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



 
      H.R. 4781, MARINE MAMMAL PROTECTION ACT AMENDMENTS OF 2002
=======================================================================


                          LEGISLATIVE HEARING

                               before the

      SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             June 13, 2002

                               __________

                           Serial No. 107-128

                               __________

           Printed for the use of the Committee on Resources







 Available via the World Wide Web: http://www.access.gpo.gov/Congress/
                                 house
                                   or
         Committee address: http://resourcescommittee.house.gov

                                 _______

                           U.S. GOVERNMENT PRINTING OFFICE
80-172                         WASHINGTON : 2002
___________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001











                         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              Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon                  Hilda L. Solis, California
Michael K. Simpson, Idaho            Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado         Betty McCollum, Minnesota
J.D. Hayworth, Arizona
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                      Tim Stewart, Chief of Staff
           Lisa Pittman, Chief Counsel/Deputy Chief of Staff
                Steven T. Petersen, Deputy Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. 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 June 13, 2002....................................     1

Statement of Members:
    Gilchrest, Hon. Wayne T., a Representative in Congress from 
      the State of Maryland......................................     1
        Prepared statement of....................................     2
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     4
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     6
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia, Prepared statement of..........     3
    Underwood, Hon. Robert A., a Delegate in Congress from Guam..     2

Statement of Witnesses:
    DuBois, Raymond F. Jr., Deputy Under Secretary of Defense, 
      Installations and Environment, U.S. Department of Defense..     6
        Prepared statement of....................................     9
    Fletcher, Robert C., President, Sportfishing Association of 
      California.................................................    48
        Prepared statement of....................................    50
    Hogarth, Dr. William T., Assistant Administrator for 
      Fisheries, National Marine Fisheries Service, National 
      Oceanic and Atmospheric Administration, U.S. Department of 
      Commerce...................................................    21
        Prepared statement of....................................    22
    Jones, Marshall, Deputy Director, Fish and Wildlife Service, 
      U.S. Department of the Interior............................    27
        Prepared statement of....................................    28
    Luedtke, Richard, Commercial Gillnet Fisherman, Mannahawkin, 
      New Jersey.................................................    76
        Prepared statement of....................................    78
    Moore, VADM Charles W., Deputy Chief of Naval Operations for 
      Readiness and Logistics....................................    13
        Prepared statement of....................................    15
    Reynolds, Dr. John E. III, Chairman, Marine Mammal Commission    32
        Prepared statement of....................................    34
    Wetzler, Andrew E., Senior Project Attorney, Natural 
      Resources Defense Council..................................    54
        Prepared statement of....................................    55
    Worcester, Dr. Peter F., Research Oceanographer, Scripps 
      Institution of Oceanography, University of California, San 
      Diego......................................................    81
        Prepared statement of....................................    83
    Young, Nina M., Director, Marine Wildlife Conservation, The 
      Ocean Conservancy..........................................    60
        Prepared statement of....................................    62


















  LEGISLATIVE HEARING ON H.R. 4781, THE MARINE MAMMAL PROTECTION ACT 
                           AMENDMENTS OF 2002

                              ----------                              


                        Thursday, June 13, 2002

                     U.S. House of Representatives

      Subcommittee on Fisheries Conservation, Wildlife and Oceans

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 2:19 p.m., in 
room 1334, Longworth House Office Building, Hon. Wayne T. 
Gilchrest [Chairman of the Subcommittee] presiding.

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

    Mr. Gilchrest. The Subcommittee will come to order.
    Good afternoon, we are convened today on a hearing on H.R. 
4781, the Marine Mammal Protection Act Amendments of 2002, 
which was introduced on May 21st.
    Mr. Gilchrest. The Subcommittee held a hearing on October 
11th, 2001, which was a comprehensive review of the Marine 
Mammal Protection Act and the multitude of issues that may be 
addressed during its reauthorization. We had nearly 20 
witnesses that testified at that time, and many of the 
recommendations are reflected in the legislation.
    Among the issues that were discussed at the hearing were 
the increasing number of California sea lions and Pacific 
Harbor seals and the growing concern about the interactions 
with humans and listed salmon stocks, the movement of the sea 
otter population out of its management zone off the coast of 
California, the use of Take Reduction Teams to reduce 
interactions between commercial fishing activities and marine 
mammal populations, the need for a new Polar Bear Treaty and 
issues of concern to the environmental and public display 
communities. The last topic of the October 11th hearing was the 
use of sonar technology by the Navy, specifically the use of 
Surveillance Towed Array Sensor Low Frequency Array, SURTASS 
LFA, sonar and its impact on marine mammals.
    H.R. 4781 is the starting point for reauthorizing this 
landmark conservation law. The purpose of today's hearing is 
twofold. First, we are interested in hearing whether the 
provisions within this legislation are appropriate, necessary 
or in need of further modification. Second, I would like a 
better understanding of issues not addressed in the bill and to 
see if there are additional issues that require attention.
    I look forward to hearing the testimony of our witnesses 
here this afternoon, and we would like to pursue the next step 
in conservation for the Marine Mammal Protection Act, listen to 
what your suggestions are, what we have put in, what we left 
out, how we can improve it, and we would also like to hear how 
all of this, how humans impacting the oceans, our efforts to 
protect marine mammals and our efforts to protect and defend 
the United States and have the military operate in an 
efficient, functional way, and I am sure doing its part to 
protect the ecosystem.
    I now yield to Mr. Underwood.
    [The prepared statement of Mr. Gilchrest follows:]

  Statement of The Honorable Wayne T. Gilchrest, a Representative in 
                  Congress from the State of Maryland

    Good morning, I am pleased to convene today's hearing on H.R. 4781, 
the Marine Mammal Protection Act Amendments of 2002, which I introduced 
on May 21st.
    The Subcommittee held a hearing on October 11, 2001 which was a 
comprehensive review of the Marine Mammal Protection Act and the 
multitude of issues that may be addressed during its reauthorization. 
We had nearly twenty witnesses that testified at that time and many of 
their recommendations are reflected in the legislation.
    Among the issues that were discussed at that hearing were the 
increasing number of California sea lions and Pacific Harbor seals and 
the growing concern about their interactions with humans and listed 
salmon stocks. The movement of the sea otter population out of its 
management zone off the coast of California. The use of Take Reduction 
Teams to reduce interactions between commercial fishing activities and 
marine mammal populations. The need for a new Polar Bear Treaty and 
issues of concern to the environmental and the public display 
communities. The last topic of the October 11th hearing was the use of 
sonar technology by the Navy, specifically the use of Surveillance 
Towed Array Sensor System Low Frequency Array (SURTASS LFA) sonar and 
its impact on marine mammals.
    H.R. 4781 is the starting point for reauthorizing this landmark 
conservation law. The purpose of today's hearing is two-fold. First, I 
am interested in hearing whether the provisions within this legislation 
are appropriate, necessary or in need of further modification. Second, 
I want a better understanding of issues not addressed in the bill and 
to see if there are additional issues that require our attention. I 
look forward to hearing from our distinguished witnesses and I am 
anxious to obtain your input and suggestions.
    I now recognize the Ranking Member, Congressman Underwood, for his 
opening statement.
                                 ______
                                 

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

    Mr. Underwood. Thank you, Mr. Chairman. I, too, look 
forward to this afternoon's hearing on H.R. 4781, a bill to 
reauthorize the Marine Mammal Protection Act. As we have a 
number of witnesses before us today, I will be brief in my 
remarks.
    Marine mammals are an important part of the ocean ecosystem 
and engage the public's attention and imagination like few 
other animals on earth. In 1972, the MMPA was enacted to 
provide for the protection of marine mammals and to ensure that 
they are maintained or restored to healthy population levels.
    Since the last reauthorization of the MMPA in 1994, a 
number of marine mammal issues have been raised. These include 
the release of captive marine mammals to the wild, large 
increases in the number of people, whale watching, swimming and 
feeding with dolphins, and the Suarez Circus polar bears. Take 
reduction plans, NMFS permit, rules and petitions to list 
Alaskan sea otters and orca whales have also been formulated. 
We have also noted the possible failure of the Southern Sea 
Otter Recovery program, and the Navy's request for permitting 
to utilize the Surveillance Towed Array Sensor System Low 
Frequency Array.
    While I am pleased this bill has addressed the concerns 
surrounding some of these issues, I note the need, and I mean 
this, to continue the dialog on remaining issues. As a member 
of both the Resources Committee and the Armed Services 
Committee, I have become critically aware of the need to 
balance our environmental stewardship with national security 
concerns.
    In this regard, I feel it is important to take this 
opportunity to reevaluate that balance and address the issues 
surrounding the readiness needs of our military and our 
responsibility to protect marine mammals. Wise use of the 
oceans by humans and management of the marine mammals are 
important, so both humans and marine mammals can share the 
seas.
    I would like to thank you, Mr. Chairman, for introducing a 
relatively straightforward MMPA Reauthorization Act. The bill 
provides a basic outline of concerns that need to be addressed 
by this Subcommittee. I thank you and your efforts to create a 
bill that addresses the issues raised in previous hearings and 
look forward to working with you on the MMPA Act Amendments of 
2002.
    I thank you, and I would like to ask unanimous consent to 
enter Mr. Rahall's statement into the record.
    Mr. Gilchrest. Without objection.
    Thank you, Mr. Underwood.
    Mr. Underwood. Thank you.
    [The prepared statement of Mr. Rahall follows:]

  Statement of The Honorable Nick J. Rahall, II, a Representative in 
                Congress from the State of West Virginia

    I am impressed at the caliber of the witnesses that have been 
assembled for today's hearing on legislation to reauthorize the Marine 
Mammal Protection Act. High ranking officials from the Department of 
Defense and from the Navy have made time to address this Committee 
while our forces are deployed at war overseas. Thank you for your 
willingness to participate in the legislative process.
    The military is an extraordinary branch of the government, as the 
increasing technology and maintenance of our world-power status is 
astounding in its complexity and reach in protecting American interests 
abroad and at home. Our preeminence as the lone world superpower is 
unrivaled, and a large part of this is due to the superb resources and 
intellect contained within the DOD and in particular within the United 
States Navy.
    Four decades ago, many of the world's populations of marine mammals 
were on the brink of extinction, generally due to overexploitation by 
humans. Congress passed the Marine Mammal Protection Act in 1972 to 
recover and restore marine mammal populations and to a great extent, 
this Act has been a success. There are few issues that pull on the 
public's heartstrings as much as the protection of marine mammals.
    However, in spite of the success of the Act the DOD has now begun 
to view the MMPA, along with other environmental protection acts, as a 
threat to readiness and training.
    While recognizing the military's special needs, the American public 
expects government to comply with the laws created by Congress. I 
simply have to wonder what evidence exists to support the need for the 
world's most powerful military, lavishly funded, to be excused from the 
regulations that the Federal Government and everyone else has to comply 
with.
    The Navy claims that encroachment by these laws prevents military 
readiness, yet a recent report of the General Accounting Office found, 
based on the military's own data, that military readiness and training 
has not been compromised. In fact, all units have a high state of 
readiness and the reports are largely silent on the issue of 
encroachment.
    In addition, the DOD and the Navy raise objections to the existing 
permitting regime that allows for the incidental taking of marine 
mammals. Yet to my knowledge, neither the National Marine Fisheries 
Service nor the Fish and Wildlife Service has ever denied a permit 
requested by the Navy for allowing the take of marine mammals.
    The Navy in particular has said that the permitting process is too 
complicated and subject to delays. I am astounded that the same 
department that can plan for wars not even imagined and can deploy 
thousands of women and men around the world is somehow unable to 
navigate through the permitting process.
    This is not to say that we can not make the permitting process 
under the Act better but it remains unclear if the solution being 
proposed here will really achieve that.
    The Navy claims the problem is that the definition of harassment is 
ambiguous and not science-based and proposes to weaken the definition 
of harassment with one that, in my view, is no less ambiguous nor more 
protective of marine mammals. Rather, this proposal takes advantage of 
the uncertainty and lack of scientific knowledge and, if anything, will 
only reverse the burden of proof to the Navy's advantage.
    If encroachment is truly having an effect on readiness and 
training, that is something we need to address. Yet neither the GAO nor 
the military have provided evidence that this is the case. If this is 
simply an opportunistic sortie of the military to provide itself with 
legal immunity from future lawsuits which, in effect, will put Flipper 
in the crosshairs, it is one which I, and I am confident many other 
members, would object to.
                                 ______
                                 
    Mr. Gilchrest. I will yield to the Chairman of the Full 
Committee, Mr. Hansen.

  STATEMENT OF THE HON. JAMES V. HANSEN, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF UTAH

    The Chairman. Thank you, Mr. Gilchrest. I appreciate the 
opportunity to be here today and thank you for inviting me, you 
and Mr. Underwood.
    I think you have got a lot of important issues staring you 
in the face today, and I can understand the importance of 
these. I really just came over because I want to talk to one 
issue. I want to talk to the issue of the Marine Mammal 
Protection Act and the definition of harassment, and I think 
this is the pivotal point this is going to turn on.
    I would like to read from an administration proposal which 
I think makes common-sense change in this definition. Now this 
is the quote, ``This amendment would remove confusion and 
eliminate ambiguities found in the current definition of 
harassment which was added to the act as part of the 1994 
amendments. The Administration's proposed definition would 
provide greater notice and predictability to the regulated 
community, while maintaining the full protective coverage of 
the taking prohibition.''
    Now I hope people realize where that came from. This 
request came from Secretary Bruce Babbitt and Secretary Norm 
Minetta on behalf of President Clinton. I bring this up today 
because many of my friends in the press, and some in the 
environmental community, have been taking some shots at the 
current administration and the Navy for seeking exactly the 
same clarification of law. I can't see a lick of difference 
between what was requested from the past administration and 
what is coming out of this administration.
    I think I can say no one, not the Navy, not the current 
President, not the last one, wants to harm marine mammals. They 
all, and I hope this Committee, simply seek a standard based on 
sound science and actual harm, rather than fear and 
fundraising. As you know, in this Committee, we get more 
fundraising. It just amazes me. When I was first on this 
Committee in 1981, I had Secretary Watt come in to see me, and 
I had just received a letter about saving the Chesapeake Bay, 
your area, Mr. Chairman, and it said that Secretary Watt was 
just cleaning the bay, ruining it up, he wasn't doing what was 
right, and if you would send $10, $20, $30 to these guys, they 
would come to this Committee, then called the Interior 
Committee, and they would clean that thing up.
    Secretary Watt came in to see me on another issue, and I 
handed him the letter, and I said, ``Jim, I didn't know you 
were doing such a lousy job.''
    He said, ``I have just given them $285 million. What are 
they talking about?''
    So for just the fun of it, I sent them $10, and about 3 
months later here came back a letter that said, ``Due to your 
generosity, Mr. Hansen, we have gone before the House Interior 
Committee, and we have got that cleaned up.'' Now I was a 
member of the House Interior Committee, and they didn't ever 
come before us, and they didn't do anything on it because the 
money was sent from another area.
    So let me just say, and I hope our members of the Committee 
are all very sophisticated individuals, fully realize that a 
lot of this fundraising is predicated on scare tactics, and I 
think that is a classic example. In 22 years on this Committee, 
I have seen that happen.
    I hope the Committee looks past that kind of nonsense and 
looks at the science of marine mammals, look at the 
recommendations of our Government agencies and independent 
researches, and look at the critical impact our decisions have 
on the military readiness of those we call on to defend our 
freedoms to have this debate. I hope we don't get involved in 
any of this ``harem-scarem'' stuff that comes along, and I 
would hope that is the case because I am looking forward to 
your work product, Mr. Gilchrest, and seeing if we have to 
change it.
    [Laughter.]
    Mr. Gilchrest. I thank the gentleman from Utah.
    The Chairman. Now you know I was just kidding.
    Mr. Gilchrest. I know. I do appreciate--
    The Chairman. I have great faith in this Subcommittee 
Chair.
    Mr. Gilchrest. I appreciate the kind words about the 
Chesapeake Bay, and we used that money as wisely as we possibly 
could, and today many of the Subcommittee staff have canoed on 
the Chesapeake Bay to look at its clean waters. We will pursue 
this with all due diligence.
    Before I recognize the gentleman from California, I would 
like to say that there is probably about a dozen seats up here 
so we could move some of the people from the corner, and the 
fire marshal won't come in and tell us we are overcrowded. So, 
if anybody in the back wants to come up and sit around the 
bottom dais here, you are welcome. There are more seats up 
here.
    Mr. Abercrombie. There seems to be some reluctance. Could 
you invite the sophisticated people perhaps could come up.
    [Laughter.]
    Mr. Gilchrest. Actually, I guess I should recognize the 
gentleman from Hawaii.
    Mr. Abercrombie. No, no.
    Mr. Gilchrest. Thank you.
    Mr. Abercrombie. I am just so overwhelmed by Mr. Hansen's 
characterization of sophistication that I think I will rest on 
that laurel.
    Thank you very much.
    Mr. Gilchrest. Thank you, Mr. Abercrombie.
    Mr. Pombo?

  STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Pombo. Mr. Chairman, just briefly, I want to thank you 
for holding this hearing. This is an extremely important topic. 
It is something that, over the past several weeks, I have had 
the opportunity to read quite a bit about and to gather 
information on. Unfortunately, I am not going to be able to 
stay for the entire hearing, but I would like to ask your 
permission and unanimous consent of the Committee to be allowed 
to submit a number of questions in writing at the end of the 
hearing.
    Mr. Gilchrest. Without objection.
    Mr. Pombo. I thank you very much.
    Mr. Gilchrest. Thank you, Mr. Pombo.
    Gentlemen, thank you for coming this afternoon. We look 
forward to your testimony.
    Mr. Raymond DuBois, Deputy Under Secretary of Defense, 
Installations and Environment; Vice Admiral Charles Moore, 
Deputy Chief of Naval Operations for Readiness and Logistics, 
the annex of this Committee; Dr. Hogarth has testified so much 
before Congress that I think it is his second job.
    [Laughter.]
    Mr. Gilchrest. But, Bill, welcome back once again. We look 
forward to your testimony; Mr. Marshall Jones, Deputy Director, 
U.S. Fish and Wildlife Service, sir, welcome; and Dr. John 
Reynolds III, Chairman, Marine Mammal Commission, welcome, sir.
    Mr. Raymond DuBois, you may go first, sir.

STATEMENT OF RAYMOND F. DUBOIS, JR., DEPUTY UNDER SECRETARY OF 
             DEFENSE, INSTALLATIONS AND ENVIRONMENT

    Mr. DuBois. Thank you very much, Mr. Chairman.
    With your permission, my written statement will be 
submitted for the record.
    I am joined, as you indicated, by Admiral Moore, and he and 
I will try to address the questions as they pertain 
specifically to the Marine Mammal Act provisions, as 
recommended by the Secretary of Defense and the President.
    Let me begin by sincerely thanking all of the members of 
this Committee, especially the Chairman of the Full Committee 
and you, sir, the Chairman of the Subcommittee with respect to 
allowing us this opportunity. We are very mindful of the 
jurisdictional issues that come before the Congress and with 
respect to the provisions that we have, we, the Department of 
Defense, have presented. I will make just a few comments about 
this issues, in particular, the Marine Mammal Protection Act 
provision.
    After a considerable set of deliberations within the 
executive branch, represented on my left by Mr. Jones and Dr. 
Hogarth, as well as with CEQ and EPA, the Department of Defense 
came to an agreement to suggest these clarifications to six 
statutes. It was not, shall I say, an easy process within the 
executive branch. It was, however, a very healthy and a very 
informative process.
    In terms of the Department of Defense, those six 
provisions, those six clarifications which we suggested on 
April 19th with respect to the Defense Authorization Act of 
Fiscal Year 2003, had to pass three very important tests in 
order to be suggested for legislative deliberation, and I want 
to make very clear that the clarification that we have 
requested to the definition of harassment in the Marine Mammal 
Protection Act was the result of the fact that, in our view, 
that narrow clarification, that narrow provision did, in point 
of fact, have, and would have, would result in, should Congress 
adopt it, a major positive impact to the readiness as the 
result of increased realistic combat training. Admiral Moore 
will reference, no doubt, some specifics that I think 
dramatically articulate the issue about readiness.
    No. 2, the second test that any provision that we provided 
or recommended must pass was that there would be no detrimental 
impact in this case to the protection, and the research, and 
the stewardship, and the monitoring of marine mammals.
    The third test was that legislation or a statutory action 
was the action best-suited to address the issue at hand, as 
opposed to administrative or regulatory actions or even, in the 
case of some, but not all, of the environmental statutes which 
we asked for clarification to, Presidential waivers or 
Secretary of Defense national security exemptions. And I might 
add here that the MMPA has neither, neither does the Migratory 
Bird Treaty Act, which is sometimes not noted in the debate to 
date.
    Now, with respect to the thrust of our legislation, once 
these three tests were met, we narrowly tailored to only 
preserve the ability to provide realistic combat training on 
air, land, and sea spaces, if you will, those areas 
specifically set aside by the Congress of the United States for 
that express purpose, that purpose to train our soldiers, 
sailors, airmen and Marines in a realistic fashion, so that 
when they went into combat, which is where they are this very 
day, they didn't meet live ammunition for the first time.
    The recommendations which we have made, as I indicated, are 
focused purely on those aspects of military activities which 
are unique to the military--firing howitzers, dropping bombs. 
No other sector of society does that, but the United States 
military.
    We also believe that the narrow provisions which we have 
recommended prevent further extension of regulation, rather 
than, as has been characterized by some, rather than rolling 
back existing regulation. Now clarifying the definition of 
harassment under the Marine Mammal Protection Act has raised a 
number of questions, but I will address that just briefly, and 
I want to, however, say that my colleague, Admiral Moore, will 
talk about the primary wartime challenges to the Navy, which I 
think ought to remain preeminent in our discussion today. But 
the proposed clarification adopts, as Chairman Hansen has so 
ably articulated, verbatim--verbatim--a reform proposal 
developed during the Clinton administration and adopted and 
recommended jointly by the Departments of Commerce, Interior 
and Defense and, as I said, applies solely to military 
readiness activities.
    It is also a proposal, I might add, which has espoused a 
recommendation by the National Research Council that the 
currently overbroad definition of harassment of Marine mammals, 
which includes annoyance and potential to disturb, the National 
Research Council said it should be focused on biologically 
significant events.
    Now I know the term ``significant'' has raised a number of 
questions. I am not a marine biologist. I am not a lawyer, but 
I can say to you that in deference to scientists and marine 
biologists, when I asked what term would you be most 
comfortable with, what term encompasses the kind of appropriate 
and narrow change that the Secretary of Defense would like to 
see, it was the National Research Council, it was the marine 
biology community and the scientific community which said that 
the ``significant biologic effects'' term was the term most 
appropriate.
    Now ``significant,'' what does it really mean? Likely to 
have an effect, it is important, it is noticeable, it is 
measurable and probably caused by something other than mere 
chance. Those last words I plucked from Webster's Dictionary 
this morning because I, too, wanted to make certain that I felt 
comfortable in the legislative setting using that term.
    Now I think that we all recognize that criticisms of our 
proposal that claim that we would--we, the Department of 
Defense--would allow harm to marine mammals without review by 
the Fish and Wildlife Service and the National Marine Fisheries 
Service are, quite frankly, simply incorrect. Although our 
initiative would exclude transient and biologically 
insignificant effects from regulation, the Marine Mammal 
Protection Act would remain in full effect for biologically 
significant effects, not only death or injury, but also 
disruption of significant activities, disruption, that is to 
say, changes in breeding, nursing, feeding, migratory migration 
patterns.
    The Defense Department, and specifically in this case, the 
Department of the Navy, could neither harm, nor disrupt, marine 
mammals and their biologically significant activities without 
obtaining, first, authorization from the Fish and Wildlife 
Service or the National Marine Fisheries Service, as 
appropriate.
    I will now defer and yield to Admiral Moore, but again I 
would hope that we would recognize that, in point of fact over 
the past 8/9 years, it has been the Department of Navy and the 
Department of Defense that has made nearly $67 million in 
research investments alone for marine mammal protection and 
marine mammal research. This is not an insignificant amount of 
money. In fact, the President of the United States has 
requested in the Fiscal Year 2003 budget $8.2 million for 
marine mammal research.
    In closing, sir, and members of this distinguished 
Committee, I only can ask that you think about the balance 
issue and think about the issue that we are not trying to roll 
back anything, but rather to achieve sort of, shall we say, the 
status quo, and that the military ranges which the citizens of 
this country, through their representatives in Congress, have 
set aside for these purposes are of vital importance to this 
country.
    Thank you very much.
    [The prepared statement of Mr. DuBois follows:]

Statement of Raymond F. DuBois, Jr., Deputy Under Secretary of Defense 
     for Installations and Environment, U.S. Department of Defense

    Mr. Chairman, members of the Subcommittee, I am pleased to have 
this opportunity to address this Subcommittee today to discuss the 
growing challenges faced by the Department of Defense (DoD) in 
protecting marine mammals while balancing such protection against DoD's 
mandate to maintain readiness, and the relationship of this effort to 
H.R. 4781, the reauthorization of the Marine Mammal Protection Act. As 
you know, DoD is undertaking a major effort to address encroachment, 
sustain our training and testing ranges, and maintain force readiness. 
The DoD Readiness and Range Preservation Initiative is a comprehensive, 
DoD-wide strategy intended to mitigate or resolve the adverse impacts 
of encroachment on training and testing lands and waters and to sustain 
our ranges and operating areas for the future. I look forward to 
discussing the goals and elements of this initiative with the members 
of this Subcommittee today.
    Today's hearing takes particular interest in the ability of our 
Naval forces to train realistically while at the same time protect 
marine mammals. We are not asking for an exemption from our 
environmental responsibilities--rather, DoD is seeking to strike a 
sensible balance between these two national imperatives. Our existing 
ranges and our ability to conduct training and testing realistically 
and effectively are critical to the continuing readiness of our Armed 
Forces.
    DoD is seriously concerned with sustaining quality training for all 
our men and women in uniform. The challenges we face in maintaining 
quality training and testing opportunities, and the readiness 
implications of these challenges, have been the subject of previous 
hearings, and you will hear more today.
MILITARY READINESS AND THE CHALLENGE OF ENCROACHMENT
    As the members of the Subcommittee are aware, training of our armed 
forces and the testing of our systems is a complex undertaking, and 
their proper execution raises considerable challenges. We must also 
protect public safety, community welfare, and the natural heritage of 
our training and testing areas. These are all fundamental national 
priorities, of extreme importance to the Defense Department, to 
Congress, and to the American public. DoD works hard to ensure we meet 
our obligations in all these areas. But foremost in the minds of every 
military commander is the ultimate readiness of our men and women in 
uniform; it is such readiness that saves lives in combat and ultimately 
allows us to wins battles.
Train as we Fight
    The most fundamental military readiness principle is that we must 
train as we intend to fight. Training our forces and testing our weapon 
systems under realistic combat conditions is not a luxury. It is a 
commitment to the American people. The military mission is unique--we 
carry out our training and testing not for profit or personal gain but 
to ensure the readiness of our forces. The ability of the military to 
fight and win our nation's wars is tied directly to readiness resulting 
from realistic training. There is no substitute for realistic training 
as there is no substitute for victory.
    The land, sea, air, and space that we use to test our weapon 
systems and train our personnel are irreplaceable national assets. The 
bottom line is that our soldiers, sailors, airmen, and marines--and the 
equipment they go into battle with--are only as good as the fidelity of 
the training and testing they receive. DoD ranges are the means by 
which we accomplish these most fundamental readiness principles.
    Ultimately, our military forces must be able to move faster, shoot 
more accurately, and communicate better than our enemies--that is what 
wins wars, and these capabilities are only achieved through rigorous, 
continuous, and realistic training. The United States possesses a 
unique military advantage over all other countries--our nation has 
historically shown a willingness to dedicate the air, land, sea and 
frequency spectrum needed to keep our armed forces at peak readiness 
levels. The military must be able to fight and win wars on short 
notice--Afghanistan demonstrates this fact. Top-notch readiness 
requires top-notch training and testing.
The Growing Threat of Encroachment
    There is a growing realization that our ability to train and test 
is being compromised by external factors. For lack of a better term, we 
have called this overall problem ``encroachment.'' DoD defines 
encroachment as the cumulative result of any and all outside influences 
that inhibit necessary training and testing. Among the many things that 
cause it: environmental and natural resources compliance requirements 
that over the past 30 years have reduced range access and the 
flexibility required for training and testing; unplanned or 
incompatible commercial or residential development around previously 
remote ranges; the loss of bandwidth for communications and 
interference with the frequency spectrum that remains; increased 
airspace congestion that limits military aircraft access to the ranges 
or lengthens flying times; and the growing understanding that long-
standing munitions use on our ranges can produce environmental 
challenges. Such encroachment is a worldwide problem, not limited to 
just our domestic training and testing facilities. Though the exact 
causes of encroachment vary from range to range and from one part of 
the globe to another, the effects on training and testing, both at home 
and abroad, pose increasing challenges to readiness.
    I must emphasize, however, that DoD takes its stewardship 
responsibilities seriously. Environmental stewardship is essential to 
the Department's mission. With a mandate to train U.S. military 
personnel and insure they are ready to respond to any call, forces 
train on over 25 million acres of land and several hundred thousand 
square nautical miles of ocean operating areas near our coast. The men 
and women in uniform--as well as our civilian employees--take 
understandable pride in their environmental record--a record with 
documented examples of impressive management of critical habitats and 
endangered species.
    In recent years, however, novel interpretations and extensions of 
environmental laws and regulations have significantly restricted the 
military's access to and use of military lands, oceans, and operating 
areas. It has also limited our ability to maneuver our forces and have 
them engage in live weapons systems training and testing, keys to the 
future combat readiness of the Armed Forces. Unless addressed 
appropriately, the military services will continue to see an erosion of 
the training environment. In some cases, litigation threatens to thwart 
the primary mission of key military facilities.
COMPREHENSIVE STRATEGY
    Our ability to balance readiness against the environmental 
regulations and the press of other encroachment factors is being 
severely strained. In some cases, we are losing or are threatened with 
the loss of access to training and testing spaces we have traditionally 
used. Yet maintaining the readiness of our forces is one of the highest 
priorities of the Department. That is why it is also critical that we 
strive to maintain a reasonable balance between training requirements 
and the importance of sound environmental stewardship. The Readiness 
and Range Preservation Initiative is the Department's comprehensive 
effort to ensure that readiness is maintained in the face of 
encroachment. This effort consists of five major focus areas: 1) 
Leadership and Organization, 2) Policy and Plans, 3) Programs and 
Funding, 4) Outreach, and 5) Legislation and Regulation. We believe 
that collectively these elements represent the necessary components to 
a comprehensive strategy.
Legislative and Regulatory Proposals
    Historically, specific readiness problems have been addressed at 
individual ranges, most often on an ad hoc basis. We have won some of 
these battles, and lost others. But in the aggregate we are quite 
literally losing ground. We no longer have the luxury of expending 
scarce resources to address the problem in an ad hoc manner. It is 
apparent that we need to deal with the many challenges that are 
curtailing range operations in a more comprehensive way. It is also 
why, this Administration, after careful inter-agency deliberation, 
submitted to Congress ``The Readiness and Range Preservation 
Initiative'' as part of the annual defense authorization bill. The 
thrust of this legislation is:
     Narrowly tailored to protect military readiness 
activities, not the whole scope of Defense Department activities,
     Prevents further extension of regulation rather than 
rolling back existing regulation, and
     Enhances the synergy between military readiness and 
environmental protection by including provisions encouraging creation 
of environmental buffer zones around military facilities.
    Each of our proposals, including the provision related to the 
Marine Mammal Protection Act, are Limited to Military Readiness 
Activities. Our initiatives have been portrayed by some as attempting 
to ``exempt'' and ``grant special reprieve'' to DoD from environmental 
statutes, ``give the Department of Defense a blanket exemption to 
ignore our laws,'' and violate the principle that ``no government 
agency should be above the law.'' In reality, our initiative would 
apply only to military readiness activities. We believe we must 
recognize the military's unique duty to prepare for and win armed 
conflicts--unlike any private organization, State, or local government. 
The requested changes are therefore narrowly focused on ``military 
readiness activities''--those actions necessary to discharge that duty. 
They will not affect DoD's compliance with environmental laws in the 
management of its infrastructure or industrial operations that are 
similar to those of private companies.
    We Do Not Seek ``Exemptions'' from Environmental Law. Our 
initiative does not seek to ``exempt'' even our readiness activities 
from the environmental laws. Rather, it clarifies and confirms existing 
regulatory policies that recognize the unique nature of our activities. 
As for the Marine Mammal Protection Act, our proposal would codify the 
Clinton Administration's proposed policy on ``harassment'', which I 
will addresses further later in my testimony.
    We Remain Committed to Environmental Compliance. There has been 
concern expressed that the proposed legislation foreshadowed a DoD 
retreat from its environmental responsibilities. DoD has no intentions 
of backing away from our environmental stewardship responsibilities. We 
remain fully committed. What we do seek are a few changes to the manner 
that some requirements apply SPECIFICALLY to ``military readiness 
activities''--training our Soldiers, Sailors, Airmen, and Marines in 
the skills that they need. The changes are carefully focused on those 
actions necessary to discharge the military's unique duty to prepare 
for and win armed conflicts in the defense of the liberties of the 
Nation. With the appropriate legal and administrative framework, the 
goals of environmental protection and realistic military training can 
be reconciled. The Readiness and Range Protection Initiative does 
nothing more, and nothing less, than establish that framework for the 
21st Century.
``HARASSMENT'' UNDER THE MARINE MAMMAL PROTECTION ACT
    The NUMBER ONE warfighting challenge for the Navy is its inability 
to fully train in anti-submarine warfare (ASW). In each potential 
theater scenario, anti-submarine warfare is the single most important 
concern for the Navy to accomplish its mission. The MMPA directly 
impacts the Navy's ability to test, evaluate, develop, and field 
systems and to train sailors to use those systems. As a result, the 
Navy is behind the power curve.
    The Administration's proposed legislative clarification under the 
Readiness and Range Preservation Initiative would codify the National 
Research Council's earlier recommendation that the current overly broad 
definition of ``harassment'' of marine mammals, which includes 
``annoyance'' or ``potential to disturb,'' be focused on biologically 
significant effects. As recently as 1999, the National Marine Fisheries 
Service asserted that under the sweeping language of the existing 
statutory definition, harassment ``is presumed to occur when marine 
mammals react to the generated sounds or visual cues''--in other words, 
whenever a marine mammal notices and reacts to an activity, no matter 
how transient or benign the reaction. During late 1999 and early 2000, 
the Departments of Commerce, Interior, and Defense, and the Marine 
Mammal Commission worked collaboratively to develop a definition of 
``harassment'' acceptable to all affected agencies. These efforts to 
refine this overbroad definition led to both administrative actions and 
legislative reform proposals. The Administration's proposed legislation 
adopts this agreed upon definition of ``harassment'' that will help 
balance two national imperatives--Military Readiness and Environmental 
Conservation.
Navy's Conservation Efforts
    Military commanders have done an exemplary job of protecting and 
restoring natural resources in areas used to train the military. As I 
have stated, DoD is not trying to rollback environmental oversight--we 
are committed environmental stewards of our natural resources, and will 
continue to be so.
    As it relates to marine mammal protection, an example of DoD's 
conservation and compliance oversight effort is the Navy Policy 
regarding the protection of Northern Right Whales (NRWs). The Navy 
employs year round measures designed to protect whales and other 
endangered species. Shipboard protective measures include: two trained 
lookouts with binoculars on surface ships, one trained lookout with 
binoculars on surfaced submarines, extreme caution and safe speed in 
the consultation area, extreme caution and slow safe speed within 5 
nautical miles of any Northern Right Whale sighting location less than 
12 hours old.
    If Northern Right Whales are sighted, speed will be reduced to a 
minimum at which headway may be maintained. Furthermore, vessels will 
maneuver to maintain 500 yards distance from observed Northern Right 
Whales. And even though U.S. Naval vessels represent 5% of the total 
ship traffic transiting the Northern Right Whales migratory route, the 
Navy also partially funds state Fish and Wildlife agencies' effort to 
patrol the Northern Right Whales migration route with light aircraft to 
spot and report sightings.
    On 10 March 2000, the Marine Mammal Commission thanked the Navy for 
its continuing attention to NRWs and commented that the Navy's efforts 
were a noteworthy example of its attention to critical environmental 
protection needs.
    The Navy is also using its expertise in underwater sound to detect 
and monitor marine mammals in several ocean regions, particularly the 
behavior of the large baleen whales in the North Pacific Ocean in the 
deep ocean basins. The ``calls'' of these large mammals can be detected 
by Navy sensors hundreds of miles away and have furnished scientists 
indications of sub-populations, migrations routes, and habitats. 
Techniques of this initial work are transitioning to other practical 
applications where Navy is leading development of a marine mammal 
census solely by detecting and processing marine mammal vocalizations. 
The Navy is investing $18 million over the next 3 years in marine 
mammal research.
    The Navy also conducts ocean-going surveys to establish population 
densities of marine mammals in our Operating Areas. Marine Mammal 
Density Data (MMDD) will also include further study on assessing the 
impact of Navy training on protected and endangered species. This 
component of the Navy's current research program seeks to increase the 
level of knowledge of marine mammal population densities, distribution, 
and hearing physiology.
Summary
    DoD firmly believes that the Administration's proposed legislative 
clarification to the harassment definition would not have any 
significant environmental impacts, while its benefits to readiness 
would be critical. The legislation is endorsed by the National Research 
Council and reflects an agreement among the affected agencies. Although 
excluding transient, biologically insignificant effects from 
regulation, the MMPA would remain in full effect for biologically 
significant effects--not only death or injury but also disruption of 
significant activities. The Defense Department already exercises 
extraordinary care in its maritime programs: all DoD activities 
worldwide result in fewer than 10 deaths or injuries annually (as 
opposed to 4800 deaths annually from commercial fishing activities). 
DoD currently funds much of the most significant research on marine 
mammals, and will continue this research in future.
    On the other hand, application of the current hair-trigger 
definition of ``harassment'' has profoundly affected both vital R&D 
efforts and training. Navy operations are expeditionary in nature, 
which means world events often require planning exercises on short 
notice. This challenge is especially acute for the Atlantic Fleet, 
which over the past two years has often had to find alternate training 
sites for Vieques. To date, the Navy has been able to avoid the delay 
and burden of applying for a take permit only by curtailing and/or 
dumbing down training and research/testing. For 6 years, the Navy has 
been working on research to develop a suite of new sensors and tactics 
(the Littoral Advanced Warfare Development Program, or LWAD) to reduce 
the threat to the fleet posed by ultraquiet diesel submarines operating 
in the littorals and shallow seas like the Persian Gulf, the Straits of 
Hormuz, the South China Sea, and the Taiwan Strait. These submarines 
are widely distributed in the world's navies, including Axis countries 
like Iran and North Korea and other potentially hostile powers. In the 
6 years that the program has operated, over 75% of the tests have been 
impacted by environmental considerations. In the last 3 years, 9 of 10 
tests have been affected. One was cancelled entirely, and 17 different 
projects have been scaled back. We must work to achieve a more 
appropriate balance.
CLOSING
    Sustaining military ranges and operating areas is of vital 
importance to the United States. So is the long-term sustainment of 
environmental quality. DoD is not trying to rollback environmental 
oversight--we are committed environmental stewards of our natural 
resources, and will continue to be so. These goals do not have to be 
mutually exclusive--in fact, some ranges can be seen as the last viable 
habitat for some surviving species. Mr. Chairman, we believe that 
military readiness can go hand in hand with environmental stewardship. 
Our challenge is to apply this principle to some of the unique problems 
associated with the MMPA and other statues addressed in our Readiness 
and Range Preservation Initiative. We must continue to develop and 
sustain partnerships in order to do this. But most of all, we must 
always remember that our most important priority is to maintain the 
best trained, best equipped, most ready, and most effective military 
force in the world.
    DoD is committed to a comprehensive approach to addressing 
encroachment and ensuring sustainable ranges. We must be clear in 
stating that there isn't any one quick fix. Our approach, our 
comprehensive strategy, must include multiple components and will be 
implemented over years, not months. DoD supports this Subcommittee's 
efforts to improve the MMPA in the context of H.R. 4781. We also 
strongly support our proposed adjustment to the definition of 
``harassment'' as contained in our recent Readiness and Range 
Preservation Initiative. Addressing the issue of harassment under the 
MMPA is an important piece of our overall effort to ensure our test and 
training capabilities remain the world's best. DoD looks forward to 
working with this Subcommittee and the Congress of the United States to 
assure our military readiness and satisfy our common goals. Thank you.
                                 ______
                                 
    Mr. Gilchrest. Mr. DuBois, than, you very much, sir.
    Vice Admiral Moore?

