[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
 H.R. 2693, A BILL TO REAUTHORIZE THE MARINE MAMMAL PROTECTION ACT OF 
                                 1972

=======================================================================

                          LEGISLATIVE HEARING

                               before the

      SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                        Thursday, July 24, 2003

                               __________

                           Serial No. 108-46

                               __________

           Printed for the use of the Committee on Resources



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







                      U.S. GOVERNMENT PRINTING OFFICE

88-531                       WASHINGTON : 2003
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800, DC area (202) 512-1800 Fax: (202) 512-2250 Mail: stop SSOP, Washington, DC 20402-0001










                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana     Eni F.H. Faleomavaega, American 
Jim Saxton, New Jersey                   Samoa
Elton Gallegly, California           Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee       Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland         Frank Pallone, Jr., New Jersey
Ken Calvert, California              Calvin M. Dooley, California
Scott McInnis, Colorado              Donna M. Christensen, Virgin 
Barbara Cubin, Wyoming                   Islands
George Radanovich, California        Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Jay Inslee, Washington
    Carolina                         Grace F. Napolitano, California
Chris Cannon, Utah                   Tom Udall, New Mexico
John E. Peterson, Pennsylvania       Mark Udall, Colorado
Jim Gibbons, Nevada,                 Anibal Acevedo-Vila, Puerto Rico
  Vice Chairman                      Brad Carson, Oklahoma
Mark E. Souder, Indiana              Raul M. Grijalva, Arizona
Greg Walden, Oregon                  Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado         Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona               George Miller, California
Tom Osborne, Nebraska                Edward J. Markey, Massachusetts
Jeff Flake, Arizona                  Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana           Ciro D. Rodriguez, Texas
Rick Renzi, Arizona                  Joe Baca, California
Tom Cole, Oklahoma                   Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

       SUBCOMMITTE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                 WAYNE T. GILCHREST, Maryland, Chairman
        FRANK PALLONE, JR., New Jersey, Ranking Democrat Member

Don Young, Alaska                    Eni F.H. Faleomavaega, American 
W.J. ``Billy'' Tauzin, Louisiana         Samoa
Jim Saxton, New Jersey               Neil Abercrombie, Hawaii
Mark E. Souder, Indiana              Solomon P. Ortiz, Texas
Walter B. Jones, Jr., North          Ron Kind, Wisconsin
    Carolina                         Madeleine Z. Bordallo, Guam
Randy Neugebauer, Texas              Nick J. Rahall II, West Virginia, 
Richard W. Pombo, California, ex         ex officio
    officio
                                 ------                                















                            C O N T E N T S

                              ----------                              
                                                                   Page

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

Statement of Members:
    Gilchrest, Hon. Wayne T., a Representative in Congress from 
      the State of Maryland......................................     1
        Prepared statement of....................................     2
    Pallone, Hon. Frank, Jr., a Representative in Congress from 
      the State of New Jersey....................................     3
        Prepared statement of....................................     4
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia, Prepared statement of..........    11

Statement of Witnesses:
    Cottingham, David, Executive Director, Marine Mammal 
      Commission.................................................    29
        Prepared statement of....................................    30
        Response to questions submitted for the record...........   154
    Hayes, Robert G., General Counsel, Coastal Conservation 
      Association................................................    69
        Prepared statement of....................................    71
    Johnson, Charlie, Executive Director, Alaska Nanuuq 
      Commission.................................................    79
        Prepared statement of....................................    80
    Jones, Marshall, Deputy Director, Fish and Wildlife Service, 
      U.S. Department of the Interior............................    22
        Prepared statement of....................................    24
        Response to questions submitted for the record...........   101
    Lent, Dr. Rebecca, Deputy Assistant Administrator for 
      Fisheries, National Marine Fisheries Service, U.S. 
      Department of Commerce.....................................    13
        Prepared statement of....................................    15
        Response to questions submitted for the record...........   110
    Steuer, Karen, Senior Policy Advisor, National Environmental 
      Trust......................................................    72
        Prepared statement of....................................    74
        Response to questions submitted for the record...........   128
    Tyack, Dr. Peter, Senior Scientist and Walter A. and Hope 
      Noyes Smith Chair, Department of Biology, Woods Hole 
      Oceanographic Institution..................................    37
        Prepared statement of....................................    39
        Response to questions submitted for the record...........   132
    Wells, Dr. Randall, Conservation Biologist, Chicago 
      Zoological Society, Mote Marine Laboratory.................    81
        Prepared statement of....................................    83
        Response to questions submitted for the record...........   141
    Worcester, Peter F., Ph.D., Research Oceanographer, Scripps 
      Institution of Oceanography, University of California at 
      San Diego..................................................    49
        Prepared statement of....................................    51
        Response to questions submitted for the record...........   148
    Zuanich, Robert, Board Member, United Fishermen of Alaska....    88
        Prepared statement of....................................    89

Additional materials supplied:
    Riedel, Monica, Executive Director and CEO, Alaska Native 
      Harbor Seal Commission, Statement submitted for the record.    98














  LEGISLATIVE HEARING ON H.R. 2693, A BILL TO REAUTHORIZE THE MARINE 
         MAMMAL PROTECTION ACT OF 1972, AND FOR OTHER PURPOSES.

                              ----------                              


                        Thursday, July 24, 2003

                     U.S. House of Representatives

      Subcommittee on Fisheries Conservation, Wildlife and Oceans

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
Room 1324, Longworth House Office Building, Hon. Wayne T. 
Gilchrest [Chairman of the Subcommittee] presiding.
    Present: Representatives Gilchrest, Pallone, Abercrombie, 
and Kind.
    Also present: Representative Pombo.
    Mr. Gilchrest. The Subcommittee on Fisheries Conservation, 
Wildlife and Oceans will come to order. We want to thank all of 
you for coming this morning and we really look forward to the 
testimony of each and every witness for us to try to find some 
realistic consensus on the problems of the issue of marine 
mammals.

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

    Mr. Gilchrest. Earlier this month I introduced H.R. 2693, 
with Chairman Richard Pombo, to reauthorize the Marine Mammal 
Protection Act. This bill is similar to H.R. 4781, which the 
Subcommittee approved last Congress. There were a few 
provisions that were not included in H.R. 4781: changes to the 
definition of harassment and to the incidental take section; 
language to authorize the disentanglement of marine mammals in 
the stranding program; and modifications to the time lines in 
the take reduction team process.
    I think we have made good progress in H.R. 2693; however, 
the bill is a starting point, a product to generate discussion. 
To develop the language in the bill, I had meetings with 
scientists and agency staff to better understand our current 
state of knowledge, to hash out various terms proposed for the 
definition of harassment, and to devise a process by which 
scientific research can move forward in a timely manner without 
unnecessary and significant delays. Most recently, yesterday in 
fact, I met with representatives of some environmental groups 
to discuss their thoughts on the bill's language.
    What I have found most interesting in this process is how 
everyone refers back to the National Research Council's 
recommended definition of harassment. Everyone says their 
definition is based on the NRC definition. I can say that H.R. 
2693 used the NRC used the NRC definition as a template, but 
has some modifications. The administration's definition is said 
to have the intent of the NRC definition, but was reworked to 
be defensible in court and structured to allow for better 
enforcement. The environmental community also has its own 
definition, which also modifies the NRC definition. There is 
common ground in each of these proposals, the NRC definition. 
We just need to word-smith more to get a compatible resolution.
    And going through this process a little bit in the last few 
days, I wish now I had paid much more attention to my seventh 
grade English teacher's diagramming of what modifies what.
    But I think we can work through this process to ensure that 
the language is appropriate for the Navy, the language is 
appropriate--and the process--the language is appropriate for 
research scientists, and the process, and the language is 
appropriate to meet all of the constituency problems that there 
are out there in the oceans.
    I think today we are going to look forward to your analysis 
of the definitions of harassment, of incidental take, of the 
process that people have to go through with NMFS in order to 
get that permit to do what they need to do. And our intent 
here, Mr. Pallone and myself, our intent is to ensure that--
like somebody told me just 2 days ago in this, in Congress, a 
member: So, you want to save a whale and kill a soldier.
    We want to make sure that the impression and the reality is 
that the oceans will be better off, the ecosystem will improve, 
marine mammals will be protected, and the military can train 
its soldiers to defend America. But we also want to make sure 
that a scientist that needs to fly an airplane over the North 
Atlantic to observe right whales will not have a more difficult 
time getting a permit to do that than the general understanding 
that long lines are OK for the fishing industry. Now, I don't 
want to downgrade long lining for the fishing industry. That is 
a whole other issue that we will deal with in the Magnuson Act. 
But to do research that is important for the preservation of 
right whales and marine mammals, we have got to work for that 
process and make it much more legitimate.
    So I look forward to everyone's testimony today. And I 
would like to yield to the gentleman from New Jersey, Mr. 
Pallone.
    [The prepared statement of Mr. Gilchrest follows:]

       Statement of The Honorable Wayne T. Gilchrest, Chairman, 
      Subcommittee on Fisheries Conservation, Wildlife and Oceans

    Good morning. Today, we will hear testimony on issues pertaining to 
the reauthorization of the Marine Mammal Protection Act.
    Earlier this month I introduced H.R. 2693,with Chairman Richard 
Pombo, to reauthorize the MMPA. This bill is similar to H.R. 4781, 
which the Subcommittee approved last Congress. There are a few 
provisions that were not included in H.R. 4781: changes to the 
definition of harassment and to the incidental take section; language 
to authorize the disentanglement of marine mammals in the stranding 
program; and modifications to the time-lines in the take reduction team 
process.
    I think we've made some good progress in H.R. 2693; however, the 
bill is a starting point, a product to generate discussion. To develop 
the language in the bill I had meetings with scientists and agency 
staff to better understand our current state of knowledge, to hash out 
various terms proposed for the definition of harassment, and to devise 
a process by which scientific research can move forward in a timely 
manner without significant delays. Most recently, yesterday in fact, I 
met with representatives of some environmental groups to get their 
thoughts on the bill language.
    What I've found most interesting in this process is how everyone 
refers back to the National Research Council's (NRC) recommended 
definition of harassment. Everyone says their definition is based on 
the NRC definition. I can say H.R. 2693 used the NRC definition as a 
template, but has some modifications. The Administration's definition 
is said to have the intent of the NRC definition, but was reworked to 
be defensible in court and structured to allow for better enforcement. 
The environmental community also has its own definition, which also 
modifies the NRC definition. There is common ground in each of these 
proposals, the NRC definition, we just need to word-smith some more to 
get a compatible resolution.
    I look forward to today's testimony. Each witness brings a slightly 
different perspective to the table and differing views can lead to 
productive and lively discussions.
    I know recognize the Ranking Democrat, Mr. Pallone for his opening 
statement.
                                 ______
                                 

 STATEMENT OF HON. FRANK PALLONE, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF NEW JERSEY

    Mr. Pallone. Thank you, Mr. Chairman, for holding this 
hearing on your legislation to reauthorize the Marine Mammal 
Protection Act.
    Much has been said recently about the MMPA, both inside and 
outside this Committee. And while reasonable people can agree 
to disagree about policy, there should be no doubt about 
members of this Committee, whether Democrat or Republican, that 
it is the sole jurisdiction of this Committee to reauthorize 
and amend the MMPA.
    And that is why I wanted to commend you, Mr. Chairman, for 
forcefully reinforcing at Tuesday's meeting of the Conference 
Committee to the Defense Authorization Bill of the proper 
authority of this Committee regarding the MMPA. I can only hope 
that the conferees will have been persuaded by arguments to 
remove all provisions concerning the MMPA from the final 
conference report.
    And I know this is not on the same subject, but I see the 
Chairman of the full Committee here. And I just want to say I 
have witnessed several times over the last few weeks where you 
have had to reinforce the Committee's jurisdiction. And I 
appreciate the fact that you have been out there doing that as 
well. I think it is very important.
    Even within the Committee, changes to the definition of 
harassment will continue to be a contentious item of 
discussion. I do believe, however, that we now have the chance 
to frame whatever changes should be made within the proper 
context of an overall MMPA reauthorization.
    As we consider how best to reauthorize the bill, be assured 
that I will arrive at the table ready to work with you in a 
true sense of comity and cooperation. And it is with this 
spirit that I look at your bill, H.R. 2693, as an honest 
starting point, but not a conclusion to our work. Also, realize 
that I will vigorously oppose any attempt to weaken or walk 
away from the fundamental protections afforded to marine 
mammals under the act, for animals either in the wild or in 
captivity.
    As much as we should celebrate the fact that the MMPA has 
prevented the outright extinction of many marine mammals, we 
should not be blind to the compelling reality that many marine 
mammal populations today face growing human threats from ship 
strikes, acoustic impacts, marine debris and other land-based 
pollutants. And in the end, our success at addressing these 
threats will likely determine whether marine mammals can 
maintain their vital roles in oceanic and coastal environments.
    Thank you again, Mr. Chairman.
    [The prepared statement of Mr. Pallone follows:]

Statement of The Honorable Frank Pallone, a Representative in Congress 
                      from the State of New Jersey

    Thank you, Mr. Chairman, for holding this hearing on your 
legislation to reauthorize one of our Nation's most important statutes 
protecting the ocean environment, the Marine Mammal Protection Act.
    Much has been said recently about the MMPA, both inside and outside 
of this Committee. And while reasonable people can agree to disagree 
about policy preferences, there should be no light between members of 
this Committee, whether they are Democrat or Republican, on the fact 
that it is the sole jurisdiction of this Committee to reauthorize the 
MMPA.
    That is why I commend you, Mr. Chairman, for forcefully re-
informing the conference committee to the Defense Authorization bill at 
yesterday's conference meeting of the proper authority of this 
Committee regarding the MMPA. We can only hope that the conferees will 
have been persuaded by your arguments to remove all provisions 
concerning the MMPA from the final conference report.
    Even within this Committee, changes to the definition of 
``harassment'' will continue to be a contentious item of discussion. I 
do believe, however, that we now have the chance to frame whatever 
changes should be made within the proper context of an overall MMPA 
reauthorization.
    As we roll up our sleeves to sit down and consider how best to 
reauthorize the MMPA, be assured that I will arrive at the table ready 
to work with you in a true sense of comity and cooperation. And it is 
with this spirit that I look at your bill, H.R. 2693, as an honest 
starting point but not a conclusion to our work.
    Also realize that I will vigorously oppose any attempt to weaken or 
walk away from the fundamental protections afforded to marine mammals 
under the Act, for animals either in the wild or in captivity.
    As much as we should celebrate the fact that the MMPA has prevented 
the outright extinction of many marine mammals, we should not be blind 
to the compelling reality that many marine mammal populations today 
face growing human threats from ship strikes, acoustic impacts, marine 
debris and land-based pollutants.
    In the end, our success at addressing these threats will likely 
determine whether marine mammals remain a vibrant part of our ocean and 
coastal environment. Thank you.
                                 ______
                                 
