animal to be harmed, for conservation, our primary concern must 
be the health and well-being of the population. An incident such as the 
Bahamas case clearly had serious consequences in that 7 animals died, 
but in terms of populations and time, this was a limited event. At this 
point, I cannot say whether it represents a significant population 
level impact. Certainly, in terms of mortalities, it is far fewer 
impacts than we see from fisheries by-catch. An example of a longer-
term and more biologically significant impact would be a sound source, 
such as a repeated ship routing through a breeding ground, which would 
induce more subtle but broader ranging and ultimately more harmful 
impacts to more animals through crucial habitat disruption.

    6. How do we evaluate long-term effects versus short-term effects? 
Can ship noise be worse for the animal than an interaction with a sonar 
test?
    Evaluating long and short term effects is a complex question that 
can only be addressed on multiple fronts. Careful observation and 
censusing of wild populations is of course fundamental to understanding 
any changes or disruptions. In tandem with these studies, it is 
important that stranded animals be examined thoroughly and that the 
results be compared longitudinally to detect trends for correlates of 
stress, hearing loss, or other degenerative conditions that may be 
induced by human related sources.
    In my opinion, shipping is certainly an area of concern for 
acoustic impacts on marine environments. It is continuous and pervasive 
in some ocean areas and may be reasonably considered to be analogous to 
industrial noise in the workplace.

    7. Have the marine mammal stranding events that may have been the 
result of Navy sonar operations had any long-term impacts to marine 
mammal populations?
    I am unaware of any evidence to that effect.

    8. Can one look at the ear of a marine mammal and see the damage to 
the cochlear and relate it back to specific events, like sonar 
activity, or does the ear tell a much broader story on the life of the 
animal?
    The answer is a firm perhaps for both cases. The quality of 
preservation of the inner ear tissues is the crucial unknown. If well-
preserved, the inner ear or cochlea does indeed carry an imprint of the 
animal's acoustic history. It is theoretically possible to ``read'' the 
inner ear and observe the number of infectious bouts, distribution of 
cellular losses and sites of traumas, neural loss patterns, etc. to 
piece together some understanding of the broader story both of impacts 
to the ear and disease states of the animal. If an acoustic impact is 
very recent and very intense that also should leave tell-tales in the 
inner ear. However, it is never guaranteed that the evidence will 
remain in any ear by the time it is obtained for study.

    9. Does a deaf whale equal a dead whale? How would a marine mammal 
survive without the ability to hear?
    I can clearly say that a deaf whale is not necessarily a dead 
whale. It is fairly common to find some hearing impairment in marine 
mammals, particularly in older toothed whales. There are multiple 
documented cases of animals with profound bilateral hearing loss that 
survived many years in the wild. It is not clear precisely how these 
animals survived but it is reasonable to speculate that they were in 
part successful by relying more heavily on social interactions and 
utilizing vision more than unimpaired individuals.

    10. Is every avoidance action taken by the animal a bad thing? 
Animals move up and down the water column and do any number of things, 
how do we know that their actions are based on the ill-effects of sonar 
or other naval activities?
    I would urge you to submit this question to a behaviourist for an 
authoritative reply. My reply must be limited to my area of expertise 
which is sensory physiology. From that perspective, an avoidance action 
is a natural, protective activity and in that sense a good preservation 
strategy. Concerning the second issue, whether we can target the cause 
of movements, to do that would require rather extensive and explicit 
monitoring of animals. There are playback and tagging studies underway 
that are beginning to address animal reactions underwater in response 
to sound but the results are preliminary. To the best of my knowledge, 
the presumption of a link to sonar in the Bahamian case is based on the 
temporal coincidence of the strandings and sonar use coupled with the 
rarity of beaked whale strandings in the area and the lack of any other 
likely cause.
            question from ranking member robert a. underwood
    1. You agree that there is insufficient data to ``predict any but 
the grossest acoustic impacts on marine mammals.'' As your testimony 
relates, there are any number of ways marine mammals can be impacted by 
sound. Will there ever be, in your mind, any way to truly understand 
how much marine mammals hear and how they are affected by all sorts of 
sounds over the short and long term?
    Quite firmly, my answer is yes. Once we have a better understanding 
of both the range of hearing for the majority of marine mammals and the 
mechanisms they use for transducing underwater sound, we can certainly 
begin to predict reliably the physiologic effects at the ear. We have 
made exceptional strides both through captive and modeling studies in 
the last five years. Recently, new technologies have appeared for non-
invasive measurement of hearing in human babies and incapacitated 
adults that are ripe for application to marine animals. It will not be 
trivial to modify these methods to work successfully on leviathans but 
it is clearly and unquestionably possible. There are also developments 
in the area of virtual reality visualizations and computerized modeling 
of tissue responses that are applicable to these issues. Interestingly, 
success in both these areas carries the potential for not only 
enlarging our understanding of whale hearing but also of opening a 
whole new approach to underwater sensing technology and environmental 
monitoring.
                                 ______
                                 