STATEMENT OF VICE ADMIRAL CHARLES MOORE, DEPUTY CHIEF OF NAVAL 
             OPERATIONS FOR READINESS AND LOGISTICS

    Admiral Moore. Thank you, Mr. Chairman, members of the 
Subcommittee. I thank you for the opportunity to appear before 
you today to discuss the significant issue of significant 
importance to the United States Navy. As recent events make 
clear, our Nation requires a credible combat-ready naval force 
ready to sail anywhere, any time, in response to threats 
against the United States and our vital interests around the 
world.
    Having recently returned from Operation Enduring Freedom, 
where I served as the commander of U.S. Naval Forces Central 
Command and commander of the United States Fifth Fleet, I can 
tell you firsthand that realistic training is the cornerstone 
to military readiness.
    Currently, I am serving as the deputy chief of Naval 
Operations for Fleet Readiness and Logistics, and in that 
capacity I can tell you that our ability to realistically train 
is being seriously affected by the Marine Mammal Protection Act 
today. The definition of harassment in the Marine Mammal 
Protection Act is overly broad and subject to interpretation. 
It also requires that we seek a permit for training, testing 
and operations that merely pose the potential to disturb marine 
mammals.
    The requirements of this law are making it increasingly 
difficult to train realistically and employ mission-essential 
technology. I would like to highlight an example of each of 
those two points.
    The first aircraft carrier battle group to respond to the 
attacks on the World Trade Center and the Pentagon on the 11th 
of September was the USS Carl Vinson Battle Group. Carl Vinson 
Battle Group went through their training and their preparations 
for deployment last summer. They arrived in the North Arabian 
Sea, coincidentally, on the 11th of September. As the commander 
of all of the naval forces in the region, one of my major 
concerns is the readiness of our naval forces to operate inside 
the envelopes of potential adversary surface-to-surface missile 
systems. We, frequently, because of the very compact nature of 
the geography in the region, require our forces to operate in 
those envelopes.
    I was horrified when I learned that the Carl Vinson Battle 
Group had not been able to conduct the required anti-surface 
missile defense training prior to their deployment, which we 
conduct off Point Magaoo, California. This was a result of not 
having a permit to conduct this training. The permit was 
required because of the definition of harassment in that the 
firing of the target drones at our ships in our battle group 
would cause the sea lions in that vicinity to react with what 
is known as startled behavior. They would notice the firing of 
the missiles, and there was a fear amongst individuals 
concerned for the sea lions that the sea lions would stampede.
    We had observed the sea lions' response to the firing of 
the target drones for a period of 18 months and never once did 
we observe a single stampede. The sea lions, like human beings, 
I am sure, would respond by merely observing the firing of the 
missile as it passed overhead. But as a result, the Carl Vinson 
Battle Group was not able to obtain this critical training. 
Fortunately, we were not required to use that training during 
their deployment to the Middle East.
    The second issue I mentioned was our ability to employ 
mission-essential technology. This was mentioned by the 
Chairman in his opening statement in regards to what we call 
the low-frequency active sonar. Over the past several years, 
our potential adversaries around the world have developed quiet 
diesel submarines, and these submarines are proliferating 
around the world. These submarines are dedicated to the purpose 
of impeding the closure of U.S. naval forces to potential areas 
of conflict. The submarines would be used to interdict naval 
forces as they close the potential areas of conflict that you 
might imagine around the world.
    These submarines are very difficult to detect. They are 
also developing anti-ship missile capability with ranges that I 
will not talk about in this hearing. We can talk about them in 
a closed hearing or we would be happy to address the specifics 
in a question for the record. Suffice it to say that these 
submarines are equipped with missiles that have the capability 
to intercept our naval forces beyond our capability to detect 
the submarines.
    So we have developed low-frequency active sonar to give us 
the capability to identify these submarines, locate the 
submarines and engage the submarines before they reach their 
lethal range. We have been trying to obtain a permit to employ 
this capability for the last 6 years. We have been in the most 
recent process for a period of over 2 years. We have yet to 
receive a permit to operate this system, although we anticipate 
receiving it soon.
    This is a system that is already deployed by other nations, 
a system that is operational in the oceans around the world 
today. It is a system that we desperately need, and we need 
your assistance to modify the definition of harassment so that 
the permitting process will enable us to employ the LFA, as we 
call it, Low Frequency Active sonar.
    In closing, I would just like to leave you with four 
points:
    First, military readiness is directly tied to realistic 
training. Navy training is based on wartime experiences and 
prepares our men and women for combat. In the absence of 
realistic training, the complex challenges faced in today's 
combat environment, combat that is ongoing as we speak, will 
become increasingly difficult to overcome.
    Second, the Navy does not, in any way, seek exemption from 
environmental requirements. To the contrary, the Navy is proud 
of its stewardship of the environment and is a world leader in 
marine mammal research, as Secretary DuBois mentioned in his 
opening statement.
    Third, the Navy is seeking your assistance in striking a 
balance between two national imperatives--military readiness 
and environmental conservation. These priorities, in our view, 
are not mutually exclusive and should not be evaluated, one 
against the other, in a zero sum gain. Unfortunately, 
application of the precautionary principle to marine mammal 
conservation, though well-intended, has led the Navy to dumb 
down our training for the sake of avoiding even the potential 
of disturbing marine mammals and a lengthy permitting process.
    Fourth, I ask that you amend the definition of harassment 
in the Marine Mammal Protection Act so as to reduce its 
inherent ambiguity, eliminate laborious permitting procedures 
for military training and operations that have only a benign 
effect on marine mammals. While--
    Mr. Gilchrest. Mr. Moore, thank you very much, but we are 
running a little over. We have a number of witnesses, and I 
want to respect their time. We will get some of the information 
through the process of questioning.
    Thank you very much, sir.
    Admiral Moore. That was the end of my statement, sir.
    [The prepared statement of Admiral Moore follows:]

   Statement of Vice Admiral Charles W. Moore, Deputy Chief of Naval 
           Operations for Readiness and Logistics, U.S. Navy

    Mr. Chairman, members of the Subcommittee, thank you for the 
opportunity to appear before you today to discuss H.R. 4781, the Marine 
Mammal Protection Act (MMPA) Amendments of 2002.
I. INTRODUCTION
    On behalf of the United States Navy, I recommend that your 
Committee and the Congress amend the definition of ``harassment'' in 
the MMPA. The current definition of harassment is overly broad and 
subject to varied interpretations, which has resulted in delayed 
deployment of mission-essential equipment and curtailment/cancellation 
of realistic training and critical testing. The Navy has no desire to 
roll back the environmental progress made over the last 20 years. 
Indeed, the Navy is fully committed to its environmental 
responsibilities; however, the shortcomings of the current definition 
of harassment are beginning to affect the Navy's ability to ensure our 
Sailors and Marines are fully prepared to carry out their combat 
mission. Adoption of the harassment definition, proposed by the Clinton 
Administration's MMPA Reauthorization Act of 2000, having been agreed 
upon by the Departments of Commerce, Interior, and Defense, and the 
Marine Mammal Commission, and more recently advanced by the Bush 
Administration, as part of the Administration's Readiness and Range 
Preservation Initiative, would balance two national imperatives--
Military Readiness and Environmental Conservation.
II. READINESS
    Our Navy must provide credible, combat-ready naval forces to sail 
anywhere, anytime, as powerful representatives of American sovereignty. 
In the weeks following September 11, naval forces were the vanguard of 
our Nation's efforts against terrorism. Navy and Marine Corps carrier 
aircraft, in concert with U.S. Air Force bombers and tankers, flew 
hundreds of miles beyond the sea, destroying the enemy's ability to 
fight. Sustained from the sea, U.S. Marines, Navy SEALS, Seabees, and 
Special Operations Forces worked with allies to free Afghanistan from 
the Taliban Regime and Al Qaeda terrorist network. Currently, naval 
forces engaged in the Global War on Terrorism are deployed to multiple 
theaters of operation. Our mission is far from over; and as we look 
toward the next phases of our operations, we come before you to express 
our concern over ever-increasing impediments on our ability to execute 
our highly successful training procedures. These impediments have the 
potential to undermine readiness and compromise the young Sailors, 
Airmen, and Marines we send into harm's way.
    Having recently returned from Operation Enduring Freedom (OEF) 
where I served as the Commander, U.S. Naval Forces Central Command, and 
Commander, Fifth Fleet, I know first hand that readiness is the 
foundation of our Fleet's war fighting capability, and I know from my 
years of experience that there is a direct link between Fleet readiness 
and training. For the Navy, this means essential testing and realistic 
training opportunities, in both open-ocean and littoral environments. 
Our Navy has developed, through years of experience, an extremely 
effective and proven training process that stresses our forces under 
combat-like conditions. This process guarantees that our naval forces 
are better trained in addition to being better equipped than our 
potential adversaries. Assured access to quality training methods, 
technologies, and realistic training at our Range/Operating Area 
(OPAREA) Complexes ensures our ability to exercise all of the 
individual, unit level, and multi-unit skills necessary to prevail 
decisively in combat.
    Just like our land-based training ranges, OPAREAs in the oceans 
give deploying naval forces the opportunity to gain combat-like 
experience before actually going into harm's way. We know empirically, 
based on our experience during previous wars, that aviators, for 
example, who survive their first five decisive engagements in combat 
are likely to survive the war. We use training ranges, likewise, to 
simulate a combat-like environment in order to enhance the success and 
survival rate of our Sailors and Marines.
    Training in the ocean environment is not a sterile, academic 
evolution for us. Quite the contrary, we are facing existing and 
emerging threats from naval forces of potential adversaries. New, quiet 
diesel submarines and anti-ship, submarine launched cruise missiles are 
being introduced. These pose a potentially formidable threat to our 
Sailors and Marines, who are called upon to project power from the sea 
or maintain open sea lanes in such places as the Arabian Gulf through 
which much of the world's oil flows. In order to successfully locate 
and defend against these threats, our Sailors must train realistically 
with both active and passive sonar. In executing the anti-submarine 
warfare mission, sonar is the key to survival for our ships and 
Sailors, because it is both the eyes and ears for our combatant units.
III. BALANCING MILITARY READINESS AND THE ENVIRONMENT
    I come before you to discuss the interplay between two national 
imperatives: military readiness and environmental conservation. We 
should not view these issues in isolation from one another for they are 
not mutually exclusive. However, currently, they are out of balance.
    Some extremely well intentioned interests advocate application of 
the ``precautionary principle'' for the protection of marine mammals. 
This principle holds that in the absence of evidence to the contrary, 
we must assume our training will adversely affect the environment--
essentially requiring us in many cases to prove the negative. Although 
a noble goal, it has immediate and adverse consequences on our ability 
to prepare our young men and women in uniform for the challenge of 
protecting American interests both around the world and, unfortunately, 
in the United States itself. As applied to the Navy, the precautionary 
principle is a serious matter. Proving a negative is often difficult if 
not impossible, often leading to cancellation, curtailment or 
adjustment of our training to avoid even the possibility of disturbing 
marine mammals.
    We do not seek your assistance today to exempt the Navy from its 
environmental responsibilities. Rather, we are merely here to seek your 
assistance in striking a sensible balance that will not only protect 
marine mammals but will also enable the Navy to train realistically. We 
are proud of our efforts to preserve this balance in being a good 
steward, especially as it relates to the protection of Northern Right 
Whales off the east coast of Florida, marine mammal research, and 
interagency cooperation to preserve the world's oceans. 1
---------------------------------------------------------------------------
    \1\ For additional examples of Navy's successful conservation 
efforts relating to marine mammals, see Attachment A.
---------------------------------------------------------------------------
IV. CHALLENGES POSED BY THE MARINE MAMMAL PROTECTION ACT
    The Marine Mammal Protection Act's (MMPA) definition of 
``harassment'' has been a source of confusion since the definition was 
included in the 1994 amendments to the statute. The statute defines 
``harassment'' in terms of ``annoyance'' or the ``potential to 
disturb,'' vague standards that are vulnerable to inconsistent 
interpretation. Due to the ambiguity of this definition, the National 
Marine Fisheries Service (NMFS) of the National Oceanic Atmospheric 
Administration in the past has interpreted a broad array of reactions 
that constitute harassment, noting, for example, that ``[a]ny sound 
that is detectable is (at least in theory) capable of eliciting a 
disturbance reaction by a marine mammal.'' Also, ``an incidental 
harassment take is presumed to occur when marine mammals . . . react to 
generated sounds or to visual cues.'' Taken literally, this would 
result in a ``take'' by harassment if the wake from a naval vessel 
caused a seal sleeping on a buoy to dive into the water. An 
interpretation this broad could result in our having to submit all our 
naval vessels to a lengthy permitting process for simply leaving the 
pier.
    The vagaries of the definition of harassment noted above make it 
very difficult for Navy exercise planners and Navy scientists to 
determine if a take permit is required before commencing mission-
essential training or testing. The Navy is not alone in its opinion 
that the lack of clarity in the MMPA has led to extremely restrictive 
and inconsistent interpretations of the definition of harassment. In 
testimony before Congress, the Assistant Administrator for NMFS stated 
that, ``NMFS has experienced difficulties with respect to 
implementation and interpretation of the current definition of 
harassment.'' An example of this occurred during the review of the 
Navy's Environmental Impact Statement (EIS) for the USS WINSTON 
CHURCHILL (DDG-81) ship shock test. Trying to inject some certainty 
into the harassment standard NMFS has, within the rule-making process, 
clarified that simple, singular, reflex actions (e.g., alert, startle, 
dive response stimulus) by marine mammals that have no biological 
context, are not effects constituting harassment. Even though the Navy 
adopted NMFS'' guidance for the CHURCHILL ship shock test ambiguity in 
the definition of harassment increased Navy's litigative risk. Although 
generally supportive of the Navy's analysis of the proposed ship-shock 
testing prepared under the National Environmental Policy Act, the 
Marine Mammal Commission (MMC) pointed out, in its letter of March 30, 
2000, that in its view the Navy's assessment did not ``appropriately 
reflect the definition of [harassment] ,.. [because] any behavioral 
disruption would technically constitute harassment, whether or not if 
affects survival or productivity'' and therefore would require an 
authorization. MMC's interpretation of the definition illustrates the 
precise problem with the current definition of harassment that concerns 
the Navy.
    Assuming an authorization is required for certain Navy training or 
testing, the application process requires at least four months for an 
incidental harassment authorization and sometimes years to complete a 
multi-year authorization issued under regulations, and then the 
contingency Letter of Authorization is effective for only one year. 
Time constraints surrounding the application process have proven 
difficult to meet for the naval service. Because naval operations are 
expeditionary in nature, and tied to world events, exercise planning 
and testing done in conjunction with training is often done on short 
notice. This sometimes precludes identification of training and testing 
platforms and locations far enough in advance to factor in the lengthy 
permitting application process required by the MMPA.
    Examples of this dilemma can be seen in Office of Naval Research 
(ONR) tests designed to measure sound in the water as it relates to 
improving the Navy's anti-submarine warfare capabilities. Over the past 
several years, ONR has had to curtail or stop elements of various tests 
due to potential challenges linked to the MMPA's vague definition of 
harassment and its lengthy permitting requirements. In May 2000, for 
example, disagreement with the regulatory community ensued over ONR's 
analysis of impacts on listed marine mammals. Experiences like these 
led ONR, in a subsequent test, to spend $800,000 for mitigation 
measures to avoid even the possibility of disturbing a marine mammal.
    More recently, essential anti-ship cruise missile training for the 
CARL VINSON Battle Group, which participated in Operation Enduring 
Freedom (OEF), was actually cancelled because an Incidental Harassment 
Authorization (IHA) was not in place to cover the ``potential to 
disturb'' harbor seals when our target drones flew over them enroute to 
the ships. This resulted in the deployment of three ships of the Battle 
Group without benefit of an anti-ship cruise missile defensive 
exercise. This is another example of the challenges posed by the 
current definition of harassment and the permitting process under the 
MMPA.
    To date, the operational Navy has been able to avoid these 
challenges only by altering or ``dumbing-down'' its training and 
adopting mitigation measures that eliminate even the possibility that a 
training event will disturb a marine mammal, let alone harm one. In 
some cases, these challenges have been unavoidable; and consequently 
our readiness has been affected. For example, the Navy has yet to 
deploy SURTASS Low Frequency Active (LFA) sonar, notwithstanding an 
investment of $10M in a scientific research project conducted by 
independent scientists, who concluded that the potential impact on any 
stock of marine mammals from injury is negligible, and the potential 
effect from significant change in a biologically important behavior is 
minimal.
V. SUPPORT FOR AMENDING MMPA
    The National Research Council (NRC), which is part of the National 
Academy of Sciences, shares the concerns of both the Clinton and Bush 
Administrations, over the current definition of harassment. According 
to the NRC, ``It does not make sense to regulate minor changes in 
behavior having no adverse impact; rather, the regulations must focus 
on significant disruption of behaviors critical to survival and 
reproduction, which is the clear intent of the definition of harassment 
in the MMPA.'' 2 Further, the NRC stated, ``If the current 
interpretation of the law for level B harassment (detectable changes in 
behavior) were applied to shipping as strenuously as it is applied to 
scientific and naval activities, the result would be crippling 
regulation of nearly every motorized vessel operating in U.S. waters.'' 
3 Ultimately the NRC recommends defining level B harassment 
in terms of ``meaningful disruption of biologically significant 
activities,'' that include migration, breeding, care of young, and 
feeding. 4 Additional support for amending the definition of 
harassment is found in a report on MMPA reauthorization prepared for 
the 106th Congress. Some scientists, according to this report, ``would 
like to see the definition of harassment revised to where it would be 
applicable only to situations where actions would reasonably be 
expected to constitute a significant threat to an entire marine mammal 
stock.'' 5
---------------------------------------------------------------------------
    \2\ National Research Council, Marine Mammals and Low-Frequency 
Sound: Progress Since 1994 (National Academy Press 2000).
    \3\ Id.
    \3\ Id.
    \3\ Buck, E.H., Marine Mammal Protection Act: Reauthorization 
Issues for the 106th Congress (1999).
---------------------------------------------------------------------------
    During the Clinton Administration, the Department of Commerce, 
Department of Interior and Department of Defense, and Marine Mammal 
Commission. proposed a definition of ``harassment,'' which was accepted 
by the Office of Management and Budget and then included in that 
Administration's proposed reauthorization of the MMPA in 2000. The Bush 
Administration's Readiness and Range Preservation Initiative reflects 
continuing interagency agreement on this point. It clarifies that 
``harassment'' applies only to injury or significant potential of 
injury, disturbance or likely disturbance of natural, behavior patterns 
to the point of abandonment or significant alteration by a specific 
animal. As such, the Navy believes that this standard would strike the 
proper balance between protecting marine mammals and providing the 
military with sufficient flexibility to conduct training and other 
operations essential to national security. It is important to note that 
the Navy will remain subject to the MMPA for injury and behavioral 
changes that affect significant biological functions.
    In short, amending the definition of ``harassment,'' as proposed by 
the Administration, would eliminate application of the MMPA to benign 
naval activities that cause only minor changes in marine mammal 
behavior; eliminate the need for mitigation that undermines critical 
training in order to avoid any liability for unpermitted takes by 
activities having only benign effects; increase training flexibility by 
allowing greater use of acoustical sources, without immunizing the Navy 
from regulation of activities that have a significant biological effect 
on marine mammals; and eliminate impediments to deployment of mission-
essential systems.
VI. CONCLUSION
    The current lack of balance in the use of the term ``harassment'' 
in the MMPA has affected our ability to deploy mission-essential 
equipment and to train realistically for the challenges our country 
faces. I urge you to consider adopting the amendment to the definition 
of ``harassment'' proposed by the Administration's Readiness and Range 
Preservation Initiative in your reauthorization of the MMPA.
APPENDIX A: EXAMPLES OF MARINE MAMMAL CONSERVATION
    The Navy has initiated significant actions to minimize potential 
harm to marine mammals and educate Sailors about marine mammals and the 
Navy's procedures for protecting species. Particularly noteworthy 
measures include training, steaming procedures, special procedures 
around the Hawaiian Islands, research and development efforts, and 
mitigation measures during ship shock trials. The following paragraphs 
offer some specific examples of our marine-mammals successes.
     Training. The Navy developed marine mammal training 
videos to educate personnel on their environmental protection 
responsibilities while at sea. Two of these videos specifically focus 
on procedures to avoid endangering the Northern Right Whale (NRW). To 
help ensure understanding of the Endangered Species Act (ESA), Marine 
Mammal Protection Act (MMPA), and local mitigation plans, the Navy 
instituted dedicated training for operational training range personnel, 
and afloat lookouts and bridge personnel. Afloat lookouts and bridge 
personnel are being trained with both the Navy marine mammal spotting 
training video and the Whale Protection ``Wheel.'' Additionally, 
lookouts, bridge personnel, and sonar operators conduct specific 
training on mitigation plan actions prior to operations. Further, the 
Navy is including relevant ESA and MMPA topics in Navy-wide officer 
training curriculum.
     At-Sea Procedures. The Navy directed commanding officers 
at sea to report proscribed information to regional commanders, Fleet 
commanders, and the Chief of Naval Operations in the event of 
encountering a whale. The report should include the information on the 
location and other operational data, and provide a description of the 
whale in as much detail as possible (e.g., length, fin shape, color, 
and any other distinguishing features). The commanders also document 
all actions taken to avoid or mitigate close encounters.
     Special Procedures within 200 nm of the Hawaiian Islands. 
For all air, surface, and submarine units, special procedures 
associated with the endangered humpback whale exist when operating 
within 200 nm of the Hawaiian Islands. Humpback whales migrate in 
winter to Hawaiian waters and generally depart the area in mid-May. The 
Navy, in compliance with National Marine Fisheries Service regulations, 
prohibits any vessel to approach within 100 yards or any aircraft to 
operate within 1,000 feet of a humpback whale.
     Research and Development. The Navy is using its expertise 
in underwater sound to detect and monitor marine mammals in several 
ocean regions. This unique capability provided the first insights to 
the behavior of the large Baleen whales in the North Pacific Ocean, 
particularly in the deep ocean basins. Navy sensors can detect the 
``calls'' of these large mammals from hundreds of miles away; five 
years of underwater acoustic data have furnished scientists indications 
of animal abundance and spawned hypotheses of sub-populations, 
migrations routes, and habitats. These data revolutionize the 
understanding of where these animals are located and when they are 
there. Techniques of this initial work are transitioning to other 
practical applications where Navy is leading development of a marine 
mammal census solely by detecting and processing marine mammal 
vocalizations. The Navy is focusing on a multi-year research and 
development program composed of several projects. These projects will 
result in a dynamic, comprehensive, global marine mammal database; the 
ability to detect, classify, and monitor marine mammal populations 
acoustically; and enhanced survey processes and predictive models. Navy 
continues to invest in marine mammal research.
    The Navy will conduct ocean-going surveys to establish population 
densities of marine mammals in our Operating Areas. Marine Mammal 
Density Data will also include further study on assessing the impact of 
Navy training on protected and endangered species. This component is 
the Navy's knowledge advancement effort and applies the scientific 
knowledge gained through the Navy marine mammal R&D program to minimize 
potential restrictions on training. Our current research program 
supports primary research funded at approximately $9 million in Fiscal 
Year 2002 and seeks to increase the level of knowledge of marine mammal 
population densities, distribution, and hearing physiology.
     Safer Shock Trials for Marine Mammals. Every Navy ship 
type is subjected to a thorough series of tests that determine whether 
it can withstand the unforgiving punishment wrought by sea combat. USS 
WINSTON S. CHURCHILL (DDG-81), the third ship in the new Flight IIA 
series of AEGIS guided missile destroyers, was subjected to a shock 
trial comprised of three detonations off the coast of Florida. The 
shock trial essentially involves the detonation of 10,000 pounds of 
explosive charges near the ship. To protect marine life from potential 
harm from the explosions, the Navy developed an extensive mitigation 
and monitoring program that focused on marine animals. The area 
selected for the trials underwent extensive aerial surveys two days 
prior to each detonation and was found to have low marine mammal and 
turtle populations. On the day of each detonation, aerial surveys, 
shipboard monitoring and passive acoustic monitoring were conducted. If 
any marine animals were sighted and/or detected within two nautical 
miles of the charge, detonation was delayed. Immediately following each 
detonation and for seven days, the testing area was monitored for a 
minimum of three hours each day for any signs of injured or dead marine 
animals. No injured or dead marine animals were observed.
     Conserving Living Marine Resources with DOC and DOT. The 
Office of Naval Intelligence (ONI) entered into a Memorandum of 
Understanding with the Departments of Transportation and Commerce 
relating to the enforcement of domestic laws and international 
agreements that conserve and manage U.S. living marine resources. ONI 
must monitor, collect, and report upon the identity and location of 
vessels that may be in violation of U.S. laws and international 
agreements that conserve and manage the living marine resources of the 
United States; sanitize information to the lowest possible level to 
ensure ease of dissemination to field units; and inform the U.S. Coast 
Guard and the National Marine Fisheries Service (NMFS).
     Northern Right Whale Migration Monitoring. The Navy, 
Coast Guard, and Army Corps of Engineers play a major role in 
protecting the Northern Right Whale (NRW), one of the most critically 
endangered marine mammals with only about 300 animals in the western 
North Atlantic. Activities include funding the Early Warning System 
aerial surveillance, producing awareness videos, training vessel crews 
on ways to operate without impacting these mammals, and preparing and 
disseminating the sighting reports. The Navy spends approximately 
$95,000 per year on just these efforts. NRWs transit through waters off 
of the coasts of South Carolina, Georgia, and Florida, in search of 
warmer, shallow coastal waters to give birth to their calves. Adult 
whales can reach sizes of up to 55 feet long and calves can reach sizes 
of 20 feet long. Since 1997, as a result of consultations with NMFS, 
the Navy agreed to employ year round measures designed to protect NRWs 
and other endangered species while operating in a special 
``consultation area,'' encompassing sea space from Charleston, SC, 
southward to San Sebastian Inlet, FL, and from the coast seaward to 80 
nautical miles from shore. Parts serve as critical habitat and winter 
calving grounds and nursery areas for the migratory NRWs. The critical 
habitat encompasses an area from SUBASE Kings Bay, GA, to south of 
Naval Station Mayport, FL, including offshore shipping lanes and 
operating areas where Navy units conduct exercises.
    The Navy has developed steps specifically designed to safeguard the 
whales during the calving season from December 1 to March 31. A series 
of Navy-developed training aids, videos, posters and other hand-out 
materials help educate ships' lookouts and navigators on Navy vessels 
and aircraft about the whale and the Navy's requirements. By its own 
initiative, Navy surface ships and submarines are posting vigilant 
lookouts and bridge watchstanders trained to identify and report NRWs. 
Navy vessels use extreme caution and proceed at slow safe speed during 
transit through critical habitat. Consistent with existing regulations, 
Navy vessels also endeavor to maintain a buffer of 500 yards from right 
whales in any area. In addition, Navy ships will not conduct north-
south transits in the critical habitat area or while operating in an 
Associated Area of Concern, which extends another five miles eastward 
beyond the Federally designated critical habitat. At the Fleet Area 
Control and Surveillance Facility, Jacksonville (FACSFAC), a team of 
Navy operations specialists is the designated coordinator for operating 
areas and related air space and also mans the ``Whale Fusion Center.'' 
The team coordinates ship and aircraft clearance into the NRW critical 
habitat and the surrounding operating areas based on prevailing 
weather, surface conditions, whale sightings, and the mission or event 
to be conducted. The communications network and reporting system that 
is in place ensures the widest possible exchange and dissemination of 
NRW sighting information to Department of Defense, Coast Guard, and 
civilian shipping vessels. Prior to entering the critical habitat, Navy 
ships are required to contact the FACSFAC to obtain the latest whale 
sighting information and must report whale sightings to the center.
    The New England Aquarium (NEA) reported that this past season was a 
banner year for right whales with more than 16 calves documented, and 
acknowledged the shipping community, commercial and military for their 
efforts to limit the potential for ship/whale collisions. NEA gave 
FACSFAC particular credit for an incredible job getting the whales' 
locations to the people that need them.
    In addition to FACSFAC's stewardship efforts, the Navy Region South 
East (NRSE) works in coordination with the Florida Department of 
Environmental Protection (FDEP), Georgia Department of Natural 
Resources, the New England Aquarium, the Marine Mammal Commission, and 
other partners within the Southeastern U.S. Implementation Team (SIT) 
for the Recovery of the Northern Right Whale headed by NMFS. During the 
2000 to 2001 season, more than 500 whale sightings were reported to 
FACSFAC. During the entire 1999 to 2000 season, 52 sightings were 
reported to FACSFAC. NRSE and FASCFAC are also a major component of the 
SIT's NRW Early Warning System (EWS). In fact, CNRSE contributes nearly 
$100,000 annually to support the EWS. Since 1996 there have been no 
whale deaths from ship strikes. Improved EWS aerial surveying, better 
sighting techniques, and more efficient sighting reporting procedures 
by FASCFAC have significantly reduced the potential for ship-whale 
collisions.
                                 ______
                                 
    Mr. Gilchrest. Dr. Hogarth?