    [Information submitted for the record by Mr. Pallone 
follows:]

  Statement submitted for the record on behalf of: Animal Protection 
  Institute; Cetacean Society International; Earth Island Institute; 
    International Wildlife Coalition; Society for Animal Protective 
  Legislation; The Fund for Animals; The Humane Society of the United 
 States; Whale and Dolphin Conservation Society; and World Society for 
                       the Protection of Animals

    The above signatory groups, together representing approximately 9 
million members and constituents, thank the Subcommittee Chairman for 
the opportunity to submit a statement for the record on the 
reauthorization of the Marine Mammal Protection Act (MMPA). We 
appreciate the opportunity to present these comments to the 
Subcommittee. Our concerns relate to the sport hunting of polar bears 
and the public display of marine mammals.
Sport Hunting of Polar Bears
    The signatory groups oppose the provisions of Section 10 in H.R. 
2693. In addition, we request that Congress maintain the prohibition on 
the sport hunting of polar bears in Alaska and repeal Section 104(c)(5) 
of the MMPA, which allows the import of polar bear trophies from 
Canada. The MMPA prohibition against take is universal--the exemptions 
are for purposes that serve the public good, with the sole exception of 
the import of sport-hunted polar bear trophies from Canada, which is 
for personal use. Section 104(c)(5) was added to the MMPA during the 
1994 reauthorization. To allow exemptions for personal use is counter 
to the spirit of this groundbreaking legislation.
    Furthermore, the signatory groups believe commercial sport hunts 
provide a dangerous incentive to over-exploit this vulnerable and 
naturally rare species, as was historically the case. Sport hunting and 
its negative impacts on polar bear populations were among the primary 
reasons the five polar bear nations (Denmark [for Greenland], the 
Russian Federation [then the USSR], Norway, Canada, and the U.S.) 
originally negotiated and signed the 1973 Agreement on the Conservation 
of Polar Bears.
    To date, Canada continues to be the only country that allows the 
sport hunting of polar bears under the 1973 Agreement. In 1994, 
Congress passed an amendment, Section 104(c)(5), which allowed the 
import into the U.S. of trophies legally taken in Canada. Many of the 
signatory groups actively opposed this amendment during the 1994 
reauthorization, in part because we believe the hunt in several 
populations of Canadian polar bears was (and continues to be) 
unsustainable. Allowing the import of trophies would (and now does) 
provide a strong incentive for Canada to maintain or increase already 
unsustainable quotas because more American hunters would seek to 
purchase subsistence hunt tags from Canadian Inuit villages.
    Validating our concerns, the U.S. Fish and Wildlife Service (FWS) 
initially approved the M'Clintock Channel polar bear population for 
imports under Section 104(c)(5). In early 2001, the agency published an 
emergency rule reversing that approval because a recent study by the 
Canadian authorities indicated that there were far fewer bears than 
originally estimated in the M'Clintock population, making the quota not 
only unsustainable, but actually an extirpation risk for the 
population.
    Some of the population data used to calculate this new population 
estimate were apparently available to the Canadian authorities as early 
as 1978. In addition, the population estimate was always rated as 
``poor'' and even after the results of the first two years of a three-
year study (1998, 1999, and 2000) showed that there were almost 
certainly far fewer bears in the population than previously estimated, 
Canada did not change the quota until the study's final year of results 
was analyzed. (The 1998/1999 hunting season, therefore, removed nearly 
10% of the population and the unfulfilled quota was for more than 10% 
of the population.) In short, managers could have and should have 
foreseen the actual status of the population as early as 20 years ago 
and certainly two years ago.
    The signatory groups have always been critical of the potential for 
mismanagement under Canada's management regime. The situation in 
M'Clintock Channel is a classic example of a worst-case scenario under 
this regime, which, inter alia, relies on population estimates that are 
qualitatively rather than quantitatively characterized. The quota for 
this population was driving the M'Clintock Channel bear population 
inexorably toward extirpation for several years before managers 
detected this trend.
    It is impossible to know whether those populations that the FWS has 
not approved for import but which are still subject to legal hunts 
under Canadian law are experiencing similar negative impacts because of 
hunting under Canada's management regime. If they are, this reflects on 
Canada's entire management program. As for those six populations 
currently with full FWS approval for import, their status is arguably 
just as questionable, as they are being managed under the same regime. 
Given how long M'Clintock Channel's dire situation escaped Canada's 
notice, and given the uncertain quality of some of the population data 
from the other approved populations, there is simply no assurance that 
any polar bear population in Canada is being managed sustainably.
    The signatory groups believe strongly that Section 104(c)(5) should 
be repealed. Polar bears are uniquely unsuited to being sport-hunted. 
Establishing accurate population estimates and life history parameters 
upon which commercially-driven hunts can be sustainably based is 
extremely difficult, given their remote and marginal habitat.
Public Display of Marine Mammals
    In 1994, Congress amended the MMPA to eliminate certain aspects of 
the law's applicability to marine mammals used for public display. 
These changes weakened the law without justification, and there is no 
basis for further changes to the law that would result in even less 
protection for these animals. The relevant provisions within the MMPA 
for public display fall under Sections 101 and 104. H.R. 2693 addresses 
public display only once, in Section 11, the captive release 
prohibition.
    The MMPA provides for the public display of marine mammals by 
special exemption. Because of the continued existence of trade (import/
export) in wild-caught and captive-born marine mammals between U.S. 
facilities and foreign facilities, and the proliferation of unregulated 
interactive programs (e.g., swim-with-the-dolphin programs; ``petting'' 
pools) in public display facilities worldwide, we believe Congress must 
re-examine some of the provisions of the MMPA, and the implementing 
regulations relating to the public display exemption.
Export Permits
    The MMPA should be amended to restore the requirement for a permit 
to export marine mammals for the purpose of public display. The 1994 
Amendments removed this requirement from the law and currently a 15-day 
notification to the National Marine Fisheries Service (NFMS) or FWS and 
a determination, through a Letter of Comity, that the receiving 
facility meets standards comparable to those required under the Animal 
Welfare Act (AWA) and the MMPA are the sole requirements. In other 
words, holders of captive marine mammals have the right to transport, 
sell, export, purchase or transfer an interest (e.g., breeding loans) 
without seeking authorization and without any public oversight. The 
signatory groups have serious concerns regarding the ability of the 
agencies under such a short notification regime and without public 
input to ensure the well-being of marine mammals leaving this country 
for foreign, and often substandard, facilities not under the 
jurisdiction of U.S. law.
    In the wild, marine mammals are under national jurisdiction in 
domestic waters, while on the high seas they are considered a ``global 
commons.'' We believe that their status should not change when removed 
from the wild and kept in captive facilities, and we oppose the private 
ownership of captive marine mammals. We believe that the public should 
be treated as stakeholders and should have a key consultative role 
concerning the destination, distribution, supervision and management of 
these species. We believe that the public often holds critical 
information that should be reviewed and evaluated prior to a transfer. 
Therefore, we urge Congress to reinstate the export permit requirement, 
which would provide for public notice and comment.
Comity and Comparability Provisions
    The MMPA should confirm the requirement for a letter of comity from 
a foreign facility's government regarding marine mammal protection 
laws, and strengthen this provision by requiring on-site inspections. 
The signatory groups are deeply concerned with the proliferation of 
substandard captive display facilities around the world. We are not 
satisfied that the requirement for a Letter of Comity from the 
receiving nation provides adequate protection for marine mammals being 
exported from the US. Because U.S. agencies must accept these letters 
on their face, they are rendered almost meaningless. National agencies 
all too frequently provide letters of comity with no substance 
underlying them. The MMPA permit process, which includes public notice 
and comment, as applied to export would allow a greater--and more 
protective--degree of scrutiny of a receiving facility and the laws to 
which it is subject. For example, certain Japanese facilities 
participate in ``drive fisheries'' to capture dolphins. This practice 
does not meet U.S. capture standards for humaneness and would not be 
allowed under the MMPA. Any facility associated with this practice 
should not be allowed to receive marine mammals from the US; whether a 
facility acquires animals from drive fisheries may be information only 
public comment could uncover.
    As part of the comity process and under the 1994 Amendments, 
foreign facilities must demonstrate that they meet standards that are 
comparable to those under the AWA. The U.S. Department of Agriculture's 
Animal and Plant Health Inspection Service (APHIS) has concluded that 
facilities may demonstrate this solely through providing the agency 
documentation and certified assurances, rather than through on-site 
inspections. As a result, the determination of comparability is being 
made by the receiving facility itself, through its expressions of 
comity, and through the documentation it chooses to provide to APHIS, 
which is a clear conflict of interest. Therefore, the MMPA should be 
amended to clarify Section 104(c)(9) that the determination of 
comparability must be made through first-hand knowledge, i.e., on-site 
inspections, by the relevant U.S. agency. All facilities seeking to 
acquire marine mammals from the U.S. should be pre-inspected by a 
qualified U.S. official before animals are exported pursuant to any 
MMPA authorization, including transfer pursuant to an existing permit 
under section 104(c).
Marine Mammal Inventory Report
    The MMPA should retain the requirement for captive display 
facilities to maintain an inventory of marine mammals in their 
collections, and should broaden the information reporting requirements 
to include necropsy, injury and disease reports indicative of marine 
mammals health status. The U.S. is one of the only countries in the 
world with legislation requiring the maintenance of an inventory of 
marine mammals held in captivity. Without an inventory, the status of 
captive marine mammals can be impossible to determine, as it is the 
only means for allowing outside scientific review of issues relating to 
the health and survivorship of captive marine mammals. In addition, 
with the increase in marine mammal interactive programs in the U.S. and 
elsewhere, there is a need for the disclosure of information pertinent 
to the health and welfare of marine mammals in these programs. 
Information, including disease transmission and physical injuries 
sustained by marine mammals in interactive programs, must be collected 
in order for all stakeholders to evaluate the safety and value of these 
programs.
Educational Programs
    Section 104(c)(2)(A)(i) of the MMPA should be revised to provide 
for the evaluation of education and conservation programs on a periodic 
basis. Currently, educational standards within most public display 
facilities are based on standards established and recommended by the 
public display community itself. Because the effectiveness and 
legitimacy of an educational program cannot be determined at its 
inception and by its description on paper, and because the statute 
requires only a ``professionally recognized'' educational or 
conservation program, there is little to protect the precautionary 
intent of the MMPA. According to information provided by NMFS, a permit 
for the public display of cetaceans or pinnipeds has never been denied 
or revoked on the grounds of insufficient educational value or content. 
This blanket exemption is not monitored or enforced by any independent 
public institution or regulatory agency.
    We recommend that public display facilities that are granted an 
exemption permit must be motivated to continually improve their 
educational and conservation programs. There are currently no 
requirements for updates to educational programs or facility plans once 
a permit is granted. Periodic assessments should be required to ensure 
that facilities do not stray from their original ``educational mission 
statement'' in the course of their commercial development or expansion 
into a public entertainment venue or amusement park, as many have. The 
MMPA should require that the relevant Secretary approve public display 
education and conservation programs, with periodic review of these 
programs as they develop and evolve.
Authority over Captive Marine Mammals
    Authority over captive marine mammals should be transferred from 
APHIS in the Department of Agriculture to the same agencies (NMFS and 
FWS) with jurisdiction over marine mammals in the wild. APHIS, under 
the AWA, has not demonstrated that it can adequately ensure the humane 
treatment and welfare of marine mammals used for the purpose of public 
display. For example, after taking more than three years from the date 
of reauthorization to finalize the regulations for the operation of 
swim-with-the-dolphin programs, APHIS then suspended the regulations' 
enforcement only six months later, in April 1999. To date, these 
specialized and proliferating programs are to all intents and purposes 
unregulated, beyond basic care and maintenance standards.
    In addition, in a highly-publicized case in Puerto Rico, APHIS was 
unable to remedy the inhumane treatment of seven polar bears held in 
the Mexican-based Suarez Brothers Circus, revealing an agency unable to 
fulfill the objectives of the MMPA. It was the FWS that finally rescued 
these beleaguered animals from their untenable situation (six of the 
seven are now doing well in U.S. zoos after confiscation--one 
unfortunately died), citing violations of the MMPA. APHIS has limited 
expertise among its staff in the biology and handling of marine 
mammals. Its veterinary inspectors receive some training regarding the 
specialized needs and requirements for these animals, but this training 
is often inadequate. Facilities are allowed numerous opportunities to 
correct violations, and in some instances, violations are never 
corrected. The specialized biology, ecology, and captive maintenance 
requirements of marine mammals, specifically recognized by Congress 
when it passed the MMPA in 1972, overtax APHIS' staff. It would be 
sensible for marine mammal species under the jurisdiction of NMFS (and 
the FWS for polar bears, walruses, manatees and sea otters) when wild 
to continue under the jurisdiction of NMFS/FWS when captive--these 
wildlife species do not transform into livestock by virtue of entering 
a tank or sea pen.
Traveling Shows
    The MMPA should be amended to specifically prohibit the use of 
marine mammals in traveling shows. The signatory groups support the 
sections in the Administration's bill that prohibit traveling cetacean 
shows and would like to see H.R. 2693 include this provision, but apply 
it to all marine mammals. Circuses and itinerant performances cannot 
maintain the highly specialized conditions necessary to ensure the 
health and well-being of marine mammals. The high-profile case in 
Puerto Rico involving the Suarez Brothers Circus, as noted above, 
highlights that traveling shows featuring marine mammals inevitably 
violate the spirit and very often the letter of the MMPA, which is 
designed to conserve species and stocks and ensure humane treatment of 
these animals.
``Petting'' Pools
    The MMPA should be amended to prohibit interactive programs 
involving the feeding of captive marine mammals. In the wild, feeding 
marine mammals is prohibited by regulation, as this activity clearly 
constitutes harassment. Feeding wild marine mammals (or any wild 
predator) can result in the gross disruption of foraging behavior, 
malnourished animals, injured animals through vandalism, nuisance 
behavior in animals that have become habituated to handouts, and other 
negative impacts. While public feeding of captive marine mammals in so-
called ``petting'' pool exhibits is undoubtedly less disruptive, it 
still can lead to numerous problems, including obesity, the ingestion 
of foreign objects (which can lead to injury and even death of the 
animal), altered socialization patterns, and injury to the public 
(e.g., being bitten). However, more to the point, feeding captive 
marine mammals leads to a fundamental disconnect in the purported 
educational mission of public display--the classic ``Do as I say, not 
as I do'' syndrome. If feeding marine mammals in captivity is allowed, 
it becomes extremely difficult and confusing for the public to recall 
and follow the prohibition on feeding marine mammals in the wild. The 
signatory groups strongly urge Congress to amend the MMPA to prohibit 
``petting'' pools.
Capture from the Wild
    The MMPA should be amended to prohibit the capture of marine 
mammals from the wild for use in public display facilities. Captive 
populations of marine mammals have been maintained and grown through 
captive breeding, imports, and the retention of non-releasable stranded 
animals. The U.S. public display industry frequently tells the public 
that it has not captured any cetaceans from the wild since 1993. Given 
this successful maintenance of captive populations without removing 
animals from the wild, it is entirely unnecessary for any marine 
mammals to be captured in the wild for the purposes of public display.
Conclusion
    The signatory groups once again thank the Subcommittee Chair for 
allowing our special concerns regarding the sport hunting of polar 
bears and the public display of marine mammals to be submitted for the 
record on the reauthorization of the MMPA. We urge Congress to consider 
our views on these two issues, as we seek to bring all marine mammals 
once again within the truly protective and precautionary embrace of the 
MMPA.
                                 ______
                                 