 Responses from Chester Gipson, Acting Deputy Administrator for Animal 
    Care, Animal and Plant Health Inspection Service (APHIS), U.S. 
                       Department of Agriculture

                questions from chairman wayne gilchrest
    1. How many inspectors does the Agency have to monitor captive 
display facilities? Out of the total number of inspectors, how many are 
marine mammal specialists?
    APHIS' Animal Care field inspection force of veterinary medical 
officers and animal health technicians is comprised of 81 inspectors, 
reflecting an increase of 17 inspectors in the past 2 years. 
Approximately 60 inspectors have received marine mammal training. The 
training includes information on basic husbandry, anatomy, and 
physiology of all marine mammals, as well as food and food handling, 
water quality, veterinary care, and training issues. Animal Care is 
providing a marine mammal training course for new inspectors in 
February 2002. In addition, Animal Care holds a national work 
conference every 2 years for all inspectors and supervisors. During 
these work conferences, marine mammal issues are presented and 
discussed.

    2. The Suarez Brothers Circus, which is currently in Puerto Rico, 
came up during the hearing and Members were concerned primarily about 
the welfare of the polar bears, but also on the authority of APHIS to 
inspect and enforce the Animal Welfare Act (AWA) and the Marine Mammal 
Protection Act (MMPA). Are changes needed to either Act to give your 
Agency better tools to do its job in protecting captive marine mammals?
    As we indicated in our report, based on direct observation by our 
trained inspectors, there is no veterinary or behavioral indication 
that the animals are currently in a state of unrelieved suffering or 
danger to their health. At this time, based on the information provided 
by our inspectors, these animals are not being mistreated or abused.
    We would like to clarify that APHIS' authority to inspect comes 
from the Animal Welfare Act (AWA), not the Marine Mammal Protection Act 
(MMPA). Administration and enforcement of the MMPA is the 
responsibility of the Department of the Commerce's National Marine 
Fisheries Service (NMFS) and the Department of the Interior's U.S. Fish 
and Wildlife Service (FWS). FWS has responsibility for the polar bears 
under the MMPA.
    We believe the AWA has sufficient provisions to protect marine 
mammals. APHIS has promulgated marine mammal regulations to provide 
minimum standards (as specified in the AWA) for their humane care and 
treatment. The current regulations were developed by a committee that 
included representatives from animal protection groups, industry 
groups, professional groups, and Federal agencies and oversight groups. 
These regulations were promulgated under the Federal rulemaking process 
and reflect the current state of knowledge and experience relating to 
these animals.