 STATEMENT OF WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR FOR 
          FISHERIES, NATIONAL MARINE FISHERIES SERVICE

    Dr. Hogarth. Mr. Hansen, Mr. Gilchrest, members of the 
Subcommittee, I am Bill Hogarth, the Assistant Administrator 
for Fisheries in the Oceanic and Atmospheric Administration of 
the Department of Commerce.
    I want to thank you for inviting me to testify before the 
Subcommittee today on the reauthorization of the Marine Mammal 
Protection Act. Under the MMPA, the National Marine Fisheries 
Service is responsible for more than 140 stocks of marine 
animals. Today, I will provide comments on the Subcommittee's 
bill, H.R. 4781, and identify other areas of the Act that could 
be improved to enhance the Agency's ability to fulfill its 
responsibilities under the MMPA.
    Mr. Chairman, we appreciate the efforts your staff has made 
in H.R. 4781 to acknowledge and address some of the major 
concerns facing marine mammal conservation and recovery today. 
I would like to provide comments on some of the major elements 
of the bill.
    First, we agree with the intent of 4781 to include 
noncommercial fisheries in the take reduction process, but we 
are worried that the proposed amendments do not provide NMFS 
with the necessary tools to adequately address incidental takes 
from recreational fisheries.
    Second, H.R. 4781 would require NMFS staff with specific 
responsibilities or expertise to serve as formal members of 
Take Reduction Teams. NMFS does not feel it is necessary to 
legally require such representation and recommends that the 
Subcommittee simply encourage that such staff be present and 
active in TRT meetings. The rationale behind this is included 
in my full statement.
    Third, the Subcommittee's bill would require the Secretary 
to reconvene the Take Reduction Team before publishing any take 
reduction plan that is different from the draft plan proposed 
by the TRT. Although we feel that this amendment is positive in 
intent, we are concerned that the proposed language is very 
restrictive, and it could require the Agency to reconvene the 
TRT, regardless of the degree of change between the draft and 
proposed plans.
    Fourth, NMFS agrees with the benefits of initiating a 
research program to investigate nonlethal methods to remove or 
control nuisance benefits.
    Fifth, NMFS concurs with H.R. 4781 clarification that it is 
unlawful to release any captive marine mammal without prior 
authorization, keeping in mind certain exemptions that are 
already covered under other authorities of the MMPA.
    Sixth, NMFS agrees with H.R. 4781 language that clarifies 
authorization for native exports. There are, however, other 
sections of the MMPA that could also be affected by this 
proposed change. We would be pleased to work with the Committee 
to ensure the changes are consistently applied throughout the 
MMPA.
    Now I would like to mention several other areas that the 
Agency feels warrant attention during the reauthorization 
process.
    First, as I stated in my testimony last October, NMFS has 
experienced difficulties with interpretation, implementation 
and enforcement of the current harassment definition. We would 
like to work with Congress to refine and narrow the scope of 
the definition of harassment to better identify those 
activities of concern that are either directed at marine 
mammals or likely to cause the natural behavior patterns of 
marine mammals to be abandoned or significantly altered.
    Second, the incidental take of marine mammals in the course 
of fishing operations continues to be a large source of 
mortality and injury to marine mammals. The development of new 
gear and gear development deployment technology has already 
proved effective at reducing incidental takes. We hope that 
Congress will consider and support programs that encourage and 
facilitate the development, testing and evaluation of new 
fishing gear technologies to reduce marine mammal entanglements 
and interaction.
    Third, we are becomingly increasingly concerned about the 
risk that traveling exhibits pose to cetaceans. We ask that the 
Congress consider this issue during MMPA reauthorization.
    Fourth, the Alaska Native Assistant Management System, 
established by 1994 amendments, would be greatly strengthened 
by providing mechanisms to both enforce the agreement 
restriction and address subsistence harvest prior to the 
designation of a marine mammal, the stock is depleted.
    Last, we would recommend addressing the enforcement 
provisions of the Act which have remained unchanged since 1972. 
While the level of penalties of fines are appropriate in some 
cases, they have proven grossly inadequate in others, 
undermining the effective enforcement of the act. Congress may 
wish to address this problem by increasing penalties and other 
means of ensuring compliance with the MMPA.
    In conclusion, the 1994 amendments to the MMPA have enabled 
NMFS to take significant strides forward in conservation of 
marine mammals. We must consider the lessons we have learned 
and create ways to further advance our management and 
protection of marine mammals.
    I look forward to working with the Subcommittee to identify 
and formulate ways to better protect marine mammals while 
balancing human needs throughout the reauthorization process.
    Thank you.
    [The prepared statement of Dr. 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, I am Dr. William T. 
Hogarth, Assistant Administrator for Fisheries in the National Oceanic 
and Atmospheric Administration of the Department of Commerce. I want to 
thank you for inviting me to testify before the Subcommittee today on 
the reauthorization of the Marine Mammal Protection Act (MMPA). 
Additionally, I commend you, Mr. Chairman, Members of the Subcommittee, 
and your staff, for all the work you have done to move forward on the 
reauthorization of the Marine Mammal Protection Act (MMPA).
    The National Marine Fisheries Service (NMFS) administers the MMPA, 
the principal Federal legislation that guides marine mammal protection 
and conservation policy in U.S. waters, in conjunction with the U.S. 
Fish and Wildlife Service (FWS). Under the provisions of the MMPA, NMFS 
is responsible for the management and conservation of more than 140 
stocks of whales, dolphins and porpoises, as well as seals, sea lions 
and fur seals. The FWS is responsible for the remaining marine mammal 
species (polar bears, walruses, manatees, dugongs, and marine and sea 
otters).
    At the MMPA reauthorization hearing held by this Subcommittee last 
October, I presented the status of NMFS'' implementation of the 1994 
amendments and the impacts this legislation has had on marine mammal 
conservation and management. The 1994 amendments made comprehensive 
changes to the MMPA, enacting such programs as the Commercial Fisheries 
Incidental Take Regime; Marine Mammal Stock Assessments; Permits for 
Scientific Research, Enhancement, and Public Display; Incidental 
Harassment Authority; Cooperative Agreements with Alaska Natives; and 
several others that have helped our agency improve its conservation and 
management of marine mammal stocks. While NMFS has made considerable 
progress in implementing these amendments, the agency continues to 
investigate ways to improve protection and management of marine 
mammals, while allowing for commercial, recreational, scientific 
research, and other human activities.
    Today, I will focus more closely on some of the ways that we as an 
agency feel the MMPA could be amended to allow us to better protect and 
conserve marine mammals. I will begin by providing comments on the 
Subcommittee's bill, H.R. 4781, the ``Marine Mammal Protection Act 
Amendments of 2002,'' as requested. Additionally, I will identify some 
areas of the Act that could be improved to enhance the agency's ability 
to fulfill its responsibilities under the MMPA.
Comments on H.R. 4781
    Mr. Chairman, we appreciate the efforts your staff has made to 
acknowledge and address some of the most salient concerns facing marine 
mammal conservation and recovery today. We have had an opportunity to 
review the language in H.R. 4781. Below I will provide our comments on 
some of the major elements of the bill.
Take Reduction Plans
Adding Recreational Fisheries to the Take Reduction Process
    The 1994 Amendments established a new approach to governing the 
incidental take of marine mammals by commercial fisheries. While these 
amendments provided us with the necessary tools to monitor and reduce 
incidental takes from commercial fisheries, the amendments did not 
provide the agency with similar authority to reduce takes from non-
commercial fisheries. By not addressing incidental takes in these 
fisheries, efforts to reduce the impact of marine mammal bycatch in 
commercial fisheries are undermined. Therefore, the agency feels 
strongly that the regime to govern fisheries interactions in Section 
118 would be greatly enhanced by including non-commercial fisheries in 
the take reduction plan process. We agree with H.R. 4781's intent to do 
this.
    The taking of marine mammals in the course of non-commercial 
fishing is a known problem in some instances. One example of the 
problem is situations in which non-commercial fishers use gear that is 
identical in design, manner, and location of deployment to commercial 
fishing gear. In addition to enabling NMFS to address all fishery-
related sources of incidental marine mammal mortality and serious 
injury, expanding the take reduction program to include non-commercial 
fishers could provide non-commercial fisheries protection from 
prosecution for incidental taking that would otherwise be unauthorized.
    While we agree with this bill's intent to include non-commercial 
fisheries in the take reduction plan development process, we are 
concerned that the proposed amendments do not provide NMFS with the 
necessary tools to adequately address incidental takes from non-
commercial fisheries. The amendments would require NMFS to include 
incidental takes from recreational fisheries in estimates of mortality 
and serious injury for each take reduction plan. This information is 
already included in Stock Assessment Reports if available. 
Additionally, the amendments as written would only allow NMFS to 
address incidental mortality and serious injury from recreational 
fisheries in limited situations. Furthermore, the amendments do not 
subject recreational fisheries to the same requirements as commercial 
fisheries (e.g., registration and reporting, observer coverage, or 
compliance with take reduction plan regulations), which are critical 
components of the program. We have several ideas for ways to amend the 
MMPA to achieve this and would appreciate the opportunity to work more 
closely with the Subcommittee on the wording in this section to resolve 
this matter.
Required NMFS Representation on Take Reduction Teams
    The Subcommittee's bill would require NMFS staff with specific 
responsibilities or expertise to serve as formal members of take 
reduction teams (TRTs). While it is useful to have such expertise 
available to the TRT, NMFS does not feel it is necessary to require 
such representation on TRTs for a number of reasons. First, NMFS 
already has the authority and flexibility to place representatives of 
Federal agencies, including NMFS, on take reduction teams when 
necessary. Second, TRTs as currently constructed offer a unique 
opportunity for public stakeholders and other entities to advise NMFS 
on ways to address incidental take of marine mammals. Third, NOAA 
General Counsel, and NMFS Regional Administrator representatives, 
scientists, and enforcement specialists are already actively involved 
in the take reduction plan development process. Finally, NMFS feels 
requiring this membership on teams would limit the agency's flexibility 
to bring in this expertise when it is most needed and could pose 
potential problems to the viability of the process if personnel and 
resources are limited. Rather than making this membership on a team a 
strict legal requirement, NMFS recommends that the Subcommittee simply 
encourage that such staff be present and active in TRT meetings, which 
is already the case.
Requirement to Reconvene the TRT after Take Reduction Plan Development
    The Subcommittee's bill would require the Secretary to reconvene 
the Take Reduction Team before publishing any take reduction plan (TRP) 
that is different from the draft plan proposed by the TRT. NMFS feels 
this amendment is positive in intent, and believes it is important to 
conduct the TRP development process in as open a manner as possible. 
Therefore, the agency provides the TRT access to all the scientific and 
other information used to develop the final regulations implementing a 
TRP throughout the process. Additionally, the agency actively 
encourages TRT members to comment on the proposed regulations to 
implement the TRT.
    Nonetheless, NMFS is concerned that the proposed language in the 
Subcommittee's bill is overly restrictive, as it could require the 
agency to reconvene the TRT regardless of the degree of change between 
the draft and proposed plans. Since TRTs do not submit their 
recommendations in regulatory form, some alteration is inevitable 
during this process. While changes may be substantial, the vast 
majority of changes made to a TRT's recommendations have been technical 
in nature, and therefore, relatively minor. Under the Subcommittee's 
proposed amendment, NMFS would be required to reconvene a TRT even for 
minor or trivial changes to a TRP. Such a requirement could lead to 
unnecessary delays in finalizing and implementing a TRP and unnecessary 
expense. NMFS recommends altering this section to give the agency the 
flexibility to either reconvene, or otherwise consult with, the team 
regarding changes to the TRP during the public comment period 
soliciting comments on the proposed TRP. This would allow NMFS to 
choose the most appropriate type of communication with the team 
depending on the nature of changes between draft and proposed TRPs, and 
would allow NMFS to address concerns that the TRT has with NMFS'' 
changes before the proposed TRP becomes final. A requirement that the 
Secretary reconvene a TRT would intrude upon the President's management 
of the Executive Branch.
Pinniped Research
    The Subcommittee's bill would require NMFS to initiate a research 
program to investigate non-lethal methods to remove or control nuisance 
pinnipeds. NMFS agrees that such a research program would be 
beneficial.
Prohibition on Release of Captive Marine Mammals
    NMFS concurs with the clarification that it is unlawful to release 
any captive marine mammal without prior authorization, with the 
understanding that this provision should not include releases from 
temporary captivity or holding during permitted research, releases 
related to strandings, or releases or disentanglements from fishing 
gear or line which are covered under other authorities of the MMPA. 
Within the scientific community, the release of marine mammals held in 
captivity for extended periods of time is regarded as potentially 
harmful to both the animals released as well as the wild populations 
they encounter. Fundamental questions remain as to the ability of long-
captive marine mammals to forage successfully, avoid predators, and 
integrate with wild populations. Unauthorized releases pose serious 
risks of disease transmission, inappropriate genetic exchanges, and 
disruption of critical behavioral patterns and social structures in 
wild populations.
Clarifying Authorization for Native Exports
    The 1994 MMPA amendments authorized imports of marine mammal 
products in conjunction with travel outside the United States by a U.S. 
citizen, or for purposes of cultural exchange between Native 
inhabitants of Russia, Canada, or Greenland and Alaska Natives. 
However, the provision did not accommodate corresponding exports. The 
Subcommittee's bill would close the loop to clarify that exports, as 
well as imports, are permissible under the MMPA subject to certain 
conditions. NMFS agrees with this proposed change. There are, however, 
other sections of the MMPA that could also be affected by this proposed 
change including, but not limited to, the legal sale of handicrafts 
sold by Native Alaskans intrastate, but not allowed for export. We 
would be pleased to work with the Committee to make sure that this 
proposed change is consistently applied throughout the MMPA.
Other Reauthorization Issues
    In addition to the above comments on H.R. 4781, I would like to 
discuss several other areas that the agency feels warrant attention 
during the MMPA reauthorization process. As I mentioned in my October 
2001 testimony, Mr. Chairman, NMFS has been working in conjunction with 
the FWS, the Marine Mammal Commission, and other government agencies to 
develop an administration proposal to amend the MMPA. The legislation 
is still under administration review and awaits formal transmittal to 
Congress. While I can not discuss the specific contents of that bill at 
this time, I would like to present thoughts on some general themes that 
NMFS addressed throughout the development of the Administration bill.
Definition of Harassment
    The definition of ``harassment,'' a critical component of a 
``taking,'' has broad applicability throughout the MMPA. The definition 
has been formulated in two parts. Level A harassment is currently 
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.''
    As I stated in my testimony last October, NMFS has experienced 
difficulties with interpretation, implementation, and enforcement of 
the current harassment definition. On one hand, activities that may be 
likely to disturb marine mammals are not necessarily controlled unless 
they are clearly acts of ``pursuit, torment, or annoyance,'' which are 
not defined in the MMPA. On the other hand, one could argue that 
activities that have even minimal effect on marine mammals could fall 
under the category of Level B harassment, as this part of the 
definition is currently written. In effect, the harassment definition 
is so broad we are concerned that it could be essentially meaningless, 
and therefore, does not provide the public and NMFS with effective 
guidance on prohibited or regulated acts. The breadth of the definition 
also makes it difficult for the agency to prioritize its resources to 
deal with the types of harassment that have the most negative effects 
on marine mammals. Therefore, we believe there is a need to tighten the 
definition of harassment and reduce the ambiguity to clarify when a 
given activity would be considered harassment.
    We have been working with our constituents and other Federal 
agencies to refine the definition of ``harassment'' to better identify 
those activities of concern that are either (1) directed at marine 
mammals such as viewing, swimming, or interacting with the animals, or 
(2) likely to disturb a marine mammal by causing a disruption of 
natural behavioral patterns to a point where such behavioral patterns 
are abandoned or significantly altered.
    NMFS supports clarification of the definition of ``harassment,'' 
such as that proposed by the Administration through the Readiness and 
Range Preservation Initiative contained in the 2002 Department of 
Defense Authorization legislative proposal. We recognize the importance 
of this change to ensuring the ability of our nation's military to 
train effectively. However, we believe that a similar clarification of 
the harassment definition in the Marine Mammal Protection Act should 
also be made that will apply broadly to all activities and operations, 
not merely those pertaining to military readiness.
Traveling Exhibits
    We have become increasingly concerned about the risks posed to 
cetaceans by traveling exhibits. Unlike some marine mammals, such as 
polar bears, seals and sea lions, which spend time in both aquatic and 
terrestrial environments, cetaceans must remain buoyant at all times. 
Therefore, their health and survival depends heavily on having a 
continuously clean and safe aquatic environment, conditions that are 
difficult to maintain when transport is so frequent. Because 
transporting cetaceans is difficult and risky for cetaceans, traveling 
exhibits would place the animals under enormous stress. We ask that 
Congress consider this issue during MMPA reauthorization.
Harvest Management Agreements
    The 1994 MMPA amendments enabled NMFS to enter into cooperative 
agreements with Alaska Native organizations to conserve marine mammals 
and co-manage subsistence use by Alaska natives. NMFS believes these 
amendments provided a great beginning and that the program has yielded 
some success, evidenced by the agreements the agency has reached to co-
manage subsistence harvest of harbor seals, beluga whales, and other 
marine mammals. Nonetheless, the effectiveness of these agreements at 
this point relies on voluntary compliance by Alaska natives, since 
there is no mechanism under the MMPA to enforce any restrictions 
developed through harvest management agreements for subsistence 
purposes. The harvest management system would be greatly strengthened 
by providing a mechanism to enforce subsistence harvest restrictions 
developed through these agreements. Additionally, the program would be 
enhanced by providing a mechanism to address subsistence harvest prior 
to the designation of a marine mammal stock as depleted. Such a change 
would allow for more effective use of harvest management agreements 
when they can help prevent future depletion of Alaska marine mammal 
stocks. NMFS has been working with the U.S. Fish and Wildlife Service, 
the Marine Mammal Commission, and Alaska natives on a proposal to 
address these issues. The Administration looks forward to presenting 
this proposal as part of its reauthorization package
Fisheries Gear Development
    The incidental take of marine mammals in the course of fishing 
operations continues to be a large source of mortality and injury to 
marine mammals. The development of new gear and gear deployment 
technologies has already proven effective at reducing incidental takes. 
For example, the development of acoustic deterrent devices, or 
``pingers,'' has helped reduce incidental takes of harbor porpoises in 
New England waters. We believe programs that encourage and facilitate 
the development, testing, and evaluation of new gear technologies are 
key to reducing marine mammal entanglements while allowing fishers to 
operate in areas that marine mammals frequent. We hope that Congress 
will consider and support such programs.
Enhancing Enforcement
    While several sections of the MMPA have been updated since the Act 
was first passed in 1972, some areas are extremely outdated. One such 
area is the penalties that may be imposed for violations of the MMPA. 
Currently, individuals who violate the MMPA are subject to civil 
penalties of up to $10,000 and criminal fines of up to $20,000. These 
penalties have been unchanged since 1972. While these levels are 
appropriate in some cases, they have proven grossly inadequate in 
others, undermining effective enforcement of the Act. To enhance 
enforcement of the MMPA, Congress may wish to consider increasing 
penalties and other means of ensuring compliance with the MMPA.
Conclusion
    The MMPA has benefitted U.S. marine mammal stocks and has served as 
a model for marine mammal conservation and management policies and 
programs around the world. The 1994 Amendments have enabled NMFS to 
take significant strides forward in the conservation of marine mammals 
over the past decade. Now reauthorization is upon us again and 
managers, policymakers, and other interest groups have an important 
opportunity to consider the lessons we have learned since 1994 and come 
up with new and constructive ways to further advance our management and 
protection of marine mammals. Mr. Chairman, I look forward to working 
with you, the Subcommittee, and your staff to identify and formulate 
effective ways to better protect marine mammals while balancing human 
needs throughout this reauthorization process.
    This concludes my testimony. I thank you again for the opportunity 
to testify before your Subcommittee today and would be happy to answer 
any questions you may have.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Dr. Hogarth.
    Mr. Jones?

  STATEMENT OF MARSHALL JONES, DEPUTY DIRECTOR, U.S. FISH AND 
                        WILDLIFE SERVICE

    Mr. Jones. Thank you, Mr. Chairman, for the opportunity to 
provide this testimony today on reauthorization of the Marine 
Mammal Protection Act and on some recent developments regarding 
an agreement between the United States and Russia on polar bear 
conservation.
    Mr. Chairman, we appreciate your leadership and the work 
that has been done by your staff in introducing H.R. 4781. We 
strongly support the reauthorization of the Marine Mammal 
Protection Act and look forward to working with the 
Subcommittee in this effort.
    I will comment here on two specific provisions of H.R. 4781 
and note that in our written statement which we have submitted 
for the record, we have some additional comments, including 
several which are similar to those which you have heard from 
Dr. Hogarth already.
    First, we support Section 11 of your bill which would allow 
for the import of polar bear trophies legally taken in Canada 
during the time period between 1994 and 1997. As a general 
rule, the Department of Interior would oppose legislative 
exemptions which would allow imports of sport-hunted trophies 
outside of established guidelines.
    However, in this limited circumstance, we believe that the 
extension provision that you have included in H.R. 4781, which 
would allow the import of trophies taken during that 3-year 
interval based, at least in part, on expectations raised by a 
proposed rule published by the Fish and Wildlife Service would 
be a good thing, which would contribute to polar bear 
conservation.
    We would note that, under your bill, imports of trophies 
taken after February 18, 1997, would continue to be allowed 
only from approved populations that meet the criteria for 
sustainability which were included in our regulations.
    Second, Mr. Chairman, we would note that H.R. 4781 does not 
include a specific authorization for Section 119 of the Marine 
Mammal Protection Act. This is the section which authorizes us 
to enter into cooperative agreements with Alaska Native 
organizations for conservation of marine mammals taken for 
subsistence and handicraft purposes. I have previously 
testified here on how these cooperative agreements have 
enhanced the conservation of marine mammals and strengthened 
our partnerships with Alaskan Natives. So we feel it would be 
important to include a specific authorization in this section 
for funding to be directed to support these cooperative 
agreements with Alaskan Natives.
    Mr. Chairman, more generally, as noted the last time most 
of us were here to testify before this Subcommittee, we have 
been working cooperatively between the Department of the 
Interior, the Department of Commerce, the Marine Mammal 
Commission, the Department of Defense, and other Federal 
agencies to identify areas of the Marine Mammal Protection Act 
that would benefit from well-considered changes. We continue to 
work on that effort and hope that there will be something that 
the Administration would provide to you soon.
    One change under consideration would address a significant 
limitation in the current text of the act, the inability to 
manage subsistence harvest of marine mammals until those stocks 
are designated as depleted. We agree with our Alaskan Native 
partners that sound management of marine mammal harvests should 
occur well before they are depleted, but, today, the lack of 
enforceable management measures on nondepleted stocks could 
lead to sharp declines in those stocks before we would have any 
ability to actually regulate that decline.
    We believe an amendment which would allow active management 
of the harvest of marine mammal stocks is needed to ensure 
their continued health.
    Also, Mr. Chairman, in October of 2001, I described to the 
Subcommittee a proposal that would provide a mechanism for 
Alaskan Native organizations to initiate the development of 
harvest management agreements related to subsistence harvest 
that contain management restrictions administered by either 
tribal or Federal signatories to the agreement, and we look 
forward to working with you on this.
    Another area, Mr. Chairman, as you have already heard from 
my colleagues here on this panel, is definition of the term 
``harassment.'' We have worked hard with our Federal partners, 
particularly Dr. Hogarth at the National Marine Fisheries 
Service, and the Department of Defense, to identify ways that 
we could clarify that definition, not to allow activities which 
will result in any harm to marine mammals, but rather to focus 
the definition in a way that those activities which really do 
cause harm would be appropriately regulated and other 
activities which do not would be allowed.
    Mr. Chairman, let me conclude my remarks by providing you 
with a brief update on an international agreement that 
represents a significant step toward the conservation of polar 
bears.
    The United States and Russia, as you know, signed a 
bilateral agreement in October of 2000 for management of the 
polar bear population which is shared between Alaska and 
Chukotka in Siberia. Since then, we have drafted a legislative 
proposal to implement the agreement and are committed to 
working actively with our Russian and Native partners. A U.S. 
delegation just met last week in Russia, and I am pleased to 
say that the Russians are enthusiastic about implementing the 
agreement.
    Finally, Mr. Chairman, I am very pleased to report today 
that the Secretary of State has now forwarded the agreement 
with his approval to the White House for the President's 
consideration.
    Mr. Chairman, in closing, let me just emphasize our ongoing 
commitment to work with our Alaska Native partners to enhance 
their role in the conservation and management of marine 
mammals. Again, I commend you for your leadership in 
introducing H.R. 4781, and we look forward to working with you 
on this important work to reauthorize the Marine Mammal Act.
    Thank you very much.
    [The prepared statement of Mr. Jones follows:]

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

    Mr. Chairman and Members of the Subcommittee, I thank you for the 
opportunity to provide the testimony of the Department of the Interior 
on the Marine Mammal Protection Act (MMPA or Act) of 1972 and on H.R. 
4781, the Marine Mammal Protection Act Amendments of 2002. I am 
Marshall Jones, Deputy Director of the U.S. Fish and Wildlife Service 
(Service). 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 Fish and Wildlife Service, protects and manages polar bears, sea 
and marine otters, walruses, three species of manatees, and dugong.
    Mr. Chairman, we commend you for your leadership in crafting and 
introducing a bill to reauthorize the MMPA. The Administration strongly 
supports reauthorizing the Act, and looks forward to working with the 
Subcommittee in this effort. The Administration is currently carrying 
out its final review of its legislative proposal to reauthorize the 
Act. This proposal will have provisions relating to some of the areas 
addressed by H.R. 4781, as well as additional provisions that we 
believe will benefit the conservation of marine mammals. We expect the 
Administration proposal to be submitted soon to the Congress for its 
consideration. The proposal reflects the diligent and coordinated work 
of the Service, 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.
    My testimony will provide comments on H.R. 4781, discuss some of 
the areas of the MMPA that the Administration believes can benefit from 
amendments, and will provide an update on the status of the U.S.-Russia 
Bilateral Agreement for the management of the shared Alaska-Chukotka 
polar bear population.
H.R. 4781, the Marine Mammal Protection Act Amendments of 2002
    Again, we commend you Mr. Chairman, for introducing a bill to 
reauthorize the MMPA. My testimony will be limited to provisions which 
relate to the Department of the Interior, and I will defer to the 
Department of Commerce to present the Administration's views on other 
provisions.
Section 4: Limited Authority to Export Native Handicrafts
    One of the 1994 amendments to the MMPA added a prohibition on 
exporting marine mammals to Section 102. 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 to ensure consistency and clarity through the Act were 
inadvertently not made. This has resulted in confusion for the 
regulated public. However, without concurrent amendment to Section 
101(b), the export of a product legally obtained and possessed by a 
non-Native would appear to be prohibited under this section. We believe 
these additional inconsistencies should be corrected as well.
Section 11: Extension
    As a general rule the Department is opposed to legislative 
exemptions to allow imports of sport-hunted trophies outside of 
established guidelines. However, in this case, the Department supports 
H.R. 4781's proposed amendment to extend the time-frame for such 
imports as established in the 1997 amendments. This would allow for 
import of polar bear trophies legally taken during the time period 
following the 1994 amendments until the implementing regulations were 
published in February 18, 1997.
    We understand that 60-70 polar bears from currently deferred 
populations were taken by hunters during this period based, largely, on 
expectations that may have resulted from confusion caused by the 
Service's proposed regulations that would have allowed these imports if 
the regulations had been finalized as proposed. It was determined 
during the public comment period on the proposed regulations, however, 
that such imports may exceed the scope of the 1994 amendments. As a 
result, the Service's final rule excluded import of any polar bear 
trophy until such a time as the Service had approved the population 
from which it was taken for import. In 1997, Congress amended the MMPA 
to specifically allow the import of legally harvested trophies from any 
population prior to the passage of the 1994 amendments (April 30, 
1994).
    Under the current regulations, all legally acquired trophies, 
regardless of the date taken, may be imported from approved 
populations. However, the approval of a number of populations has been 
deferred pending receipt of additional information on the management 
programs and scientific data for these populations. The trophies in 
question were taken from these deferred populations after April 30, 
1994, and before February 18, 1997, during which time the regulations 
as proposed would have allowed for their import. In light of this, the 
Department supports extending the time frame to allow these imports.
    We note, however, that under H.R. 4781, imports of polar bear 
trophies taken since February 18, 1997, would continue to be allowed 
only from approved populations. U.S. trophy hunters should only take 
bears from those populations which have been found to be sustainable. 
The February 18, 1997, final regulations establish clear importing 
requirements for imports of trophies. Trophies taken after that date 
can only be imported in compliance with those regulations. H.R. 4781 
would not change this fact.
Section 12: Polar Bear Permits
    The Department supports the proposed amendment to Section 104 which 
would remove the requirement to publish two notices in the Federal 
Register for each permit application to import trophies of 
``grandfathered'' polar bear trophies or trophies sport-hunted from 
approved populations. From 1997 to 2002, we processed more than 481 
applications for polar bear trophy import permits, and received no 
comments in response to the Federal Register notices. The proposed 
amendment would streamline the permitting process and reduce the 
administrative expense of publishing notices. The public would still be 
given the opportunity to comment on findings to approve new Canadian 
polar bear populations for import, and would continue to have access, 
on a semiannual basis, to current information on permits.
    The Service notes, however, that there is one other subsection in 
the current law that requires amendment so that all subsections of the 
MMPA reflect the proposed change. To fully accomplish this change, the 
phrase ``, expeditiously after the expiration of the applicable 30 day 
period under subsection (d)(2),'' should be deleted from the first 
sentence of Subsection 104(c)(5)(D).
Additional comments regarding Section 119 of the MMPA
    In previous testimony before this Subcommittee, we presented 
information on the value and benefits of Section 119, which 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. 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. 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. This 
communication is crucial; 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 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 Alaska Natives.
    We note that H.R. 4781 does not include specific authorizations for 
Section 119. Currently, the authorization language for that section 
provides for authorizations of $1.5 million for the Department of 
Commerce and $1 million for the Department of the Interior. It is 
important to include specifically identified authorizations for this 
section so that funding may be directed to support Cooperative 
Agreements with Alaska Natives. Including these authorizations sends a 
clear message to our Native constituents that we support such 
agreements and appreciate the accomplishments achieved to date through 
our existing cooperative agreements.
Pending Administration Proposals
    The Administration is currently in the final stages of its review 
of a comprehensive MMPA reauthorization package. Because this bill is 
still under review, I cannot discuss its specific contents at this 
time, but I would like to present our thoughts on some general themes 
that the Service and other participating agencies have addressed 
throughout the course of developing this proposal. We look forward to 
working with the Committee on these issues in the future.
Proposed Harvest Management
    We have testified twice before this Committee on the need to 
address subsistence harvest management issues. At the 2000 hearing, 
then-Chairman Young challenged those directly involved in marine mammal 
management in Alaska to develop a proposal supporting management of 
subsistence harvest by Alaska Natives. Of primary consideration in the 
need to address this are the limitations inherent in the current 
Section 119. Management strategies developed under the existing 
framework are limited, as they are strictly voluntary efforts carried 
out on a village-by-village basis, with further limitations related to 
the varying levels of compliance. Currently, the MMPA does not allow 
enforceable harvest management until a marine mammal stock becomes 
depleted; both the Department and our Alaska Native partners agree that 
sound management of marine mammal harvests must occur prior to 
depletion, in order to avoid depletion. A further part of Chairman 
Young's challenge was to develop a proposal to be implemented at a 
local level. Since then, we have been working hard with our Federal and 
non-Federal partners to meet that challenge.
    In October 2001, we described to the Subcommittee a proposal 
considered by this group that would provide a mechanism for Alaska 
Native Organizations to initiate the development of harvest management 
agreements containing management restrictions, related to subsistence 
harvest, that 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. We look forward to working 
with the Subcommittee on this important issue.
Southern Sea Otter--Fishery Interaction Data
    Pursuant to Section 118 of the Act, the Department is interested in 
gathering information on fishery interactions with southern sea otters 
in California. It is known that southern sea otters are incidentally 
taken in fishing operations. MMPA reauthorization could provide an 
opportunity to enhance efforts to assess the impact of commercial 
fisheries on this threatened sea otter population.
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, or ecosystem-based, 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 definition, 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. A new definition of 
harassment, developed by the participating agencies, is included in the 
draft legislative package currently under final review within the 
Administration.
Polar Bear Bilateral Agreement with Russia
    As we reported during the October 2001 hearing before this 
Committee, the United States and Russia signed a Bilateral Agreement on 
October 16, 2000, for the management of the Alaska-Chukotka polar bear 
population. Since that Agreement was signed, the Department has drafted 
implementing legislation for the agreement and remains committed to 
actively pursuing this Agreement with our Russian and Native partners. 
Significant steps remain, however, prior to active implementation. 
These steps include submission of the Agreement by the Administration 
to the Senate, consent to the Agreement by the Senate, and enactment of 
implementing legislation.
    Timing on these steps is becoming increasingly important as our 
Russian partners, and our Native partners in both Alaska and Russia, 
are eager to activate the Agreement. Further delays may dampen the 
current support and enthusiasm of our partners. Additionally, the 
Agreement enjoys broad support within the Conservation community, which 
is also eager to see the Agreement implemented.
    The benefits of the Agreement are significant, primarily 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 United States 
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 we previously 
discussed, 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.
Conclusion
    Mr. Chairman, in closing I would like to again commend you for your 
leadership in introducing H.R. 4781. 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 that these changes will allow us to be more 
effective in addressing our responsibilities in marine mammal 
management, and we look forward to working with you and members of the 
Committee to enact meaningful improvements during this Congress.
    Mr. Chairman, this concludes my remarks. I am happy to answer any 
questions that you might have.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Jones.
    Dr. Reynolds?