April 24, 1997

U.S. Fish and Wildlife Service
Office of Management Authority
4401 N. Fairfax Dr., Room 430
Arlington, VA 22203

TRANSMITTED BY FACSIMILE: 703/358-2281

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

    On behalf of the more than 4.5 million members and constituents of 
The Humane Society of the United States (HSUS), I am submitting these 
comments regarding 27 applications received by the U.S. Fish and 
Wildlife Service (the Service) for import permits for sport-hunted 
polar bear trophies from the Northwest Territories, Canada.
    For the record, The HSUS strongly objects to the Service's 
consideration of these permit applications. We believe that the 
Service's final rule is in error and that three of the four statutory 
requirements cannot be met (i.e., Canada's program does not comply with 
the International Agreement on the Conservation of Polar Bears; 
Canada's program is not scientifically sound; and polar bear trophy 
imports will contribute to the illegal trade in polar bear parts--
please see our comments of March 6, August 31, and November 6, 1995). 
We are also aware that Representative Don Young (R-AK) has introduced 
House Joint Resolution 59 seeking to overturn the Service's final rule 
and that a hearing on this matter will be held on April 30, 1997. 
Finally, one or more of several parties may initiate legal action in 
the near future to overturn the Service's final rule. Therefore, given 
the current uncertain status of the final rule, we believe it is 
inappropriate for the Service to consider these permit applications at 
this time.
    However, if the Service processes these permits regardless of the 
uncertain status of the final rule, my comments are as follows: To my 
understanding, Baffin Bay and the Gulf of Boothia populations have been 
deferred for approval by the Service. Therefore, the permit 
applications of Robert Kuykendall (Baffin Bay) and Lee Adam (Gulf of 
Boothia) should be denied on their face. In addition, Mr. Adam's 
application fails to provide the size of the tanned hide, information 
he must provide to answer question #9 on page 2 of the application form 
(without this information, it is impossible to determine if the male 
bear killed by Mr. Adam meets the minimum size restriction to avoid 
having to provide documentation that the bear was not part of a family 
group). I also note that Mr. Adam has failed to answer question #6 on 
page 2 of the application form, although this information is provided 
in the attached Northwest Territories Wildlife Export Permit #7728.
    After examining the remaining 24 applications (apparently one 
application was returned to the applicant), I find that more than half 
(14), for one reason or another, are incomplete or inaccurate. It may 
be that these applicants have since provided information to the Service 
that completes their applications, but it concerns me that the 
applications were published in the Federal Register prior to the 
applicants providing complete and accurate applications to the Service. 
Also, since the applications were distributed to the public in this 
condition, it leaves the public in the position of having incomplete 
paperwork upon which to base its comments (for example, I will not be 
able to evaluate whether the documentation eventually provided by 
several applicants [regarding whether a female bear or male bear under 
six feet was part of a family group] is acceptable).
    In alphabetical order:

LHorst Baier--LDid not answer question #8, page 1
LLarry Bennett--LDid not complete question #8, page 1 (did not provide 
        license or permit number)
    LDid not answer question #10, page 1
    LDid not answer question #9, page 2 (i.e., did not provide size of 
tanned hide in question #3, page 2)
LJerome Bofferding--LDid not indicate a designated port for wildlife in 
        question #6, page 1 (although did indicate Designated Port 
        Exception permit number)
    LDid not answer question #9, page 2 (i.e., did not provide size of 
hide in question #3, page 2)--the Service's attached notice to this 
effect expires on approximately May 10
LDan Fox--LDid not answer question #8, page 1
    LDid not answer question #9, page 2 (i.e., did not provide size of 
tanned hide in question #3, page 2)
LJohn Hoyer--LProvided incorrect information in question #7, page 1 
        (gave Northwest Territories hunting licence number, rather than 
        Federal fish and wildlife license or permit number)
    LDid not complete question #8, page 1 (did not provide license or 
permit number)
    LDid not answer question #9, page 2 (i.e., did not provide 
documentation that the female bear killed was not part of a family 
group)--the Service's attached notice to this effect expires on 
approximately May 10
LJerry Imperial--LProvided invalid information in question #10, page 1 
        (date provided does not correspond to question)
    LDid not answer question #9, page 2 (i.e., did not provide size of 
tanned hide in question #3, page 2)
LCraig Leerberg--LDid not answer question #8, page 1
    LDid not answer question #8, page 2 (the Service's notice, which 
expires approximately May 10, incorrectly requested a response to 
question #9, page 2)--this female bear was hunted before January 1, 
1986 (the applicant did not provide the month in question #5, although 
the attached hunting license indicated the hunt may have occurred in 
March 1983)
LJack Leuenberger--LDid not answer question #10, page 1
    LDid not answer question #9, page 2 (i.e., did not provide 
documentation that the female bear killed was not part of a family 
group)--the Service's attached notice to this effect expires on 
approximately May 10
LLee Lipscomb--LProvided an incorrect answer (``N/A'') to question #9, 
        page 2 (i.e., did not provide documentation that the female 
        bear killed was not part of a family group)--the Service's 
        attached notice to this effect expires on approximately May 10
LTorry Lofgreen--LDid not complete question #8, page 1 (did not provide 
        license or permit number)
    LDid not answer question #9, page 2 (i.e., did not provide size of 
hide in question #3, page 2)
LPerry Segura--LProvided incorrect information in question #7, page 1 
        (gave Northwest Territories hunting licence number, rather than 
        Federal fish and wildlife license or permit number)
LCarl Strawberry--LDid not indicate a designated port for wildlife in 
        question #6, page 1 (provided invalid information)
LRobert Van Horn--LDid not indicate a designated port for wildlife in 
        question #6, page 1
LCharles Whitlow--LDid not answer question #9, page 2 (i.e., did not 
        provide size of tanned hide in question #3, page 2) Of the 
        remaining 10 applications, no obvious errors or incomplete 
        information were noted.
    I would like to note that five of the applications that failed to 
answer question #9, page 2 did not have Service notices to that effect 
attached to them. This appears to be an oversight on the Service's 
part. Failure of the Service to provide these notices means either that 
these applications will be processed exceptionally slowly or that they 
will be improperly processed and possibly approved without ever having 
provided this necessary information.
    I would also like to note that of the three applications that 
provided the requested documentation regarding female bears (in 
response to either questions #8 or #9 on page 2), it is literally 
impossible to evaluate this documentation properly. In each case, an 
official of the Northwest Territories certified that the female bear 
was alone, but whether this certification was based on the certifying 
official's (or other official's) direct observation or the word of the 
applicant or guide is unknown. This is a point The HSUS made in its 
August 31, 1995 comments to the Service on the proposed rule; this 
method of certification is apparently based entirely (and 
inappropriately) on the honor system.
    Again, The HSUS feels the Service published 16 of these 
applications in the Federal Register inappropriately, either because 
they referred to trophies taken from deferred populations or because 
they provided inaccurate, incorrect, or incomplete information. We 
strongly recommend that permit applications not be published in the 
Federal Register until they are complete and accurate, so that only 
complete and accurate applications are provided to the public for 
comment.
    Once again, The HSUS wishes to express our objection to the 
processing of these permit applications at this time. Under no 
circumstances should the applications of R. Kuykendall and L. Adam be 
approved.
    Thank you for the opportunity to comment on this matter.

Sincerely,

Naomi A. Rose, Ph.D.
Marine Mammal Scientist
Wildlife and Habitat Protection
                                 ______
                                 
May 12, 1997

U.S. Fish and Wildlife Service
Office of Management Authority
4401 N. Fairfax Dr., Room 430
Arlington, VA 22203
Attn: Lynn Noonan

TRANSMITTED BY FACSIMILE: 703/358-2281

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

Dear Ms. Noonan:

    Thank you for forwarding the supplemental information provided to 
your office by several permit applicants pursuant to 62 FR 14437. Thank 
you also for the seven permit applications pursuant to 62 FR 17199. I 
believe I am one day late with these comments (in both cases), but 
nevertheless I am submitting them for the record.
    My only comment concerning the supplemental information refers to 
the information provided by Mr. Craig Leerberg, regarding his 1983 
female polar bear trophy. He originally failed to respond to questions 
#8 and #9 on page 2 (I mistakenly commented on April 24 that he had 
only failed to respond to question #8--as your office correctly noted, 
he also failed to respond to question #9). His subsequent submission, a 
letter to you on his personal stationery, stating that the female bear 
was hunted in March 1983 and was alone and not nursing, is not 
sufficient to satisfy the regulations.
    While his hunting license date-of-issue is arguably sufficient to 
satisfy the documentation requirements of question #8 (since it was 
issued on March 1, 1983 and expired on June 30, 1983, the bear was not 
shot in the months of October, November, or December of that year), he 
has not provided any independent verification that the bear was not a 
part of a family group. His personal statement that the bear was alone 
and not nursing is not sufficient. His statement that ``[whether the 
bear was part of a family group or not] was evidently not an issue with 
[the Game Department in Inuvik]'' is completely irrelevant to the 
current requirements under the regulations. Mr. Leerberg must make an 
effort, as have several others, to acquire any records from the Inuvik 
officials that in some way indicate that this bear was alone when shot. 
He must also get their concurrence that the bear was not nursing; his 
statement alone does not satisfy the regulations.
    For the record, this is a perfect example of why the ``honor 
system'' is not adequate to prevent violations of the regulations. I am 
in no position to judge Mr. Leerberg's veracity regarding the 
statements in his April 3 letter to you and neither are you. It is 
troublesome enough that certification from Canadian officials may be 
based merely on the word of the hunter and/or the hunt guide; it is 
certainly unacceptable for the hunter to bypass certification 
altogether merely because he ``[does] not recall'' an official 
recording the circumstances of his hunt.
    As for the permit applications pursuant to 62 FR 17199, I have no 
comments regarding the six applications that were complete. I await 
receipt of the supplemental information to be provided by Mr. David 
Anaman, regarding certification that the female bear he killed was not 
part of a family group.
    Again, I apologize for the tardiness of these comments and I hope 
your office will still consider them. Thank you for the opportunity to 
comment on this matter.