    3. APHIS is now being asked to confiscate the polar bears from the 
Suarez Brothers Circus. Does APHIS have this authority? When and under 
what circumstances would APHIS make a determination that these animals 
need to be confiscated?
    The authority to confiscate animals under the AWA is focused on a 
limited set of circumstances.
        Section 16. (a) The Secretary shall make such investigations or 
        inspections as he deems necessary to determine whether any 
        dealer, exhibitor, intermediate handler, carrier, research 
        facility, or operator of an auction sale subject to section 12 
        of this Act, has violated or is violating any provision of this 
        Act or any regulation or standard issued thereunder, and for 
        such purposes, the Secretary shall, at all reasonable times, 
        have access to the places of business and the facilities, 
        animals, and those records required to be kept pursuant to 
        section 10 of any such dealer, exhibitor, intermediate handler, 
        carrier, research facility, or operator of an auction sale. The 
        Secretary shall promulgate such rules and regulations as he 
        deems necessary to permit inspectors to confiscate or destroy 
        in a humane manner any animal found to be suffering as a result 
        of a failure to comply with any provision of this Act or any 
        regulation or standard issued thereunder if (1) such animal is 
        held by a dealer, (2) such animal is held by an exhibitor, (3) 
        such animal is held by a research facility and is no longer 
        required by such research facility to carry out the research, 
        test, or experiment for which such animal has been utilized, 
        (4) such animal is held by an operator of an auction sale, or 
        (5) such animal is held by an intermediate handler or a 
        carrier.
    The regulations promulgated to enact this provision are in 9 CFR 
2.129:
        Sec. 2.129 Confiscation and destruction of animals.
        (a) If an animal being held by a dealer, exhibitor, 
        intermediate handler, or by a carrier is found by an APHIS 
        official to be suffering as a result of the failure of the 
        dealer, exhibitor, intermediate handler, or carrier to comply 
        with any provision of the regulations or the standards set 
        forth in this subchapter, the APHIS official shall make a 
        reasonable effort to notify the dealer, exhibitor, intermediate 
        handler, or carrier of the condition of the animal(s) and 
        request that the condition be corrected and that adequate care 
        be given to alleviate the animal's suffering or distress, or 
        that the animal(s) be destroyed by euthanasia. In the event 
        that the dealer, exhibitor, intermediate handler, or carrier 
        refuses to comply with this request, the APHIS official may 
        confiscate the animal(s) for care, treatment, or disposal as 
        indicated in paragraph (b) of this section, if, in the opinion 
        of the Administrator, the circumstances indicate the animal's 
        health is in danger.
        (b) In the event that the APHIS official is unable to locate or 
        notify the dealer, exhibitor, intermediate handler, or carrier 
        as required in this section, the APHIS official shall contact a 
        local police or other law officer to accompany him to the 
        premises and shall provide for adequate care when necessary to 
        alleviate the animal's suffering. If in the opinion of the 
        Administrator, the condition of the animal(s) cannot be 
        corrected by this temporary care, the APHIS official shall 
        confiscate the animals.
        (c) Confiscated animals may be placed, by sale or donation, 
        with other licensees or registrants which comply with the 
        standards and regulations and can provide proper care, or they 
        may be euthanized. The dealer, exhibitor, intermediate handler, 
        or carrier from whom the animals were confiscated shall bear 
        all costs incurred in performing the placement or euthanasia 
        activities authorized by this section.
    APHIS is responsible for making the determination of suffering or 
immediate threat to the health of the animal. In the case of the polar 
bears in question, there has been no indication of unrelieved suffering 
or threat to the immediate health of the animals.
    The narrow focus of the circumstances allowing confiscation of the 
animals appears to be designed to prevent indiscriminate use of the 
provisions to remove animals based on other than an immediate risk to 
the animals' health.
    It is our understanding that, under the MMPA, the animals could be 
confiscated by FWS if APHIS found that the licensee was not licensed, 
was going to lose his license, or was willingly and willfully going to 
continue to violate the AWA. APHIS, however, has not made such a 
finding in this case. The licensee has continued to work with the APHIS 
inspector to comply with the AWA regulations and standards.
               question from congressman walter b. jones
    There are a number of compelling questions, related to the case of 
the polar bears owned by Suarez Brothers Circus, that I believe need to 
be answered. Regardless of the fact that polar bears probably do not 
belong in a traveling, tropical menagerie, I am alarmed by the threat 
to human safety revealed in APHIS' report dated June 7. The report 
describes that the polar bears were confined in a facility that had a 
wall flimsy enough for the inspector to push over with one hand. Upon 
APHIS' return for a second inspection on June 21, the flimsy wall had 
not been fixed. There was apparently no follow-up inspection by APHIS 
in July, until the Puerto Rican Department of Natural Resources filed 
cruelty charges against the Circus. I would like to hear APHIS' 
explanation on all of this.
    The opportunity for correction of cited noncompliant items is 
afforded to all Animal Welfare Act (AWA) licensees and registrants. 
When issues of structural strength are cited, such as the Suarez 
Brothers Circus' ``flimsy wall,'' APHIS generally works with the 
facility to make sure the corrections are made within the shortest 
possible timeframe. After the first citation on June 7, the licensee 
ordered the materials and equipment needed to comply with the 
recommendations of the APHIS inspector. As noted on the June 21 
inspection report, the materials to strengthen the fencing were on site 
and due to be installed on June 22. The inspection reports for June 22, 
23, 25, and 28, all indicate that the enclosures for the polar bears 
were structurally sound. The facility was in compliance with the AWA as 
of the June 28 report.
    APHIS returned to inspect the facility in July when we were 
notified that the licensee was planning to move the animals to a 
different location. At that time, the facility was compliant with all 
AWA requirements for polar bears. As you indicate, the Puerto Rican 
authorities were at the facility the day before. Local animal cruelty 
laws can be more rigid and restrictive than the AWA. We cannot comment 
on the validity of the cruelty charges as the case has not yet been 
adjudicated.