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

    Dr. Reynolds. Mr. Chairman, thank you for providing the 
Marine Mammal Commission with the opportunity to present its 
views on H.R. 4781, as well as to share its thoughts on other 
issues that currently are not addressed in the bill. Many of my 
comments today will echo those of the other speakers from whom 
you have already heard.
    The Commission generally supports the provisions included 
in the bill, and subject to the drafting suggestions set forth 
in my written statement submitted for this hearing, we 
recommend their adoption.
    One area of concern is Section 8, which would eliminate the 
current statutory provision, establishing a minimum staff size 
for the Commission. While we appreciate the Committee's 
interest in providing the Commission with greater flexibility 
and allocating resources, we are concerned that elimination of 
this safeguard could undermine our ability to function 
effectively or to meet the demands of an increasing workload. I 
hope the Committee will continue its tradition of support for 
and recognition of the value of having a fully staffed and 
effectively operating Marine Mammal Commission.
    While the Commission generally supports the proposed 
amendments included in H.R. 4781, we are concerned about what 
has been omitted. My written statement and previous Commission 
testimony before this Committee have identified several other 
issues that we believe merit attention during reauthorization.
    Some issues, such as marine mammal exports, have only been 
partially addressed. We agree that the provision concerning 
exports related to cultural exchanges is appropriate, but 
continue to believe that this is a broader problem that needs a 
more comprehensive solution. The Commission also believes that 
an amendment is needed to Section 102(a)(4) to clarify that any 
unauthorized exports, sale, purchase or transport is 
proscribed, regardless of whether the underlying taking 
constituted a violation of the act.
    Another issue that has been only partially addressed is the 
need to expand the coverage of Section 118 to include certain 
recreational fisheries who use gear similar to that used by 
commercial fishermen and which presumably have a similar 
potential for incidentally taking marine mammals. Although the 
introduced bill would expand the scope of some take reduction 
plans to address taking by recreational, as well as commercial 
fisheries, taking by the former apparently would not be 
considered when determining whether fisheries related taking 
exceeded a stock's potential biological removal level, which 
triggers preparation of the plan in the first place.
    Moreover, without also making recreational fisheries 
subject to the registration, reporting, and monitoring 
requirements of Section 118, it is not clear how the Secretary 
will be able to determine the extent and manner of taking or to 
design appropriate take reduction measures.
    Another issue garnering considerable attention, as you have 
heard, is the need to amend the act's definition of the term 
``harassment.'' The Commission agrees with the other agencies 
appearing here today that the current definition has created 
difficulties related to interpretation and enforcement. We 
believe that clarification will be useful and encourage the 
Committee to revise the definition to resolve existing 
ambiguities while continuing to provide the necessary 
protection for marine mammal populations.
    We specifically requested that the Commission provide its 
views on the bilateral agreement negotiated between the U.S. 
and Russia concerning the conservation and management of the 
shared Alaska-Chukotka polar bear population. We have already 
heard from Mr. Jones on that topic. The Commission also 
believes that the implementation of the agreement will 
significantly enhance our ability to conserve that polar bear 
population and to protect the subsistence lifestyles of Native 
hunters in Alaska.
    We encourage the Committee to provide the responsible 
agencies with the authority and resources necessary to 
implement the agreement.
    The Commission would like to reiterate the desirability of 
expanding the authority under Section 119 of the Act to enable 
the services to enter into harvest management agreements with 
Alaskan Native organizations. Such a provision, as you have 
heard, would help guarantee the conservation measures, when 
necessary, can be implemented before a population has been 
reduced to the point where it is depleted.
    The Commission also continues to believe that other 
provisions of the Act can benefit by amendment. These are 
discussed in my written statement and include the following:
    First, amendments to Section 118, to specify, for example, 
when take reduction plans need not be prepared, to clarify that 
participating in a Category 1 or 2 fishery without having 
registered constitutes a violation, and to ensure that 
observers monitor all covered fisheries at levels capable of 
providing statistically reliable information;
    Second, amendments concerning the appropriateness of 
maintaining certain types of marine mammals and traveling 
exhibits and to clarify the provisions concerning export 
permits;
    Third, amendments to update the penalty provisions of the 
Act and to allow the seizure and forfeiture of a vessel's catch 
for fishing in violation of Section 118;
    And, fourth, a new authority parallel to Section 118 to 
focus on reducing mortalities and serious injuries incidental 
to activities other than commercial fisheries, such as 
commercial shipping and recreational boating.
    In conclusion, Mr. Chairman, Congress showed remarkable 
vision in writing and enacting the Marine Mammal Act 3 decades 
ago. Although we have developed a better understanding of human 
impacts on aquatic ecosystems and on marine mammals and other 
species since then, a great deal remains to be learned. Thus, 
it is important that Congress continue to identify emerging 
issues and to help the responsible agencies to respond to them 
proactively before they develop into expensive crises.
    Again, I appreciate the opportunity to provide testimony to 
the Committee and would be pleased to respond to any questions 
you may have.
    [The prepared statement of Dr. 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 present its views on H.R. 4781, the Marine Mammal 
Protection Act Amendments of 2002, and to share its thoughts on other 
issues that currently are not addressed in the bill. I will first 
discuss the provisions of the introduced bill.
    H.R. 4781 addresses some, but not all, of the issues identified by 
the Commission in previous testimony as warranting review or revision 
during the reauthorization process. For the most part, we agree that 
the proposals included in the bill are appropriate and, except as noted 
below, we support their inclusion in the legislation. Specific comments 
on certain provisions follow.
Section 3--Technical Corrections
    The Commission concurs that the proposed corrections are 
appropriate and should be made. It is unclear, however, why other 
technical amendments are not also being proposed. Most notable among 
these is the elimination of section 114 and references thereto made in 
other sections of the Act. Section 114, which provided an interim 
exemption to allow the incidental taking of marine mammals in 
commercial fisheries, was supplanted by section 118 under the 1994 
amendments and no longer is in effect. We would welcome the opportunity 
to work with your staff to identify other areas where technical 
corrections are needed.
Section 4--Limited Authority to Export Native Handicrafts
    As noted in previous Commission testimony, several provisions of 
the Act were not revised in 1994 to reflect the prohibition on 
exporting marine mammals that was added at that time. One of these was 
the cultural exchange provision (Sec. 101(a)(6)), which was also added 
by the 1994 amendments. As such, the Commission believes that the 
proposed amendment set forth in section 4 of the bill is needed and 
appropriate. Nevertheless, we continue to believe that other provisions 
also need to be updated to account for the export prohibition. Also, 
there is a need to revise section 102(a)(4) of the Act, which, as 
amended in 1994, reinstituted an enforcement mechanism whereby the 
government must show that the taking underlying an otherwise illegal 
transport, purchase, sale, or export of a marine mammal or marine 
mammal product was also in violation of the Act. This problem had 
previously been recognized and rectified by Congress in 1981. The 
Commission has worked with the other responsible agencies to develop a 
comprehensive set of amendments to address the export issue for 
inclusion in the Administration bill.
    There also is one drafting point concerning section 4 of the bill 
that we would like to call to your attention. Whereas the heading 
refers to the export of Native handicrafts, the provision itself is 
broader than that and applies to legally possessed ``marine mammal 
products.'' The heading should be revised to correspond to the 
statutory provision so as to avoid possible confusion.
Section 6--Take Reduction Plans
    This section adopts some, but not all, of the recommendations made 
in the bill transmitted by the previous Administration. In this regard, 
we support the Committee's recognition of the need to expand the 
coverage of section 118 to include other fisheries that may be having 
adverse impacts on marine mammals. We question, however, whether the 
National Marine Fisheries Service will be able to provide the 
information that would be required under an amended section 118 
(f)(4)(B) unless the coverage under subsections (c), (d), and (e) is 
also expanded to provide the tools necessary to collect that 
information.
Section 7--Pinniped Research
    The Commission agrees that more needs to be done to develop 
effective, non-lethal methods for deterring pinnipeds from engaging in 
harmful interactions with fishing operations. Presumably this is the 
focus of the proposed amendment, inasmuch as paragraph (2) of the 
proposed provision would require the Secretary to include 
representatives of the commercial and recreational fishing industries 
among those tasked with developing the research program. However, by 
referring more generally to ``nuisance pinnipeds,'' the provision 
suggests that its intent is broader than just fishery interactions. It 
therefore would be helpful if the Committee, in its report on the bill, 
were to provide additional guidance as to what types of problems it 
expects the program to address.
Section 8--Marine Mammal Commission
    While we appreciate the Committee's interest in providing the 
Commission with greater flexibility in allocating its resources to meet 
its responsibilities, there also needs to be a recognition that there 
is some minimum staff size below which the Commission is no longer able 
to function effectively or to meet the demands of its increasing 
workload. Congress previously determined that 11 was the minimum staff 
size below which operation of the Commission would be compromised. We 
trust that by proposing this amendment the Committee is not backing 
away from its tradition of support for and recognition of the value of 
having a fully staffed and effectively operating Marine Mammal 
Commission. The appropriation levels that would be authorized under 
this subsection (b) should be sufficient to ensure that the Commission 
will be able to continue to function effectively.
Section 12--Polar Bear Permits
    As the Commission noted in its testimony before the Committee last 
October, there is little purpose served by the notice and comment 
requirements of section 104 as they pertain to the issuance of permits 
authorizing the importation of polar bear trophies from Canada. The 
only question for the Service to consider at the application stage is 
whether the bear was legally taken from an approved population. As 
such, the Commission supports the intent of the proposed amendment. We 
do, however, have two drafting suggestions. In proposed paragraph (2), 
the phrase ``required to be'' should be inserted after the words 
``application was'' to clarify that this provision applies whenever a 
notice should have been published whether or not publication actually 
occurred. Also, a conforming amendment is needed to the first sentence 
of section 104(c)(5)(D) to delete the phrase ``, expeditiously after 
the expiration of the applicable 30 day period under subsection 
(d)(2),.''
Section 14--Marine Mammal Commission Administration
    As indicated at the October hearing, the limitation on the daily 
amount that the Commission can spend on experts or consultants has 
effectively precluded us from using such services for some time. We 
appreciate the Committee's recognition of this problem and agree that 
the Commission should be put on an equal footing with other agencies in 
our ability to make use of such services.

                               * * * * *

    Two issues not addressed in the introduced bill but on which the 
Chairman specifically requested testimony are the Act's definition of 
harassment and the bilateral agreement negotiated between the United 
States and Russia concerning the conservation and management of the 
shared Alaska-Chukotka population of polar bears.
    Congress showed remarkable vision in writing and enacting the 
Marine Mammal Protection Act three decades ago. Since that time, 
scientists have come to better understand both the nature of human 
impacts on aquatic ecosystems and on marine mammals and other species. 
Although we have learned a great deal in the past 30 years, our 
knowledge is by no means perfect in either area. Thus it is important 
for Congress to continue to be proactive and farsighted. It also is 
important to facilitate scientific research to help clarify the nature 
and extent of possible impacts.
    The issue of what constitutes harassment is one area where 
considerable uncertainty remains. In previous testimony before this 
Committee, the Commission has indicated that the existing definition of 
harassment in the Marine Mammal Protection Act has created some 
practical difficulties related to interpretation and enforcement. The 
Commission has been working with other involved Federal agencies to 
address these difficulties.
    In October 2000 the United States and Russia concluded a bilateral 
agreement for the conservation of the shared population of polar bears 
that inhabits the Bering and Chukchi Seas. Currently, hunting on the 
Russian side is not allowed; however, it is believed that an unknown 
level of illegal taking is occurring. The ability to regulate the 
number of bears removed from the population is expected to take on 
added importance when the Russian Federation legalizes polar bear 
hunting, which it is expected to do shortly. Other provisions of the 
Agreement, such as the prohibition on taking cubs and female bears with 
cubs, the use of aircraft and large motorized vehicles and vessels to 
hunt bears, and the taking of polar bears using poison or traps, will 
help ensure that the United States is fully meeting its obligations 
under the multilateral 1973 Agreement on the Conservation of Polar 
Bears. Other expected benefits of the bilateral Agreement include an 
enhanced research effort, which is expected to improve our ability to 
estimate the size of the population and to determine whether the level 
of removals is sustainable. Before the Agreement takes effect, it must 
be ratified by the Senate. In addition, implementing legislation will 
be needed. It is expected that the Agreement will be transmitted for 
ratification soon. Proposed implementing legislation has been drafted 
and is currently undergoing review within the Administration.
    Implementation of the Agreement is strongly supported by the Alaska 
Native community and by several conservation organizations. The 
Commission believes that implementation of the Agreement will 
significantly enhance our ability to conserve the Alaska-Chukotka polar 
bear population and to protect the subsistence lifestyles of Native 
hunters in Alaska. We therefore encourage this Committee to take all 
necessary action to see that this occurs.
    The Commission would also like to take this opportunity to 
highlight another issue that has previously been aired before the 
Committee, the expansion of the existing authority under section 119 of 
the Act to enable the National Marine Fisheries Service and the Fish 
and Wildlife Service to enter into cooperative agreements with Alaska 
Native organizations. The Commission believes that such a provision, if 
carefully crafted, would help guarantee that conservation measures, 
when necessary, can be implemented before a population has been reduced 
to a point where it is depleted. We note that such a provision, which 
had been included in a working draft bill circulated by Committee staff 
near the end of the last session, has been omitted from the introduced 
bill. We hope that this does not reflect a determination that a harvest 
management amendment does not merit further consideration.
    The Commission also continues to believe that other provisions of 
the Act can benefit by amendment. These are described briefly below.
Taking Incidental to Commercial Fisheries (Section 118)
    Section 118 currently requires that a take reduction plan be 
developed for each strategic stock that interacts with a category I or 
II fishery, regardless of the level of such interactions or whether the 
reason the stock is considered to be strategic is largely independent 
of fisheries interactions. The Commission recommends that the Committee 
consider an amendment to specify that a take reduction plan need not be 
prepared for those strategic stocks for which mortality or serious 
injury related to fisheries is inconsequential.
    The Commission also believes that further consideration should be 
given to an amendment to clarify that it constitutes a violation of the 
Act to participate in any category I or II fishery without having 
registered under section 118, regardless of whether incidental takes 
occur. A related amendment that also needs to be considered would 
specify that all participants in category I or II fisheries, whether 
registered or not, are subject to the observer requirements of section 
118. The Commission also believes that revisions to this section are 
needed to enable the responsible agencies to obtain reliable 
information on the numbers and types of fishery-related mortalities and 
injuries involving California sea otters.
    Previous Commission testimony has noted that available funding has 
not always been sufficient to place observers within all fisheries that 
need to be monitored or to place them at levels needed to provide 
statistically reliable information. We again call this issue to your 
attention and recommend that you consider possible solutions, including 
securing contributions from the involved fisheries.
Permits (Section 104)
    The draft bill has picked up on some, but not all, of the permit-
related issues highlighted by the Commission during previous hearings 
on Marine Mammal Protection Act reauthorization. The Commission 
continues to be concerned about the appropriateness of maintaining 
certain marine mammals--most noticeably cetaceans--in traveling 
exhibits, which present special problems for successful maintenance. We 
again encourage the Committee to look at this issue more closely.
    Since the hearing last October, the Commission has submitted 
comments on the National Marine Fisheries Service's proposed public 
display regulations. Among other things, the Commission's letter 
provides a detailed analysis of the provisions pertaining to exports of 
marine mammals to foreign public display facilities. The Committee may 
find this to be of interest and we would be pleased to provide you with 
a copy if you like.
    In its letter to the Service, the Commission concluded that the 
current system does not work particularly well. Determinations of 
facility comparability are based exclusively on paper submissions, 
rather than physical inspections, as are required for domestic 
facilities. Foreign facilities are asked to provide a letter of comity 
from the host government to enable the Service to enforce the Marine 
Mammal Protection Act against the facility if violations occur after 
the animals have been exported, even though the agency has few, if any, 
resources available to ascertain compliance by foreign facilities. 
Representatives of the public display community have advocated that it 
is sufficient to make a determination of comparability at the time of 
export without any mechanism in place to ensure that the animals are 
well cared for once they have left the United States. We disagree, and 
believe, as we recommended to the National Marine Fisheries Service in 
our comment letter, that there is merit in convening the interested 
parties to review the current system with a view to identifying whether 
there are ways to better achieve the goal of providing reasonable 
assurance that marine mammals exported from the United States will be 
well cared for throughout the duration of their maintenance in 
captivity, and which realistically reflects the ability of U.S. 
agencies to identify and correct deficiencies at foreign facilities, 
while not establishing unnecessary barriers to the exchange of marine 
mammals among qualified facilities. We hope that this is an undertaking 
that the Committee will want to endorse.
Miscellaneous Issues
    Under section 405 of the Act only donations and other monies 
specifically earmarked for use with respect to unusual mortality events 
can be placed in the Marine Mammal Unusual Mortality Event Fund. That 
is, funds generally appropriated to the National Marine Fisheries 
Service for implementing the Marine Mammal Protection Act may not be 
used for that purpose, even in those years when a large number of 
unusual mortality events might occur. The Commission again calls your 
attention to this issue in hopes that greater flexibility will be 
provided in how unusual mortality responses can be funded.
    As noted in previous testimony, the penalties that may be assessed 
for violations of the Act have not been increased since its original 
enactment 30 years ago. This being the case, the maximum penalties 
available under the Marine Mammal Protection Act are quite low as 
compared to other natural resources statutes. We encourage the 
Committee to review the penalties available under sections 105 and 106 
and consider increasing them to reflect changes in economic 
circumstances since 1972. The Commission also encourages the Committee 
to give consideration to amending the forfeiture provisions of section 
106 to allow the seizure and forfeiture of a vessel's cargo (i.e., 
catch) for fishing in violation of section 118.
    Another enforcement-related amendment that the Committee might want 
to consider concerns how penalties assessed under the Act may be used. 
A freestanding amendment, enacted in 1999 and codified as part of the 
Marine Mammal Protection Act, authorizes the Fish and Wildlife Service 
to use fines collected under the Act for activities directed at the 
protection and recovery of marine mammals under the agency's 
jurisdiction. We believe that similar authority for the National Marine 
Fisheries Service would likewise benefit that agency's ability to carry 
out its responsibilities under the Act.
    Another provision that merits revision 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.
    Although the Marine Mammal Protection Act establishes explicit 
procedures to address lethal takes and serious injuries due to 
fisheries, it is important to note that there are other ways by which 
marine mammals are lethally taken or seriously injured incidental to 
human activities. The Committee may wish to consider whether activities 
such as, for example, boat or ship strikes of whales might be dealt 
with more effectively through a take reduction process or some other 
mechanism.
    We appreciate the opportunity to provide testimony to the Committee 
on the Marine Mammal Commission's views on H.R. 4781, the Marine Mammal 
Protection Act Amendments of 2002, and would welcome the opportunity to 
work with the Committee and its staff during the reauthorization 
process.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Dr. Reynolds.
    Just to comment on that last, and I appreciate your 
recommendations, and we will continue to work with you, and I 
am sure we will probably adopt or put many of your suggestions 
into the act. The problem with marine mammals, other than 
commercial fishing, would then also include shipping, whether 
it is containers or oil tankers or bulk cargo ships, and I 
assume you meant those ships as well.
    Dr. Reynolds. Yes, sir.
    Mr. Gilchrest. Could you give us some idea of how to 
improve the reporting or protection of marine mammals. I know 
there is a provision that the IMO passed a few years ago 
regarding right whales in the North Atlantic, where there is a 
voluntary reporting mechanism if someone sights a right whale, 
they will report that.
    What other provisions, you recommended it here, so I assume 
there is some recommendation that you would like us to use to 
put into the Act toward that end.
    Dr. Reynolds. You are exactly right, and I think that the 
example that you gave is one of the best examples of how 
creative new partnerships can help address some of the issues 
that are starting to emerge. The intent of what I said was that 
there are other ways in which people incidentally take marine 
mammals other than through commercial fishing and that we need 
to recognize that, and in some cases, those other incidental 
takes can have very, very serious consequences at the 
population level.
    The right whale example, as I say, is a great example, and 
members of the Navy, the Coast Guard, various scientists, 
various agency representatives worked together to develop an 
early warning system, and it was a great step forward to try 
and reduce the extent to which incidental taking of right 
whales, incidental collisions with right whales might further 
jeopardize that species. I think that is just one example of 
how the different stakeholders can work together.
    Near and dear to my heart is another sort of example, and 
that has to do with the recreational side of this with Florida 
manatees. I am from Florida. About 80 of them a year are taken, 
they are killed--we don't know how many are just seriously 
injured--through collisions with watercraft, including both 
commercial and recreational watercraft. That is a pretty 
serious hit.
    So what we are suggesting is that the Committee recognize 
that some fairly serious levels of take can occur incidentally 
to human activities and that some sort of a structure, perhaps 
similar to what has been developed under 118, be used to 
address these.
    Mr. Gilchrest. Well, thank you. We will make that one of 
our priorities.
    Dr. Reynolds. Thank you.
    Mr. Gilchrest. Dr. Hogarth, you mentioned one of the things 
lacking in our bill is NMFS dealing with noncommercial 
fisheries. You said that NMFS lacks the tools they need to do 
their job to enforce the act. Can you give us an example of 
that and what we might put in, in order to improve that?
    Dr. Hogarth. For example, in some States right now you can 
fish gill nets and other commercial gear as recreational, and 
so under the bill, as it is now written, we are not allowed to 
touch those. They can be side-by-side, and we can go in and 
regulate the commercial gear with the Take Reduction Team, but 
we cannot regulate the recreational fishermen that are using 
commercial gear, but it is done under the auspices of being 
recreational.
    Mr. Gilchrest. Thank you. You have some great 
recommendations.
    Mr. DuBois, can you give us an example of what the Navy has 
done or continues to do in recognition of trying to avoid 
impacts with marine mammals in the course of training.
    Mr. DuBois. I believe that the admiral could probably 
answer that better than I can, but it is true that there are a 
number of examples where the Navy has either deferred, canceled 
or postponed training exercises in order to avoid potential 
significant biologic events.
    The Navy, as we indicated, is extremely well-versed in the 
migratory patterns of marine mammals and, as a practical 
matter, knows exactly, within a certain degree of certainty, 
where, let us say, humpback whales are going to migrate from 
the Southern Atlantic to the Northern Atlantic at certain times 
of the year.
    Admiral, would you want to comment on any particular case?
    Admiral Moore. Yes, sir. I would comment on two areas; one 
would be in the conduct of operations and, two, in the area of 
research.
    To discuss research first, as Mr. DuBois stated in his 
opening statement, we are investing millions of dollars into 
marine mammal research each year. We have, over the future 
year's defense plan--
    Mr. Gilchrest. What is the purpose of that research, and 
who do you collaborate with on that research?
    Admiral Moore. The purpose of the specific one to answer 
your question, we are calling a marine mammal density study. 
This is a study that would help us determine precisely where 
the marine mammals are at given times of the year and what 
density, what populations exist. We are collaborating with the 
agencies represented by the gentlemen to my left. That is an 
area of research.
    We then turn that research into information to provide to 
our fleet and our forces, and we conduct our training so as to 
optimize our chances of avoiding collisions or interfering in 
any way with the or having a significant effect on these marine 
mammals.
    In regards to operations, we have a system called the 
Global Command and Control System Maritime. We developed it to 
track ships, submarines, and aircraft all over the world. We 
have implemented a system of tracking marine mammals. We 
received reports from our fleet. This goes into a system that 
is available to all of our naval forces and many of our allies 
around the world. We pass this information to the United States 
Coast Guard, and that information is shared with the fishing 
and shipping industry, in particular, our concern over the 
right whale, which travels on the surface, and therefore has a 
much heightened opportunity to suffer a collision with a ship.
    So we try to get the information out to our fleet so that 
they know where the whales are, and we can alter course, we can 
change our operating areas, change our operating patterns so as 
to avoid impacting marine mammals.
    Mr. Gilchrest. Thank you very much.
    Dr. Hogarth, and perhaps Mr. Jones, and Dr. Reynolds, have 
you seen the Department of Defense's new definition for 
harassment? And if you have, would you agree that that is a 
reasonable change for a general change of definition for 
harassment or would you say that is a definition of harassment 
that should be specific to the Navy and not adopted in any 
other area.
    Dr. Hogarth?
    Dr. Hogarth. We support the definition and think it should 
be supported to all activities. We believe that there is 
definitely the need for change in the definition of harassment, 
and we support the definition that is in the Department of 
Defense authorization proposal, and we think it should be 
extended to other activities.
    Mr. Gilchrest. Thank you.
    Mr. Jones?
    Mr. Jones. Mr. Chairman, we would agree with that. We think 
that a definition which is as broad as the current definition 
has proved, in practice, to be unworkable and that a definition 
which is more precisely focused on those activities which 
actually cause harm to marine mammals will give more 
predictability to those engaged in activities, thus, they will 
be able to voluntarily comply. In addition, it will be easier 
for us to enforce when we have instances where individuals or 
others are involved in activities which are not in compliance.
    Right now the cases are difficult to make. It is difficult 
for those who fall under the MMPA to know when an activity is 
or is not a violation, and we think this definition would 
improve both of those situations.
    Mr. Gilchrest. Thank you very much.
    Dr. Reynolds?
    Dr. Reynolds. The Commission agrees that the definition is 
a real improvement, and we are supportive of it.
    Mr. Gilchrest. And you are supportive of not only applying 
to the Navy, but in general use?
    Dr. Reynolds. That is correct.
    Mr. Gilchrest. Thank you.
    The gentleman from Guam, Mr. Underwood?
    Mr. Underwood. Thank you very much, Mr. Chairman, and thank 
you for your testimonies. I want to be able to sufficiently 
understand this new definition.
    I understood from your responses that you are in favor of 
the proposal being advanced here by the Department of Defense. 
In addition to that, in your own testimonies--the three 
gentlemen that are not associated with DOD directly--I have 
indicated that the definition of harassment itself lacks such 
clarity as to be meaningless.
    I guess what I am trying to understand is, from the 
Department of Defense's side of it, which I am sympathetic to, 
in general, I mean, I do not think anyone here, at least for 
myself I am not interested in providing more harassment to the 
Department of Defense activities under the name of not 
harassing mammals, but is it the definition is the problem, is 
that the issue, or is it the process of permitting, and is the 
permitting itself has been so convoluted and difficult? Because 
my understanding is that there has never been a denial of 
permits; is that correct?
    Mr. DuBois. Mr. Underwood, the Navy, from time-to-time, has 
gone to the National Marine Fisheries Service with an 
application for a permit, and they have gone into discussions 
that extends over time about was there enough facts, enough 
analysis, but I think it is important to recognize here, and 
your question is right on target, the challenge posed, and this 
is where the definition and the permit pieces fit together, in 
my view, the challenge posed by the current definition of 
harassment is not that our permit application will be denied, 
but that the definition is so vague that we are open to legal 
challenge if we do not have a permit.
    Navy operations, by definition, are expeditionary, which 
means that the world events often require planning exercises on 
short order. The permitting process itself can take, in some 
cases, at least 6 months, if not several years, to complete and 
typically results in mitigation measures that reduce training 
realism. So, as I indicated, there is a connection between the 
permit process and the definition. This is why, and I think you 
have heard unanimity here at the table, that the ambiguity, the 
vagueness of the definition does provide a basis for true 
problems when it comes to issuing a permit on the part of the 
Fisheries Service.
    Mr. Underwood. But it seems to me that the stories or at 
least the evidence that is being posed here regarding this is 
related more to the permitting process. I understand the 
connection, but if there were a way to tighten the permitting 
process, then perhaps a lot of the activities that the Navy 
engages in would be, which are necessary and I support, would 
go on as planned. So I am just trying to get to the nub of that 
issue.
    Mr. DuBois. I would defer to Dr. Hogarth in this regard, 
but I think that the vagueness of the definition creates the 
problems within the permitting process.
    Mr. Underwood. Go ahead, Dr. Hogarth.
    Dr. Hogarth. The definition is very broad. I mean, it talks 
about such things as ``any act or pursuit, torment or annoyance 
which has the potential to injure a marine mammal or marine 
mammal stock in the wild.'' That is Level A.
    You go to a Level B harassment, ``any act or pursuit, 
torment or annoyance which has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing a 
disruption of behavioral patterns not limited to migration, 
nursing, breeding, feeding or sheltering.''
    And so, you know, for example, a lot of people will call, 
if a boat is going out sightseeing and it sees a dolphin, if it 
turns around and comes back in circles so they can see that 
dolphin, is that a form of harassment?
    What we are trying to say is it is so broad, it is very 
difficult to know when to enforce it.
    Mr. Underwood. But let us say we tighten up the definition, 
let us say that we adopted the definition, why would we not 
continue the permitting process under a new definition?
    Dr. Hogarth. We will. They will still have to have permits, 
yes, but it will be easier to understand the conditions under 
which we are writing a permit. For example, we have had people 
to report that if a ship goes by or a boat goes by, that a 
dolphin went into the wake of that boat, did that cause damage 
to the dolphin? A lot of the public thinks it does, and we 
should try to keep dolphin out of the wake of boats. They will 
refer to this definition we have here of did that boat cause 
the behavior of that dolphin to change and to play in the wake 
and that could have impact from all of the other things--the 
broad definition is where we are getting into problems, as to 
what we enforce or what we tell the public, as a whole, and not 
only when we look at permits to the Navy or others. It is just 
a very broad definition.
    Mr. DuBois. Mr. Underwood, just one last comment, and I 
think you raise absolutely, as I said, the right issue.
    The permitting process, under our redefinition, if you 
will, of harassment will then be appropriately focused, as Dr. 
Hogarth has indicated, as it should be, on biologically 
significant effects, not whether there is potential to create 
insignificant effects. So, as I said, the ambiguity or the 
vagueness of the definition currently provides or prevents, is 
probably a better term, the Fisheries Service, the National 
Marine Fisheries Service from dealing with an appropriately 
focused significant biologic event.
    Mr. Underwood. The issue, if we are going to discuss it in 
that regard, then the issue remains, in terms of we understand 
or perhaps maybe we can concede that the definition is broad, 
but to go to a new definition on the basis of what some perhaps 
would say is common sense, a kind of a common-sense definition 
is a little tricky at best, too, because we are trying to find, 
are we not, and I certainly hope we are trying to find a 
scientifically based definition of what constitutes harassment. 
It is not something that is just, by definition, because, well, 
this is too broad, and it is too complex, and it is too 
cumbersome.
    Well, if we are going to go to a new definition or if we 
are going to go to something that, for the sake of permitting, 
will facilitate things and will get us to avoid litigation, 
that we don't simply go to a new definition for those specific 
purposes, but we go to a different definition because they are, 
in fact, scientifically based.
    Mr. DuBois. As I indicated I think in my opening remarks, 
we defer to the National Research Council and their 
interpretation of the word ``scientific'' in regard to this 
particular proposal.
    Mr. Gilchrest. Thank you, Mr. Underwood.
    Mr. Abercrombie, the gentleman from Hawaii?
    Mr. Abercrombie. Thank you, Mr. Chairman.
    Look, so we can get through all of this, if you want to 
change it because you think it interferes with military 
activity, then say so. Please don't insult my intelligence by 
telling me that this new definition is more scientifically 
accurate or something like that. I am not a complete moron.
    How can you possibly claim that by putting in the word 
``significant'' and adding it to ``potential'' or ``is likely 
to disturb'' is more precise than the first definition? The 
first definition, the one that exists right now, is the more 
precise definition. You are making it more ambiguous by putting 
in this language because you don't want to say what it is you 
want to do, which is carry on your experiments regardless of 
what happens because you will define ``significant'' or 
``likely'' in a way that lets you do what you want to do.
    If you want to do that, say so. Surely, you cannot expect a 
reasonably intelligent person to assume that you have more 
specifically defined in the second definition by the Defense 
Department than you have in the existing language.
    Now I don't know, Dr. Hogarth, are you a scientist by 
profession, as well as an administrator?
    Dr. Hogarth. Years ago, I guess.
    Mr. Abercrombie. OK. You seriously contend to me that the 
second definition is more scientifically precise?
    Dr. Hogarth. In my opinion it is, yes, sir, because the 
current Act does not define what pursuit, torment or annoyance 
is, and I think in the new definition we just say disturb or is 
likely to disturb a marine mammal--
    Mr. Abercrombie. Significant.
    Dr. Hogarth. Yes.
    Mr. Abercrombie. Let us just take the significant. Let me 
ask you something. If you go out to the U.S. Open this 
afternoon and you shout when Tiger Woods brings his club up to 
the top, is that significant or just likely to disturb?
    Dr. Hogarth. It is likely significant, it is likely to 
disturb. It is significant.
    Mr. Abercrombie. Well, let me ask you, under the present 
definition, then, do you suppose it has the potential to 
disturb him, if you shout at him, ``Hey, Tiger, how are you 
doing?''
    Dr. Hogarth. You know it is going to disturb him, yes.
    Mr. Abercrombie. Well, then that is what it says already. 
How do you make the difference? Is it the volume of how loud 
you holler, ``Hey, Tiger, how are you doing?''
    Dr. Hogarth. No, sir. I think, when you look at the things, 
the way it is written here now, that most anything, any 
activity could be, and we think that the word ``significant'' 
does clarify the point.
    Mr. Abercrombie. Let me ask you this then. Supposing you 
are in the humpback whale sanctuary out in Hawaii, and we are 
off the Island of Maui, and we go into the low-frequency 
experiment, and the whales who are breeding there go 50 yards 
to the right, at a 45-degree angle, is that significant under 
the second definition, significant potential to disturb or 
likely to disturb or is that simply the first definition 
potential to disturb?
    Dr. Hogarth. First off, I hope the activity doesn't take 
place in the sanctuary, but it would be significant, yes.
    Mr. Abercrombie. I would hope it wouldn't either. In fact, 
I will ask you that then. Do you think that then the low-
frequency experiments should be forbidden in the area of the 
humpback whale sanctuary?
    Dr. Hogarth. That permit is under review, and I am not 
allowed to speak right now. We are trying to finalize that, but 
we are looking very closely at areas that it would be utilized 
in, yes, sir.
    Mr. Abercrombie. But, you see, here is the difficulty for 
us. We have to come up with a definition, Mr. Chairman, or the 
suggestion is we should change the definition. I am just saying 
has the potential to injure, to injure or has the significant 
potential injure. I am simply saying, as a matter of at least 
my understanding of the English language, it is the second 
definition which is more ambiguous.
    The present definition says Level A, ``Potential to 
injure--to injure or has the significant potential to injure.'' 
My understanding of the English language is the second 
definition is more ambiguous because you have to get into 
extraordinarily subjective understandings of what constitutes 
significant.
    You see, I don't think it is a question of terms, I think 
it is a question of the action. We are not having a problem 
with terms here under the existing definition, it is what 
actually takes place.
    Dr. Hogarth. I think under the current definition when it 
says that the pursuit, torment or annoyance, is that we have to 
improve the intent. Under the new law it says any act, and so 
when you take the pursuit, torment and annoyance out, it says 
any act that does. You are not trying to improve the intent of 
a person. You know that if the act apparently does something, 
then it is easier for enforcement to try to prove what the 
intent of the person or activity was.
    Mr. Abercrombie. Let me ask you this: How does the word 
``significant,'' show me how the word ``significant,'' it 
doesn't have to be--I am not going to just pick on you. I am 
going to pick on someone else. Let us see, I will pick on Dr. 
Reynolds instead because you are the Chairman. It is always 
better to pick on the Chairmen, wouldn't you agree?
    Dr. Reynolds. Certainly.
    [Laughter.]
    Mr. Abercrombie. Can you explain to me how, by adding the 
word ``significant'' to ``potential to injure,'' how is that 
more scientific?
    Dr. Reynolds. Could I take one step back and then come back 
at that?
    Mr. Abercrombie. Sure.
    Dr. Reynolds. I think that the intent was--the act, as it 
currently exists, and the way in which we deal with harassment 
has been very, very tough to enforce, it has been vague, it has 
just been--it has created a scenario in which certain groups 
have been highly regulated for their activities, and that would 
include both the military and the scientific community and 
other groups are essentially unregulated.
    Going back to Dr. Hogarth's example, the private citizen 
who is out whipping around a bunch of dolphins and their calves 
might or might not be doing something that you would consider 
significant. That person does it without any permits, without 
any regulation, other than possibly being caught by the 
relatively infrequent enforcement officer. So there are certain 
components that are highly regulated and others that are 
unregulated.
    And the regulations and the regulatory, the enforcement 
staffs and so on, are spread pretty thin, and some of the 
effort has been directed at activities or some of the 
activities that have been construed as causing harassment have 
caused behavioral changes which are probably not something that 
is going to have a significant impact on the survival of the 
individual or of the population.
    So I think, sir, that the intent was to focus resources, 
human and nonhuman resources, on the activities that are having 
the more serious impacts and what the NRC and others call the 
significant impacts.
    Mr. Abercrombie. I understand your struggle.
    Mr. Gilchrest. Mr. Abercrombie, we will have a second 
round, if you would like.
    Dr. Reynolds, you may finish.
    Dr. Reynolds. Let me just finish what I was going to say, 
if I might.
    I think that we have learned a great deal about marine 
mammals in the 30 years since the Act was passed. It would be 
an overstatement to say that we are able to diagnose 
everything, the impact of everything we do around marine 
mammals as having serious or significant impacts or not. I 
believe, as I said before, that focusing the definition on the 
significant activities is an appropriate thing to do. I think 
that the agencies, and Congress, and others will need to 
continue to work to clarify which activities truly are causing 
significant impacts.
    I think that the science, as Mr. Hansen said, has improved 
a great deal, and some activities clearly do cause a 
significant impact; others, either alone or in tandem with 
other activities, I think that the science can't yet tell us 
exactly what is going on, but I think the intent of the step is 
good.
    Mr. Gilchrest. I will just make a comment and ask a 
question, and if Mr. Abercrombie has another question or two, I 
will yield to you again.
    The National Research Council has come up with this new 
definition of harassment. Many in the Administration, including 
those present here, have been a part of that process and have 
stated their agreement, categorically, apparently without 
hesitation, with that change of definition. It is the intent of 
this Committee to do all in its power to take the next positive 
step in conservation for marine mammals.
    It is also the intent of this Committee to work with our 
colleagues on other Committees to ensure the defense of this 
Nation is second to none in this very dangerous, critical 
period, which we hope will, in time, be over. There are many 
thousands of young men and women who are defending the Nation 
on foreign shores that need the training to improve and hone 
their skills so that they are in harm's way as little as 
possible.
    I think that we, as a Nation, as a people, as individuals 
are intelligent enough, we have the capacity to be able to give 
the kind of training that is necessary to protect the Armed 
Forces from harm, and for them to defend the Nation and for us 
to understand the physics of the system in which the marine 
mammals depend, and certainly they should not be harassed or 
disturbed or killed or moved or anything else.
    This goes to those jet-skiers in Florida that, 
unintentionally or not, harass a number of marine mammals and 
manatees down in the Florida Keys and all of the coastal areas 
of the United States and the international marine cargo ships, 
and tankers, and container ships that traverse the seas and the 
noise budget of the shipping industry, which has an effect and 
does harass marine mammals.
    So just make sure that everybody knows that this Committee 
is going to do all in its power to take the next giant step to 
protect the marine ecosystem and marine mammals and work 
diligently with the Armed Services and the Navy, in this 
particular incident, to allow them to train and use their 
ability, with their understanding, to train in certain areas 
after the marine mammals have moved on or not to train in 
certain areas where they are cavernous, and if they go in there 
and there is a couple of whales in there, the whales don't have 
the ability to escape.
    So I think there is a great deal of mechanisms, a number of 
things at our disposal that we can use to assure that we are 
successful in this process, and we will certainly look at and 
scrutinize the new definition of harassment. If it needs a 
little tweaking, we will certainly do that.
    Mr. Abercrombie. May I conclude then, Mr. Chairman?
    Mr. Gilchrest. I will yield to the gentleman from Hawaii.
    Mr. Abercrombie. Thank you.
    In that context, Mr. Chairman, as you know, and maybe not 
everybody here knows, I serve on the Armed Services Committee 
as well. More particularly, I serve on the Research & 
Development Subcommittee. For the record, for those who don't 
know, I have supported very vigorously the Navy's research in 
this area, when there was a lot of pressure, as you know, 
discussion about not even doing it in the first place. I very 
vigorously defended, I even did it to a significant level--
    [Laughter.]
    Mr. Abercrombie. --defended the proposition that good 
science would help answer a lot of the ambiguity. When I say 
ambiguity, it is not as if the issues are ambiguous, they are 
not. The issues are clarity itself in my way, in my 
understanding of it. As I said, I believe the problem here is 
less definitions, as if it were terms that we are arguing 
about, than it is condition. What is the condition we are 
addressing, that is my point, Mr. Chairman.
    I do not believe that this redefinition, if you will, 
clarifies anything or deals with the outcome of such scientific 
research as has been conducted to this point. My understanding 
of the research, as conducted to this point, although I realize 
there is some arguing about it, is that there are changes that 
could affect possibly even survival of species, particularly 
where whales are concerned.
    No, I am as anxious, believe me, as a member of the Armed 
Services Committee, I assure you, Mr. Chairman; that, whereas, 
many Committees vote on issues, and policies, and propositions, 
the Armed Services Committee literally votes every day on 
issues of life and death with respect to not only the members 
of our Armed Forces, but what members of our Armed Forces might 
do as a result of their sworn duty.
    So I think that we exist in this planet with other 
creatures, and we have, at least as far as my understanding as 
an island person is, is that we are a creature like other 
creatures on the earth and are not necessarily any more 
entitled to foist our mistakes off on them than is as already 
generally thought to be the case by some.
    So what I want to see here is less tweaking of definitions 
than a clear understanding of what constitutes our necessary 
duty to engage in the common defense and meet the strategic 
interests of this country and at the same time meet our 
obligations as trustees of the environment on the planet to the 
degree that it has been given to us to do.
    So I hope we don't get side-tracked by what I consider to 
be a less-than-illuminating redefinition of harassment or 
anything else associated with this and that we move into what 
the Chairman said near the end of his remarks, that we make 
sure that we strike a proper balance with respect to 
understanding where the other species have their rights and 
their privileges on this earth.
    For example, the question of breeding, that to me is a 
condition. You are either breeding or you are not. You are 
either pregnant and not prevented from having that pregnancy 
come to term or you are not. You either nurturing young or you 
not. For example, in the humpback whale sanctuary, again, as a 
specific example. If we can work it out that our training does 
not take place and jeopardize that, then that is what we should 
do. I am more interested in coming up with definitions of how 
we create proper conditions to do both training and to protect 
the environment than arguing over terms which don't advance 
that cause.
    Thank you, Mr. Chairman.
    Mr. Gilchrest. Thank you very much, Mr. Abercrombie.
    Gentlemen, we appreciate your attendance here this 
afternoon and look forward to continuing to work with you.
    The Subcommittee will take a 5-minute break.
    [Recess.]
    Mr. Gilchrest. The Subcommittee will come to order. I want 
to thank everybody for their indulgence and patience. If I 
could just make a slight recommendation that we will try to be 
flexible and accommodating. If everybody could try to keep 
their opening remarks to about 5 minutes, you will have an 
opportunity to fully express your opinions as we go through the 
question process, and your full statement will be submitted for 
the record. And Neil Abercrombie and I are going to read those 
over the next couple of days together since he can't go home to 
Hawaii.
    We have Mr. Robert Fletcher, President, Sportfishing 
Association of California; Mr. Andrew Wetzler, Senior Project 
Attorney, Natural Resource Defense Council; Ms. Nina Young, 
Director, Marine Wildlife Conservation, The Ocean Conservancy; 
Mr. Richard Luedtke, Commercial Gillnet Fisherman, Mannahawkin, 
New Jersey. So they have fishermen in New Jersey, that is good.
    [Laughter.]
    Mr. Luedtke. There are a few of us left.
    Mr. Gilchrest. Right on the Mannahawkin. I will ask you 
about that later. It is interesting.
    Dr. Peter Worcester, Research Oceanographer, Scripps 
Institution of Oceanography, University of California, San 
Diego.
    Thank you all very much for coming.
    Mr. Fletcher, you may begin.