Sincerely,

Naomi A. Rose, Ph.D.
Marine Mammal Scientist
Wildlife and Habitat Protection
                                 ______
                                 
    Mr. Gilchrest. Thank you, Mr. Pallone.
    The Chairman of the full Committee, Mr. Pombo.
    Mr. Pallone. Mr. Chairman, could I ask that the statement 
of our Ranking Member for the full Committee, Mr. Rahall, be 
submitted at this time? I ask unanimous consent.
    Mr. Gilchrest. Without objection.
    [The prepared statement of Mr. Rahall follows:]

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

    Mr. Chairman, long gone are the days of the leviathan portrayed in 
Melville's Moby Dick, when whole towns were built on the wealth that 
whale oil could provide. Long gone are the days when it was morally 
justifiable to hunt a species like the blue whale to within a blink of 
extinction.
    Today, humankind's relationship with the ocean is defined by the 
sense of wonder that whales, dolphins, and other marine mammals inspire 
and by a conviction to protect this natural biodiversity.
    When the Marine Mammal Protection Act (MMPA) was enacted in 1972, 
it was with this vision of protection and precaution. It was to right 
the ecological wrongs wreaked by generations of wanton slaughter driven 
by our collective greed for the products that marine mammals supplied.
    It was to provide a moratorium on the taking of marine mammals, in 
order to maintain and rebuild healthy populations of whales and 
dolphins, seals and sea lions, and other marine mammals, except in 
certain very specific and tightly regulated instances.
    To a noteworthy extent, protection and precaution have paid off. We 
should celebrate that some marine mammal species have recovered to 
estimated pre-harvest levels. But we should not be lulled into a false 
sense of complacency, allowing Flipper and Keiko to survive only in 
animation.
    Many populations, such as North Atlantic right whales and bowhead 
whales in the Arctic, remain endangered. We also cannot ignore that the 
full breadth and intensity of human activity in the ocean, including 
shipping, oil and gas exploration, and military activity, has a 
profound effect on marine mammals, even if we do not seek to kill them 
outright.
    Our nation is at a critical crossroads of how we define our 
relationship to the ocean. The report just released by the Pew 
Commission in June challenges the United States to develop a new ocean 
ethic and to treat the ocean as a public domain that we, as a Congress 
and as a people, hold in trust for future generations. How we re-define 
our relationship to marine mammals is central to establishing this new 
ethic.
    The reauthorization of the MMPA provides us the immediate 
opportunity to preserve and uphold an important precedent. Hundreds of 
years of harvesting the ocean have taught us valuable lessons, one 
being that the ocean is not provided solely for human use, or that 
marine resources are available in infinite abundance. We should cast 
off and discard permanently the idea of consumptive use of marine 
mammals, except in legitimate circumstances for native subsistence.
    We need an MMPA that embraces the success of precautionary 
protection and links it with our enhanced understanding of the ocean 
environment and the magnitude of our disruption of ocean ecosystems.
    We can accomplish this by identifying and mitigating a wider range 
of human activities in the oceans that can harm marine mammals. We 
should critically evaluate activities such as shipping, which 
contribute to the overall level of noise in the ocean and often steer a 
collision course through pods of endangered whales.
    We need to understand and better control how pollution from land 
ends up in the ocean and accumulates in the tissues of marine mammals. 
We must fund basic research on marine mammals from sources other than 
the Navy, to enhance our understanding of marine mammal abundance, 
biology, and ecology and to apply the best available science to our 
management decisions.
    We need to bolster our support for the Marine Mammal Commission and 
for programs such as the Stranding and Entanglement Response Network, 
to ensure that emerging threats to marine mammals can be dealt with 
expeditiously.
    Unfortunately, H.R. 2693, the bill before the Fisheries 
Conservation, Wildlife, and Oceans Subcommittee today, would undercut 
the MMPA's broad mandate for protection. It would allow the Secretary 
alone to grant a general authority for a range of unspecified 
``activities'' that could harass, injure, or even kill a marine mammal. 
It would also revise the definition of ``harassment'' to make it less 
protective of marine mammals in instances that might cause direct 
injury.
    I am certain that Congress can unite in improving the MMPA. All of 
America loves Flipper and Keiko. Whale watching brings $1 billion to 
the global economy each year, and is worth hundreds of millions of 
dollars annually in the United States. Sea World alone nets $12 million 
each year.
    Rather than decimating whale stocks as we did in the 1800s to 
satisfy our greed for their oil and fur, we should strive to maintain 
healthy populations both in the wild and in captivity to benefit both 
the animals themselves and our economy as a whole.
    Some critics might argue for the ``sustainable use'' of marine 
mammals, a concept enshrined for fisheries under the Magnuson-Stevens 
Fisheries Conservation and Management Act.
    But rather than consumptive use at all, I urge a true ``sustainable 
use'' of marine mammals through whale watching, carefully regulated 
public display, enhanced public education and outreach, and robust 
scientific inquiry that would best serve the long-term interests of 
both marine mammals and humankind.
    We should not demote majestic and intelligent marine mammals to the 
status of cold-blooded fish. Few fish have been both the stars of TV 
shows and comrades in combat to U.S. soldiers in foreign countries.
    The Marine Mammal Protection Act has always recognized that 
important fundamental distinction. It will be our challenge to keep 
that perspective foremost in our thoughts as we look to reauthorize and 
modernize this landmark environmental statute.
    Thank you.
                                 ______
                                 
    Mr. Gilchrest. The witnesses this morning will be Dr. 
Rebecca Lent, Deputy Assistant Administrator for Fisheries, 
National Marine Fisheries Service; Mr. Marshall Jones, Deputy 
Director, U.S. Fish and Wildlife Service--we may have some 
questions to you about Nutria. I am not sure if you are going 
to deal with that issue. [Laughter.] Make sure all the funding 
goes to where it is supposed to go. The intent of Congress 
seems to disappear once the bill leaves the Hill.
    Mr. David Cottingham, Executive Director, Marine Mammal 
Commission, welcome. And Dr. Peter Tyack, Conservation 
Biologist, Woods Hole Oceanographic Institution in 
Massachusetts. Thank you, sir. And Dr. Peter Worcester--that is 
just like the county in Maryland. Dr. Peter Worcester, 
Oceanographic Researcher, Scripps Institution of Oceanography, 
University of California at San Diego. Welcome.
    We look forward to your testimony. Dr. Lent, you may begin.

 STATEMENT OF DR. REBECCA LENT, DEPUTY ASSISTANT ADMINISTRATOR 
        FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE

    Dr. Lent. Thank you, Mr. Chairman, members of he 
Subcommittee. I want to commend you and your staff for your 
hard work and dedication to the improvement of marine mammal 
conservation and management, as evidenced in H.R. 2693. My 
testimony today will focus on H.R. 2693 and the 
administration's MMPA bill.
    I also want to focus right up front here on an issue that 
has arisen to the forefront of the reauthorization discussion, 
and that is scientific research permits.
    NOAA Fisheries issues scientific research permits to 
scientists who want to conduct marine mammal and endangered 
species research. Because the topic of permits can be quite 
confusing, I want to point out two distinctions. First, there 
is a difference between permits that are for activities 
directed at marine mammals and incidental take authorizations 
for activities that may incidentally or indirectly affect 
marine mammals, such as seismic exploration or naval training 
exercises.
    Second of all, there is an important difference between 
scientific research permits that pertain to marine mammals that 
are not listed as threatened or endangered under the Endangered 
Species Act, or ESA, and those that are under ESA. Permits and 
general authorizations that deal with non-ESA-listed marine 
mammals, such as bottlenose dolphins, are almost always issued 
in a timely manner and generally are not controversial. We 
strongly feel that these types of permits do not present 
problems that need to be addressed during reauthorization.
    The challenges we face in recent years with issuing 
scientific permits are related to endangered marine mammals, 
such as right whales and Stellar sea lions. For ESA-listed 
species, we have to meet our statutory obligations under ESA by 
doing Section 7 analyses, or biological opinions. In addition, 
we have to look at the potential impacts of the research under 
the National Environmental Policy Act, or NEPA. In the future, 
we plan to develop programmatic NEPA and ESA documents which we 
hope will help front-load these processes and give us some more 
streamlined permitting process. But we don't see any need to 
make changes on the MMPA scientific research permitting 
process, because it is working well.
    Let me turn to the definition of harassment. We are pleased 
that H.R. 2693 recognizes the need to clarify that definition 
and to focus on the impacts that are biologically significant. 
We have had difficulties at NOAA Fisheries in interpreting, 
implementing, and enforcing the current harassment definition, 
and we are seeking to address those problems in our bill. We 
support many of the changes in H.R. 2693, such as deleting the 
term ``pursuit, torment, or annoyance,'' and the clarification 
that harassment can be any act; and also, addressing activities 
that are directed at marine mammals.
    Regarding the changes that H.R. 2693 would make to Level A 
harassment, we would like to work with you to get clarification 
on the term ``probability to injure.'' We are concerned that 
``probability'' may imply that a particular outcome is more 
likely to occur than not. This might create too high of a 
standard for--a threshold to get Level A harassment, and make 
it difficult for us to regulate certain acts.
    Again, we support the intent of the bill's proposed changes 
to the current definition of Level B harassment, but we note 
that we are concerned about ``potential to disturb.''
    Regarding incidental--
    Mr. Gilchrest. Dr. Lent, did you say you were OK with Level 
B harassment in H.R. 2693?
    Dr. Lent. We support the intent of the bill's proposed 
changes to the current definition of Level B harassment. We 
appreciate the fact, Mr. Chairman, that you started off by 
saying this is a starting point and issues for discussion. We 
look forward to working with you on that.
    Incidental takings of marine mammals, we support H.R. 
2693's deletion of the terms ``small numbers'' and ``specified 
geographic region.'' It is not going to change the applicant's 
requirements to show that their activities are having a 
negligible impact, and it won't change our evaluation of 
applications based on the biological significance of the 
action.
    Regarding take reduction teams and take reduction plans, we 
support a number of the marine mammal bycatch provisions in 
H.R. 2693, including the expansion of Section 118 requirements 
to allow consideration of all important fishery-related 
consequences of marine mammal bycatch, or sources of marine 
bycatch.
    We do have concerns about provisions that might limit our 
authority to monitor bycatch in certain fisheries. We also are 
concerned about mandatory Federal Government representation on 
take reduction teams, and potentially requiring reconvening 
take reduction teams after the plan development is complete.
    There is more detail in my written testimony, but I want to 
note that we also support--NOAA also supports a number of other 
provisions in H.R. 2693, including those that deal with 
prohibiting the release of captive marine mammals without prior 
authorization, language to improve marine mammal stranding and 
entanglement response. However, we do have concerns about the 
Section 14 language regarding the general authorization 
process. And again, we would appreciate an opportunity to work 
with you on this language.
    Additionally, there are some provisions in the 
administration's bill that were not addressed in H.R. 2693. We 
want to draw your attention to those quickly, including other 
marine mammal bycatch reduction initiatives, improving harvest 
management agreements, enhancing enforcement, dealing with ship 
strikes of large whales, prohibiting traveling cetacean 
exhibits, and correcting inconsistencies in the export 
prohibition language.
    In closing, I would like to note that H.R. 2693 takes many 
important steps toward improving the policies that cover marine 
mammal conservation, and we look forward to working with you.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Lent follows:]

   Statement of Dr. Rebecca Lent, Deputy Assistant Administrator for 
  Fisheries, National Marine Fisheries Service, National Oceanic and 
        Atmospheric Administration, U.S. Department of Commerce