    I have a letter from Dr. Terry Maple of Zoo Atlanta written to 
APHIS, in which Dr. Maple describes his surprise that APHIS would grant 
the Suarez operation a permit for exhibition. Dr. Maple points out that 
the Suarez Brothers Circus uses doctored records to identify their 
animals and the Suarez Brothers claimed that one of their bears came 
from Zoo Atlanta, when in fact, that bear had died in a German Zoo in 
1994. The use of falsified records is grounds for denying the owners a 
permit for exhibition. So why was one granted?
    Under the AWA, we require that acquisition and disposition records 
for regulated animals identify where the owner acquired the animals and 
where the animals were placed if they left the facility. While we 
require accuracy and truth in the documents, in cases such as the 
importation of these polar bears, we rely on the Department of the 
Interior's U.S. Fish and Wildlife Service (FWS) to determine the 
accuracy of the importation documents.
    FWS reviewed the importation documents for these imported polar 
bears and issued a Marine Mammal Protection Act (MMPA) import permit. 
We are aware that FWS has taken the information supplied by Zoo Atlanta 
and investigated the allegations. Any results of determinations made 
subsequent to their investigation must be obtained from FWS.
    Section 2.11(a)(5) of the AWA states that an initial license may be 
denied if the applicant ``has made any false or fraudulent statements, 
or provided any false or fraudulent records to the Department.'' 
Although the application for licensure under the AWA does not require 
submission of the acquisition and disposition records, a subsequent 
recordkeeping violation, if substantiated, may be grounds for AWA 
enforcement action.

    APHIS, while invited to testify, declined the Committee on 
Resources' request, so I pose this question to my friends with the 
United States Fish and Wildlife Service. I understand that accurate 
records describing the history of the bears is required for import and 
export permits (as well as permits for exhibition). Why was this 
deceptive organization complete with falsified records given an import 
permit for these animals?
    It is true that, because of prior commitments by Department and 
Agency officials, APHIS declined to provide scheduled oral testimony. 
However, APHIS provided written testimony for the 2001 reauthorization 
hearing before this Committee. In addition, Dr. Barbara Kohn, from our 
Animal Care program, was present at the hearing to answer any 
questions.
    As previously indicated, we respectfully defer to FWS regarding all 
questions on the import documentation for these animals, as FWS is the 
Federal agency that has authority for the importation of polar bears 
under the MMPA.

    And what is the status of the export permit?
    FWS is also the Federal agency that is responsible for the 
exportation of the polar bears under the MMPA. Accordingly, all 
questions regarding import and export activities of these polar bears 
would be more appropriately answered by FWS.
                question from congressman frank pallone
    1. Under the Animal Welfare Act (AWA) regulations, variances for 
specific standards may be issued by APHIS. Under the newest marine 
mammal regulations, polar bear primary enclosures must allow the 
animals access to water. During their summer performances in Puerto 
Rico, the polar bears in the Mexican circus were being maintained for 
most of the day in their secondary enclosures their transport cages, 
without access to water. The regional inspector apparently issued a 
variance on this point, because the trainer insisted the bears were 
acclimated to tropical heat. However, the granting of this variance at 
the regional level violated APHIS procedure. How was this allowed to 
happen and what is being done about this procedural violation now? What 
will APHIS do in the future to prevent such a violation from happening 
again?
    We wish to clarify that no variances have been applied for or given 
with respect to Circo Suarez. When the inspector reported the protocol 
the facility planned to use for the polar bears during part of the day 
and most of the night (the use of the secondary or transport cages), 
APHIS consulted with several polar bear husbandry experts and discussed 
the issues of housing and access to water. These experts recommended 
that the bears would require adequate ventilation, access to fresh 
drinking water, and should be separated during feeding for their own 
safety. Based on these recommendations, APHIS determined that the 
secondary arrangements for these polar bears were not inconsistent with 
permanent facilities that house polar bears in terms of confinement at 
night, separation at feeding, and access to enclosure pools during the 
daytime.