   STATEMENT OF ROBERT C. FLETCHER, PRESIDENT, SPORTFISHING 
                   ASSOCIATION OF CALIFORNIA

    Mr. Fletcher. Good afternoon, Mr. Chairman, members. Thank 
you for inviting me to testify.
    My name is Bob Fletcher, President of the Sportfishing 
Association of California, known as SAC. SAC is a nonprofit 
organization that for 30 years has been representing the 
interests of the sportfishing industry in Southern California. 
The SAC fleet of local and long-range sportfishing boats and 
whale watching boats carries close to 750,000 passengers a 
year, and the SAC bait harvesting boats provide live bait to 
the huge private boat fleet that fishes off Southern California 
in addition to the sportfishing fleet.
    On October 11th of last year I testified before your 
Subcommittee and described in some detail the California sea 
lion interaction problems that the sport and commercial fishing 
fleets had been enduring over the past 20 or so years. I talked 
about the relatively few rogue or nuisance animals that have 
caused a great majority of the problems, and encouraged the 
Subcommittee to develop amendments to the MMPA that would 
address these issues. I also pointed out that development of a 
nonlethal deterrent should be a high priority.
    Clearly, Mr. Chairman and members, you listened, and I want 
to thank you for that. H.R. 4781 raises these issues and is 
therefore an excellent start. I said an excellent start because 
Section 7, Pinniped Research in the bill, doesn't go far 
enough. Until there is a separate dedicated line item in 
funding in the NMFS budget for the development of these 
nonlethal deterrent devices, the programs will linger without 
solid direction. Until the Federal Government recognizes and 
accepts the responsibility that there is a successful recovery 
of marine mammals amidst the California sea lion and Pacific 
harbor seals, until that time problems will continue with these 
robust populations of California sea lions, and we in the sport 
and commercial fishing industries on the West Coast will 
continue to be harassed, and at times even injured by these 
increasingly aggressive hoards of pinnipeds.
    In 2001 NMFS estimated the U.S. population of California 
sea lions at between 204,000 and 214,000 animals. However, 
based on new life history data NMFS has collected, they are now 
saying that they underestimated the West Coast sea lion 
population by about a third. This will likely result in a 2003 
estimate of population of well over 250,000 sea lions. Mr. 
Chairman and staff and members, our problem just got bigger by 
about a third. And that number doesn't even count the estimated 
100,000 animals that live south of the U.S.-Mexican border in 
Baja.
    I talked earlier about injuries, and as the population 
increases and the aggressiveness of these animals increases, 
the injuries will increase. Just last month a female deckhand 
in San Diego was walking up the dock from her boat when a 500-
pound sea lion came out of the water and grabbed her by the 
hand, perhaps thinking he was grabbing a fish. Her finger was 
severely lacerated and needed medical treatment. Earlier this 
year a deckhand, who was scooping live bait on the bait docks, 
was grabbed by a sea lion and dragged partway off the dock, 
perhaps because the deckhand was blocking the sea lions access 
to the bait in the net.
    Members of Congress, we have a problem and it is just going 
to get worse. I urge this Subcommittee to create solid 
incentives for the private sector development of nonlethal 
devices that would begin to deter sea lions. The stock has 
probably exceeded its historical level, and the focus should 
shift from protection to beginning of management of these 
robust populations, as well as perhaps intervention when 
necessary. The system, as I see it, begins to break down when 
it allows the management of all the prey species but totally 
protects and doesn't allow management of healthy populations of 
the predators.
    I will leave you with a summary of a story one of my 
members related to me. A father brought his son and daughters 
on a half-day fishing trip. The dad hooked a nice 15-pound 
yellowtail. Near the end of the fight, when you could see the 
color of the fish below the boat, a huge black sea lion came 
out from under the boat and grabbed the fish. The line went 
limp and the arched rod shot straight back up. As the sea lion 
started tossing the fish around, tearing it apart, the innocent 
children, with tears in their eyes, asked the skipper the most 
common sense question: ``Why can't you do something?'' Because 
this kind of incident reoccurs constantly up and down the West 
Coast, SAC hopes that this Subcommittee and the Congress can do 
something.
    In closing, as I am the only West Coast fishing industry 
representative here, I would like to take, on their behalf, the 
opportunity to urge the Subcommittee to come out and hold a 
field hearing on the West Coast so that the fishermen can tell 
you in their own words the interaction problems they are going 
through daily from these increasingly aggressive populations of 
California sea lions and harbor seals.
    And I want to thank you, Mr. Chairman, for the opportunity 
to provide this testimony.
    [The prepared statement of Mr. Fletcher follows:]

 Statement of Robert Fletcher, President, Sportfishing Association of 
                               California

    My name is Robert Fletcher, and I am the President of the 
Sportfishing Association of California (SAC). SAC is a non-profit 
political organization that for thirty years has been representing the 
interests of the commercial passenger fishing vessel (CPFV) fleet in 
southern California. The SAC fleet of local and long-range sportfishing 
& whale watching boats carries close to 750,000 passengers a year, and 
the SAC bait harvesting boats provide live bait to the huge private 
boat fleet that fishes off the California coast.
    On October 11, 2001, I testified before your Subcommittee 
(testimony attached) and described in some detail the California sea 
lion interaction problems that the sport and commercial fishing fleets 
have been enduring over the last twenty years. I talked about the 
relatively few, rogue or nuisance, animals that have caused the great 
majority of the problems, and encouraged the Subcommittee to develop 
amendments to the MMPA that would address these issues. I also pointed 
out that the development of non-lethal deterrent devices should be a 
high priority. Clearly you listened and for that I want to thank you. 
H.R. 4781 raises these issues and is therefore an excellent start.
    I said an excellent start, because the provisions in the bill just 
don't go far enough. Until there is separate, dedicated line item 
funding for the development of these non-lethal devices in the NMFS 
budget, the programs will linger without solid direction. Until the 
Federal Government accepts responsibility for the success of the MMPA 
and the resulting problems associated with the robust population of 
California sea lions, we in the sport and commercial fishing industries 
on the west coast will continue to be harassed and at times injured by 
these increasingly aggressive hoards of pinnipeds.
    To underscore the magnitude of the problem, the National Marine 
Fisheries Service (NMFS) recently announced that, ``'the last 
(California sea lion) size estimate reported by NMFS in its 2001 Stock 
Assessment Report estimated the U.S. population at 204,000--214,000. 
Based on new (emphasis added) life history data that NMFS has collected 
on California sea lions at San Miguel Island, NMFS has advised that the 
previous assessment underestimated (emphasis added) the population size 
by about a third. A revised population estimate, which will likely show 
a population exceeding 250,000 (emphasis added), is expected to be 
reported by NMFS in next years 2003 Stock Assessment Report.'' Mr. 
Chairman and members, the problem just got bigger, by about a third, 
and that doesn't count an additional 100,000 sea lions south of the 
border!!
    I talked earlier about injuries, and as the population increases 
and the aggressiveness of the problem animals increase, the injuries 
increase. Last month, a female deck hand was walking up the dock from 
her boat when a 500 lb. sea lion came out of the water and grabbed her 
by the finger, perhaps thinking she had a fish. Her finger was 
lacerated and required treatment. Earlier this year, a deckhand 
scooping bait on the bait receiver was grabbed by a sea lion and 
dragged part way off the receiver, because the deckhand was blocking 
the sea lion's access to the bait in the net. Members of Congress, we 
have a problem, and it is going to get worse.
    Appropriation of funds to encourage private sector companies to 
begin work on development of non-lethal deterrent devices holds out the 
best hope for relief, and I urge the members of the Subcommittee to add 
language to H.R. 4781 to create incentives for that development. With 
the stock of California sea lions exceeding historic levels, the focus 
on these robust populations of marine mammals should shift from 
protection to management, and with management comes intervention when 
necessary. I think the system begins to break down when it allows 
management of prey species, but not management of healthy populations 
of predators.
    There have been no substantive actions to address problems with 
California sea lions and their interaction with fishermen since the 
MMPA was authorized, and the time is past due when Congress should 
begin to focus on creative solutions to the west coast's seal and sea 
lion predation of anglers fish! Thank you for H.R. 4781 and please 
consider strengthening the language to assure private sector funding & 
involvement.
    I'll leave you with a portion of a story one of my skippers 
related. A father brought his young son and daughters on a fishing 
trip. The dad hooked a nice 15 lb. yellowtail. Near the end of the 
fight, when you could see the fish below the boat, a HUGE BLACK SEA 
LION came from under the boat and grabbed that fish. The line went limp 
and the arched rod shot back up. As the sea lion started tossing the 
fish around, tearing it apart, the innocent ones, with tears in their 
eyes, asked the skipper the most COMMON SENSE question: ``Why can't you 
do something?''
    SAC hopes you can do something. Thank you for this opportunity to 
testify.
                                 ______
                                 

  Supplemental 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.
    Twenty-nine 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.
                                 ______
                                 

    [NOTE: Attachments to Mr. Fletcher's statement have been 
retained in the Committee's official files.]


[GRAPHICS NOT AVAILABE IN TIFF FORMAT]

    Mr. Gilchrest. Thank you, Mr. Fletcher.
    Mr. Wetzler.

   STATEMENT OF ANDREW E. WETZLER, SENIOR PROJECT ATTORNEY, 
               NATURAL RESOURCES DEFENSE COUNCIL

    Mr. Wetzler. Thank you. And on behalf of NRDC and our over 
500,000 members, I would like to thank you for inviting me to 
address today's panel.
    Taking your admonishment to be brief to heart, instead of 
summing up my written testimony which I previously submitted to 
the Committee here, I just wanted to take this opportunity to 
make four points in response to the previous panel's comments 
on the Department of Defense's suggested alteration of the 
definition of ``harassment.''
    First, with regard to the Natural Research Council, I think 
it is very important to point out to the Committee that the 
proposal before you today goes far beyond anything proposed by 
the National Research Committee. That proposal came from this 
publication, and it is important to point out two things. 
First, it only proposed changing the definition of Level B 
harassment, whereas the current proposal proposes a very 
significant change to Level A harassment. Level A harassment is 
the provision of the law that prohibits injuring, causing 
physical injury to marine mammals. And second, this paper only 
dealt with the problem of undersea noise, whereas the proposal 
before the Department of Defense would apply to all activities, 
not just undersea noise.
    Second, and here I am simply echoing the comments of 
Congressman Abercrombie. There is no way that this can be 
characterized as a clarification of the law. Adding the term 
``significant'' or ``significance'' to a law has never made it 
more clear. The reason it wouldn't make it more clear in this 
case in particular, and would merely add more ambiguity in our 
view, is that the science simply isn't there. Scientists just 
don't know enough about these extraordinary creatures to tell 
us what sorts of injuries are significant and what aren't 
significant. In fact, the National Marine Fisheries Service 
itself has struggled for years with defining the term 
``significance'' in the Significant Adverse Impacts Clause of 
the Commercial Fishery Provisions of the Act.
    Third, these changes to the definition of ``harassment'' 
are simply not needed. The fact is that since 1994 the Navy has 
never been denied a permit to conduct training exercises They 
have applied for some 19 permits. They have all been granted. 
Second, if there did arise a situation in which there was a 
genuine conflict between the National Marine Fishery Service 
and the Navy over a proposed training activity, the current law 
already provides an incredibly flexible provision to deal with 
that. In particular, Title X of the Armed Services Code allows 
the Department of Defense to seek an accommodation from the 
National Marine Fishery Service for any activity that in the 
Department of Defense's judgment would negatively affect 
readiness. And if the National Marine Fishery Service and the 
Department can't agree, the Department of Defense can take 
their complaint directly to the President. Now, to our 
knowledge, Title X has never been invoked by the Navy, as far 
as I know for any environmental law, but certainly for the 
Marine Mammal Protection Act. And the reason why is that as 
written this law is working.
    And finally, I just wanted to address a little more 
specifically the low frequency active sonar system, since that 
got some considerable attention by the previous panel. And 
there was a lot of talk about delays in obtaining a permit from 
the National Marine Fisheries Service. I think it is important 
to keep the timeline of this project in mind. The fact is, is 
that the Navy began developing the LFA system in the early to 
mid 1980's. It began testing the system at sea in the mid to 
late 1980's, and it formally acquired the LFA system for 
worldwide deployment no later than 1991. At no time during that 
period did the Navy approach for a permit, and I think to a 
large degree whatever delay that has occurred is largely a 
result of that inaction. Moreover, the Marine Mammal Protection 
Act itself is only responsible for a very small part of the 
delay. Most of the delay can be ascribed to other regulatory 
provisions.
    And finally, I think that we need to keep in mind that LFA 
is in many ways a unique system. It is extraordinarily 
powerful. It is global in scope, and it has generated an 
unprecedented amount of concern, both from scientists around 
the world and from the public at large. And I think under those 
circumstances it is understandable why that particular process 
has taken a little bit longer.
    In conclusion, Mr. Chairman, there should be no doubt that 
NRDC and indeed the entire conservation community strongly 
supports the military's efforts to protect our Nation, and we 
are sensitive to the issue of military readiness. We do not 
believe, however, the Department of defense has demonstrated 
that the dramatic it has proposed are either wise or necessary, 
nor do we believe that the Department has utilized the 
procedural remedies available to it under existing law.
    Thank you.
    [The prepared statement of Mr. Wetzler follows:]

   Statement of Andrew E. Wetzler, Senior Project Attorney, Natural 
                       Resources Defense Council

    Good afternoon. My name is Andrew Wetzler, and I serve as senior 
project attorney for the Natural Resources Defense Council (NRDC). On 
behalf of our more than 500,000 members, I wish to thank you, Mr. 
Chairman, and the other members of this Subcommittee for inviting me to 
testify on today's panel.
    NRDC's position on H.R. 4781, the 2002 Amendments to the Marine 
Mammal Protection Act (MMPA), is well represented in the testimony 
submitted today by The Ocean Conservancy. I will therefore confine the 
majority of my testimony to the proposal, initiated by the Defense 
Department (DoD), to amend the definition of ``harassment'' in the 
Act--a proposal that has generated profound concern throughout the 
conservation community. My testimony this afternoon is supported by a 
broad coalition of organizations deeply concerned about its 
consequences for marine mammals and the marine environment and for the 
MMPA itself.
BACKGROUND
    NRDC has been closely engaged in many of the issues surrounding the 
Defense Department's proposal. We have been active participants in the 
environmental review of a number of DoD activities, including SURTASS 
LFA (``Low Frequency Active'' sonar) and LWAD (``Littoral Warfare 
Advanced Development''). We have helped lead discussion about the 
impacts and regulation of ocean noise pollution--one of the major areas 
compromised by the DoD proposal--having published Sounding the Depths: 
Supertankers, Sonar and the Rise of Undersea Noise, a comprehensive 
look at the problem, in 1999. Over the last several months, we have 
been part of a coalition of national organizations opposed to a general 
Defense Department effort to rollback the nation's environmental laws.
    Two months ago, the proposed definition that is under discussion 
today was introduced by request into the House and Senate Armed 
Services Committees. It was introduced as part of a wider bill, called 
the Readiness and Range Preservation Initiative, which seeks exemptions 
for the Defense Department to six pieces of landmark environmental 
legislation: the Endangered Species Act (ESA), the Migratory Bird 
Treaty Act (MBTA), the Resource Conservation and Recovery Act (RCRA), 
the Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA), and the Clean Air Act, in addition to the Marine Mammal 
Protection Act. The approach taken by the Defense Department was to 
propose these exemptions, at the eleventh hour, for inclusion in the 
Defense Authorization Act for Fiscal Year 2003. Both process and 
substance have been strongly criticized by nearly every national 
environmental NGO, by state Attorneys General, by community groups, and 
by the general public.
    An MMPA provision was not contained in the defense bill that passed 
the House, nor was it added to the version of the bill that Senate 
Armed Services Committee passed onto the Senate floor.
    From the beginning, NRDC and its many partners have been concerned 
about the consequences of the proposed language for the MMPA. In brief, 
the Marine Mammal Protection Act is our nation's leading instrument and 
an international model for the conservation of whales, dolphins, sea 
otters, seals, manatees, and other important and vulnerable species. 
The provision that the Defense Department would alter, the statutory 
definition of ``harassment,'' is one of the cornerstones of the 
statute. By altering this definition, the Department would limit the 
circumstances under which activities that potentially harm marine 
mammals--that cause them physical injury, or that impair their ability 
to breed, nurse, feed, or migrate--could be reviewed. It would also 
make the definition vague and subjective, introducing a degree of 
ambiguity that could severely undermine the precautionary purpose of 
the Act.
ANALYSIS OF THE PROPOSED DEFINITION
    The Marine Mammal Protection Act was adopted thirty years ago to 
ameliorate the consequences of human impacts on marine mammals. Its 
goal is to ``protect and promote the growth of marine mammal 
populations commensurate with sound policies of resource management and 
to maintain the health and stability of the marine ecosystem.'' 16 
U.S.C. Sec. 1361(6). A precautionary approach to management was 
necessary given the vulnerable status of many of these populations (a 
substantial percentage of which remain on the endangered species list 
or are considered depleted) as well as the difficulty of measuring the 
impacts of human activities on marine mammals in the wild. ``It seems 
elementary common sense,'' the Committee on Merchant Marines and 
Fisheries observed in sending the bill to the floor, ``that legislation 
should be adopted to require that we act conservatively--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.'' 1972 U.S. 
Code Cong. & Admin. News 4149.
    Congress sought to achieve broad protection for marine mammals by 
establishing a moratorium on their importation and ``take.'' The term 
``take'' means ``to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal.'' 16 U.S.C. 
Sec. 1362(13). Under the law, the wildlife agencies may grant 
exceptions to the take prohibitions, provided they determine, using the 
best available scientific evidence, that such take would have only a 
negligible impact on marine mammal populations or stocks.
    There are two types of general exemptions available through the 
MMPA, ``small take permits'' and ``incidental harassment 
authorizations.'' Both allow assessment of an activity's potential 
effects on marine mammals, both afford an opportunity for public 
comment, and both provide for the monitoring and mitigation of 
biological impacts. Until 1994, the only exemptions available under the 
Act were ``small take permits,'' which require the agencies to 
promulgate regulations specifying permissible methods of taking. In 
1994, however, the MMPA was amended to provide a streamlined mechanism 
by which proponents such as the Defense Department may obtain rapid 
authorization for projects whose takings are by incidental harassment 
only. 16 U.S.C. Sec. 1371(a)(5)(D). Under this provision, the 
responsible agency is required to publish notice in the Federal 
Register of any authorization request within 45 days of its receipt. 
Then, after a 30-day public comment period, the agency has 45 days to 
issue the authorization or deny it. By law, the entire process can run 
no longer than 120 days.
    Within this scheme, the definition of ``harassment'' is a 
foundational element. It establishes the threshold for regulatory 
concern and describes the range of impacts (short of lethality) that 
the wildlife agencies must assess during the authorization process.
    In 1994, Congress amended the MMPA to differentiate between two 
general types of harassment, a type that has the potential to cause 
physical injury and a type that has the potential to impact behavior of 
marine mammals in the wild. This definition reads as follows:
        The term ``harassment'' means any act of pursuit, torment, or 
        annoyance which--
            (i) Lhas the potential to injure a marine mammal or marine 
            mammal stock in the wild; or
            (ii) Lhas 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.
    16 U.S.C. Sec. 1362(18)(A). The ``potential to injure'' is 
designated ``Level A'' harassment; the ``potential to disturb'' is 
designated ``Level B'' harassment. Both are considered ``take'' under 
the MMPA.
The Proposed Definition
    The Defense Department claims that the current definition is overly 
broad and somewhat ambiguous. In an attempt to resolve this perceived 
problem, it has proposed the following language:
        For purposes of chapter 31 of title 16 of the United States 
        Code, harassment from military readiness activities occurs only 
        when those activities:
            (1) Linjure or has the significant potential to injure a 
            marine mammal or marine mammal stock in the wild; or
            (2) Ldisturb or is likely to disturb a marine mammal or 
            marine mammal stock in the wild by causing disruption of 
            natural behavior patterns, including, but not limited to, 
            migration, surfacing, nursing, breeding, feeding, or 
            sheltering to a point where such behavioral patterns are 
            abandoned or significantly altered; or
            (3) Lare directed toward a specific individual, group, or 
            stock of marine mammals in the wild that is [sic] likely to 
            disturb the specific individual, group, or stock of marine 
            mammals by disrupting behavior, including, but not limited 
            to migration, surfacing, nursing, breeding, feeding or 
            sheltering.
    The most salient effect of this language is to raise the threshold 
of regulatory concern. For Level A harassment, the proposed standard 
would shift from ``has the potential to injure'' to ``injures or has 
the significant potential to injure.'' For Level B harassment, 
``potential to disturb'' would become ``disturbs or is likely to 
disturb''; and an addition would be made to the language governing 
behavioral impacts, requiring that natural behaviors be ``abandoned or 
significantly altered'' to meet the threshold level of concern 
(emphasis added). 1
---------------------------------------------------------------------------
    \1\ The third subparagraph, which establishes a somewhat more 
conservative standard for behavioral impacts, would apply only to 
activities that intentionally ``take'' marine mammals, not to 
activities that take marine mammals incidental to their operation. 
(``Directed activities'' is a term of art conventionally used to 
describe whale-watching trips, swim-with programs, and other 
interactive or observational engagement.) This provision would not 
cover any of the activities for which the DoD has sought small take 
permits or incidental harassment authorizations under the MMPA.
---------------------------------------------------------------------------
    What primarily concerns us, however, is the uncertainty that this 
new language would introduce into the Act.
    First, regardless of what the Defense Department may claim, adding 
the term ``significant'' to the definition would not make it more 
``scientific''; on the contrary, it would take the Act into a 
scientific and policy arena that is beset by ambiguity. NMFS has 
already struggled for some years with this term and has yet to define 
it with regard to the ``significant adverse impact'' clause in the 
Act's ``incidental take'' provisions for commercial fishing (16 U.S.C. 
Sec. Sec. 1383(g)(2), 1387(g)(4)). Currently, the state of marine 
mammal science will not yield a practical definition of ``significant 
potential'' or of ``significantly altered''; indeed, these terms are 
likely to generate more scientific questions than answers. 2 
(By contrast, the standard in the current definition refers to 
impacts--the disruption of behavioral patterns such as migration, 
breathing, and nursing--that are at least reasonably verifiable.)
---------------------------------------------------------------------------
    \2\ In a 2000 report on the effects of ocean noise pollution on 
marine mammals, an ad hoc committee of the National Research Council 
(NRC) recommended changes in the MMPA's harassment definition that, 
while differing from the Defense Department's, included terms like 
``meaningful'' and ``significant.'' Unfortunately--as the same report 
concluded--our understanding of how marine mammals react to ocean noise 
is ``rudimentary.'' To codify a standard like ``significance'' given 
this state of knowledge would create substantial uncertainty in the law 
and, as discussed below, would have regulatory consequences that the 
NRC committee, not having any legal experts on their panel, appears to 
have overlooked.
---------------------------------------------------------------------------
    Second, the same is true of the term ``abandonment,'' the meaning 
of which may vary according to species, gender, time scale, and 
behavior. Even a temporary abandonment of a nursing bout between an 
endangered right whale mother and its calf is likely to have more 
serious consequences than the temporary abandonment of a swimming path 
by a gray whale--but it is unclear whether either event would count as 
``abandonment'' under the DoD's analysis. In the past, the Department 
has discounted the significance of behavioral disruptions (such as 
disruptions in breeding behavior lasting several weeks) that are less 
than permanent in their effects. 3
---------------------------------------------------------------------------
    \3\ See, e.g., Department of the Navy, Final Overseas Environmental 
Impact Statement and Environmental Impact Statement for Surveillance 
Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar 
(Jan. 2001).
---------------------------------------------------------------------------
    Third, the uncertainty produced by adding these ambiguous terms 
would only be exacerbated by the changes proposed in the standard of 
probability. In the current definition, the term ``potential'' is clear 
and requires no further evaluation of the probability of an activity to 
injure or disturb. By contrast, the DoD's proposal, in requiring that 
takes be ``likely'' or have the ``significant potential'' to occur, 
would demand a higher degree of proof than science is currently able to 
provide for many types of serious impacts, such as reduced calving 
rates. Furthermore, the emphasis on ``significant potential'' and 
``likelihood'' would ignore the degree to which many impacts (such as 
strandings) may be context-dependent, varying by species, gender, 
behavior, time-scale, and location.
    Taken all together, these changes would have a debilitating effect 
on enforcement. Under the terms of the Act, the DoD itself would have 
initial authority to decide whether its activities have the 
``significant potential to injure'' marine mammals or are likely to 
``significantly alter'' marine mammal behavior. A great many activities 
could simply evade the Act's requirements by relying upon the 
uncertainty and ambiguity in this new language and not seeking 
authorization in the first place. For the public or NMFS to enforce the 
Act in these circumstances would be difficult.
    The practical outcome is that many more marine mammals would be 
impacted by military activities. Potentially injurious activities that 
were once assessed, monitored, and mitigated under the Act would no 
longer enter the permit process. NMFS could not ensure that their 
impacts on populations or stocks would be negligible, and the 
possibility that non-negligible impacts will occur would substantially 
increase. The benefits of mitigation and monitoring--which have been 
effective in protecting marine mammal populations while gathering 
critical information on biological impacts--would be lost under the 
proposed definition. Overall, the result is likely to be more injury 
and death of marine mammals, less mitigation and monitoring of impacts, 
less transparency for the public and the regulatory agencies, and even 
more controversy and debate.
    The language proposed by the Defense Department covers all 
activities related to ``military readiness,'' an umbrella concept that 
would catch an extremely wide range of military and military-support 
activities whether or not they are actually performed by the DoD. But 
there is also a substantial danger that the proposed definition, once 
adopted, would be extended for the sake of consistency to other 
activities currently covered by the MMPA. The effect of such a move 
could be severe, compromising enforcement in similar ways for oil and 
gas production, power plant operations, and a wide range of other 
activities. Such a change would alter the underlying philosophy of the 
MMPA.
ASSESSMENT OF NEED FOR THE PROPOSED DEFINITION
    Changing a core definition in a complex statute like the Marine 
Mammal Protection Act carries with it serious risks. The Defense 
Department, we believe, simply has not made the case that such a 
dramatic step is warranted.
    Since 1994, when the current definition of ``harassment'' was 
adopted, the DoD has submitted approximately six applications for 
authorization under the Act's ``small take'' and approximately thirteen 
under its ``incidental harassment'' provisions. At least one 
application is currently pending; but of the rest--as Assistant 
Administrator William Hogarth noted before the House Armed Services 
Committee last March--the plain fact is that no application submitted 
by the DoD has ever been denied.
    Moreover, provisions to accommodate Defense Department activities 
already exist within Federal law. As noted above, the DoD may receive 
authorization to ``harass'' marine mammals through a streamlined 
process that, by statute, can run no longer than 120 days from the time 
of application. The agencies are allowed 45 days to publish notice of 
the application in the Federal Register, 30 days to solicit comments 
from the public, and another 45 days to accept or deny the application. 
By contrast, activities that the DoD typically submits for 
authorization are in development for many months or years. The DoD has 
not shown that an exemption process of the current length is 
burdensome, particularly in light of the Department's responsibilities 
under other environmental laws, such as the National Environmental 
Policy Act (NEPA), which are usually pursued concurrently.
    Additional flexibility is available under the Armed Forces Code. 
Under the Code (10 U.S.C. Sec. 2014), the DoD may seek special 
accommodation and relief from any agency decision that, in its 
determination, would have a ``significant adverse effect on the 
military readiness of any of the armed forces or a critical component 
thereof.'' If the accommodations it seeks are not forthcoming, it may 
take its case directly to the President. These provisions have never 
been invoked with regard to the MMPA, presumably because the 
Department's requests for authorization under the Act have never been 
denied and because any mitigation required by the agency was adjudged 
not to have a significant adverse effect on readiness. (To our 
knowledge, the provision has not been invoked with regard to any of the 
other statutes that the Defense Department has recently sought 
exemptions from.) The Department has not shown that additional 
exemptions are necessary.
The DoD's Assessment of Need
    The DoD has cited two cases in support of its position that changes 
to the harassment definition are needed: the SURTASS LFA case and the 
LWAD case. But these examples simply do not bear out the Department's 
claims, and we urge the Subcommittee to give them both close 
inspection.
    SURTASS LFA (short for ``Surveillance Towed Array Sensor System Low 
Frequency Active'' sonar) is a new technology that has raised 
extraordinary concern in the scientific community and the general 
public for its potential effects on marine mammals (so much so that, 
last fall, this Subcommittee convened a panel to discuss the matter). 
The Navy began developing the LFA system in the early to mid-1980s; it 
began testing the system at sea in the late 1980s; it formally acquired 
the system for global deployment no later than 1991--and yet the Navy 
did not agree to prepare an Environmental Impact Statement under NEPA 
or fulfill its responsibilities under other statutes until 1996-97, 
after it had come under pressure from both the scientific and 
environmental communities. Contrary to what the Department has claimed 
(Readiness and Range Initiative Summary 3), only a small part of the 
delay it describes is directly attributable to the MMPA authorization 
process. 4 But whatever delay has occurred in this case is 
at least partly due to the Navy's decision, during the ten years it 
spent developing and testing LFA, never to apply for MMPA 
authorization.
---------------------------------------------------------------------------
    \4\ That is, as opposed to the requirements set by other statutes. 
We recognize that the MMPA process has taken longer than usual in this 
case; one likely reason for this, however, is the extraordinary number 
of substantive comments that NMFS received from marine scientists 
during the public comment period, which we believe is appropriate for a 
controversial new technology that is slated for global deployment.
---------------------------------------------------------------------------
    The Littoral Warfare Advanced Development program (or ``LWAD'') is 
the second activity that the DoD claims has been compromised by the 
MMPA. Under the LWAD program, the Navy conducts tests of various 
systems and components used in antisubmarine warfare; nearly all of 
these tests have involved the use of intense active sonar (including 
one of the systems implicated in the unusual mass stranding of whales 
in the Bahamas) in coastal waters. By citing LWAD as it does, the 
Defense Department suggests that meeting the requirements of the MMPA 
has been burdensome. In fact, the Navy has not sought MMPA 
authorization for any of the seventeen exercises conducted under the 
program, despite the express recommendation of NMFS and despite 
numerous entreaties from the environmental community since March 2000, 
when the mass strandings occurred in the Bahamas. As the LWAD program 
has never gone through the authorization process, it is not evident 
what impacts the MMPA could have had in this case.
    That the Defense Department has not demonstrated the need for major 
changes in the law is consistent with a current study, whose 
preliminary results were announced on May 7, 2002, by the General 
Accounting Office (GAO). The GAO's initial conclusions were that 
commanders throughout the Armed Forces continue to report a high level 
of combat readiness, and that the Defense Department has documented 
neither the training impacts nor the costs associated with meeting its 
stewardship responsibilities.
    Rather than pursue broad legislative change, the need for which has 
not yet been demonstrated, the Department might look at non-legislative 
alternatives to further streamline the administrative process under 
MMPA and other laws. For example, Assistant Administrator Hogarth, in 
his March testimony, emphasized the value of taking a programmatic 
approach to environmental consultations. Such an approach would afford 
the DoD even more flexibility and would provide NMFS with adequate time 
to carry out its administrative responsibilities. To the extent this 
approach is adopted, Dr. Hogarth said, ``the implications of the [MMPA] 
permit process should be minor.'' 5 NRDC and other groups 
have been making similar appeals to the Armed Forces for a number of 
years. To facilitate planning, for example, we proposed two years ago 
that the Navy work in collaboration with the National Marine Fisheries 
Service to identify areas of high biological productivity or 
significance and find acceptable seasonal or geographic alternatives. 
Non-legislative approaches may be available that both protect the 
environment and improve efficiency, and we would welcome the 
opportunity to work collaboratively to this end.
---------------------------------------------------------------------------
    \5\ Available at this time in transcript form from www.house.gov/
hasc/openingstatementsandpressreleases/
---------------------------------------------------------------------------
CONCLUSION
    In April, a broad coalition of national environmental organizations 
sent a letter to House members on the exemptions proposed the Defense 
Department. That letter included the following statement: ``We firmly 
believe no government agency should be above the law--including the 
laws that protect the air and water in and around our military 
facilities, the health of the people who live on bases and nearby, and 
America's wildlife and public lands. Eliminating environmental and 
public health protections would likely create more, rather than less, 
controversy for the Department of Defense.''
    NRDC supports the military's efforts to protect national security 
and is sensitive to the issue of military readiness. We do not believe, 
however, that the Defense Department has demonstrated that the dramatic 
changes proposed are necessary or that it has utilized the procedural 
remedies available to it under existing law. Adopting a substantially 
flawed change in the harassment definition would be disastrous for 
marine mammals and would severely diminish any chance of constructive 
dialogue on other conservation issues. NRDC, together with other 
groups, supports a process in which all stakeholders can work together 
to develop creative and collaborative solutions. We strongly urge that 
interest groups and the military are given the opportunity to work 
constructively on non-legislative alternatives before any fundamental 
changes are contemplated for a complex, important, and popular law.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Wetzler.
    Ms. Young.