    Mr. Chairman and Members of the Subcommittee, I am Dr. Rebecca 
Lent, Deputy Assistant Administrator for Regulatory Programs at the 
National Oceanic and Atmospheric Administration (NOAA). Thank you for 
inviting me to testify before you today on H.R. 2693 and other Marine 
Mammal Protection Act (MMPA) reauthorization issues. Additionally, 
special thanks to you and your staff for your hard work and dedication 
to the improvement of marine mammal conservation and management 
policies in the development of H.R. 2693.
    NOAA Fisheries administers the MMPA, the principal Federal 
legislation that guides marine mammal protection and conservation 
policy in U.S. waters, in conjunction with the U.S. Fish and Wildlife 
Service (FWS). The MMPA provides NOAA with conservation and management 
responsibility for more than 140 stocks of whales, dolphins, porpoises, 
seals, and sea lions.
    The Administration strongly supports the conservation and 
management principles embodied in the MMPA and the need to reauthorize 
this important legislation. As you know, the Department of Commerce and 
NOAA have worked closely over the past three years with the Department 
of the Interior, Department of Defense, Marine Mammal Commission, and 
others to develop a sound Administration proposal to reauthorize the 
MMPA. In February 2003, we transmitted this Administration bill to 
Congress. My testimony today includes NOAA Fisheries' views on H.R. 
2693, as well as a description of some elements of the Administration's 
MMPA reauthorization bill that we hope the Subcommittee will take into 
further consideration. I would like to begin my testimony today, 
however, by discussing an emerging issue that has recently risen to the 
forefront of the MMPA reauthorization discussion--that of scientific 
research permits and the process of issuing those permits.
Scientific Research Permitting Process
    NOAA Fisheries is a science-based agency. We conduct marine mammal 
research and stock assessments at all of our regional science centers 
and we help fund and support marine mammal research projects conducted 
by many scientists outside the agency. Our Marine Mammal Permits, 
Conservation and Education Division is part of our headquarters Office 
of Protected Resources. This Division issues scientific research 
permits to conduct marine mammal and endangered species research by all 
scientists.
    There is a distinction between permits that are for activities 
directed at marine mammals and incidental take authorizations for 
activities that may indirectly or incidentally affect marine mammals 
through activities such as seismic exploration or naval training 
exercises. Sections 101 and 104 of the MMPA lay out different 
authorization processes for activities involving incidental and 
directed impacts. It is logical to handle these processes separately, 
since the intent and type of impact associated with incidental vs. 
directed activities is different. Activities that are directed at 
marine mammals involving scientific research, for instance, by their 
nature are repetitive. Incidental activities involve indirect, 
unavoidable impacts on marine mammals that often must be looked at on a 
different scale. We are also working to improve the information 
underlying such permits. For example, we have held several meetings 
with stakeholders to ascertain how marine mammal stock assessments can 
be improved to meet regulatory compliance needs.
    It is also very important to recognize the distinction between 
scientific research permits that pertain to marine mammals that are not 
listed as threatened or endangered under the Endangered Species Act 
(ESA) and those permits that address ESA-listed species. Permits and 
General Authorizations that deal with non-ESA-listed marine mammals, 
such as bottlenose dolphins, are almost always issued in a timely 
manner and are generally not controversial. We feel strongly that these 
permits present no problems that need to be addressed during 
reauthorization.
    The challenges that we have had in recent years with issuing 
scientific research permits are related to endangered marine mammals, 
such as right whales, other large whales, and Steller sea lions. For 
these ESA-listed species, we need to meet our statutory obligations 
under the ESA by conducting ESA Section 7 analyses. In addition, the 
potential impacts of the research are analyzed under the National 
Environmental Policy Act (NEPA). While we conduct NEPA analyses for 
non-listed species, the analyses and corresponding documents are more 
complex when the species in question is listed under the Endangered 
Species Act. In order to consider the cumulative and synergistic 
impacts of all the research conducted on these species, it might be 
necessary to prepare an Environmental Assessment or full Environmental 
Impact Statement. This has presented the agency with significant 
challenges.
    For example, there has been much criticism of the time it has taken 
to issue a right whale research permit for the New England Aquarium. 
NOAA Fisheries must review research permits involving right whales with 
particular scrutiny because these animals are critically endangered. In 
addition to the New England Aquarium's proposed research, there have 
been a number of other right whale research proposals that have been 
submitted to NOAA Fisheries, some of which contained a number of 
controversial research activities. The Permits Division staff have been 
working closely with NOAA Fisheries marine mammal scientists and with 
the Marine Mammal Commission to determine how best to address these 
issues. The intent is to complete all the necessary analyses under 
Section 7 and NEPA, so that permit decisions can be made in advance of 
the upcoming fall/winter field season in the Atlantic.
    In the interim, NOAA Fisheries has made arrangements to accommodate 
most of the New England Aquarium's research in U.S. waters under 
existing scientific research permits such that field opportunities are 
not lost. In addition, this and other research critical to the 
protection of right whales, including disentanglement efforts and 
aerial surveys needed for the Early Warning System, have been 
continuing under existing permits.
    In addition, on more than one occasion, we have been able to 
expedite scientific research applications for ESA-listed species of 
marine mammals on very short notice when valuable research 
opportunities would otherwise be lost. For instance, we recently 
processed an application for a study involving acoustic research on 
endangered sperm whales within 42 days (including the statutorily 
mandated 30-day public comment period) of receipt of the complete 
application, well under the typical 225-day timeframe allotted for 
processing this type of permit.
    In summary, we face significant challenges in addressing endangered 
marine mammal research permits because of the sometimes complex and 
time-consuming ESA and NEPA requirements and the importance of the 
analysis when the research, which sometimes involves direct contact 
with the animal, is conducted on highly endangered animals. We attempt 
to address these requirements as thoroughly as possible to ensure that 
we can use information from the analyses as the basis for sound 
decision-making, as well as to prevent legal vulnerabilities that may 
further delay the permitting process. Additionally, addressing these 
requirements enables us to integrate public input into our analyses. In 
the future, we plan to develop programmatic NEPA and ESA documents that 
would help front-load these processes, and allow a much more 
streamlined permitting process. However, we see no need to make changes 
in the MMPA scientific research permitting process, because that 
process works well.
    NOAA Fisheries has been criticized over the time it takes to 
process requests for authorizations to take marine mammals incidental 
to activities they are undertaking. We believe, however, that we have a 
good record of working with a varied group of interests, including 
seismic operators conducting oil and gas-related activities, military 
agencies, state transportation agencies, and others, to authorize 
incidental taking, when they come to us early in their project 
planning. The Act establishes various standards that must be met, which 
require a variety of findings to be made. When the marine mammals to be 
taken are listed under the Endangered Species Act, that law applies as 
well. In each case, we initiate public review and some level of NEPA 
analysis. For projects that are likely to take marine mammals, we 
encourage potential applicants to inquire early about our procedures 
for authorizing incidental takings as they are planning these projects.
H.R. 2693
Definition of Harassment
    NOAA Fisheries is pleased that the need to clarify the definition 
of harassment has been addressed in H.R. 2693. We have experienced 
difficulties interpreting, implementing, and enforcing the current 
harassment definition and have sought to address these problems in the 
Administration's reauthorization bill in a similar manner as H.R. 2693.
    The current definition of harassment impedes NOAA's ability to 
adequately enforce the MMPA's take provisions. As the definition is 
currently written, only those acts involving ``pursuit, torment, or 
annoyance,'' terms that are undefined in the MMPA, can be addressed. 
Additionally, these terms in the current definition establish a 
difficult two-tiered standard that the agency must meet before it can 
prosecute anyone who takes a marine mammal by harassment. First, the 
agency must prove that an individual act was one of ``pursuit, torment, 
or annoyance.'' Then, the agency must prove that the act has the 
potential either to injure or disturb a marine mammal. We support H.R. 
2693's deletion of the terms ``pursuit, torment, or annoyance'' in the 
current definition, eliminating the two-tiered standard. We also 
support the clarification that harassment can be ``any act.'' The 
Administration bill proposes the same change, and we feel this will aid 
enforcement of the harassment standard.
    We support H.R. 2693's inclusion of the second tier of the Level B 
harassment definition similar to the Administration's reauthorization 
bill, which makes explicit that activities that are directed at 
individual or groups of marine mammals that are likely to disrupt 
important marine mammal behaviors constitute harassment. Members of the 
public and commercial operators who intentionally interact with wild 
marine mammals either by boat, in the water, or on land can disturb the 
natural behavior of the animals. They can also do a great disservice to 
these animals over time by habituating them to humans and vessels. In 
addition, humans who attempt to closely approach, chase, swim with, or 
touch wild marine mammals place themselves at risk, since wild animals 
are unpredictable and can inflict serious injury if threatened or 
afraid.
    We also conceptually support the proposed changes H.R. 2693 would 
make to Level A and B harassment. The current definition of harassment 
is broad and lacks precision, thereby failing to create a clear 
threshold for acts that do and do not constitute harassment. As a 
result, it is difficult for the agency to prioritize its resources to 
deal with the types of harassment that have the most negative effects 
on marine mammals. With regard to the changes H.R. 2693 would make to 
Level A harassment, we ask for clarification of the intent of the term 
``probability to injure.'' Specifically, we are concerned that since 
``probability'' often implies that a particular outcome is more likely 
to occur than not, this standard may create too high a threshold for an 
act to constitute Level A harassment and make it difficult for the 
agency to regulate some acts that may have important negative impacts 
on marine mammals. We support the intent of the bill's proposed changes 
to the current definition of Level B harassment. These changes will 
help NOAA Fisheries and the regulated community focus on activities 
that result in biologically significant, harmful effects rather than 
those activities that result in de minimus impacts on marine mammals. 
Overall, the proposed definition of harassment contained in H.R. 2693 
is similar in intent to the one in the Administration's proposal. Both 
proposed definitions will result in more meaningful protections for 
marine mammals and apply a clearer standard of harassment to the entire 
regulatory community.
    We are concerned about the ``potential to disturb'' threshold set 
forth in the second clause of the proposed harassment definition. The 
agencies that developed the Administration's proposed definition 
rejected this language as being overly broad, inasmuch as it would 
include even a very remote possibility that disturbance might occur. We 
believe that the standard included in the Administration's proposal, 
``disturbs or is likely to disturb,'' provides a more appropriate 
delimitation concerning what activities should be covered under this 
part of the harassment definition.
Incidental Takings of Marine Mammals
    H.R. 2693 would amend several parts of the current legislative 
requirements that authorize incidental take (Section 101(a)(5) of the 
MMPA). Incidental takes are those that are unintentional and may occur 
during otherwise lawful activities.
    Under the present scheme, NOAA Fisheries is directed to authorize 
the takes of small numbers of marine mammals if the takings will have 
no more than a negligible impact on those marine mammal species or 
stocks, and will not have an unmitigable adverse impact on subsistence 
harvests of these species. Through regulation, NOAA Fisheries has 
defined ``negligible impact'' as ``an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.''
    H.R. 2693 would delete the ``small numbers'' standard in Section 
101(a)(5) of the MMPA and would no longer require that activities 
authorized under this section be limited to a ``specified geographic 
region.'' These proposed amendments do not change the applicant's 
requirement of having to show that their activities are having a 
negligible impact on the marine mammal species and populations before 
they can be authorized. Nor do they change the requirement for the 
applicant to demonstrate that their activities will not have an 
unmitigable adverse impact on the availability of such species or 
stocks for subsistence uses pursuant to the MMPA. These analyses are 
the key elements to maintaining the health of marine mammal species and 
are the premise for incidental take authorizations under the MMPA. 
Applicants seeking incidental take authorizations for their activities 
will still have to submit sufficient information to provide for 
compliance with all requirements of the ESA, NEPA, and the 
Administrative Procedure Act (APA), where they apply.
    Thus, to make the requisite negligible impact determination and to 
comply with other environmental laws, NOAA Fisheries would still have 
to know what activities would be taking place, as well as when and 
where they would occur under the language proposed by H.R. 2693. 
Incidental take applications are currently evaluated based on the 
biological significance of the effect that their actions would have on 
marine mammals. This will not change under the amendments proposed in 
H.R. 2693. NOAA Fisheries supports these amendments.
General Authorization Process
    NOAA Fisheries appreciates the attention towards the authorization 
process for activities involving incidental takes in Section 14 of H.R. 
2693. Nonetheless, we have several questions and concerns about the 
effect of this section on the incidental take authorization process. 
Specifically, it is not clear what is the intended interplay between 
this section and the bill's proposed amendments to the harassment 
definition. In addition, it is not clear what is the intended interplay 
between this subsection and subsections related to incidental take and 
harassment authorizations. It is also not clear how NOAA Fisheries 
could make the requisite negligible impact determinations and comply 
with other laws such as NEPA and the APA within the timelines provided. 
We would like to request follow-up discussions with you and your staff 
to better understand the intent behind this section of the bill and its 
effect on implementation before we provide further comment on these 
amendments.
Take Reduction Plans
    The incidental take of marine mammals in the course of fishing 
operations continues to be a large source of marine mammal mortality 
and serious injury. The 1994 amendments to the MMPA outlined an 
effective approach to monitoring and addressing the incidental take of 
marine mammals by commercial fisheries. NOAA Fisheries appreciates the 
steps that H.R. 2693 takes toward improving the approach to marine 
mammal bycatch reduction efforts.
Expansion of Sec. 118 Requirements to Allow Agency to Address All 
        Important Sources of Marine Mammal Bycatch
    The Administration bill contains several amendments aimed at better 
managing and monitoring marine mammal bycatch. For example, the 
Administration bill would expand the Section 118 requirements, which 
outline a program for monitoring, tracking, and reducing marine mammal 
bycatch in commercial fisheries, to non-commercial fisheries that 
result in frequent or occasional incidental mortality and serious 
injury of marine mammals. Some non-commercial fisheries, including 
recreational fisheries, use gear that is identical to that used by 
commercial fishermen and deploy it in the same manner. As a result, 
they can be an important source of incidental mortality and serious 
injury of marine mammals. Nonetheless, the MMPA currently only 
authorizes the agency to place observers and use the take reduction 
process outlined in Section 118 of the Act to monitor and address 
marine mammal bycatch resulting from commercial fisheries. We are 
pleased that H.R. 2693 contains amendments similar to those proposed in 
the Administration bill that would allow NOAA Fisheries to address all 
important fishery-related sources of marine mammal bycatch and to treat 
different fishing sectors more equitably.
Increased Flexibility to Establish Take Reduction Plans, Prepare Take 
        Reduction Plans, Meet Bycatch Reduction Goals
    H.R. 2693 would give NOAA Fisheries increased flexibility in the 
time allotted to convene a Take Reduction Team (TRT) following issuance 
of final Stock Assessment Reports. It would also increase the time 
within which Take Reduction Plans (TRPs) must meet the short-term goal 
of Section 118--reducing marine mammal mortalities and serious injuries 
in the course of fishing operations to levels below a marine mammal 
stock's potential biological removal (PBR)--from 6 months to 9 months. 
Additionally, the bill would give TRTs additional time to submit draft 
TRPs to NOAA Fisheries, and the agency more time to prepare and publish 
proposed and final regulations implementing TRPs. We support these 
amendments. The amended deadlines are more achievable than the current 
statutory deadlines and they would not compromise efforts to conserve 
marine mammal stocks in a substantial way. In addition, the proposed 
statutory deadlines would make it easier for the agency to comply with 
other statutory requirements, such as NEPA and ESA.
Limited Authority to Monitor Bycatch in Some Fisheries
    We do have a few concerns about the effect of the proposed language 
in Section 6 of H.R. 2693. For example, the portions of H.R. 2693 that 
amend the portion of the MMPA dealing with monitoring of incidental 
takes would limit the agency's ability to monitor Category III 
fisheries, those that have a remote likelihood of or no known 
incidental mortality of marine mammals. Several fisheries currently 
listed as Category III have historically taken marine mammals, or are 
very close to the threshold between Category III and Category II. Thus, 
it is important for NOAA Fisheries to have the ability to continue 
monitoring marine mammal bycatch in these fisheries at least on some 
basis to ensure that takes are kept at low levels. Additionally, there 
may be some unintended effects in other parts of this section that 
could result from different terms describing the types of fisheries in 
conforming amendments to this section. NOAA Fisheries is also concerned 
with the compressed timeline for us to develop new information for any 
necessary changes to the list of fisheries under this section.
Required Representation on Take Reduction Teams
    H.R. 2693 would require NOAA Fisheries staff with specific 
responsibilities or expertise to serve as formal members of TRTs. While 
it is useful to have such expertise available to the TRT, NOAA 
Fisheries does not feel it is necessary to require in the statute such 
representation on TRTs for a number of reasons. First, the agency 
already has the authority and flexibility to place representatives of 
Federal agencies, including NOAA Fisheries, on take reduction teams 
when necessary. Second, TRTs as currently constructed offer a unique 
opportunity for public stakeholders and other entities to advise NOAA 
Fisheries on ways to address incidental take of marine mammals. Third, 
NOAA General Counsel, and NOAA Fisheries Regional Administrator 
representatives, scientists, and enforcement specialists are already 
actively involved in the take reduction plan development process and 
routinely attend TRT meetings, offering their expertise as needed. 
Requiring their membership on TRTs could pose potential problems to the 
viability of the process if personnel and resources are limited. Rather 
than making their membership on TRTs a strict legal requirement, we 
recommend changing H.R. 2693 to simply encourage that such staff be 
present and active in TRT meetings, which is already the case. If the 
Committee does not feel that the current practice has produced the 
needed level of technical expertise available to the TRT, we would be 
happy to work with you to resolve this issue.
Requirement to Reconvene TRT after Take Reduction Plan Development
    H.R. 2693 would require the Secretary to reconvene the TRT and 
explain differences between draft and final Take Reduction Plans (TRPs) 
before publishing any TRP that is different from the draft plan 
proposed by the TRT. NOAA Fisheries believes that it is important to 
conduct the TRP development process in as open a manner as possible, 
however the proposed language in H.R. 2693 is unnecessarily 
restrictive, as it could require the agency to reconvene the TRT 
regardless of the degree of change between the draft and proposed 
plans. NOAA Fisheries already provides the TRT all the scientific and 
other information used to develop the final regulations implementing a 
TRP throughout the process. Additionally, we actively encourage TRT 
members to comment on the proposed regulations to implement the TRT, 
and will often hold meetings during the public comment period to alert 
TRT members to the content of the final TRP.
    Since TRTs do not submit their recommendations in regulatory form, 
some alteration is inevitable during this process. While it is possible 
that changes may be substantial, the vast majority of changes made to a 
TRT's recommendations have historically been technical in nature, and 
therefore, relatively minor. Under H.R. 2693, NOAA Fisheries would be 
required to reconvene a TRT even for minor or trivial changes to a TRP. 
Such a requirement could lead to unnecessary delays in finalizing and 
implementing a TRP, and unnecessary expense. NOAA Fisheries recommends 
altering this section to give the agency the flexibility to either 
reconvene, or otherwise consult with, the TRT regarding changes to the 
TRP during the public comment period soliciting comments on the 
proposed TRP. This would allow the agency to choose the most suitable 
type of communication with the TRT based on the nature of changes 
between draft and proposed TRPs, and would allow us to address TRT 
concerns with potential changes before the proposed TRP becomes final. 
Alternatively, the Subcommittee may wish to qualify what degree of 
change would require NOAA Fisheries to reconvene the TRT.
Pinniped Research
    H.R. 2693 would require NOAA Fisheries to initiate a research 
program to investigate non-lethal methods to remove or control nuisance 
pinnipeds. We agree that such a research program would be beneficial. 
NOAA Fisheries issued a Report to Congress in 1999 entitled, Impacts of 
California Sea Lions and Pacific Harbor Seals on Salmonids and West 
Coast Ecosystems. Among other things, that study concluded that, 
``[T]here is a pressing need for research on the development and 
evaluation of deterrent devices and further exploration of other non-
lethal removal measures....'' While we are pleased that certain stocks 
of marine mammals are healthy, we recognize the problems that 
increasing pinniped populations pose, especially on the West Coast.
Captive Release Prohibition
    NOAA Fisheries supports H.R. 2693's amendment clarifying that it is 
unlawful to release any captive marine mammal without prior 
authorization, with the understanding that it should not involve 
releases from temporary captivity or holding during permitted research; 
releases related to strandings; releases or disentanglements from 
fishing gear or line that are covered under other authorities of the 
MMPA; or the temporary release of marine mammals, or the progeny of 
marine mammals, maintained by the Department of Defense for military 
and research purposes if the animals involved are maintained under the 
authority of 10 U.S.C. Sec. 7524. Within the scientific community, the 
release of marine mammals held in captivity for extended periods of 
time is regarded as potentially harmful to both the animals released, 
as well as the wild populations they encounter. Fundamental questions 
remain as to the ability of long-captive marine mammals to forage 
successfully, avoid predators, and integrate with wild populations. 
Unauthorized releases pose serious risks of disease transmission, 
inappropriate genetic exchanges, and disruption of critical behavioral 
patterns and social structures in wild populations. NOAA Fisheries 
supports this proposed statutory change, and notes that the 
Administration bill contains a similar amendment.
Stranding and Entanglement Response
    NOAA Fisheries scientists must often respond immediately to marine 
mammal stranding and entanglement events to attempt to rescue and 
rehabilitate animals in jeopardy. These events provide the agency with 
opportunities to save individual animals, as well as to conduct close-
up research on animal behavior, biology, and physiology. The MMPA 
currently provides for a comprehensive program to address stranded 
marine mammals, but does not specifically give NOAA Fisheries the 
authority to address marine mammals that have become victims of 
entanglement in fishing gear or other materials. NOAA Fisheries 
supports amendments contained in H.R. 2693 that would add a definition 
of entanglement to the Act and would require NOAA Fisheries to collect 
information on rescue and rehabilitation of entangled marine mammals in 
addition to stranded animals. We also support amendments to expressly 
enable the Secretary to enter into agreements with individuals to 
respond to entangled marine mammals in addition to stranded marine 
mammals. The Administration bill includes similar amendments, which 
will enhance stranding and entanglement response efforts.
Limited Authority to Export Marine Mammal Products
    The 1994 MMPA amendments authorized imports of marine mammal 
products in conjunction with travel outside the United States by a U.S. 
citizen, or for purposes of cultural exchange between Native 
inhabitants of Russia, Canada, or Greenland and Alaska Natives. 
However, the provision did not accommodate corresponding exports. We 
support the proposed amendment in Section 4 of H.R. 2693 that would 
clarify that exports, as well as imports, are permissible under the 
MMPA subject to certain conditions. We suggest the bill clarify that 
exports shall be limited to noncommercial purposes in conjunction with 
travel outside the United States. Additionally, we note and ask the 
Subcommittee to consider that other sections of the MMPA could also be 
affected by this proposed change including, but not limited to, the 
legal sale of handicrafts sold by Native Alaskans intrastate but not 
allowed for export. The Administration's proposal contains technical 
amendments that ensure consistency throughout the statute. We stand 
ready to work with the Subcommittee on these and other issues relating 
to Section 4 of the bill.
Other MMPA Reauthorization Issues
    NOAA Fisheries encourages the Subcommittee to consider several 
additional important reauthorization issues contained in the 
Administration bill. Each of these areas is described below.
Other Marine Mammal Bycatch Reduction Initiatives
    Again, we support amendments in H.R. 2693 that will allow the 
agency to address marine mammal bycatch from all important fishery 
sources. We request that other bycatch reduction initiatives that are 
contained in the Administration bill are considered, in particular, the 
following amendments: 1) Section 409, which aims to improve information 
on marine mammal bycatch by directing the agency to explore new 
technologies to provide statistically reliable data on marine mammal 
bycatch levels; 2) Section 516, which directs the Secretary of Commerce 
to undertake a research and development program to encourage 
development of fishing gears and methods that reduce marine mammal 
bycatch; and 3) Section 402(f), which requires NOAA Fisheries to 
include technical liaisons with expertise in commercial fishing 
practices as members of take reduction teams (TRTs).
Harvest Management Agreements
    The 1994 MMPA amendments gave NOAA Fisheries and the FWS authority 
to enter into cooperative agreements with Alaska Native Tribes or 
Tribally Authorized organizations to conserve marine mammals and co-
manage subsistence use by Alaska Natives. These amendments provided a 
great beginning and the program has yielded some successes, evidenced 
by the agreements that we have reached to 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. Additionally, the other provisions 
of the Act enable effective regulation of subsistence harvest only 
after designation of a marine mammal stock as depleted. The 
Administration bill would authorize co-management partners to develop a 
management plan through which cooperative agreements could be enforced. 
Thus, it would enable the parties to effectively manage subsistence 
harvest prior to a depletion finding, and ensure the greatest 
conservation benefit to the marine mammal stock.
Enhancing Enforcement
    While several sections of the MMPA have been updated since the Act 
was first passed in 1972, some areas remain extremely outdated. One 
such area is the penalties that may be imposed for violations of the 
MMPA. Currently, individuals who violate the MMPA are subject to civil 
penalties of up to $10,000 and criminal fines of up to $20,000. These 
penalties have remained unchanged since 1972. While these levels may be 
appropriate in some instances, they have proven grossly inadequate in 
others, undermining effective enforcement of the Act. To enhance 
enforcement of the Act, the Administration bill would authorize the 
Secretary to impose a civil penalty of up to $50,000 for each 
violation. Fines of up to $100,000 for each criminal violation would 
also be available in suitable cases.
    The Administration bill would also aid enforcement efforts by 
explicitly stating that individuals who interfere with on-board 
investigations by enforcement agents or submit false information are in 
violation of the MMPA. In addition, the Administration bill would 
expand enforcement capabilities by directing the Secretary to take 
steps to enter into cooperative enforcement agreements with states.
Ship Strikes
    Ship strikes continue to be a leading source of mortality of the 
critically endangered North Atlantic right whale and other large 
whales. Between 1970 and 2000, there were 48 known right whale 
mortalities, of which 16 were determined to be due to ship strikes. 
This number may be significantly higher, inasmuch as we were unable to 
attribute a cause to 13 other right whale mortalities known to have 
occurred during this period. The Administration bill would authorize 
the Secretary to use the various authorities available under the MMPA 
to reduce the occurrence of ship strikes of whales and to encourage the 
development of methods to avoid ship strikes.
Traveling Exhibits
    We remain concerned about the risks posed to cetaceans by traveling 
exhibits. Unlike some marine mammals, such as seals and sea lions, 
which spend time in both aquatic and terrestrial environments, 
cetaceans must remain buoyant at all times. Therefore, their health and 
survival depends heavily on having a continuously clean and safe 
aquatic environment, conditions that are difficult to maintain when 
transport is frequent. Because transporting cetaceans is difficult and 
risky, traveling exhibits would place these animals under enormous 
stress. The Administration bill would reinstate the ban on traveling 
exhibits for cetaceans, originally instituted in the mid-1970s.
Export Prohibition
    As part of a package of permit-related amendments, the 1994 MMPA 
amendments added a prohibition on exporting marine mammals. However, 
the language of this prohibition has created some difficulties in 
enforcement and inconsistencies with other provisions of the MMPA, 
especially provisions related to permits. Therefore, the Administration 
bill would revise the export prohibition and make corresponding changes 
to other provisions of the MMPA to clearly identify those instances 
when export, transport, sale, or purchase of a marine mammal or marine 
mammal product is prohibited or may be authorized.
Conclusion
    Reauthorization of the MMPA provides an important opportunity to 
further strengthen efforts to conserve and recover marine mammals. H.R. 
2693 takes many important steps toward improving the policies that 
govern marine mammal conservation and recovery and I thank you and your 
staffs again for all your hard work and dedication to these important 
issues. Additionally, my staff and I look forward to future 
coordination with you and interested members of the public to meet the 
challenges that face us in better protecting marine mammals, while 
balancing human needs, throughout the reauthorization process.
    This concludes my testimony. Thank you again for the opportunity to 
testify before your Subcommittee today. I would be happy to answer any 
questions you may have on H.R. 2693, the Administration's MMPA 
reauthorization bill, or any other related matters.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Dr. Lent.
    Mr. Marshall Jones.