    2. Under the Marine Mammal Protection Act (MMPA), a facility/entity 
seeking to import or export marine mammals for public display must 
either have an AWA exhibitor's license or meet APHIS regulatory 
standards (that is, if a facility is foreign, it must meet the 
standards that licensees in the U.S. must meet). Comments submitted to 
the U.S. Fish and Wildlife Service (FWS) during the MMPA import permit 
public comment period for the Mexican circus questioned the issuance of 
an AWA license by APHIS and urged FWS to request APHIS to reconsider 
the license or at least reconsider the material upon which the license 
was based. Apparently, FWS made no such request, yet nevertheless 
issued the import permit. Subsequent to the entry of the Circus into 
Puerto Rico and onsite inspections by APHIS, a number of serious 
violations were cited--some were addressed and corrected while at least 
one--the one regarding the bears' access to water--never was. In short, 
the concerns of the commentors were confirmed--the license was issued 
to an entity that was ultimately incapable of complying with APHIS 
regulations.
    How does APHIS determine that a facility qualifies for a license or 
meets licensing standards? If in-person inspections are not part of the 
process, how can APHIS be certain a facility does and will continue to 
comply with APHIS regulations? Upon what kind of documentation and 
materials does APHIS rely? And how often does a facility that requires 
APHIS approval under the MMPA public display requirements receive such 
approval when in fact it is subsequently determined that the facility 
is in violation--worse, *routine* violation--of these regulations?
    The licensing procedure under the AWA requires submission of an 
application and ``in-person'' physical inspection of the facilities. 
Any noncompliant items found must be corrected and the facility 
reinspected before a license can be issued. Once regional office 
personnel determine that the applicant meets AWA requirements, they 
will issue a license.
    The facilities used by Circo Suarez for the polar bears while in 
the United States were subject to the licensing provisions of the AWA, 
which require onsite inspection of the facilities. The Circus' truck 
unit was brought to Animal Care's regional office in Raleigh, North 
Carolina, for inspection, and the primary enclosure facilities were 
inspected onsite in Puerto Rico. These inspections were performed prior 
to Animal Care's issuance of Circo Suarez' license for exhibition. 
These procedures are the same for all license applicants.
    Following the MMPA public comment period on the application to FWS 
for the import permit, APHIS and FWS discussed issues raised as they 
related to the license by USDA/APHIS. These issues included comments 
forwarded by FWS from the MMC. APHIS also reviewed written materials 
supplied to FWS by the owner of the polar bears; however, provisions of 
the MMPA require only verification of licensure under the AWA.
    If animals are not present during the inspection, all procedures 
and protocols for the animals are discussed and the requirements of the 
AWA are reconfirmed. APHIS has no jurisdiction over prior care in other 
countries, but care and handling requirements while in the United 
States are reaffirmed. Once a facility is licensed under the AWA, it is 
afforded the same due process protections as any other licensee or 
registrant. APHIS determines which violations are considered severe or 
critical and addresses each citation on an inspection report on the 
basis of the alleged violation and the effect on the health of the 
animal.
    Based on the multiple instances of noncompliant items cited at 
Circo Suarez interspersed with inspections without any noncompliant 
items cited, APHIS initiated an investigation in August 2001. Because 
this investigation is ongoing, we cannot discuss the case in further 
detail at this time.

    3. The MMPA allows import permits to be issued for polar bears for 
the purpose of public display as long as the exhibitor holds a license 
under 7 U.S.C. 2131 et. seq. of the AWA. Furthermore, the AWA has 
specific standards for polar bears stating that air and water 
temperatures in indoor facilities shall be sufficiently regulated by 
heating or cooling to protect the marine mammals from extremes of 
temperature, to provide for their good health and well-being, and to 
prevent discomfort. And the AWA requires primary enclosures housing 
polar bears to consist of a pool of water, a dry resting and social 
activity area, and a den. USDA has given Suarez Bros. Circus permission 
to keep its seven polar bears in conditions well below the minimum 
standards of the AWA by allowing the polar bears to be kept in small, 
barren transport cages for up to 65 percent of the time--without access 
to a pool or air conditioning--while in the hot and humid climate of 
Puerto Rico. The circus was charged with cruelty by local authorities 
on August 15, 2001, when the polar bears were found suffering in 113-
degree heat without access to the required pool and air conditioning. 
Congress expects Federal agencies, in this case the USDA, to enforce 
all Federal laws designed specifically to ensure the humane treatment 
of marine mammals. Would the USDA immediately reverse this AWA 
variance, notify the circus that these polar bears may be seized in the 
case of unrelieved suffering, and prepare for confiscation?
    As stated previously, APHIS has not issued a variance for the 
housing conditions of the polar bears at Circo Suarez. In addition, 
APHIS inspectors have found through multiple onsite inspections that 
the facility is in compliance with all appropriate AWA requirements. 
The current charges in Puerto Rico apply to one alleged incident and 
not to a state of unrelieved suffering. If APHIS found the animals to 
be in a state of unrelieved suffering and the owner was unwilling or 
unable to remedy the situation, APHIS would, of course, take all 
appropriate legal action, including confiscation. Nevertheless, given 
the history of the bears having lived and traveled extensively in 
Central and South America for 10 years in apparent good health, it may 
be difficult to determine that climatic conditions in Puerto Rico 
represent circumstances to which the bears are not acclimated. In 
addition, both the primary and secondary arrangements for these polar 
bears are consistent with permanent facilities that house polar bears.

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