     STATEMENT OF NINA M. YOUNG, DIRECTOR, MARINE WILDLIFE 
              CONSERVATION, THE OCEAN CONSERVANCY

    Ms. Young. Mr. Chairman, members of the Subcommittee, thank 
you for the opportunity to present our views on the Marine 
Mammal Protection Act and H.R. 4781. My testimony today is on 
behalf of the Ocean Conservancy and 15 other environmental 
organizations representing the Marine Mammal Protection 
Coalition.
    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 protecting and recovering marine 
mammal populations. In our view, problems often stem, not from 
the Act itself, but from the Agency's failure to implement the 
Act fully and effectively, compounded by a chronic lack of 
resources for effective implementation.
    While we welcome H.R. 4781 and commend the Subcommittee for 
its work on the bill, we urge the Subcommittee to seize a 
unique opportunity to craft a truly visionary reauthorization 
bill that will tackle the emerging issues and threats to marine 
mammals. The problems are becoming more complex, encompassing 
competition with commercial fisheries, habitat degradation from 
marine pollution and sound, natural phenomenon such as 
climactic regime shifts, long-term problems such as global 
climate change. The MMPA must evolve from focusing on marine 
mammal stock structure and abundance estimates to assessing 
marine mammal health and ecosystem health. Existing statutory 
tools must be enhanced to establish a dedicated research 
program into marine mammal health and the threats posed by 
contaminants and sound.
    Any reauthorization bill must not only preserve but also 
build on the gains secured in 1994. In our written testimony we 
provide a section by section comments on H.R. 4781, as well as 
additional language for this section, and other provisions that 
would make the statute more effective. In our view, any MMPA 
reauthorization bill must prevent the weakening to the 
definition of a harassment, safeguard the zero mortality rate 
goal, strengthen the penalty and enforcement provisions and 
deter violations of the act, protect and strengthen the act's 
co-management provisions to allow co-management of nonstrategic 
stocks, and increase the authorized appropriation levels 
overall, but specifically for Section 117, 118 and the Health 
and Stranding Response provisions. Congress should further 
refine Section 118 to address problems relating to fishers 
obtaining the required authorization, placement of observers on 
vessels that have not registered, the need for fees to increase 
observer coverage, and the inclusion of noncommercial fishing 
gear which has the potential to take marine mammals.
    The Subcommittee should also consider providing the 
Secretary with the ability to authorize take reduction teams 
for fishery interactions involving competition with prey and 
other human-related threats such as shipping. We support H.R. 
4781's proposed amendment to provide research for nonlethal 
control of nuisance pinniped. We recommend, however, that the 
bill be amended to require the Secretary to develop a research 
plan to guide research, clarify that the testing of safe, 
nonlethal deterrents shall provide for the humane taking of 
marine mammals in accordance with the act, and include the 
conservation community in the development of the research 
program. In addition, it should require the Secretary to make 
the annual report to Congress available for public review and 
comment, and authorize the Secretary to accept contributions to 
carry out this section.
    We oppose the Polar Bear Import Provision Permit, as it 
would establish a blanket exemption to the notice and comment 
requirement and institute a dangerous precedent under which 
permits can be issued or denied without the much-needed public 
scrutiny.
    The Department of Defense's proposed amendment to the 
MMPA's as that of the Clinton Administration bill's definition 
to harassment would significantly raise the threshold for 
securing authorization to conduct activities that have the 
potential to harass marine mammals. We oppose this amendment 
and believe that it would result in increased injury or death 
to marine mammals. We understand that the Administration had an 
MMPA Reauthorization Bill pending, and we look forward to 
reviewing and providing our comments on the bill to the 
Administration and the Subcommittee. However, we believe that 
encouraging all interest groups to engage in a multi-
stakeholder process to develop a noncontroversial and forward-
thinking bill, would provide the greatest benefit to marine 
mammals. We respectfully urge Congress to work with all 
affected parties to this end.
    In the meantime, the MMPA already has the tools that it 
needs to protect marine mammals. Its implementation could be 
greatly enhanced if Congress would fund the statute at its 
authorized levels, and the agencies work cooperatively with 
environmental, scientific and fishing communities to improve 
the act's implementation.
    Thank you.
    [The prepared statement of Ms. Young follows:]

Statement of Nina M. Young, Director, Marine Wildlife Conservation, 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 
and H.R. 4781. My name is Nina M. Young; I am the Director of Marine 
Wildlife Conservation for The Ocean Conservancy.
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 Marine Mammal Protection Act (MMPA or Act), especially those 
governing the incidental take of marine mammals in commercial 
fisheries. The Ocean Conservancy believes that, in the sweeping changes 
made in 1994, Congress refined the Act and brought it closer toward 
achieving its goal of recovering marine mammal populations. The MMPA is 
an international model for effective conservation and protection of 
marine mammals. In our view, problems with the MMPA often 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.
    While we welcome H.R. 4781 and commend the Subcommittee for its 
work on this bill, we urge the Subcommittee to seize the opportunity to 
craft a truly visionary reauthorization bill that will tackle the 
emerging threats to marine mammal conservation. The problems facing 
marine mammals are becoming more complex and complicated. They 
encompass competition with commercial fisheries, habitat degradation 
associated with sound production and pollution, natural phenomena such 
as climatic regime shifts, and long-term chronic threats such as global 
climate change. The MMPA must evolve from merely looking at marine 
mammal stock structure and abundance to assessing marine mammal and 
ecosystem health. Tools that already exist in the MMPA such as Title 
IV--(Marine Mammal Health Stranding and Response) must be enhanced to 
establish a dedicated research program encompassing marine mammal 
health and the threats posed by contaminants and noise.
    Any reauthorization bill must not only preserve, but also build on 
the gains that were made in 1994. In our view, an effective 
reauthorization bill will: prevent the weakening of the definition of 
harassment; safeguard the zero mortality rate goal; strengthen the MMPA 
penalty and enforcement provisions to deter violations of the MMPA 
effectively; improve the implementation of the take reduction team 
process; expand authority under Section 118 (16 U.S.C. Sec. 1387) to 
allow the Secretary to authorize take reduction teams for fishery 
interactions involving prey related issues and other human-related 
threats (i.e. ship strikes); protect and strengthen the Act's co-
management provisions to allow co-management of non-depleted species/
stocks; increase the authorized appropriation levels for the Act 
overall, and specifically the health and stranding response provisions; 
and devise and implement a research plan to develop safe non-lethal 
deterrents to prevent marine mammals from interacting with fishers gear 
and catch. In written testimony submitted to the Subcommittee on April 
6, 2000 and October 11, 2001 we offered amendment language to address 
these issues.
    We understand that the Administration has a MMPA reauthorization 
bill pending at the Office of Management and Budget. We look forward to 
reviewing and providing our comments on that bill to the Administration 
and the Subcommittee. We believe that encouraging all interest groups 
to engage in a multi-stake holder process to develop a non-
controversial and forward thinking reauthorization bill would provide 
the greatest benefit to the resource and the nation. We respectfully 
urge Congress to work with all affected parties towards this end.
    In the meantime, the MMPA already has many of the tools it needs to 
protect marine mammals. Its implementation could be greatly improved if 
Congress would fund the statute at its authorized levels. Additionally, 
the National Marine Fisheries Service (NMFS) and the Fish and Wildlife 
Service (FWS) should work with the environmental and scientific 
communities and the fishing industry to undertake needed research and 
improve the MMPA's implementation.
    Our comments are organized as follows: first, we provide our 
section-by-section comments on H.R. 4781 as well as additional language 
for these sections that would make the statute more effective. Next, we 
address the problems with the Department of Defense's proposed 
amendments to the definition of ``harassment.'' Finally, we provide 
additional proposed amendments to ensure that the statute achieves its 
goal of marine mammal protection and conservation.
II. DETAILED COMMENTS ON H.R. 4781
SEC. 4. LIMITED AUTHORITY TO EXPORT NATIVE HANDICRAFTS
    The Ocean Conservancy supports these provisions to clarify that 
Native handicrafts can be exported by a Native of Canada, Greenland, 
Russia, or by an Alaska Native as part of a cultural exchange. This 
resolves a problem created by the 1994 amendments, which allowed a 
Native of Canada, Greenland, or Russia to import marine mammal products 
into the United States as part of personal travel or a cultural 
exchange, but failed to address the export of those products at the end 
of the travel. Similarly the 1994 amendment introduced uncertainty 
regarding the export of Alaska Native handicrafts under similar 
circumstances.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS
    The Ocean Conservancy encourages the Subcommittee to further 
increase the authorized appropriation levels for both the Department of 
Commerce and the Department of Interior, to enhance implementation of 
the MMPA through improved marine mammal stock assessments and health-
related research, increased staff resources to process scientific and 
small take permits, finalize regulations to implement take reduction 
plans within the timeframe stipulated in the Act and oversee the 
implementation of such plans, comply with the mandates of Title IV 
(Marine Mammal Health and Stranding Response Program), and increase 
observer coverage of Category I and II fisheries.
    The Ocean Conservancy believes that the authorization level for the 
Department of Commerce to carry out the implementation of Sections 117 
and 118 (16 U.S.C. Sec. Sec. 1386-87) is woefully inadequate. For 
example, Section 117 calls for NMFS and FWS to produce stock assessment 
reports that include a description of the stock's geographic range, a 
minimum population estimate, current population trends, current and 
maximum net productivity rates, optimum sustainable population levels 
and allowable removal levels, and estimates of annual human-caused 
mortality and serious injury through interactions with commercial 
fisheries and subsistence hunters. The data in these reports are used 
to evaluate the progress of each fishery towards achieving its goal of 
zero mortality and serious injury. NMFS has defined a total of 145 
cetacean and pinniped stocks in U.S. waters: 60 stocks in the Atlantic 
Ocean and Gulf of Mexico; 54 along the Pacific Coast of the continental 
United States and Hawaii; and 31 in Alaska and the North Pacific.
    NMFS must also continue to fund established take reduction teams 
until they achieve their goals under the MMPA. Additionally, NMFS 
should convene several other take reduction teams, including a 
reconstituted Atlantic Offshore Take Reduction Team. The table below, 
from NMFS'' website, provides a breakdown of cost for the various 
stages of a take reduction team process. Based on this information, the 
agency is spending approximately $5 million per year on take reduction 
teams. Most of the teams are in the monitoring and follow-up stage, 
with the exception of Bottlenose Dolphin Take Reduction Team, which 
just submitted its consensus plan in May. Therefore, we recommend that 
the Subcommittee increase the annual authorization for Sections 117 and 
118 to $35,000,000.


[GRAPHIC NOT AVAILABE IN TIFF FORMAT]


    The Marine Mammal Health and Stranding Response Program under Title 
IV (16 U.S.C. Sec. Sec. 1421- 21(h)) should retain its own separate 
authorization provision within H.R. 4781, rather than be included in 
the base authorization. See 16 U.S.C. Sec. 1421(g). Title IV is 
critical to the recovery and health of marine mammal populations. To 
date, the Marine Mammal Health and Stranding Response Program has 
greatly improved the response to 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 the wildlife agencies' response to these 
die- offs has been hampered by a lack of funding. Without adequate 
funding, the agencies cannot be proactive, 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 these agencies' ability to fully develop and implement 
contingency programs to respond to die-offs or oil spills, and 
subsequently determine the cause of these die-offs that are potential 
indicators of the health of the marine environment. We recommend that 
the Subcommittee provide a separate $5,000,000 annual authorization to 
NMFS for Title IV, a specific annual authorization of $500,000 to the 
Marine Mammal Unusual Mortality Event Fund, and $500,000 annually to 
the Secretary of Interior to carry out this Title.
SEC. 6. TAKE REDUCTION PLANS
    We support the amendments to Section 118(f) and 118(j) of the MMPA 
in H.R. 4781. We believe that the amendments to Section 118(f) will 
significantly improve the take reduction team process and the plans 
that it develops. The amendment to Section 118(j) will provide NMFS 
with the ability to work cooperatively with various user groups to 
undertake the necessary measures to implement this Section effectively 
in the event there are insufficient Federal funds to conduct research 
or observer programs.
    The bill, however, is not sufficiently comprehensive in its 
approach to improving Section 118 (16 U.S.C. Sec. 1387). Congress 
should seize this opportunity to refine this section to address 
problems that have arisen related to fishers obtaining the required 
authorization, placement of observers, increased observer coverage, the 
need for funding for observer coverage, and the inclusion of 
recreational fishing. The Ocean Conservancy offers the following 
suggestions.
    Some non-commercial fisheries use gear similar or identical to 
commercial fishing gear and, as a result, are taking marine mammals at 
rates potentially equal to or greater than rates of incidental bycatch 
commercial fisheries. However, according to NMFS, there are currently 
no mechanisms to address this take within the MMPA's incidental take 
provisions. As a matter of equity, and for purposes of effective marine 
mammal conservation, non-commercial fisheries that employ gear similar 
to commercial fishing gear and that have the same potential to take 
marine mammals should not be exempt from the Act. Therefore, The Ocean 
Conservancy supports amendments to include these fisheries under the 
provisions of Section 118. However, we are concerned that the amendment 
proposed in H.R. 4781 may not include all the references necessary to 
bring this subset of non- commercial fisheries under the authority of 
Section 118. We look forward to working with the Subcommittee revise 
the language in H.R. 4781 to achieve this objective.
Section 118(c): Registration and Authorization
    The MMPA requires vessels engaging in Category I and II commercial 
fisheries to register with the Secretary to receive authorization to 
engage in the lawful incidental taking of marine mammals in that 
fishery. The MMPA provides the Secretary with the authority to place 
observers on commercial vessels engaging in Category I and II 
fisheries, and vessels that have received authorization to engage in 
these fisheries are obligated to take observers on board.
    During several take reduction team negotiations, NMFS has remarked 
on instances where vessel owners have refused to allow observers on 
their vessels without adverse consequences. NMFS Enforcement has 
indicated that its efforts to enforce the Act are constrained because 
NOAA's Office of General Counsel has narrowly interpreted the term 
``engaged in a fishery'' under Section 118(c)(3)(C) to mean engaged in 
the fishery on the day that a refusal to take an observer occurs. The 
MMPA should be amended to clarify the obligations of vessel owners in 
Category I and II fisheries to carry observers if so requested, and to 
provide NMFS with the explicit authority to punish violations of the 
observer requirements. The Act should also be amended to define the 
term ``engaged in a fishery.'' (See Attachment at A-1 and A-2).
    Congress should also strengthen the incentives for fishers to 
register under this section by allowing NMFS to seek forfeiture of the 
catch and to assess a substantial fine against the vessel for any 
fishing operations conducted in the absence of the required 
authorization. In addition, the fine currently stipulated in the Act 
for failure to display or carry evidence of an authorization is not a 
sufficient deterrent to noncompliance. (See Attachment at A-3).
Section 118(d): Monitoring Incidental Takes
    Nearly every take reduction team recommends increased observer 
coverage. Funds for monitoring programs have been limited; generally, 
only fisheries experiencing frequent interactions with marine mammals 
have received priority for observer program coverage. Former NMFS 
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 
most cases, shortfalls in program funding often result in diminished 
observer coverage. 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 a program. (See Attachment at A-
4).
    NMFS 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 a marine mammal incidental take 
authorization. The Ocean Conservancy believes that the MMPA should be 
amended to clarify NMFS'' authority to place observers on any vessel 
engaging in a Category I or II fishery, regardless of whether the owner 
or master of the vessel has registered. (See Attachment at 
A-5).
Repeal of Section 114
    Given that Section 118 is fully functional, there is no longer any 
need for the interim exemption for commercial fisheries provided for in 
Section 114 (16 U.S.C. Sec. 1383a). Therefore, Section 114 should be 
deleted and the necessary technical and conforming amendments made to 
other provisions in the Act.
SEC. 7. PINNIPED RESEARCH
    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 NMFS with the tools in Section 120 of 
the MMPA to address the issue of pinniped predation on threatened and 
endangered salmonid stocks.
    Sections 109 and 120 (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 should be the first line of defense. NMFS 
has failed, however, to publish final guidelines on acceptable non-
lethal deterrents. NMFS has also failed to give sufficient priority to 
dedicated research into the development of safe and effective non-
lethal deterrents. Development of such deterrents will aid in reducing 
not only predation on threatened and endangered salmonid stocks, but 
also other conflicts between pinnipeds and humans.
    The Ocean Conservancy supports H.R. 4781's proposed amendment to 
provide for research into non-lethal removal and control of nuisance 
pinnipeds. We recommend, however, that this section of the bill be 
amended to: (1) require the Secretary to develop a research plan to 
guide research on the non-lethal removal and control of nuisance 
pinnipeds; (2) clarify that the development and testing of safe, non-
lethal removal, deterrence and control methods shall provide for the 
humane taking of marine mammals by harassment, as defined by Section 
3(18)(A)(ii) of the MMPA; (3) include other organizations and 
individuals--such as the conservation community--in addition to 
representatives of commercial and recreational fishing industries, in 
the development of the research program; (4) require the Secretary to 
make the annual report to Congress available to the public for review 
and comment; and (5) authorize the Secretary to accept contributions to 
carry out this section. (See Attachment at A-6).
SEC. 8. MARINE MAMMAL COMMISSION
    The Ocean Conservancy opposes H.R. 4781's proposed provision 
related to the Marine Mammal Commission striking the language in 
Section 206(5) (16 U.S.C. Sec. 1406(5)) that states: ``except that no 
fewer than 11 employees must be employed under paragraph (1) at any 
time.'' Removing this lower threshold may provide some members of 
Congress with an incentive/rationale to decrease appropriations and, in 
turn, staff capacity on the Marine Mammal Commission. The Marine Mammal 
Commission plays a crucial role in the oversight and implementation of 
the Act and should be empowered to expand its authority to promote and 
undertake visionary dialogues and strategic thinking that will advance 
the purposes and policies of the Act. The Ocean Conservancy supports 
the authorization of appropriations proposed for the Marine Mammal 
Commission provided in H.R. 4781.
SEC. 9. SCRIMSHAW EXEMPTION
    The Ocean Conservancy supports this provision, which extends the 
permits for individuals with pre- ESA ivory, to allow them to continue 
to possess, carve, and sell the ivory until 2007.
SEC. 10. EMERGENCY ASSISTANCE FOR SUBSISTENCE WHALE HUNTERS
    The Ocean Conservancy supports this provision as a mechanism to 
ensure that whales that are struck in legal, authorized aboriginal 
hunts are landed and not lost.
SEC. 11. EXTENSION
    The proposed provision in this section does not appear to 
correspond to the Section of the Act cited.
SEC. 12. POLAR BEAR PERMITS
    In 1994, Congress provided for the issuance of permits authorizing 
the importation of trophies of sport-hunted polar bears taken in 
Canada, subject to certain findings and restrictions. The amendments 
required the public to be given notice prior to and after issuance or 
denial of such permits. H.R. 4781 proposes to change this public 
notification process to a semiannual summary of all such permits issued 
or denied. The Ocean Conservancy opposes this provision, as it would 
establish a blanket exemption to the notice and comment requirement and 
institute a dangerous precedent under which permits could be issued or 
denied without much-needed public scrutiny. The public comment process 
surrounding the issuance of a permit to import polar bear parts is 
needed to provide public oversight to verify that a permit is tied to 
tagging that clearly demonstrates when, and from what stock, the polar 
bear was taken. Rather than removing the public comment process, FWS 
should work to ensure that these provisions are effectively enforced 
and do not result in the illegal take or a negative change in the 
status of stocks that are currently depleted.
SEC. 13. CAPTIVE RELEASE PROHIBITION
    Section 13 amends section 102 of the Act to clarify that the MMPA 
expressly prohibits any person subject to the United States' 
jurisdiction from releasing a captive marine mammal unless specifically 
authorized to do so under sections 104(c)(3)(A), 104(c)(4)(A), or 
109(h). The Ocean Conservancy supports H.R. 4781's proposed provisions 
prohibiting the release of any captive marine mammal unless 
authorization has been received. We are sensitive to the potential harm 
that might result, in the absence of mandatory precautionary measures 
established as conditions of a captive release permit, to the animals 
released and to wild populations they encounter, through disease 
transmission, inappropriate genetic exchanges, and disruption of 
critical behavior patterns and social structures in wild populations. 
However, Section 13(3)(6) appears to set a different jurisdictional 
standard for the release of captive marine mammals than for other 
activities subject to the permit requirement of the MMPA. We believe 
this provision should be applied in the same manner as all other 
prohibitions under the Act. (See Attachment at A-7).
SEC. 14. MARINE MAMMAL COMMISSION ADMINISTRATION
    We support this provision. The per diem rate in the Act is too low. 
Consequently, this provision precludes the Marine Mammal Commission 
from securing the services of most experts and consultants. By removing 
this restriction, the Marine Mammal Commission will be brought under 
the government-wide restrictions for the payment of experts and 
consultants.
III. PROPOSED MODIFICATIONS TO THE DEFINITION OF HARASSMENT
    The Department of Defense has proposed a bill containing a 
provision that would amend the MMPA's definition of harassment. This 
amendment, similar to one advanced by the Clinton Administration in its 
MMPA Reauthorization Bill, which was also opposed by the environmental 
community and was never pursued by the previous Administration, would 
severely undermine the precautionary nature of the Act, and 
significantly raise the threshold that triggers a party's obligation to 
secure authorization to conduct activities that have the potential to 
harass marine mammals. The proposed definition would not only increase 
injuries and deaths of marine mammals, but also diminish transparency, 
result in a loss of scientific research and mitigation measures, 
require the agency or the party requesting the authorization to make 
difficult, if not impossible, scientific judgments about whether a 
given activity is subject to the Act's permitting and mitigation 
requirements, and impair enforcement of the Act.
Background
    Congress sought to achieve broad protection for marine mammals by 
establishing a moratorium on their importation and ``take.'' Take is 
defined by statute as any act ``to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture or kill any marine mammal.'' See 16 
U.S.C. Sec. 1362(13). The MMPA allows the relevant Secretary to grant 
exceptions to the take prohibitions, by issuing either a ``small take 
permit'' or ``incidental harassment authorization'' if the best 
available scientific evidence reveals that such take would not 
disadvantage a specific marine mammal population.
    Specifically, Section 101(a)(5)(A), 16 U.S.C. Sec. 1371(a)(5)(A), 
of the MMPA authorizes the Secretary to permit the taking of small 
numbers of marine mammals incidental to activities other than 
commercial fishing (covered by other provisions of the Act) when, after 
notice and opportunity for public comment, the responsible regulatory 
agency (NMFS or FWS) determines that the taking would have negligible 
effects on the affected species or population, and promulgates 
regulations setting forth permissible methods of taking and 
requirements for monitoring and reporting. It generally takes the 
agency 240 days or more to promulgate regulations. In addition, Section 
101(a)(5)(D), 16 U.S.C. Sec. 1371(a)(5)(D), provides a more streamlined 
mechanism for obtaining small take authorizations when the taking will 
be by incidental harassment only. Under this provision, the Secretary 
is required to publish in the Federal Register a proposed harassment 
authorization within 45 days after receipt of an application. Following 
a 30-day public comment period, the Secretary has 45 days to issue or 
deny the requested authorization.
Definition of Harassment--The 1994 Amendment
    In 1994, Congress amended the MMPA to differentiate between two 
types of harassment--Level A and Level B. The definitions are as 
follows:
        (A) The term ``harassment'' means any act of pursuit, torment, 
        or annoyance which ``
            (i) Lhas the potential to injure a marine mammal or marine 
            mammal stock in the wild; or
            (ii) Lhas 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.
        (B) The term ``Level A harassment'' means harassment described 
        in subparagraph (A)(i).
        (C) The term ``Level B harassment'' means harassment described 
        in subparagraph (A)(ii).
    16 U.S.C. Sec. 1362(18).
The Department of Defense's Proposed Definition
    The Department of Defense claims that the definitions of Level A 
and Level B harassment added to the MMPA in 1994 are overly broad and 
somewhat ambiguous. In an attempt to resolve this perceived problem, 
and to circumvent its obligations under Section 7 of the Endangered 
Species Act and the preparation of environmental impact statements 
under the National Environmental Policy Act, the Department of Defense 
has proposed the following definition:
    For purposes of chapter 31 of title 16 of the United States Code, 
harassment from military readiness activities occurs only when those 
activities:
    (1) injures or has the significant potential to injure a marine 
mammal or marine mammal stock in the wild; or
    (2) disturbs or is likely to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of natural behavior 
patterns, including, but not limited to, migration, surfacing, nursing, 
breeding, feeding, or sheltering to a point where such behavioral 
patterns are abandoned or significantly altered; or
    (3) is directed toward a specific individual, group, or stock of 
marine mammals in the wild that is likely to disturb the specific 
individual, group, or stock of marine mammals by disrupting behavior, 
including, but not limited to migration, surfacing, nursing, breeding, 
feeding or sheltering.
Problems with the Proposed Definition
    For Level A harassment, the proposed definition shifts from ``has 
the potential to injure'' to ``injures or has the significant potential 
to injure.'' For Level B harassment, ``potential to disturb'' becomes 
``disturbs or is likely to disturb''; and an addition is made to the 
language related to behavioral disruptions, requiring that natural 
behaviors be ``abandoned or significantly altered'' to meet the 
threshold of concern.
    Its effect will be that more marine mammals will be adversely 
affected by military activities. Many activities, which were once 
permitted, monitored, and mitigated under the Act, would no longer 
require a permit. Consequently, these activities will have a greater 
likelihood of causing marine mammals to abandon nursing, feeding, and 
breeding activities. Moreover, adding the term ``significant'' does not 
create a more scientifically based definition. NMFS has struggled with 
the term ``significant'' and has yet to define it with regard to the 
``significant adverse impact'' clause within the incidental take 
provisions for commercial fishing. Currently, the state of marine 
mammal science will not yield a clear definition of ``significant 
potential'' or of ``significantly altered;'' instead, it is likely to 
generate more scientific questions than answers.
    Similarly, what constitutes ``abandonment'' will vary according to 
species, gender, time scale, and behavior: any abandonment of a nursing 
bout between an endangered right whale mother and calf is likely to 
have more serious implications than the temporary abandonment of a 
swimming path by a gray whale. The result of the Defense Department's 
proposed amendment is likely to be less protection of marine mammals, 
less transparency, less mitigation and monitoring of impacts, and even 
more controversy and debate.
    The Ocean Conservancy does not believe that the current definition 
of harassment is either overly broad or ambiguous. The term 
``potential'' is clear and requires no further evaluation of the 
significance of an activity's impacts or the likelihood of injury or 
disturbance. It is protective of the species, requiring only the 
disruption of behavioral patterns such as migration, breathing, 
nursing, breeding, feeding, or sheltering--impacts that are reasonably 
verifiable--rather than significant alteration of these behaviors, to 
trigger the Act's prohibitions.
    In addition, small take permit and incidental harassment 
authorization mitigation measures and monitoring requirements have been 
effective in protecting marine mammal populations while gathering 
critical information on the impacts of a particular activity on marine 
mammals. In many cases, these benefits would be lost under the proposed 
definition. It would raise the regulatory threshold and create 
ambiguity to such a degree that many activities could simply evade the 
requirement to obtain an authorization for species take.
    We are sensitive to the issue of military readiness. We do not 
believe, however, that the Department of Defense has demonstrated that 
these changes are necessary or even that it has exhausted all possible 
procedural remedies. Given the significant risks of changing the 
harassment definition, The Ocean Conservancy and other interest groups 
should be given the opportunity to work constructively with the 
committees of jurisdiction to address the concerns of all parties. 
Adopting a significantly flawed change in the harassment definition in 
the Defense Authorization Bill would not only be disastrous for marine 
mammals, but also set a double standard that exempts the military from 
MMPA requirements that all other Federal, state, and private actors 
must follow. If enacted, this amendment would severely diminish any 
chance of constructive dialogue on other conservation issues. We 
strongly recommend that Congress refrain from amending one of the most 
important provisions of the MMPA through another statute, and only 
address this issue as part of an overall MMPA reauthorization package, 
within the House and Senate committees of jurisdiction, after 
significant discussions with other Federal agencies, scientists, and 
conservation groups.
IV. OTHER PROPOSED AMENDMENTS
Penalties and Cargo Forfeitures
    The Ocean Conservancy believes that Section 105, the civil and 
criminal penalty provisions of the Act (16 U.S.C. Sec. 1375), should be 
updated to reflect current economic realities. The existing penalty 
schedule, enacted thirty years ago and unchanged since enactment, sets 
penalties that are low enough to be viewed by some violators as an 
acceptable cost of doing business, thus undermining effective 
enforcement. Congress should amend Section 105 of the Act to authorize 
the Secretary to impose a civil penalty of up to $50,000 for each 
violation, and a fine of up to $100,000 for each criminal violation. 
(See Attachment at A-8 and A-9).
    The Ocean Conservancy also believes that NMFS should be authorized 
to retain any fines that have been collected for violations of the MMPA 
to be used in the administration of its activities for the protection 
and conservation of marine mammals under its jurisdiction. Therefore, 
we propose that Congress add a provision to the Act to parallel 16 
U.S.C. Sec. 1375a, which authorizes FWS to use collected fines for its 
marine mammal conservation activities. (See Attachment at A-10)
    Additionally, with respect to Section 106 (16 U.S.C. Sec. 1376), to 
increase compliance with the MMPA by ensuring that penalties will deter 
future violations of the statute, we propose an amendment to authorize 
the Secretary to impose a civil penalty of up to $50,000 against 
vessels used to take marine mammals and vessels that fish in violation 
of the provisions of section 118 of the Act. Finally, section 106 
should be amended to allow for the seizure and forfeiture of a vessel's 
cargo for fishing in violation of the provisions of section 118. (See 
Attachment at A-11)
Interference with Investigations and Observers
    The MMPA currently contains no specific prohibition against 
activities that undermine the effective implementation and enforcement 
of the Act. Individuals who refuse to permit boardings, who interfere 
with inspections or observers, or who intentionally submit false 
information may not be subject to prosecution under the MMPA, as such 
activities are not specifically prohibited. To address this long-
standing deficiency within the MMPA, we recommend changes to the 
statute patterned on similar provisions currently found in the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
Sec. 1857). (See Attachment at A-12)
Title IV--Marine Mammal Health And Stranding Response
Use of the Emergency Response Fund
    In 1994, Title IV, Marine Mammal Health and Stranding Response, was 
amended to allow 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) (16 U.S.C. Sec. 1374(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. This situation could rapidly 
deplete funds that are needed to respond to unusual mortality events. 
The need for funds to provide for the care and maintenance of seized 
marine mammals should be addressed in either the Animal Welfare Act or 
in another provision 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 in Section 405(b)(1)(A)(iii), 16 U.S.C. 
Sec. 1421d (b)(1)(A)(iii), be deleted. (See Attachment at 
A-13).
Improve Response to Marine Mammal Entanglements
    Each year, an ever-greater number of marine mammals becomes 
entangled in fishing gear and other marine debris. It is important that 
NMFS and FWS have the explicit authority to collect information on 
these entanglements. Disentanglement has proven an effective mitigation 
measure for humpback whales, northern fur seals, California sea lions, 
and Hawaiian monk seals, and has proven to be significant to the 
survival of the North Atlantic right whale. These efforts promote the 
conservation and recovery of these species and should continue as a 
matter of priority. To improve efforts to monitor and respond to 
entanglement threats to marine mammals, The Ocean Conservancy proposes 
that Title IV, 16 U.S.C. Sec. Sec. 1421-1421h, be amended as outlined 
in the attachment. (See Attachment at A-14 through A-18).
Deterrence of Marine Mammals
    Although Section 104(a)(4)(B) (16 U.S.C. Sec. 1371(a)(4)(B)) 
requires the Secretary to publish a list of guidelines for safely 
deterring marine mammals the Secretary has failed, to date, to comply 
with this provision. Both The Ocean Conservancy and the fishing 
industry continue to be extremely frustrated by the lack of 
statutorily-required guidelines for non-lethal deterrents. Moreover, 
because NMFS cannot enforce guidelines, The Ocean Conservancy 
recommends that the statute be amended to require NMFS to promulgate 
regulations that delineate acceptable methods of safely deterring 
marine mammals, including threatened and endangered marine mammals. Our 
proposed amendment establishes that the Secretary's regulations on the 
use of non-lethal deterrence methods shall be mandatory, with penalties 
prescribed for using non-approved methods. The proposed amendment also 
establishes a process whereby parties may petition to have additional 
methods of non-lethal deterrence reviewed and approved by the 
Secretary. The burden of proof to demonstrate that the proposed non-
lethal deterrence method is safe and effective shall be on the 
proponent of the method. (See Attachment at A-19).
Cumulative Takes
    The Ocean Conservancy is concerned that applicants may be using the 
streamlined mechanism for authorizing incidental takes by harassment 
for a period of up to one year to avoid the assessment of the 
cumulative impacts of such activities over time. 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. By themselves, these activities 
may have only negligible impacts, but may be of significant detriment 
when viewed cumulatively. Therefore, we recommend that Section 
101(a)(5)(D)(i) be amended to ensure authorized activities have a 
negligible impact, taking into account cumulative impacts of related 
activities in the authorized period as well as in subsequent years. 
(See Attachment A-20).
Subsistence Hunting of Marine Mammals
Subsistence hunting and management of strategic stocks
    The management history of the subsistence harvest of beluga whales 
in Cook Inlet illustrates the need for proactive Federal intervention 
and management to avoid a marine mammal species becoming eligible for 
listing as depleted under the MMPA. The purpose of the definition of 
``strategic'' marine mammal stocks in Section 3(19), 16 U.S.C. 
Sec. 1362(19), is to identify unsustainable levels of take so that 
appropriate action can be taken to avoid listing that stock as depleted 
under the MMPA or as threatened or endangered under the ESA. While The 
Ocean Conservancy does not oppose subsistence use, we believe that, in 
those cases where marine mammal stocks are designated as strategic, the 
Federal Government should be given the discretion to intervene and work 
with Native communities to monitor and regulate harvests to ensure the 
long-term health of the stock and sustainable subsistence harvests. 
Therefore, we propose that Section 101(b), 16 U.S.C. Sec. 1371(b), be 
amended to allow the Secretary to prescribe regulations governing the 
taking of members of a strategic stock by Native communities. (See 
Attachment A-21).
Co-management of strategic and depleted stocks
    While The Ocean Conservancy does not oppose subsistence hunting 
when conducted in a sustainable manner, we believe that future co-
management agreements should generally be limited to stocks that are 
not strategic or depleted. We are concerned that there is inadequate 
infrastructure within the Native communities to support co-management 
of strategic or depleted stocks. We generally support co-management of 
all non-strategic stocks, as long as the co-management agreement 
considers the entire range of the stock, includes all Alaskan Natives 
that engage in subsistence use of that particular marine mammal stock, 
and contains provisions for monitoring and enforcement. We believe that 
the agencies and Alaskan Natives involved in drafting a co-management 
agreement should consult with the conservation community during the 
drafting process, to ensure transparency of that process. Before a co-
management agreement is finalized, or final implementing rules or 
regulations are published, the public must be afforded an opportunity 
for notice and comment. A co-management agreement should provide for 
revocation of the agreement, tie violations of the agreement to the 
penalty provisions of the Act, establish emergency regulations in the 
event that mortality and serious injury of a marine mammal stock is 
having or is likely to have a significant adverse impact on the stock, 
and provide grants for research, monitoring, and enforcement of the 
agreement. (See Attachment at A-22).
V. SOUTHERN SEA OTTERS
    The 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.
    In 2000, 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, The Ocean Conservancy and Friends of the Sea Otter 
have 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. Several conservation 
organizations 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 to refrain from amending the MMPA, and 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.
VI. CONCLUSION
    The Ocean Conservancy believes that the MMPA has made significant 
progress in conserving marine mammals and that the statute is at a 
unique stage in its evolution. With no pressing deadlines or urgent 
problems to address with respect to the MMPA, Congress the opportunity 
to craft narrowly focused amendments to improve the implementation and 
enforcement of the current Act, as well as to adopt new provisions that 
will begin to address the emerging threats to marine mammals. We urge 
the Subcommittee to work with all interest groups and agencies to draft 
a progressive reauthorization bill. We look forward to participating in 
this effort.
                              ATTACHMENT A
SEC. 6. TAKE REDUCTION PLANS
Section 118(c): Registration and Authorization
    A-1: At Section 118(c)(3)(C) amend paragraph (C) to add clause (iv) 
as follows:
        ``(iv) fails to take an observer when requested to do so by the 
        Secretary.''
    At the end of Section 118(c)(3)(C), delete ``clauses (i) and (ii)'' 
and insert ``clauses (i), (ii), and (iv).''
    A-2: 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 Section 118(c)(1)(A)(i), (ii), or (iii).''
    A-3: At Section 118(c)(3)(C) insert after the phrase ``clauses (i), 
(ii), and (iv)'' the phrase: ``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 
[$100.00] $5,000.00 for each offense.''
Section 118(d): Monitoring Incidental Takes
    A-4: 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.''
    A-5: At Section 118(d) insert a new paragraph (8) as follows and 
renumber paragraphs 8 and 9 as 9 and 10:
        ``(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) which is not registered under subsection 
        (c).''
SEC. 7. PINNIPED RESEARCH
    A-6: Amend Section 120 by adding at the end the following:
        ``(k) RESEARCH ON NONLETHAL REMOVAL AND CONTROL.--(1) The 
        Secretary shall develop a research plan and conduct research on 
        the nonlethal removal, deterrence, and control of nuisance 
        pinnipeds. The research plan shall include a review of measures 
        that have been taken to effect such removal, the effectiveness 
        of these measures, and shall propose research to test new 
        technologies to deter nuisance pinnipeds and their impacts on 
        the ecosystem. The development and testing of safe, non-lethal 
        removal, deterrence and control methods shall provide for the 
        humane take of marine mammals by harassment, as defined at 
        Section 3(18)(A)(ii) of this Act.
    (2) The Secretary shall include, among the individuals that develop 
the research program under this subsection, 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.
    (3) The Secretary is encouraged, where appropriate, to use 
independent marine mammal research institutions in developing and in 
conducting the research program.
    (4) The Secretary shall, by December 31 of each year, submit an 
annual report on the results of research under this subsection to the 
Committee on Resources of the House of Representatives and the 
Committee on Commerce, Science, and Transportation of the Senate.
    (5) The Secretary shall make the report and the recommendations 
submitted under paragraph (4) available to the public for review and 
comment for a period of 90 days.
    (6) For the purposes of carrying out this section, the Secretary 
may accept, solicit, receive, hold, administer, and use gifts, devices, 
in-kind contributions, and bequests.
    (7) There are authorized to be appropriated to the Secretary 
$1,500,000 annually to carry out the provisions of this subsection.
SEC. 13. CAPTIVE RELEASE PROHIBITION
    A-7: Modify new paragraph (6) in Section 102(a) of the Act by 
inserting after the word ``marine mammal'' the phrase ``on the high 
seas, or for any person to release any captive marine mammal in waters 
or on lands under the jurisdiction of the United States.''
IV. OTHER AMENDMENTS
Penalties and Cargo Forfeitures
    A-8: Modify Section 105(a)(1) to read as follows:
        ``(a)(1) Any person who violates any provision of this title or 
        of any permit or regulation issued thereunder, may be assessed 
        a civil penalty by the Secretary of not more than [10,000] 
        $50,000 for each such violation, except as provided in Section 
        118. No penalty shall be assessed unless such person is given 
        notice and opportunity for a hearing with respect to such 
        violation. Each unlawful taking, importation, exportation, 
        sale, purchase or transport and each day on which unlawful 
        fishing is conducted in violation of section 118 (c)(3)(C) 
        shall be a separate offense. Any such civil penalty may be 
        remitted or mitigated by the Secretary for good cause shown. 
        Upon any failure to pay a penalty assessed under this 
        subsection, the Secretary may request the Attorney General to 
        institute a civil action in a district court of the United 
        States for any district in which such person is found, resides, 
        or transacts business to collect the penalty and such court 
        shall have jurisdiction to hear and decide any such action.''; 
        and
    A-9: Modify Section 105 (b) to allow a criminal fine: ``not more 
than [$20,000] $100,000 for each such violation . . . .''
    A-10: Amendment to 16 U.S.C. Sec. 1375a:
    Insert ``of the Interior'' after ``Secretary'' and renumber as 
subsection (a);
    Insert subsection (b) as follows:
        ``Hereafter, all fines collected by the National Marine 
        Fisheries Service for violations of the Marine Mammal 
        Protection Act, 16 U.S.C. Sec. 1361 et seq., and implementing 
        regulations shall be available to the Secretary of Commerce, 
        without further appropriation, to be used for the expenses of 
        the National Marine Fisheries Service in administering 
        activities for the protection and recovery of marine mammals 
        under the Secretary of Commerce's jurisdiction, and shall 
        remain available until expended.''
    A-11: Amend Section 106(b) s follows:
    (a) by adding in subsection (a) the phrase ``or in fishing in 
violation of section 118(c)(3)(A)(i), (iii), or (iv)'' after ``that is 
employed in any manner in the unlawful taking of any marine mammal'';
    (b) by adding in subsection (a) the phrase ``or unlawful fishing'' 
after ``in connection with the unlawful taking of a marine mammal'';
    (c) by adding in subsection (b) the phrase ``or in fishing in 
violation of section 118(c)(3)(A)(i), (iii), or (iv)'' after ``that is 
employed in any manner in the unlawful taking of any marine mammal''; 
and
    (d) by striking in subsection (b) ``$25,000'' and inserting 
``$50,000''.
Interference with Investigations and Observers
    A-12: Amend Section 102 (16 U.S.C. Sec. 1372) as follows:
    (a) redesignating subsection (d), (e), and (f) as (e), (f), and (g) 
respectively; and
    (b) adding a new subsection (d) to read as follows: ``(d) 
Obstruction of Investigations.--It is unlawful for any person to''
    (1) refuse to allow any person authorized by the Secretary to 
enforce this title to board any vessel or other conveyance for purposes 
of conducting any search or inspection in connection with enforcement 
of this title;
    (2) assault, resist, oppose, impede, intimidate or interfere with 
any person authorized by the Secretary to enforce this title, who is 
conducting any search or inspection in connection with enforcement of 
this title;
    (3) resist a lawful arrest for any act prohibited under this title;
    (4) interfere with, delay, or prevent, by any means, the 
apprehension or arrest of any person, knowing such person has committed 
any act prohibited by this title;
    (5) knowingly and willfully submit false information to any person 
authorized by the Secretary to implement or enforce the provisions of 
this title, or
    (6) to assault, resist, oppose, impede, intimidate, sexually 
harass, bribe, or interfere with, or attempt to assault, resist, 
oppose, impede, intimidate, sexually harass, bribe, or interfere with, 
any observer on a vessel under this Act, or any data collector employed 
by the Secretary or under any contract to any person to carry out 
responsibilities under this Act.
Use of the Emergency Response Fund
    A-13 Delete Section 405 (b)(1)(A)(iii).
Improve Response to Marine Mammal Entanglements
    A-14: Section 402(b)(1)(A) (16 U.S.C. Sec. 1421a(b)(1)(A)) is 
amended by inserting the words ``or entangled'' after the word 
``stranded''.
    A-15: Section 402(b)(3) (16 U.S.C. Sec. 1421a(b)(3)) is amended by 
inserting the words ``or entanglements'' after ``strandings'' and by 
inserting the words ``or entangled'' after ``stranded''.
    A-16: Section 403 (16 U.S.C. Sec. 1421b) is amended by revising the 
title of the section to read ``Stranding or Entanglement Response 
Agreements'' and in subsection (a) by inserting at the end of the 
sentence ``or entanglement.''.
    A-17: Section 406 (16 U.S.C. Sec. 1421e) is amended in subsection 
(a) by inserting the words ``or entanglement'' after ``stranding''.
    A-18: Section 409 (16 U.S.C. Sec. 1421h) is amended by adding at 
the end a new subparagraph as follows:
        ``(7) The term `entanglemenT' means an event in the wild in 
        which a living or dead marine mammal has gear, rope, line, net, 
        or other material wrapped around or attached to it and is.''
    (1) on a beach or shore of the United States; or
    (2) in waters under the jurisdiction of the United States 
(including any navigable waters).''.
Deterrence of Marine Mammals
    A-19: Amendments to Section 101(a)(4), 16 U.S.C. Sec. 1371(a)(4):
    In first sentence of subparagraph (B), strike ``a list of 
guidelines for use in'' and insert ``final regulations to implement 
this paragraph. Such regulations shall include permissible measures 
for.'' Strike ``safely deterring'' and insert ``the safe and nonlethal 
deterrence of''. In second sentence of subparagraph (B), strike ``the 
Secretary shall recommend'' and insert ``the final regulations shall 
prescribe.'' Strike ``which may be used to nonlethally deter'' and 
insert ``specific nonlethal measures that may be used to deter such''. 
Strike third sentence of subparagraph (B).
    Strike existing subparagraph (C), and insert new subparagraph (C) 
as follows:
    After the effective date of the final regulations referenced in 
subparagraph (B), it shall be a violation of this chapter for any 
person to use a measure to deter marine mammals pursuant to 
subparagraph (A) that is not listed in such regulations. Violations 
shall be subject to the penalties prescribed in Sections 105 and 106.
    Insert new subparagraph (D) as follows, and renumber existing 
subparagraph (D) as subparagraph (E):
    Any person may petition the Secretary pursuant to 5 U.S.C. Sec. 552 
to add a non-lethal marine mammal deterrence measure to those listed in 
the final regulations referenced in subparagraph (B). The burden of 
proof shall be on the petitioner to demonstrate that the petitioned 
measure is safe and effective. If the Secretary finds, based on the 
best available scientific information, and after notice and opportunity 
for public comment, that the petitioned measure is a safe and effective 
means of non-lethal deterrence of marine mammals, he shall amend the 
final regulations referenced in subparagraph (B) to add such measure to 
the list of permissible measures and shall promptly publish notice of 
his action in the Federal Register.
Cumulative Takes.
    A-20: 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, including 
        all activities that may occur beyond the 1 year authorization 
        period, that may cumulatively result in more than a negligible 
        impact.''
Subsistence Hunting and Management of Strategic Stocks
    A-21: In the last paragraph of Section 101(b), insert the phrase 
``or strategic'' after the word ``depleted''.
Co-management of Strategic and Depleted Stocks
    A-22: Strike subsection (a) of Section 119 and all that follows and 
insert the following:
        ``(a) IN GENERAL.--The Secretary may enter into co-management 
        agreements with Alaska Native Organizations to conserve and 
        manage species or stocks of marine mammals through the 
        regulation of subsistence use by Alaska Natives. Any agreement 
        not in existence as of the effective date of this Act shall not 
        apply to species or stocks designated as strategic or depleted 
        under this Act, or to species or stocks listed as threatened or 
        endangered pursuant to the Endangered Species Act. Agreements 
        in existence as of the effective date of this Act that 
        otherwise satisfy the requirements of this Section may be 
        renewed.
    (b) MANAGEMENT PLAN REQUIRED.--Agreements shall include, at a 
minimum, a management plan that--
    (1) identifies the signatories to, and the stock or species and 
areas covered by the plan; provided that each Alaska Native 
Organization that engages in subsistence use of the affected stock or 
species within the area covered by the plan is a signatory to the 
agreement;
    (2) is based on biological information and traditional ecological 
knowledge;
    (3) provides that any harvest of a stock or species covered by the 
plan be sustainable and designed to prevent such populations from 
becoming depleted or strategic;
    (4) has a clearly defined process and authority for enforcement and 
implementation of any management prescriptions; and
    (5) specifies the duration of the agreement and sets forth 
procedures for periodic review and termination of the agreement.
    (c) PROCEDURAL REQUIREMENTS.--In formulating and implementing 
agreements under this section, Alaska Native Tribes and Tribally 
Authorized Organizations shall comply with provisions of 25 U.S.C. 
Sec. 1302; except that the penalties set forth in section 105 of this 
Act (16 U.S.C. Sec. 1375) shall be applicable to violations of Tribal 
regulations or ordinance promulgated to enforce agreements entered into 
under this section.
    (d) VIOLATION. ``The breach of any provisions of a cooperative or 
co-management agreement 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 the forfeiture provisions of Section 106 
of this Act.
    (e) PROHIBITION.--It is unlawful for any person within the 
geographic area to which a co-management agreement adopted pursuant to 
this section applies, to take, transport, sell, or possess a marine 
mammal in violation of any regulation or ordinance adopted by an Alaska 
Native Tribe or Tribally Authorized Organization that is a signatory to 
the agreement for that stock or for a specific portion of the 
geographic range of that stock or species.
    (f) REVIEW AND REVOCATION OF MANAGEMENT PLANS----
    (1) The Secretary shall conduct a review of the management plan 
every three years or at least annually for a stock for which 
significant new information is available.
    (2) The Secretary may revoke the management plan if the actions of 
the Alaska Native Organizations that are parties to the plan are not in 
accordance with the terms of the co-management agreement or the 
requirements of this Act; provided that the Secretary shall give such 
Alaska Native Organizations an opportunity to correct any deficiencies 
identified by the Secretary within 60 days from the date of receiving 
notice of such deficiencies from the Secretary.
    (g) PUBLIC NOTICE AND REVIEW.--The Secretary shall, prior to 
approval and signature of a co-management agreement under this section 
provide public notice and an opportunity for public review and comment 
on the draft agreement. Furthermore, the Secretary shall, prior to 
publication of final regulations implementing any such co-management 
agreement, provide public notice and an opportunity to comment on the 
draft regulations.
    (h) EFFECT OF DESIGNATION OF A STOCK AS DEPLETE OR STRATEGIC.--In 
the event the Secretary determines that a species or stock subject to a 
co-management agreement is strategic or depleted, the Secretary may 
prescribe regulations pursuant to Section 101(b) of this Act.
    (i) EMERGENCY REGULATIONS. ``
    (1) If the Secretary finds that the mortality or serious injury of 
marine mammals subject to a co-management plan is having, or is likely 
to have, an immediate and significant adverse impact on a stock or 
species, the Secretary may make an emergency depleted listing and 
remove this species or stock from management under a co-management 
plan.
    (2) Emergency regulations prescribed under this subsection--
    (A) shall be published in the Federal Register, together with an 
explanation thereof;
    (B) shall remain in effect for not more than 180 days; and
    (C) may be terminated by the Secretary at an earlier date by 
publication in the Federal Register of a notice of termination, if the 
Secretary determines that the reasons for emergency regulations no 
longer exist.
    (3) If the Secretary finds that the species or stock continues to 
be subject to an immediate and significant adverse impact, the 
Secretary may extend the emergency regulations for an additional period 
of not more than 90 days or until reasons for the emergency no longer 
exist, whichever is earlier.
    (j) GRANTS.--Agreements entered into under this section may include 
grants to Alaska Native Tribes or Tribally Authorized Organizations 
for, among other purposes--
    (1) Lcollecting and analyzing data on marine mammal populations;
    (2) Lmonitoring the harvest of marine mammals for subsistence use;
    (3) Lparticipating in marine mammal research conducted by the 
Federal Government, State, academic institutions and private 
organizations; and
    (4) Ldeveloping, implementing and enforcing marine mammal co-
management agreements and plans.''
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Ms. Young.
    Mr. Luedtke?