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

    Mr. Jones. Thank you, Mr. Chairman, Mr. Pallone, and Mr. 
Chairman, for giving us this opportunity to testify today on 
reauthorization of the Marine Mammal Protection Act.
    As you have heard, Mr. Chairman, the administration 
strongly supports reauthorizing the MMPA and we very much 
appreciate your continued leadership in the effort to do this 
with the introduction of H.R. 2693. Today I would like to 
comment on some of the provisions of H.R. 2693 which are of 
most importance to us in the field and also to say few words 
about some of the provisions of the administration's 
reauthorization proposal which are not included in H.R. 2693.
    I will start with Section 4 of H.R. 2693, which addresses 
the limited authority to export marine mammal products. We 
appreciate your initiative to address this. We do have some 
technical issues which we would like to discuss with you and 
your staff to ensure that there is consistency throughout the 
act.
    Mr. Chairman, the marine mammal act, in my experience, is 
one of the most complicated pieces of legislation that we deal 
with. And getting all of the sections to line up just right is 
kind of like trying to line up the lemons on the slot machine 
sometimes, I think. And so we want to make sure that we can get 
the best possible dialog to help make sure that the regulated 
public and everyone knows exactly what is and is not 
prohibited, what is authorized under the permit provisions, and 
have all that streamlined.
    Mr. Gilchrest. I hope our process is a little more 
sophisticated than the randomness of a slot machine.
    Mr. Jones. Much more sophisticated, Mr. Chairman.
    Secondly, polar bear permits. As we stated in previous 
testimony, in general we are opposed to legislative exemptions 
to allow importation of sport hunter trophies outside of 
established regulations. In this case, however, we fully agree 
with the proposed amendment, which would change the date and 
allow the importation of polar bear trophies legally taken in 
Canada during the period between enactment of the MMPA 
amendments in 1994 and the adoption of the final Fish and 
Wildlife Service's regulations in 1997. We understand that we 
were part of the process which created confusion on the part of 
hunters who legitimately took trophies in Canada, and we be we 
should make it possible for those trophies to come in. Then we 
will have a clean break and we can proceed with our regular 
process under our existing regulations for all future trophy 
imports.
    We also support the proposed amendment to Section 104, 
which would remove the requirement to publish two notices in 
the Federal Register regarding each polar bear permit--trophy 
permit application. We have never received a single public 
comment in response to any of the Federal Register's notices 
that we publish, either about the receipt of the applications 
or about the issuance or denial of the permits.
    Then, Mr. Chairman, regarding Section 13, as you heard from 
Dr. Lent, the definition of harassment. The administration's 
goal is to provide a definition that is more enforceable, that 
would provide a greater notice and predictability to the 
regulated community by presenting a clear threshold for what 
activities do or do not constitute harassment, without 
compromising the conservation of marine mammals. Mr. Chairman, 
we appreciate your efforts to address these difficulties within 
the existing definition, but like NOAA Fisheries, we do have 
some questions in our own mind about exactly how the semantics 
of the definitions match up, and we would welcome the 
opportunity to work with you and your staff to develop a 
definition that meets our mutual goals.
    Next, Mr. Chairman, regarding Section 14 on incidental 
takings of marine mammals. Section 14 is consistent with the 
administration's Readiness and Range Preservation Initiative, 
and we support ensuring that there is a single standard for 
incidental take of all marine mammals. And we note, Mr. 
Chairman, your comment that that is, indeed, the jurisdiction 
of this Committee. Both the RRPI and H.R. 2693 retain the 
negligible-impact standard, which we believe is a key to 
ensuring that authorized take has a minimal effect on all of 
these species.
    Now, Mr. Chairman, very briefly, regarding the 
administration's bill. The administration's bill includes a 
provision for development of harvest management agreements with 
Alaska Native organizations. We believe that is a very 
important provision which will enhance the conservation of 
marine mammals and help Native organizations take more 
responsibility for being a partner with us in that process.
    We also would call to your attention, Mr. Chairman, the 
provisions in the administration bill which would improve the 
collection of information about sea otters by requiring the 
Secretary of Commerce to include sea otters in the list of 
fisheries published under Section 118; and an amendment in 
Section 110 to reauthorize research grants.
    In closing, Mr. Chairman, we thank you again for having 
this opportunity. We want in particular to express our 
appreciation to you and to all of those who have worked with 
us, including, particularly, the Alaska Native community and 
the effort that they are making. And we believe that working 
together, we can achieve a meaningful and constructive 
reauthorization of the Marine Mammal Protection Act in this 
session of Congress.
    I would be happy to answer any questions you may have, Mr. 
Chairman.
    [The prepared statement of Mr. Jones follows:]

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

    Mr. Chairman and Members of the Subcommittee, I thank you for the 
opportunity to provide the Department of the Interior's (Department) 
views regarding reauthorization of the Marine Mammal Protection Act 
(MMPA or Act) of 1972 and H.R. 2693, the Marine Mammal Protection Act 
Amendments of 2003. I am Marshall Jones, Deputy Director of the U.S. 
Fish and Wildlife Service (Service).
    The MMPA was the first of the landmark conservation laws enacted in 
the 1970s; it turned thirty years old in 2002. The Act established an 
ongoing federal responsibility, shared by the Secretaries of the 
Interior and Commerce, for the management and conservation of marine 
mammals. The Secretary of the Interior, through the Service, protects 
and manages polar bears, sea and marine otters, walruses, three species 
of manatees, and the dugong.
    Mr. Chairman, we commend you for your continued leadership in the 
effort to reauthorize the MMPA, including the many oversight and 
legislative hearings you have chaired, and your introduction of H.R. 
2693. Over the past few years, this Subcommittee has held several 
hearings that have served to frame the issues of importance in 
reauthorization, and bring forward concepts to address those issues.
    The Administration strongly supports reauthorizing the MMPA. Thirty 
years of implementation have demonstrated the Act's effectiveness in 
conserving and replenishing marine mammal populations. In addition to 
its support of reauthorization, the Administration and its partners 
have identified several areas of the Act that will benefit from well-
considered changes. To this end, we have crafted a comprehensive set of 
amendments that represents a real step forward for marine mammal 
conservation, as well as makes corrections and adjustments to the 
legislation based on our experience in implementing the Act since the 
last reauthorization in 1994. These amendments are contained in a 
legislative proposal to reauthorize the MMPA, which was transmitted by 
the Administration to Congress in February of this year. The proposal 
reflects the diligent and coordinated work of the Department, the 
National Oceanic and Atmospheric Administration (NOAA) in the 
Department of Commerce, the Marine Mammal Commission (Commission), our 
partners in the Alaska Native community, and other federal and non-
governmental partners.
    We look forward to working with you and members of the Subcommittee 
during this session of Congress in a dedicated effort to reauthorize 
the MMPA and enact amendments that improve our ability to conserve and 
manage marine mammals. My testimony will provide the Department's 
comments on H.R. 2693, focusing on issues that relate to the Service's 
implementation of the MMPA. My testimony will also briefly discuss, as 
the Subcommittee requested, the Minerals Management Service's (MMS) 
interaction with the MMPA.
    I will first discuss some of the key amendments proposed by the 
Administration that are not included in H.R. 2693. These amendments 
were developed by the Services in the context of our experience in 
implementing the MMPA. We believe these amendments will enhance the 
effectiveness of the MMPA in its stated goals, and we urge you to 
consider adopting them as H.R. 2693 moves through the legislative 
process.
Amendments proposed by the Administration not included in H.R. 2693
Harvest Management Agreements
    An important component of the Administration's reauthorization 
proposal is an amendment to expand the authority of section 119 of the 
MMPA, which relates to cooperative agreements with Alaska Natives, to 
authorize harvest management agreements between the Secretary and 
Alaska Native Tribes or Tribally Authorized Organizations. These 
agreements would be designed to prevent the depletion of marine mammal 
stocks in Alaska and would demonstrate the commitment of the federal 
government to continuing to develop our important partnership with 
these organizations.
    The MMPA prohibits the taking (e.g., harassing, hunting, capturing 
or killing) of all marine mammals. However, the Act provides exceptions 
to the prohibition. One of these exceptions allows take of marine 
mammals by Alaska Natives for subsistence purposes. Subsistence harvest 
is not subject to regulation, unless the harvested animals are from a 
population that is depleted, or if the harvest is wasteful.
    Following the dramatic decline of Beluga whales in Cook Inlet due 
to over-harvest, representatives of the Native community expressed 
their desire to develop a cooperative management structure for 
regulating harvest of marine mammal stocks. In response to the interest 
of the Native community in developing such a harvest management 
structure, the responsible federal agencies, including the Service, 
NOAA, and the Commission, cooperatively developed a proposed amendment 
with the Alaska Native community. The amendment would allow regulation 
of subsistence take of non-depleted marine mammal stocks, and would 
thus provide substantial conservation benefits to marine mammals.
    Under the proposal, harvest management regimes would be initiated 
and developed using existing governmental authorities of Tribes and 
Tribally Authorized Organizations. If the responsible federal agency 
agrees to, and adopts, a harvest management regime, the agency would be 
authorized to make assistance available to implement and enforce the 
management provisions. The proposal provides new responsibilities and a 
meaningful role for the Native community in resource management.
    The proposed amendment requires that harvest management plans be 
designed to maintain a sustainable harvest. Each plan must describe the 
following: the entities involved in developing the plan; the geographic 
scope of the plan; enforcement authorities; the biological and 
management basis for harvest restrictions; the duration of the 
agreement; and the agreement's review provisions. Entities eligible to 
enter into such agreements are specifically defined as ``Alaska Native 
Tribes or Tribally Authorized Organizations.'' The intent of this 
definition is to specifically identify the types of organizations that 
are qualified, because implementation would rely on existing Tribal 
authorities, rather than creating new federal authorities.
    A harvest management agreement would initially be negotiated 
between the appropriate federal agency and the eligible entity. Public 
involvement would then be solicited through a notice and review 
process. The proposed amendment specifically identifies the existing 
authorities for these provisions and makes clear that this approach 
creates no new sovereign, Tribal authorities.
    We believe that this amendment will create a strong conservation 
tool to ensure the long-term conservation of marine mammal populations 
in Alaska. The amendment's cooperative approach will facilitate 
partnerships to avert management crises that can arise under the 
current system. Without the proposed amendment, additional species may 
become depleted through excessive subsistence harvest. Activities by 
some individual hunters could continue to create conflict that the 
community would like to address but cannot under current law. We have 
worked closely with Alaska Native representatives on this proposal and 
strongly endorse its enactment.
Southern Sea Otter--Fishery Interaction Data
    Southern sea otters are incidentally taken in fishing operations, 
but the extent of this take is not known. Pursuant to Section 118 of 
the Act, which addresses the take of marine mammals incidental to 
commercial fishing operations, the Department would like to gather 
information on fishery interactions with southern sea otters in 
California. MMPA reauthorization provides an opportunity to address 
this need by providing for enhanced efforts to assess the impact of 
commercial fisheries on this threatened sea otter population.
    The Administration's MMPA reauthorization proposal includes an 
amendment to section 118(a)(4) of the Act that would require the 
Secretary of Commerce to include information concerning California sea 
otters in the list of fisheries published under section 118. In 
addition, California sea otters would be included in determinations 
pursuant to section 118(d) of the Act regarding establishment of 
monitoring programs and placement of on-board observers on fishing 
vessels to monitor interactions and assess the levels of mortality and 
serious injuries in the population.
    Presently, section 118 specifically excludes California sea otters 
from the incidental taking authorization, and nothing in this amendment 
is intended to change that. The proposed language is solely intended to 
enhance efforts to assess impacts that commercial fisheries may be 
having on this threatened sea otter population in order to provide a 
more informed basis for recovery efforts.
Research Grants
    The Administration also continues to be interested in the potential 
for research grants as described in Section 110(a) of the MMPA. A 
proposed amendment to this section would reauthorize research grants, 
and would make clear that grants under this provision may be targeted 
at plant or animal community-level problems (i.e., ecosystem problems).
    The Secretaries would be given flexibility to determine which 
research projects to fund. However, the proposed amendment highlights 
the following ecosystems as high priorities for research grants.
    Bering Sea - Chukchi Sea Ecosystem--The Bering and Chukchi Seas 
have extensive, shallow shelves and, as a result, are some of the most 
productive areas in the world's oceans. These regions offshore of 
Alaska are undergoing significant environmental changes, including 
rapid and extensive sea ice retreat, extreme weather events, and 
diminished benthic productivity. Such dynamics are likely having 
ecosystem-wide effects. As such, there is a pressing need to monitor 
the health and stability of these marine ecosystems and to resolve 
uncertainties concerning the causes of population declines of marine 
mammals, sea birds, and other species. As residents of the region 
largely depend upon marine resources for their livelihood, research on 
subsistence uses of such resources and ways to provide for the 
continued opportunity for such uses must be an integral part of this 
effort.
    California Coastal Marine Ecosystem--The southern sea otter, listed 
as threatened under the Endangered Species Act, has been experiencing 
an apparent population decline since the mid-1990s. The reasons for the 
decline, however, remain uncertain. Possible reasons include: 
introduction of new or unusual diseases; exposure to new or higher 
levels of chemical pollutants; incidental take in new or relocated 
fisheries; and decreases in key prey species due to temporary El Nino 
effects, long-term climate fluctuation, or otter densities exceeding 
carrying capacity levels within their current range.
    These ecosystems are of great importance to marine mammal 
populations and would benefit from system-wide studies.
H.R. 2693, the ``Marine Mammal Protection Act Amendments of 2003''
    Again, we commend you Mr. Chairman, for introducing a bill to 
reauthorize the MMPA. My comments on H.R. 2693 are limited to 
provisions which relate to the Department of the Interior, and the 
Department of Commerce and the Marine Mammal Commission will present 
the Administration's views on other provisions.
Section 5: Miscellaneous Authorizations of Appropriations
    The Service appreciates that Section 5(c) of H.R. 2693 includes 
specific authorizations for Section 119 of the MMPA. These 
authorizations are important because they make clear that funding may 
be directed to support Cooperative Agreements in Alaska. As we have 
stated in previous testimony before this Subcommittee, the Service 
recognizes the accomplishments achieved to date through our existing 
cooperative agreements and hopes to continue participating in these 
important agreements.
Section 10: Polar Bear Permits
    As we stated in previous testimony before the Subcommittee on June 
13, 2002, as a general rule the Department is opposed to legislative 
exemptions that allow importation of sport-hunted trophies outside of 
established regulations. However, in this case, the Department supports 
the bill's proposed amendment to extend the time-frame for such 
importations as established in the 1997 amendments. This would allow 
for the importation of polar bear trophies legally taken in Canada 
during the period between enactment of the 1994 amendments and the 
issuance of final the implementing regulations on February 18, 1997.
    We note with approval, however, that under H.R. 2693, imports of 
polar bear trophies taken since February 18, 1997, would continue to be 
allowed only from approved populations. U.S. trophy hunters should only 
take bears from those populations which have been found to be 
sustainable. The February 18, 1997, final regulations establish clear 
importation requirements for trophies. Trophies taken after that date 
can only be imported in compliance with those regulations. H.R. 2693 
would not change this fact.
    The Department also supports the proposed amendment to Section 104 
which would remove the requirement to publish two notices in the 
Federal Register for each permit application to import polar bear 
trophies. The Administration's proposal contains a similar amendment. 
The Service has processed on average 90 applications for polar bear 
permits annually for the past six years and received no comments in 
response to the Federal Register notices. The proposed amendment would 
streamline the permitting process and reduce the administrative expense 
of publishing notices. The public would still be given the opportunity 
to comment on findings to approve new Canadian polar bear populations 
for import, and would continue to have access, on a semiannual basis, 
to current information on permits.
    Since H.R. 2693 would no longer require the publication of Federal 
Register notices for each individual application, the Service notes 
that there is one other subsection in the current law that requires 
amendment so that all subsections of the MMPA reflect the proposed 
change. To fully accomplish this change, the phrase, ``expeditiously 
after the expiration of the applicable 30 day period under subsection 
(d)(2),'' would need to be deleted from the first sentence of 
subsection 104(c)(5)(D).
Section 13: Definition of Harassment
    In revising the definition of harassment, the Administration's goal 
is to provide a definition that is more enforceable and that would 
provide greater notice and predictability to the regulated community by 
presenting a clear threshold for what activities do or do not 
constitute harassment, without compromising the conservation of marine 
mammals. For Level B, for example, the Administration bill moved from 
including any activity that has the ``potential'' of disturbing a 
marine mammal, to an activity that is ``likely'' to disturb. The 
concern was that arguably many activities could have the potential, no 
matter how remote, of causing a negative response, whereas likelihood 
indicates a level of certainty that the event actually will occur. 
Thus, the regulated public will better be able to gauge when they 
should apply for an incidental take authorization. Also, likelihood is 
a legal standard that already appears elsewhere in the statute (e.g., 
the standard for issuing an enhancement permit and the section 118(c) 
commercial fisheries list) and is recognized in common law.
    Mr. Chairman, we appreciate your efforts to address the 
difficulties with the existing harassment definition through MMPA 
reauthorization. The amendment to revise the definition in H.R. 2693 is 
similar in concept to the Administration's proposed amendment. Both 
versions focus on those activities that would cause disruption of key 
biological behaviors, whereas some have suggested that the current 
definition could include activities that cause any negative behavioral 
reaction, no matter how temporary or how minor. We also agree that the 
definition should apply to ``any act'' rather than the current 
statutory definition, which is limited to acts of ``pursuit, torment, 
or annoyance.''
    However, we are concerned with some of the terms in the proposed 
definition in H.R. 2693. For example, H.R. 2693 uses the term 
``probability'' in Level A harassment and we are concerned that this 
may create standard that would not apply to some activities that may 
have negative impacts on marine mammals. We are also concerned about 
the ``potential to disturb'' threshold in the second clause of the 
proposed harassment definition in H.R. 2693. The Service and the other 
agencies involved in developing the Administration's proposed 
definition considered this language to be overly broad. We believe that 
the standard included in the Administration proposal, ``disturbs or is 
likely to disturb,'' provides a more appropriate standard for what 
activities would be covered under this part of the harassment 
definition. We would welcome the opportunity to explore these issues 
and concepts with your staff as you work to craft a definition that 
meets our mutual goals of providing a clear, focused definition that 
adequately protects marine mammals.
Section 14: Incidental Takings of Marine Mammals
    H.R. 2693 amends the MMPA's provisions that authorize incidental 
takings of marine mammals that may occur during otherwise lawful 
activities. Under the current law, the Secretary may authorize take of 
small numbers of marine mammals in a specified geographic region if the 
Secretary determines that such take will have no more than a negligible 
impact on the marine mammal species or stocks, and will not have an 
unmitigable adverse impact on subsistence harvest of those species or 
stocks. H.R. 2693 amends this provision by removing the terms ``small 
numbers'' and ``specified geographic region.''
    We note these changes are consistent with the Administration's 
Readiness and Range Preservation Initiative (RRPI) amendment to the 
MMPA contained in its proposed National Defense Authorization Act for 
Fiscal Year 2004. However, the RRPI language pertains only to military 
readiness activities. We support ensuring that there is a single 
standard for all regulated entities. Both the RRPI and H.R. 2693 retain 
the negligible impact standard, which is key to ensuring that 
authorized take has a minimal effect on these species. Furthermore, 
under this amendment, incidental take authorization can still only be 
granted if the take will not have an unmitigable adverse impact on the 
availability of the marine mammal species or stocks for subsistence 
uses. These standards are important to ensuring that take 
authorizations do not degrade the ability of the Service to effectively 
conserve, protect, and/or restore marine mammal populations.
    H.R. 2693 also adds a new general take authorization process. This 
language is new to us, and we respectfully request more time to analyze 
its implications, and would like to meet with your staff to discuss the 
purpose of the amendment. We did, in our initial analysis of this 
general authorization language, identify one concern. The amendment 
requires the Secretary to issue implementing regulations for this 
general authorization no later than 120 days after enactment. We are 
concerned that this statutory deadline could result in ineffective and 
ill-conceived regulatory language.
Technical Issues Related to H.R. 2693
    Section 4 of H.R. 2693, as proposed, may inadvertently confuse the 
regulated public by changing one aspect of the MMPA's import/export 
provisions, without making similar necessary changes elsewhere in the 
statute. The Administration's proposal contains additional technical 
corrections that ensure consistency throughout the statute.
    An additional provision in the Administration's proposal that we 
believe is critical, but that is not included in H.R. 2693, would amend 
102(a)(4) of the MMPA. This provision makes clear that the Service can 
prosecute an unlawful transport, purchase, sale, or export of a marine 
mammal or marine mammal product, without having to first demonstrate 
that the original take of the marine mammal was not lawful.
The Minerals Management Service's Interaction with the MMPA
    As noted above, at the Committee's request the Department offers 
the following comments on the MMS's interaction with the MMPA.
    MMS is the Nation's manager of energy and non-energy mineral 
resources on the Outer Continental Shelf (OCS). MMS has the 
responsibility to ensure environmentally sound exploration, 
development, and production activities on the OCS. That responsibility 
is carried out, in part, by managing operations for the continued 
protection of marine mammal species under the MMPA. In its efforts to 
ensure the protections required under the MMPA, MMS analyzes impacts, 
designs mitigation and monitoring guidelines, and defines how 
activities are to be carried out to minimize the potential for 
harassment or injury to marine mammals. As noted above, the proposed 
changes to the definition of harassment provide more clarity, which 
facilitates MMS' efforts and provides a greater level of certainty and 
predictability to the regulated community. MMS also identifies, funds, 
and participates in research necessary for the protection and 
enhancement of protected marine mammal species and their habitat, and 
provides the information necessary for NOAA or the Service to issue 
small take authorizations and promulgate regulations.
    While MMS has coordinated with the Service and NOAA for decades on 
matters related to the MMPA and the Endangered Species Act, in the past 
two years it has enhanced its communication and coordination with the 
Service, NOAA, and with industry. For example, an Interagency Agreement 
with NOAA to conduct marine mammal surveys was modified to bring 
together an international team of experts which included both 
researchers and industry representatives to develop new field methods 
and a research protocol for controlled exposure experiments on sperm 
whales in the Gulf of Mexico. This renewed focus on improved 
collaborative efforts has improved MMS's working relationship with the 
Service and NOAA on MMPA issues, and has established a process that 
works well for the federal agencies as well as the regulated public.
Conclusion
    Mr. Chairman, in closing I would like to again commend you for your 
leadership on reauthorizing the MMPA. We are committed to conserving 
and managing marine mammals by working with our partners in a 
cooperative fashion. In particular, I want to emphasize our commitment 
to continued collaboration with our partners in Alaska to further 
enhance their role in the conservation and management of marine 
mammals. We believe that the changes we have proposed will allow us to 
be more effective in addressing our responsibilities in marine mammal 
management. We look forward to working with you and members of the 
Committee to enact meaningful improvements to the MMPA during this 
Congress and to demonstrate to the Nation our shared commitment to 
conserving marine mammals. We believe that H.R. 2693 and the 
Administration's proposed amendments provide the Department with a 
solid foundation from which to proceed.
    Mr. Chairman, this concludes my remarks. I am happy to answer any 
questions that you might have.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Jones.
    Mr. Cottingham?