  STATEMENT OF RICHARD LUEDTKE, COMMERCIAL GILLNET FISHERMAN, 
                    MANNAHAWKIN, NEW JERSEY

    Mr. Luedtke. Thank you, Mr. Chairman and members of the 
Subcommittee.
    I am a full-time gillnet fisherman. I keep my 40-foot boat 
docked in Barnegat Light, New Jersey. I have one crewman who 
helps me fish for monkfish, skate, croaker, weakfish, bluefish 
and bonito, usually within 25 miles of the beach. The fact that 
I am here when I could be working should tell you how important 
the Act is to me and to other commercial fishermen from New 
Jersey and around our country.
    As a veteran of two take-reduction teams for harbor 
porpoise and bottlenose dolphin, I live with the results of the 
Marine Mammal Protection Act every day. I know firsthand the 
difficulties we have working under conservative laws protecting 
mammal and fish stocks. Mr. Chairman, your bill H.R. 4781 
starts to address some of the improvements we need in the act.
    First, the bill requires consideration of both commercial 
and recreational impacts on marine mammal populations. This 
will allow all parties to share in the conservation burden.
    Second, the bill requires that National Marine Fishery 
Service use fishery scientists in the TRT process. This will 
allow for a more comprehensive science-based approach.
    Third, the bill supports research, education and outreach 
programs and prevents publication of a final TRT plan that is 
different from the TRT agreement, without first discussing the 
differences with the TRT. This will improve plan results and 
keep all the stakeholders involved in the entire process.
    These are good proposals, Mr. Chairman, but we need more 
help from Congress if we are going to make a more meaningful 
difference. First, the Agency should consider the benefits that 
mammal stocks get from extreme restrictions on fishermen under 
State and Federal fishery management plans.
    Second, the Agency must use updated stock assessment 
information, Mr. Chairman. We just had a situation with the 
bottlenose dolphin TRT where the stock assessment was of poor 
quality and nearly 8-years-old. We were still forced to use 
this information despite the fact that a brand new stock 
assessment already indicated the stock was large, possibly 4 
times greater than previously thought. The Office of Protected 
Resources should have made a more appropriate science-based 
decision regarding the use of the new information, rather than 
allow a push for more fishing restrictions with the old data.
    Third, the bill should address stakeholder participation on 
the Regional Scientific Review Groups. Fishermen do not 
currently have a representative on the Atlantic Group, but 
there is an animal rights group serving on it. In fact, it is 
the same group that told the TRT they threatened to sue the 
Secretary over bottlenose dolphin conservation. Now, you might 
not believe this, Mr. Chairman, but that same environmental 
group is now giving scientific advice to the bottlenose dolphin 
TRT while serving as a stakeholder on that very TRT. This is 
just one example of the kind of treatment commercial fishermen 
are receiving under this act.
    Finally, we have to address the zero mortality rate goal, 
or ZMRG. It may be the worse provision in the entire act. To 
begin with, PBR is calculated very very conservatively and is 
supposed to allow mammal stocks to achieve optimum sustainable 
population or OSP levels. if this is the major goal in the act, 
then what is the scientific basis for having ZMRG in the Act at 
all? The simple answer is that there is no real scientific 
reason for ZMRG. The truth is that ZMRG is being used by some 
environmental groups and the Office of Protected Resources to 
apply pressure during the TRT process for more restrictions on 
commercial fishing. Whether ZMRG is defined as 10 percent, 20 
percent or 30 percent of PBR does not matter. If ZMRG remains 
in the Act it will continue to be used to further restrict 
commercial fishing. ZMRG will also expose the government to 
lawsuits from extreme conservation groups who work very hard to 
use this process to stop commercial fishermen from bringing 
seafood to market and taking care of our families.
    Mr. Chairman, these changes that I am suggesting will help 
commercial fishermen cope with the burdens of protecting all 
marine mammals and fish stocks to their maximum population 
levels in the same ocean at the same time where we fish for a 
living. These changes will not be initiated by the Agency. 
These changes will only occur because Congress recognizes the 
problems and provides the right leadership.
    I hope we can use this opportunity to address some of these 
concerns.
    Mr. Chairman and members of the Subcommittee, thank you for 
the opportunity to share my Marine Mammal Protection Act 
thoughts with you today. Please feel free to contact me if 
there is anything else I can assist you with. Thank you.
    [The prepared statement of Mr. Luedtke follows:]

      Statement of Richard Luedtke, Commercial Gillnet Fisherman, 
                        Mannahawkin, New Jersey

    Mr. Chairman and Members of the House Subcommittee on Fisheries, 
Conservation, Wildlife and Oceans, I thank you for the opportunity to 
appear before you to discuss H.R. 4781, the ``Marine Mammal Protection 
Act Amendments of 2002.''
    I am a New Jersey native, fishing gillnets commercially for the 
past 16 years from the Viking Village Commercial Dock in the Port of 
Barnegat Light. I own a 40-foot fishing vessel which I use to fish for 
monkfish, croaker, weakfish, bluefish and bonito. I am an active member 
of the Garden State Seafood Association (GSSA) and supporter of the 
Monkfish Defense Fund (MDF).
    My home State of New Jersey ranks 4th among the 14 East Coast 
states in terms of commercial seafood harvest value, estimated at 
nearly $91 million. The total annual revenue attributed to New Jersey's 
commercial fleet is $600 million. The Viking Village Dock handles 
approximately 5,000,000 pounds of seafood products each year, landed 
from 30 commercial fishing vessels including gillnetters, scallopers, 
and longliners. These seafood products are valued at nearly $15 
million.
    I developed a considerable amount of experience with the MMPA 
process during the past few years. I currently serve on two East Coast 
MMPA Take Reduction Teams (TRT's) for harbor porpoise and bottlenose 
dolphin. Since the TRT negotiations focus primarily on gillnet 
interactions with marine mammals, I serve as a representative of all 
New Jersey gillnet fishermen, working closely with fishermen and State 
biologists and managers from entire coast.
    I am interested in improving the quality of the science and our 
ability to minimize interactions with marine mammals, to the extent 
that it is possible. I recently volunteered to participate in a gear 
research program with the National Marine Fisheries Service (NMFS) 
using specially designed mesh that may enhance net detection and 
avoidance by marine mammals.
    In addition, I intend to participate in a fishery survey with the 
MDF, NMFS, Rutgers University (NJ) and the State of Massachusetts to 
characterize the directed monkfish gillnet fishery and provide a 
clearer picture of monkfish stock abundance.
    Mr. Chairman, my experience with the MMPA and fisheries management 
process, combined with my commercial fishing background, allows me to 
provide this Subcommittee with useful insights on H.R. 4781 and the 
MMPA reauthorization.
    On behalf of commercial fishermen in Barnegat Light, NJ, I provide 
oral comments and the written testimony that follows with your approval 
for the record, and ask for your leadership to help resolve some of the 
Act's more challenging issues.
    As an East Coast fishermen, I do not consider it appropriate for me 
to address certain sections in H.R. 4781, including exportation of 
native handicrafts (Sec. 4), appropriations (Sec. 5, 207), MMC (Sec. 8, 
14), polar bear permits (Sec. 12) and captive release programs (Sec. 
13). Therefore, the majority of my comments will focus primarily on 
Section 6--``Take Reduction Plans'' and related issues.
H.R. 4781
    Mr. Chairman, I thank you for taking the initiative to introduce 
H.R. 4781. The bill starts to address some issues of concern to the 
commercial fishing industry, including a requirement for other parties 
to share in the conservation burden; enhanced communication between 
NMFS'' fisheries and protected species managers; promotion of research, 
education and outreach programs; and assurances that NMFS cannot 
publish a TRT that is different from the negotiated TRT plan with out 
first consulting the TRT. Though we have additional concerns not 
addressed in H.R. 4781, each of these current provisions will improve 
the MMPA process.
Sec. 6. Take Reduction Plans
Consideration of Other Sources of Mortality...
    As with fisheries regulations, it is reasonable that all 
responsible parties share in the conservation burdens and benefits. 
H.R. 4781 requires that marine mammal mortality resulting from 
interactions with recreational fishing gear be considered in the TRT 
process.
    There is compelling evidence in the NMFS'' observer database, 
stranding network information, and anecdotal reports that in some areas 
on the east coast, recreational gear interacts with certain marine 
mammals stocks. In addition to mortalities resulting from common hook 
and line gear, there are also indications the recreational use of 
commercial fishing gear (i.e. gillnets, crab pots) results in marine 
mammal interaction and mortality events.
    Since the Act currently focuses only on commercial fishing 
interactions, commercial fishermen are accountable for the total 
mortality reduction required to achieve PBR, even if animals are taken 
by non-commercial gear. It is very possible that in certain instances, 
especially with coastal bottlenose dolphins in the Mid- and South 
Atlantic regions, commercial fishermen are carrying the entire burden 
for all mortality reductions. Including the impacts of recreational 
gear on protected species is a positive step forward if all parties are 
to participate in the conservation process.
    It is also important to note here that local media typically do not 
discern between gear types when reporting stranding information, 
thereby promoting the public's misperception of who is actually 
responsible. This provision in H.R. 4781 may help promote increased 
awareness in reports published by the media.
TRT Participation By Fishery Scientists and Representatives of the 
        RA's...
    Currently there is no evidence of internal agency communication 
between fishery scientists and protected species management units. This 
is unacceptable because of the close linkage between fishery management 
regulations and mammal conservation measures.
    H.R. 4781 would require the NMFS have representatives at the TRT 
that are versed in fishery science and that represent the NMFS Regional 
Administrator. These requirements will help ensure that new fishery 
restrictions designed to protect marine mammals are consistent with 
standing fishery management plans. It should also allow for 
consideration of the mammal protections provided by fishery plans, 
reducing instances of excessive restrictions on the commercial 
fishermen.
    A recent example of the need for this provision comes from the 
bottlenose dolphin TRT process. The recent closure of the directed 
spiny dogfish fishery provided significant savings to bottlenose 
dolphins. However, the NMFS and some members of the TRT were not 
initially receptive to estimating the ``credit'' for the mortality 
reductions resulting from the closure of the fishery. Though credit was 
eventually calculated and accepted by the TRT, it was not without great 
difficulty. H.R. 4781 will make this process much smoother during the 
next TRT negotiation.
Promoting Observer, Research, and Education and Outreach Programs...
    All efforts to fine tune observer coverage and improve 
communication regarding marine mammal protection are welcome. Members 
of the commercial, recreational, and environmental industries, as well 
as members of the general public must understand this process if it is 
to be successful.
    Observer programs can and should, be focused in areas with higher 
levels of interactions, research efforts will enhance our understanding 
of stock size and measure the success of TRT plans, education and 
outreach programs will generate support and understanding for 
conservation programs. These are all necessary and welcome components 
of the TRT process currently in H.R. 4781.
OTHER IMPORTANT MMPA ISSUES
Consider the Benefits of Fishery Management Plans...
    Often times, management measures contained in fishery management 
plans may provide conservation benefits to marine mammals. Time/area 
closures, gear restrictions, and quota adjustments are just some of the 
actions that may contribute to protections for marine mammal species. 
These benefits must be quantified by the agency and included in the TRT 
process.
    As I stated earlier, one of the key elements in the Bottlenose 
dolphin TRT negotiation was the impact of the closure of the directed 
spiny dogfish gillnet fishery. It was clear that closing the fishery 
would result in significantly less mammal-gear interactions. However, 
it was exceedingly difficult to secure consideration of this major 
fisheries action in the TRT process.
    In a second example, the final Take Reduction Plan for Harbor 
Porpoise included a gillnet fishery closure off New Jersey during 
February 15th to March 15th. The Monkfish Fishery Management Plan also 
contained a spawning closure whereby fishermen were required to take a 
20-day continuous block out of the fishery during April 1 and June 30. 
This combination of management measures effectively resulted in a 
double closure of 50 days during one of more productive fishing 
seasons.
    Furthermore, under the fishery management plan, monkfish gillnet 
fishing effort was reduced from unlimited year-round fishing to a mere 
40-days per year for each limited entry permitted vessel. This 
reduction in gillnet fishing effort was immediate and significant. Here 
again, fishermen were not credited in the Take Reduction Plan with the 
management measures developed under the Federal fishery management plan 
for monkfish.
Require Updated Stock Assessment Information...
    NMFS should be required to use the most updated, relevant stock 
assessment information for each TRT. Despite the fact that the Act 
already contains some assessment provisions and the agency has internal 
guidelines regarding this requirement, we just went through a 
bottlenose dolphin process where the TRT was forced to decide on 
serious fishing restrictions based on an incomplete assessment done 
nearly 8 years ago, while a more comprehensive updated assessment 
indicated the dolphin stock could be as much as 4-times larger then 
previously thought.
    The new assessment was judged by staff from the Office of Protected 
Resources to be too preliminary and therefore, off limits to the TRT. 
Rather then delay the TRT process for a short period until the new 
assessment could be made final, the TRT was forced to move forward with 
fishing restrictions based on the inferior assessment.
    We should not be in a position where MMPA deadlines become more 
critical then using the best information possible. How can the Federal 
Government be permitted to use the MMPA to put more restrictions on 
someone's income when new information suggests the restrictions may not 
be necessary to achieve PBR?
Balanced Stakeholder Participation on Regional Scientific Review 
        Groups...
    On paper, the Act currently allows for a balanced representation of 
viewpoints on the Regional Scientific Review Group. Unfortunately, this 
is not the actual case on the East Coast.
    There is no representation of the commercial fishing industry on 
the Atlantic Review Group. In fact, there has been no commercial 
representation during the entire bottlenose dolphin TRT process. This 
is critical since commercial fishermen can provide expertise on 
commercial gear technology and report actual on-the-water observations.
    However, the conservation industry has been represented on the SRG 
throughout the entire process. To make matters worse, the same 
environmental group that reportedly threatened to sue the Secretary of 
Commerce for failing to protect bottlenose dolphins is serving on the 
Scientific Review Group that is charged with giving advice to the 
bottlenose dolphin TRT!
    Clearly, this is an example of poor judgement on the part of the 
NMFS Office of Protected Resources. While we fishermen do not begrudge 
anyone serving on the SRG's, we do respectfully request that Congress 
make certain that we provide for a balanced viewpoint.
Strike the ZMRG Provision...
    ZMRG may be the most problematic provision in the current law. The 
Act requires incidental takes to ``be reduced to insignificant levels 
approaching a zero mortality and serious injury rate.--(Sec. 
1371(a)(2)). Despite the fact that the ZMRG is not clearly defined in 
the Act, it is already being used in the TRT process as open 
justification for increasing restrictions on commercial fishing.
    It is no longer sufficient to achieve PBR through the TRT process. 
Instead, the agency and the conservation industry are using ZMRG to 
demand increased restrictions on fishermen to achieve some assumed 
minuscule level of PBR.
    This is ironic since we are told PBR is designed to achieve the 
optimum sustainable population size for marine mammal populations. This 
is one of the most important goals in the MMPA. If PBR is constructed 
to allow mammal stocks sufficient protection to achieve OSP, what then, 
is the scientific justification for ZMRG? Clearly, there is no 
scientific justification for ZMRG. It appears to us that ZMRG is a 
philosophical concept rather than a sound wildlife management 
principle.
    Furthermore, if left in the Act, we are concerned ZMRG will be the 
target of future legal action by more extreme elements within the 
conservation industry. We are already facing a rapid increase in the 
number of marine resource-related lawsuits. It is simply a matter of 
time before ZMRG is brought before the courts in an effort to restrict 
commercial fishing for little or no biological benefit to marine mammal 
stocks. Congress should do the right thing and remove ZMRG from the 
Act. This action will protect the Secretary of Commerce, the integrity 
of the TRT process, and your fishing communities, while still allowing 
sufficient protection for mammal stocks.
MMPA REAUTHORIZATION RECOMMENDATIONS
    Please accept the following recommendations on H.R. 4781 and the 
MMPA reauthorization:
    (1) Maintain the following provisions in H.R. 4781:
     Consideration of recreational fishing gear impacts on 
marine mammals
     Participation on TRT's by NMFS'' fisheries scientists and 
representatives of the RA
     Promote observer, research, education and outreach 
programs
     Require NMFS to consult with TRT if final plan is 
different from original TRT plan
    (2) Require NMFS to consider the benefits of fishery management 
actions on marine mammal stocks in the TRT process;
    (3) Require NMFS to use the best scientific information in the TRT 
process, especially in instances where an updated assessment may be 
fourth coming and the current assessment is of poor quality and 
outdated;
    (4) Require NMFS to ensure that all TRT constituent groups be 
represented on the Scientific Review Group;
    (5) Remove the ``ZMRG'' provision from the MMPA.
    Mr. Chairman, I ask that you kindly accept my written testimony for 
the record. Thank you for the opportunity to share my concerns and 
ideas with your Subcommittee.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Luedtke.
    Dr. Worcester?

STATEMENT OF PETER F. WORCESTER, Ph.D., RESEARCH OCEANOGRAPHER, 
SCRIPPS INSTITUTION OF OCEANOGRAPHY, UNIVERSITY OF CALIFORNIA, 
                           SAN DIEGO

    Dr. Worcester. Mr. Chairman, Committee members, I am a 
research oceanographer at the Scripps Institution of 
Oceanography. I am a physical oceanographer, whose career has 
been devoted to the development of acoustic remote sensing 
techniques in order to study large-scale ocean structure and 
circulation.
    I am here to discuss the impact of the Marine Mammal 
Protection Act on oceanographic research using acoustic methods 
and to suggest amendments to the Act intended to facilitate the 
constructive use of sound in the sea while providing all 
appropriate protections for marine mammals. Any discussion of 
the subject has to start from one basic fact, and that basic 
fact is that the ocean is largely transparent to sound, but it 
is opaque to light and radio waves. And what that means is that 
all of the things that we do in the atmosphere using light and 
radio waves have to be done in the sea using sound.
    A few examples might help. Such things as assessing fish 
stocks, measuring ocean bathymetry, communicating under water, 
transmitting data from subsea instruments, navigating under 
water, profiling ocean currents, and measuring large-scale 
ocean temperature and currents, all rely on the use of sound. 
Sound in the sea is not just noise. It is used for a wide 
variety of valuable and important purposes.
    A second key fact that has to be kept in mind in discussing 
the scientific use of sound in the sea is that it is a minor 
component of human-generated undersea sound. I think there is 
widespread agreement that the noise radiated by ships--and here 
I am using the term ``noise'' quite carefully--is the dominant 
source of human-generated undersea sound.
    With all of that said, what is the problem? The problem is 
that the current regulatory procedures are so complex, so 
fraught with delays, so costly, both in time and money, and 
relatively uncertain in their outcome, that it discourages, 
actively discourages researchers from obtaining the necessary 
authorizations for conducting oceanographic research using 
acoustic methods. This is stifling a wide variety of valuable 
oceanographic research.
    I would like to give you an example from a project in which 
I am involved called the North Pacific Acoustic Laboratory. As 
one of the components of this project, we sought the 
authorizations needed to operate a low-frequency sound source 
off the north shore of Kauai. I suspect Mr. Abercrombie is 
quite familiar with this project.
    The source had previously been operated for 2 years as part 
of the Acoustic Thermometry of Ocean Climate Project, which 
included an extensive marine mammal research program. The short 
summary of that research is that subtle effects were detected 
and it is not surprising that large whales could hear the 
source, but none of the marine mammal experts involved in the 
program tells that the observed effects were biologically 
important or significant. Given that, we started the process of 
seeking the required authorizations to continue to operation of 
the source in the spring of 1999. We finally completed the 
process and were able to resume transmissions in late January 
of this year. It took nearly 3 years out of my life and cost in 
excess of half a million dollars to get the required permits. I 
believe, or at lest I hope, that this is an extreme example. 
Nonetheless, I think it is clear that is simply impractical for 
a single researcher or a small research group to undertake such 
an effort. I personally would be unwilling to dedicate another 
3 years of my life to such an effort. I also doubt that any 
funding agency would readily undertake such an effort again. 
Research dollars are simply in too short a supply.
    So what is the solution? I would like to suggest a three-
pronged approach, and these are outlined more fully in my 
written comments.
    First, the definition of ``research'' for which scientific 
research permits can be issued should be broadened to include 
all legitimate scientific research activities rather than being 
limited to research on or directly benefiting marine mammals. 
Further, the scientific research permit procedure should be 
simplified and streamlined.
    Second, the definition of ``Level B harassment'' should be 
modified to focus on biologically significant disruption of 
behaviors critical to survival and reproduction, that is, 
should be focused on adverse impacts rather than just 
detectible changes in behavior.
    Finally, the Act should be modified to provide for 
categorical exclusions, allowing for the operation of 
oceanographic instrumentation that is in widespread and routine 
use. Such exclusions, of course, should take into account the 
appropriate conditions required to protect marine mammals.
    The above suggestions are intended to facilitate the 
constructive use of sound in the sea for scientific research, 
while providing all appropriate protections for marine mammals.
    Thank you.
    [The prepared statement of Dr. Worcester follows:]

 Statement of Dr. Peter F. Worcester, Research Oceanographer, Scripps 
                       Institute of Oceanography

    Oceanographers use sound in the sea for a wide variety of purposes, 
including, for example, assessing fish stocks, measuring ocean 
bathymetry, communicating underwater, transmitting data from autonomous 
instruments to the surface, navigating underwater, profiling ocean 
currents, and measuring large-scale ocean temperature variability. I 
believe that oceanographers will always depend on acoustic methods, for 
the fundamental reason that the ocean is largely transparent to sound, 
but opaque to light and radio waves. This means that all of the tasks 
for which we use light or radio waves in the atmosphere must be done 
using sound in the sea.
    Although scientific use of sound in the ocean is a minor component 
of human-generated undersea sound (compared to shipping, for example), 
the current regulatory structure makes obtaining the necessary 
authorizations for conducting ocean acoustic research so arduous that 
it is having a chilling effect on the field.
    There are several laws that are relevant to the use of sound in the 
sea, most notably the National Environmental Policy Act (NEPA), the 
Marine Mammal Protection Act (MMPA), and the Endangered Species Act 
(ESA). I will focus my comments in this testimony on H.R. 4781, the 
Marine Mammal Protection Act Amendments of 2002.
    The impact of the existing regulatory structure on marine research 
been discussed in a number of contexts, including two recent National 
Research Council reports:
        National Research Council (NRC). 1994. Low-Frequency Sound and 
        Marine Mammals: Current Knowledge and Research Needs. National 
        Academy Press, Washington, D.C.

        National Research Council (NRC). 2000. Marine Mammals and Low-
        Frequency Sound: Progress Since 1994. National Academy Press, 
        Washington, D.C.
    Although I am not in agreement with all of the conclusions in these 
reports, they provide an important service in considering how the MMPA 
could be modified ``for facilitating valuable research while 
maintaining all necessary protection for marine mammals.'' (NRC, 1994)
Scientific Research Permits
    The MMPA currently provides a relatively streamlined permit 
procedure for scientific research ``on or directly benefiting marine 
mammals.'' Any other scientific research falls under the Incidental 
Harassment Authorization (IHA) procedure or the lengthy rule-making 
procedure leading to a Letter of Authorization (LOA). NRC (1994) 
recommends that the regulatory structure be altered to:
     Broaden the definition of research for which scientific 
permits can be issued to include research activities beyond those ``on 
or directly benefiting marine mammals.'' The population status of the 
species and the kind of ``take'' should determine the number of 
allowable takes, and the same regulations should apply equally to all 
seafaring activities.
    NRC (2000) similarly states that ``the MMPA and NMFS regulations 
should include acoustic studies in the regulatory procedures related to 
approvals for harassment during scientific research.''
    Although broadening the definition of research for which scientific 
permits can be issued would be an important step toward helping 
facilitate valuable marine research, the existing procedures for 
obtaining Scientific Research Permits are still quite burdensome for 
individual researchers. The procedures should be further simplified and 
streamlined. NRC (1994) concurs, stating that ``the lengthy and 
unpredictable duration of this process can create serious difficulties 
for research.'' One possible approach to streamlining the SRP process 
is to decentralize permitting authority to regional offices or 
committees. NRC (1994) suggests one method for doing so:
     Consider transferring some aspects of the regulatory 
process to less centralized authorities patterned after the IACUCs 
[Institutional Animal Care and Use Committees] that regulate animal 
care and safety in the academic and industrial settings.
    Decentralization would help avoid the time delays associated with 
any process centered in Washington, D.C.
Definition of Level B Acoustic Harassment
    The 1994 amendments to the MMPA included a definition of harassment 
as ``any act of pursuit, torment, or annoyance which:
        Level A--has the potential to injure a marine mammal or marine 
        mammal stock in the wild; or
        Level B--has the potential to disturb a marine mammal or marine 
        mammal stock in the wild by causing disruption of behavioral 
        patterns, including, but not limited to, migration, breathing, 
        nursing, breeding, feeding, or sheltering.''
    This definition of harassment in the MMPA is unfortunately somewhat 
ambiguous and has in the past been interpreted at times to mean that 
any detectable change in behavior constitutes harassment. NRC (1994) 
notes that as ``researchers develop more sophisticated methods for 
measuring the behavior and physiology of marine mammals in the field 
(e.g., via telemetry), it is likely that detectable reactions, however 
minor and brief, will be documented at lower and lower received levels 
of human-made sound.'' NRC (2000) concludes that it ``does not make 
sense to regulate minor changes in behavior having no adverse impact; 
rather, regulations must focus on significant disruption of behaviors 
critical to survival and reproduction.'' NRC (2000) suggests that Level 
B harassment be redefined as follows:
        ``Level B--has the potential to disturb a marine mammal or 
        marine mammal stock in the wild by causing meaningful 
        disruption of biologically significant activities, including, 
        but not limited to, migration, breeding, care of young, 
        predator avoidance or defense, and feeding.''
    The National Marine Fisheries Service recently stated that it 
``considers a Level B harassment taking to have occurred if the marine 
mammal has a significant behavioral response in a biologically 
important behavior or activity.'' (``Taking and Importing Marine 
Mammals; Taking Marine Mammals Incidental to Operation of a Low 
Frequency Sound Source by the North Pacific Acoustic Laboratory; Final 
Rule,'' Federal Register, Vol. 66, No. 160, Friday, August 17, 2001, 
Rules and Regulations, p. 43442.) This is close to the definition 
recommended by NRC (2000). Nonetheless, it would be helpful for a 
revised definition of Level B harassment to be codified in the MMPA, 
focusing on the significant disruption of behaviors critical to 
survival and reproduction.
Categorical Exemptions
    As noted above, underwater sound is routinely used by 
oceanographers for a wide variety of important purposes. The MMPA does 
not seem to have anticipated that the provisions of the Act might be 
applied to instrumentation that is in wide-spread and on-going use, and 
it does not include a mechanism for allowing for such on-going uses 
other than through exemptions that must be applied for on a case-by-
case basis. The National Marine Fisheries Service should clarify its 
position on the use of a wide variety of routinely used sound sources, 
and/or the Act needs to be modified to provide for the issuance of 
categorical exclusions allowing for the use of instrumentation that has 
the potential for taking by harassment in situations in which the 
taking will be unintentional and will have a negligible impact on the 
affected species and stocks. NMFS should be tasked with issuing 
regulations providing categorical exclusions for uses of sound that 
meet appropriate criteria. Such regulations could include provisions 
excluding critical habitat from the categorical exclusions, if 
appropriate.
Conclusions
    Both marine mammals and people use sound in the sea for a wide 
variety of purposes. The suggestions provided above are intended to 
facilitate the constructive use of sound in the sea, while providing 
all appropriate protections for marine mammals.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Dr. Worcester.
    Dr. Worcester, or Dr. Worcester, since you raise the issue 
of the complicated process that researchers have to go through 
in order to get a permit to deal with the Marine Mammal 
Protection Act, and you made some recommendations on changes in 
that, and listening to the first panel, do you have an opinion 
on the National Research Council's proposal to change the 
definition of ``harassment?''
    Dr. Worcester. Yes, sir, I do. In fact, in my written 
testimony I support changing the definition of ``Level B 
harassment'' to that given in the NRC report issued interested 
year 2000. I think they did a careful job of considering that 
issue.
    Mr. Gilchrest. So can you give us some idea from your 
experience as to whether or not if we confine the change of the 
definition let's say to Level B and not Level A, do you have an 
opinion on the word ``significant'' as it used in the change?
    Dr. Worcester. Yes, I do. And this issue of course came up 
before. I think the key point here, and what the NRC tried to 
do, as I understand it, is to differentiate between changes in 
behavior that were just detectable from ones that caused an 
adverse impact that affected behaviors that were important to 
survival, reproduction, feeding, to the survival of the 
species. And they used the term ``significant'' in that sense. 
I think the language they did in choosing the term 
``significant'' helps do that. I personally think that the 
current language, which has often been interpreted to mean any 
detectible change in behavior, on the face of it is 
scientifically a little silly because it means that, as marine 
mammal researchers become more and more adept at detecting 
subtle changes in behavior, the threshold for when the Act 
would apply would continue to drop. And so that to me doesn't 
make much sense. It should be changes that matter to the 
animals.
    Mr. Gilchrest. So you are saying, setting aside the full 
context of the proposal that the Navy gave us this morning, and 
focusing on Level B, you are saying that the change from the 
NRC is a more suitable definition that clarifies the issue of 
harassment to marine mammals?
    Dr. Worcester. Yes, sir, I believe it is.
    Mr. Gilchrest. Mr. Wetzler, can you comment on that?
    Mr. Wetzler. Yes, I would be happy to. I think that there 
are three things to note about that response. First of all, 
with all due respect to National Research Council, the folks 
that put together that language did not include any policy 
experts or people familiar with drafting legislation or of 
course any attorneys, and I think that is reflected in the 
choice of the word ``significant.''
    Mr. Gilchrest. Would you agree then if they just did it 
from a scientific perspective, that looking at it from their 
view, that ``significant'' was the appropriate word?
    Mr. Wetzler. I am not a scientist, so I can't really 
address from that point of view.
    Mr. Gilchrest. What we need to hear then is mix the 
nonscientists like you and I, with the scientists, and come up 
with an appropriate word that will more clearly define how we 
can reduce or eliminate totally our harassment when there is 
going to be harm to the animal.
    Mr. Wetzler. Well, I do think that your question goes to 
the second point I was going to make, which is we need to look 
at the changing, at the definition of ``harassment'' in the 
context of the way this Act functions. A lot of our 
environmental laws--the Endangered Species Act is a good 
example--functions in kind of a two-tiered approach. First as a 
very low threshold an Agency has to grip, and once they trip 
that threshold, they are then required to go ask for a permit. 
But in order to be denied the permit, there has to be a higher 
threshold. So for instance with the Endangered Species Act, if 
a Federal Agency is going to take an action that may affect a 
species, then it has to do something called consultations, but 
as a general matter their actions are only prohibited if the 
activity would cause a species to be more likely to go extinct.
    That is not the way the MMPA works. The way that the Marine 
Mammal Protection Act works is it is the applicant himself or 
herself who makes the initial determination about whether or 
not they need to seek a permit. So in other words, if you were 
to add the word ``significant'' into the definition even of 
Level B harassment, you would be asking the Navy or Scripps to 
make the first determination whether they thought that the 
activity was significant. And if they didn't think it was 
significant--and that we are all aware of how vague and 
flexible and ambiguous a word like ``significant'' can be--if 
they didn't think it was significant, they wouldn't have to 
seek a permit.
    And a very good example of that, to go back to the 
military, is something called the ELWAD program, under which 
the Navy has conducted 17 tests since 1997 of very intense low-
emit frequency sonar systems right off the coast of the United 
States as a general matter, and they have not once, not in one 
case, sought a permit under the MMPA. And so I think that the 
reason the definition is brought is a good one.
    Mr. Gilchrest. Well, I thank you for that response. I will 
tell you that we have traveled to Woods Hole to take a look at 
their assessment of the full range of sonar frequencies used by 
the Navy, and their impact or potential impact on the full 
range of marine mammals. So we are trying to stay tuned in to 
this process. But I will just close--and I apologize for coming 
back to Dr. Worcester, but I can't help but wonder what you 
just thought of Mr. Wetzler's statement.
    Dr. Worcester. In the permitting process that we went 
through for NPAL, there is frequent confusion between the 
language ``biologically significant'' and ``statistically 
significant.'' And that to me is what is at the heart of this. 
The experts doing the research on whether or not the sound 
source was affecting marine mammals were able to measure 
statistically significant effects. I mean they could tell that 
the behaviors differed in a way that was statistically 
meaningful from the normal behaviors. On the other hand, the 
changes in behaviors were so subtle, were so small, that they 
uniformly felt there was no biologically significant effect. In 
other words, that those changes in behavior--for example, north 
of Hawaii the humpbacks, when the source is transmitting, tend 
to just stay submerged slightly longer and to transit slightly 
further underwater when the source was on. If one were to 
anthropomorphize it, you could almost say they were wondering, 
going, ``Say, hey, Mabel, what was that,'' try to hear it 
better.
    But I think this is a key point is to distinguish between 
``biologically significant'' and ``statistically significant'' 
we are trying to get at, meaningful changes versus just 
detectible changes, and perhaps the language should specify 
``biologically significant.'' I don't know, but I think it is a 
meaningful term.
    Mr. Gilchrest. Good suggestion. Thank you very much.
    I will yield to the gentleman from Hawaii.
    Mr. Abercrombie. I am going to follow up on that, doctor, 
and I appreciate your specificity here as opposed to some of 
the more vague terminology we were dealing with in the first 
panel. And you heard how upset I was by this kind of changes 
that are suggested as if it was to be more precise than the 
first term, the first set of terms, which seemed to me to be 
infinitely more precise than what is being suggested to us. And 
the reason that I take such umbrage with that and am so 
concerned about it is we, no pun intended by definition, have 
to pass legislation, and when we pass the legislation we put 
words on paper, they have significant consequences, much of 
which you are dealing with, and I can tell in frustration for 3 
years trying to get a permitting process, because people are 
able to constantly refer to words, and in this instance it 
would appear to figure out how many angels are dancing on the 
head of a pin.
    Now, that is great if you are a theologian and people make 
their living as theologians discerning that, but for purposes 
of scientific principle being applied or for the practical 
application of a scientific experiment, we don't want to engage 
in that. So I think you helped clear the air significantly for 
me by bringing up the phrase--and I am probably saying words to 
the effect a little bit here I tried to write down what you 
were saying--adverse impacts as opposed to technical changes in 
behavior. And I wrote underneath the word for myself, 
``survival.'' And then I wrote ``biological significance'' 
versus ``statistical significance.''
    And perhaps if you can remember back to the first panel, I 
got in an argument about term versus condition, that we were 
arguing about terms, all of which are subject to--especially 
the way they were being put in these definitions--can be 
infinitely argued about as opposed to addressing specific 
conditions.
    Now, the reason I am going through all that preamble, I 
want to refer you back to the existing definitions that are in 
law right now. Here is what I have down. I am speaking to you 
as a legislator rather than a theologian now. ``Potential to 
injure,'' that is pretty clear to me, ``potential to injure.'' 
I focus on the word ``injure'' because there is always a 
potential. When you stand up you can fall down. You walk out 
the door and there is water on the floor, you can slip and 
fall. But we know there is an injury. I focus on the Level A 
harassment as injure.
    And the Level B harassment, it says, ``Potential to disturb 
causing disruption,'' and it says to me this is biologically 
significant. Migration, breathing, nursing, breeding, feeding 
and sheltering. They have very specific connotations in my 
mind, and I have a damn good idea of what that means, and it is 
certainly not ambiguous to me.
    Now, just changing a pattern, you may recall I asked 
somebody before, what if they moved off 50 feet on a 45-degree 
angle? That to me probably does not have much--and for a few 
hundred yards or something, then comes back. That is not 
interfering with migration, it is not a disruption of a 
behavioral pattern with respect to breathing, nursing, 
breeding, feeding or sheltering.
    My point is, if we went from, maybe tightened up this 
definition that is already there by making it clear that we are 
talking about survival, we are talking about biological--and 
that we are maybe further defining these words like migration 
and nursing and breeding. In terms of biological significance, 
wouldn't that help clear away all of this debris that is in the 
way of permits being given and scientific research being 
carried out, so we actually know what we are doing where the 
mammals are concerned?
    Dr. Worcester. I think the difficulty is that the current 
language has very commonly been interpreted to mean any 
detectible change in behavior.
    Mr. Abercrombie. Yes, I understand that. That is why I am 
asking you. Do you think it would be possible for us to tighten 
up the existing definition by perhaps, say, adverse impacts, 
using the phrase ``adverse impacts'' to make more clear that we 
are taking about survivability, we are talking about biological 
changes that are more than just detectible but reach the level 
of adverse impact.
    Dr. Worcester. Absolutely.
    Mr. Abercrombie. Now, let me take it as an example because 
you are familiar with it, now the humpback whale migration and 
the breeding, right, in that area around Hawaii. If we could 
show that during that period of time--and I hate to say it, but 
we would probably have to do an experiment, and you were doing 
this kind of thing to find out whether breeding patterns were 
changed. We would have to try to figure out whether or not 
babies were being born, whether there were changes or they 
stopped coming or something like that. If we found that out, 
then we could maybe associate that with the utilization of the 
low frequency activity. That is what I am trying to get at. If 
that was shown to be the case, then couldn't we say, well, 
look, during that time you can't do this, you're going to have 
to figure out some other way to try to detect the quiet diesel 
engines on submarines.
    Dr. Worcester. Yes. I think if I understand your 
suggestion, it is that the definition be changed to make clear 
that it is an adverse impact.
    Mr. Abercrombie. Right. I am trying to get to conditions 
because if we just stick with terms, there is going to be an 
endless legal battle going on, over and over again, as to what 
constitutes significant, what constitutes--what is it 
alternative--I forget the other part of it, but the definition 
being proposed by the DOD seems to me to resolve nothing 
because it doesn't go to specific conditions, and it seems to 
me you have given us a ray of sunshine here that may actually 
penetrate the water, in the sense of saying adverse impact--now 
I am not sufficiently sophisticated right now to be able to 
come up with that at the moment, but I know where I want to go 
with it, and what I am asking you is, is do you think we could 
craft such a refinement of the definition, that perhaps that 
ambiguity might disappear or disappear sufficiently for you to 
be able then to move this permit process along?
    Dr. Worcester. I think the answer is yes.
    Mr. Abercrombie. Because I think you are going to get 
swamped by theologians if we just put the second definition. If 
the Chairman just accepted the second definition on face value 
right today, I don't think we're going to be any further ahead, 
and I don't think you are going to be able to get anything less 
than your 3-year approach.
    Dr. Worcester. Yes. One thing I should make clear is I had 
not seen the definition of Level A and Level B harassment 
proposed until this morning. I am not a member of the 
Administration.
    Mr. Abercrombie. What was your first impression in terms 
of--did it lessen the ambiguity or did it give another level of 
it or another context within which the same kinds of arguments 
could be made?
    Mr. Gilchrest. If I could just interrupt just for a second, 
Level A, ``injures or has the potential to injure,'' which is 
what is in existing law. The proposal for a change would be--
    Mr. Abercrombie. ``Significant potential to injure.''
    Mr. Gilchrest. ``Significant potential to injure.''
    Mr. Abercrombie. Right, would add the word ``significant'' 
to it. I realize that. And I am saying that that to me doesn't 
lessen the ambiguity at all. In fact, if it was of a lawyerly 
bent, I would rejoice at the opportunity to harass.
    [Laughter.]
    Dr. Worcester. The part of the definition that I was 
advocating a change to was Level B actually, and where the NRC 
put the moral equivalent of ``significant,'' they said 
meaningful was not before potential but before disruption. If I 
may, perhaps it would be useful to read that. The NRC's 
recommendation for Level B was, ``as the potential'' to disturb 
a marine mammal, a 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. And they in 
fact omitted sheltering because it is such a vague term that it 
has no scientific meaning.
    Mr. Abercrombie. Yes, I can see that. But you yourself said 
if we anthropomorphize, which the word meaningful to me does, 
we might as well be in Toad Hall if you are going to use the 
word meaningful.
    Dr. Worcester. There may be a better way to do this. The 
key thing here I think is to distinguish between detectible 
changes and adverse changes.
    Mr. Abercrombie. Right.
    Dr. Worcester. And I am not a lawyer either.
    Mr. Abercrombie. And I think ``statistical'' makes--that is 
very helpful in that sense. I am thinking of it in my 
background as a sociologist, when you move from anecdotal to 
statistical, you are dealing--at least where you are talking 
about the human condition--with something that can be measured, 
a standard can be set, as opposed to simply anecdotal 
recitations.
    Mr. Gilchrest. Mr. Abercrombie, we will have a second 
round.
    Mr. Abercrombie. Thank you.
    Mr. Gilchrest. Since you live in Hawaii.
    Mr. Abercrombie. You may be surprised, doctor, but you have 
been very helpful. I know you may not think so, but this I 
think is very, very helpful.
    Thank you, Mr. Chairman.
    Mr. Gilchrest. You are welcome. And I also think you would 
make a great theologian, Mr. Abercrombie.
    [Laughter.]
    Mr. Gilchrest. I just have a couple more questions. I know 
the hour is late. The situation with California sea lions as 
described by Mr. Fletcher and our attempt to resolve that 
issue. I would like to ask Ms. Young to give us any advice that 
you might have on that situation in California with the sea 
lions, and both the recreational and the commercial fishing 
activities.
    Ms. Young. Thank you, Mr. Chairman. I think that Mr. 
Fletcher and I are not too far apart on this issue. We both 
agree that there really hasn't been a dedicated--and not only 
dedicated, but a funded effort to come up with nonlethal 
deterrents. And one of the things that I see in the bill that 
is lacking is that before we go out and just throw money at the 
problem, I think we should sit down with scientists, fishermen, 
the agencies, the conservation community, and let's all agree 
on what the plan is. Let's look at what has worked in the past.
    Mr. Gilchrest. Can this be done by the Ocean Conservancy 
having a meeting? Do we need some type of an authorization for 
a study which would include those agencies? What is your 
recommendation for us? I think that is a great idea.
    Ms. Young. I recommend that you just require that the 
agencies develop a research plan first, and that research plan 
be crafted in consultation with those various interest groups. 
I think agreeing to the plan will then negate any possible 
litigation later by somebody who says, ``Wait, we don't agree 
on this particular research project because we think it is 
going to be harmful to the animal.'' So at least getting 
everybody on the same page and then moving forward.
    And what we feel is also very important is that once you 
have everybody agreeing to a plan, allowing the ability for not 
only the government to put money forward, but my organization 
or Mr. Fletcher's organization to put money forward toward that 
research to ensure that it is completed. And that is something 
again that I would like to see added to the bill.
    But the initial point is get everybody involved, decide 
upon what the plan is, and move forward, and allow everybody to 
contribute to that plan.
    Mr. Gilchrest. Thank you very much. Excellent 
recommendation. I am going to hesitate to ask you about the 
definition of harassment, maybe talk about that at some other 
time.
    But, Mr. Fletcher, a comment of Ms. Young's recommendation?
    Mr. Fletcher. Mr. Chairman, I am always available to sit 
down and assist in the development of research plans. I do want 
to point out that we had what we thought was a potentially 
effective nonlethal deterrent ready for testing in--
    Mr. Gilchrest. What was that?
    Mr. Fletcher. It was a pulse power unit that was developed 
in San Diego. It was a patented technology that was developed 
that we had received a SK grant through the National Marine 
Fishery Service.
    Mr. Gilchrest. What is the status of that right now?
    Mr. Fletcher. We were attempting to get a Coastal 
Commission Consistency Determination, actually NMFS was, and 
that was denied because there hadn't been research on the 
effects on marine mammals, especially sea lions, of this 
particular technology. So that happened a couple years ago. 
NMFS took the money that we had gotten that was going to be 
used for testing the device to do the research, and that 
research is completed, and now we are looking for money once 
again to try to go back through the process to get the 
consistency determination so that we could begin to at-sea 
testing. If we could get some strong voice of support from 
Congress and perhaps some funding that would be made available, 
we would certainly be involved and be willing to be involved in 
this research plan development. But this unit is still there 
and could help.
    Mr. Gilchrest. It would be fitted on each boat? Is that how 
it would work?
    Mr. Fletcher. Ultimately it could become a permanent part 
of the vessel similar to a fathometer with a transducer. The 
company envisions that that could happen over time if they 
would receive funding.
    Mr. Gilchrest. It would send out a pulse that would keep 
seals and sea lions away?
    Mr. Fletcher. There would be a pulse that would be 
controlled by the captain when sea lions approached and came 
around the vessel and began to interact with the fishermen.
    Mr. Gilchrest. Thank you.
    Mr. Wetzler. Mr. Chairman, if I could make a quick comment 
about that?
    Mr. Gilchrest. Yes.
    Mr. Wetzler. Because it is an issue that my office actually 
worked on. We had opposed the deployment of the pulse power 
device, which is an underwater acoustic device, that sends out 
a very, very pulse of sound, acts more like dynamite really 
than anything else. And the reason we opposed it was because we 
thought that it hadn't been tested in the lab and there was a 
significant potential that it would deafen the sea lions.
    And all I want to say is that I just think before Congress 
makes a judgment about the efficacy of that device, it is very 
important to examine whatever research has been done in the 
interim.
    Mr. Gilchrest. Thank you very much.
    Mr. Luedtke, we haven't asked you any questions here this 
afternoon, but you performed admirably for your profession.
    [Laughter.]
    Mr. Gilchrest. And I am going to hesitate to ask you about 
a change in the definition of harassment, but we appreciate you 
coming here this afternoon, and we will look into the issues 
that you addressed here as well, and to make sure that there is 
a better cooperation and connection between you and your 
colleagues and NMFS and the other scientific people that make 
these assessments and evaluation. And good luck when you travel 
up the New Jersey Turnpike to go home.
    Mr. Luedtke. Route 95.
    Mr. Gilchrest. Route 95.
    Mr. Abercrombie, any more questions?
    Mr. Abercrombie. Yes, just a couple, please.
    Mr. Luedtke, I actually did want to ask you something along 
these lines. By the way, your testimony was terrific. Thank you 
very, very much. Your work with your father over all those 
years while you were in high school and beyond obviously paid 
off in someone who is very, very thoughtful and cares an awful 
lot about not only what he does, but the world in which he does 
it, which is the sea, and I congratulate you. I am sure he 
would be very proud of what you are doing and what you did in 
this testimony.
    Mr. Luedtke. thank you.
    Mr. Abercrombie. You said, ``I am interested in improving 
the quality of science and our ability to minimize interactions 
with marine animals.'' And you have heard this, you know I have 
been concentrating on this definition thing, and the reason 
that I concentrate on it so much, I will reiterate to you, is 
because when we pass this stuff it takes on a life of its own, 
and so we want to be as clear and as precise in terms of our 
intent as we can.
    When you heard me and others talking about this question 
about injury, as opposed even to potential injury, because I 
agree with what was said here, that if as we get more 
scientifically sophisticated, we can probably take that 
definition about what is potential down to a very, very low 
level, to where it becomes meaningless in terms of what would 
actually happen to fisheries, for example. So if you are trying 
to figure out what you can deal with in a commercial sense with 
fisheries, if we tightened up the definition along the lines 
that Dr. Worcester was talking about, adverse impacts, actual 
injuries, changes in migration, changes in patterns so that you 
might not know where the fishery was going to be most 
beneficial to you, would that be helpful? Do you think if we 
tightened up this definition about what harassment is, and to 
actual conditions as opposed to more words out there that can 
be interpreted by anybody any way they please?
    Mr. Luedtke. Yes, I would like to see it tightened up. I 
think that would be helpful. As far as the definition as it is 
now, I think that it is just so vague, in that it could be 
interpreted that if a jet ski passes by a mile away, could that 
have an adverse effect on them? Well, maybe down the road we 
find out that it does, but by--
    Mr. Abercrombie. I am smiling because I can tell you if a 
jet ski--I hate those damn things.
    [Laughter.]
    Mr. Abercrombie. And I think they ruin Hawaii. And we have 
got little sections out where they have them, but you can hear 
them everywhere if you are swimming or whatever. You can't tell 
me it isn't--we got along without them for millions of years.
    [Laughter.]
    Mr. Gilchrest. We can include that term in the Marine 
Mammal Protection Act.
    [Laughter.]
    Mr. Abercrombie. Yes, I am for that. You put that in, I 
will go along with anything. But I appreciate that. Thank you 
very much.
    Dr. Worcester, I want to ask you one last time. On the 3 
years, I have read through your testimony again, and I am 
trying to figure--oh by the way, I want to congratulate you. I 
don't know if everybody else has seen Dr. Worcester's 
testimony, but despite all the harassment he received for 3 
years, I think that is a particularly jaunty picture that you 
have there, doctor.
    [Laughter.]
    Mr. Abercrombie. So you obviously haven't been disturbed or 
frustrated to the point where you wanted to quit. I think that 
is pretty good. I hope I can look that way at the end of this 
hearing.
    [Laughter.]
    Mr. Abercrombie. But can you explain a little more clearly 
to me--it is not that clear from the testimony--as to why it 
took the 3 years, even though there were more hoops to go 
through, and you suggest various ways like decentralizing and 
so on to speed up the process. How would the decentralizing of 
the permitting process actually be faster than the 3 years you 
expended? Why did it take 3 years?
    Dr. Worcester. The reason it took 3 years actually has to 
do with the details of the law. As you say, it is what the law 
says. It is not necessarily what makes sense. Because the 
project was going to last for longer than 1 year, it did not 
qualify for the Incidental Harassment Authorization Procedure.
    Mr. Abercrombie. OK, I see.
    Dr. Worcester. And we did not qualify for the scientific 
research permit procedure because it wasn't research on marine 
mammals. All of that was one component of the program.
    Mr. Abercrombie. Or directly benefiting them.
    Dr. Worcester. Or directly benefiting them. So the only 
option left was the letter of authorization procedure, the 
full-blown rulemaking procedure, which involves lengthy periods 
for public comment. It requires NMFS to actually write and 
publish rules specific to the operation of that source. It is 
the application of a procedure that, in my mind, seemed to have 
been designed to apply to a class of activities, that they now 
had to do it for this one project. That was part of the reason 
why it took so long.
    The other part was that we were required to go through the 
full-blown environmental impact statement process, which is 
again a very time-consuming--
    Mr. Abercrombie. Wasn't the experiment itself designed to 
find out what the environmental impact would be? How can you do 
an environmental impact statement about an experiment which by 
definition is an environmental impact statement inquiry?
    Dr. Worcester. We of course already had a great deal of 
information from the previous stage, the ATOC phase, in which 
we had done a total of 2 years of research at each of two 
sources, expended a total of--
    Mr. Abercrombie. That is what I am driving at, is that you 
already had the information that was available, and in effect, 
what you were doing was providing the impact statement.
    Dr. Worcester. I am not sure I understand the question. I 
mean we had done the research to show that the impact, if any, 
was very small, so why we had to go through a full EIS 
procedure is not something I would--
    Mr. Abercrombie. That is my point. It would seem to me that 
all that was being involved here was--literally, Mr. Chairman, 
harassment, because--and I mean it, is that this is another way 
of saying we don't like what you are doing in the first place, 
and so what we have found is a way to prevent you from going 
ahead with it in the hope that all of this will disappear, or 
we can fend it off for a long time. And I don't think that is 
the way to resolve the issue.
    I do think that the existing definition--I have concluded, 
Mr. Chairman, that the existing definition needs to have--not 
necessary considerable, but very precise refining, but I don't 
think that the proposed definitions from the Defense Department 
adds anything of value in that regard.
    And then I think the other thing we need to do is to take a 
look at whether or not we can write something in legislation 
regarding research activities and the permitting process that 
will actually address the conditions under which the permitting 
takes place and the scientific research takes place, that will 
get us the kind of information that will help us all in the end 
to understand what it is we need to do with regard to our 
fellow creatures in the ocean and to be proper stewards and 
partners with them. Thank you.
    By the way, I think both panels were excellent, Mr. 
Chairman. I commend you and the staff on that, and I am very, 
very grateful to all of you for helping us. We are going to do 
the best we can. I know under Chairman Gilchrest for whom I 
have enormous admiration, this is a very difficult process, and 
I will say for the record he is the soul of patience and has 
enormous concern for everybody's--not their opinion, anybody 
can have an opinion, any idiot can have an opinion and 
generally they do, but very few people--I think what we have a 
right to expect is good judgment, and I have great confidence 
in the Chairman's ability to put that good judgment into 
legislation.
    Mr. Gilchrest. Thank you very much, Mr. Abercrombie. And we 
will take your suggestions and recommendations and thoroughly 
evaluate them as we move through the process.
    And I also want to thank the panel for their patience and 
for their statements and for their recommendations, and we will 
pursue those as well, and I look forward to speaking to many or 
all of you again very soon.
    The hearing is now adjourned.
    [Whereupon, at 4:58 p.m., the Subcommittee was adjourned.]

                                   - 