   STATEMENT OF DAVID COTTINGHAM, EXECUTIVE DIRECTOR, MARINE 
                       MAMMAL COMMISSION

    Mr. Cottingham. Thank you, Mr. Chairman. Mr. Chairman, Mr. 
Pallone. We appreciate the opportunity to be here today to 
discuss this with you. As you mentioned, this statute has, as 
Mr. Jones mentioned, it has--the Marine Mammal Protection Act 
has become complicated over the last 30 years, but it has also 
accomplished a great deal. And I think I would just like to 
take a few moments and talk about some of the things that it 
has accomplished.
    Of course, the statute passed in 1972 and was signed then, 
so we just celebrated the 30th anniversary. Since that time, 
numerous species of dolphins in the eastern tropical Pacific, 
the incidental catch rate is way, way down. Several gray whales 
have been delisted. And this statute has really been on the 
forefront of leading the conservation effort, not just for 
marine mammals but other marine species as well. And it has 
been very forward looking. And I think it is--we shouldn't--we 
need to take advantage of this opportunity to look back at the 
last 30 years, and this statute has really accomplished a lot 
in terms of reducing incidental catch, not just in the tuna 
fishery, but other fisheries as well.
    Of course, there are new challenges with anthropogenic 
sources--some of the things that are going on with sea otters 
right now, and other sources. So there are still some 
challenges, and we look forward to addressing those with our 
counterparts and colleagues in the other agencies and in 
academia.
    In your letter if invitation, you specifically asked us to 
discuss the noise issues and the dialogs we are having. We 
appreciate Congress' providing us some funds in this year's 
Fiscal Year 2003 appropriation to convene a series of 
conferences to discuss this anthropogenic sound in the marine 
environment. And we are in the process of doing that right now. 
We are--we have--we are about to hire some professional 
facilitation groups, and we will probably end up chartering a 
Federal advisory Committee on that to solicit the advice of 
experts in this country and several from around the world so 
that we can address this, identify some of the research needs, 
the top-priority research that was pointed out in the National 
Research Council's recent report, as well as some of the 
mitigation aspects. And do that. So we will be in touch with 
your staff on that as we progress.
    Now if I could turn to the comments on H.R. 2693. We truly 
appreciate your leadership on this, both the Chairmen. I am not 
sure what the--is it plural ``Chairmen'' here, is that the way 
you say that? --on this. It is a very good start, and I 
appreciate you saying it was a starting point.
    Very much like Mr. Jones and Dr. Lent have said, we worked 
very hard on the administration bill, and I am sure that some 
of the debates that you are now having amongst yourselves over 
some of the semantics and diagramming sentences, as you 
mentioned, are very similar to some of the debates that went on 
within the administration as we chose our words. So we welcome 
the opportunity to work with you on a number of those issues. 
And we think you have really come a long way. This is a much 
better, much more comprehensive bill than the last time.
    The--it is almost--as we get into the details of harassment 
and things like this, I just would ask that you work very 
closely in developing report language, explaining what you mean 
on these things, even with specific examples. Because 
regardless of what final words end up in the statute for 
definitions like ``harassment,'' we will--if we take yours or 
the administration's bill or the NRC's bill, the agencies will 
end up putting out guidelines or regulations on ``potential to 
disturb'' or ``biologically significant''--``biologically 
significant disruption'' as opposed to ``disruption of natural 
behavioral patterns.'' So it is going to be very important for 
those of us in the executive branch to have a clear 
understanding of what you mean as precisely as you can. I think 
good report language on that will be absolutely essential.
    Our written testimony goes into detail in a section-by-
section. Primarily we agree with the concepts you are trying to 
do and have some little questions on the take reduction plan 
portions, the captive release requirements, the harassment 
definition, the export-import provisions for handicrafts, the 
waivers, the permits. I would like to second what both Mr. 
Jones and Dr. Lent have raised here with regard to the things 
that were not in the bill--the Alaska Native harvest, the ship 
strikes, the traveling cetacean exhibits. There used to be a 
prohibition for traveling cetacean exhibits, and we thought 
that should be put back in there. It was part of the 
administration's bill as well.
    I see my time has run out, so with that, Mr. Chairman, we 
appreciate the opportunity to be here today and look forward to 
working with all of you as we proceed to reauthorize this 
important legislation.
    Thank you, sir.
    [The prepared statement of Mr. Cottingham follows:]

          Statement of David Cottingham, Executive Director, 
                        Marine Mammal Commission

    Thank you for providing the Marine Mammal Commission with the 
opportunity to present its views on H.R. 2693, the Marine Mammal 
Protection Act Amendments of 2003, and to share its thoughts on other 
issues related to reauthorization of the Marine Mammal Protection Act 
that currently are not addressed in the bill. You also requested that 
the Commission provide you with an update of its progress toward 
convening an international conference, or series of conferences, to 
survey acoustic threats to marine mammals and develop means of reducing 
those threats, as called for under the Fiscal Year 2003 omnibus 
appropriations legislation enacted earlier this year.
    As noted in your invitation to testify, H.R. 2693 has many 
similarities to H.R. 4781, which was passed out of this Subcommittee 
during the last session of Congress. The current bill also contains 
several important improvements that respond to concerns expressed by 
the Commission and others at the 13 June 2002 reauthorization hearing. 
Among these are extension of the proposed amendments to section 
101(a)(6) of the Act to include export authorizations that would 
conform with all of the import provisions enacted in 1994; provision of 
specific authorizations for cooperative agreements under section 119 of 
the Act; expansion of the proposal to include certain recreation and 
subsistence fisheries under the incidental taking regime established 
under section 118 of the Act; amendments to various provisions of Title 
IV of the Act to clarify that they apply to entanglements, as well as 
strandings; and a redefinition of the term harassment. In addition, 
H.R. 2693 includes proposed amendments to section 101(a)(5) of the Act 
that respond to problems with the existing provisions raised by the 
Administration earlier this year in the context of the Department of 
Defense's Readiness and Range Preservation Initiative.
    Although H.R. 2693 includes several of the key elements contained 
in the Administration bill transmitted to Congress last February, it 
also omits some of the recommended amendments. Foremost among these is 
the proposal worked out jointly by the Commission, the Fish and 
Wildlife Service, the National Marine Fisheries Service, and 
representatives of the Alaska Native community to expand the existing 
section 119 authority to enable the parties to enter into enforceable 
harvest management agreements. It is not clear whether these omissions 
reflect determinations by the Committee that certain issues should not 
or need not be addressed during the reauthorization process, or whether 
the Committee intends to pursue these other issues, but has yet to 
develop specific language. We encourage the Committee to give 
additional consideration to including all of the Administration's 
recommended amendments in the legislation. Regardless of whether they 
represent major substantive changes, such as management of subsistence 
harvests, or mere technical corrections, each is expected to improve or 
clarify the Act. In this regard, we remain available to work with the 
Committee and its staff and would welcome the opportunity to provide 
additional explanation of the rationale behind these proposals or 
otherwise respond to any concerns that you may have with respect to any 
of the elements in the Administration's bill.
    I will begin by discussing the Commission's observations regarding 
the provisions included in H.R. 2693.
Section 3--Technical Corrections
    The Commission concurs that the proposed corrections are 
appropriate and should be made. It is unclear, however, why other 
technical amendments are not also being proposed. We believe that other 
such corrections are in order, such as the deletion of section 114 and 
references thereto made in other sections of the Act, deletion of 
section 120(j), and those corrections set forth in section 520 of the 
Administration's proposed bill. Also, the change that would be made 
under section 3(b) of the bill appears to duplicate the amendment set 
forth in section 6(5)(B) of the bill. Presumably one of these 
provisions should be deleted.
Section 4--Limited Authority to Export Marine Mammal Products
    As noted in previous Commission testimony, several provisions of 
the Act were not revised in 1994 to reflect the prohibition on 
exporting marine mammals that was added at that time. One of these is 
section 101(a)(6), which authorizes the import, but not the export, of 
marine mammal products for purposes of cultural exchange and by U.S. 
citizens in conjunction with travel abroad. As such, the Commission 
agrees that an export authorization needs to be added to this section. 
At the previous reauthorization hearing before this Committee, the 
Commission recommended that the export authorization contained in H.R. 
4781 be expanded to include exports of legally possessed marine mammal 
products by U.S. citizens traveling abroad. We are pleased that the 
current bill has adopted this recommendation. We are concerned, 
however, with the specific language of that provision. Unlike the 
Administration's proposal, the provision in H.R. 2693 would allow 
exports, but would not require that the marine mammal item exported by 
the U.S. citizen be returned to the United States upon completion of 
the travel. This could result in enforcement problems by creating a 
significant loophole that would allow for the export and subsequent 
sale of marine mammal products once they are outside the jurisdiction 
of the United States. In this regard, we note that, unlike the proposed 
cultural exchange provision, there is nothing that limits such exports 
to noncommercial purposes. Further, we note that the statutory 
definition of the term ``marine mammal product'' includes any item of 
merchandise that consists of, or is composed of, any marine mammal 
part, and would include items such as tanned, but unworked, seal skins; 
raw walrus ivory; marine mammal bones; and, perhaps, even polar bear 
gallbladders. This would go far beyond what was envisioned under the 
1994 amendment pertaining to imports, which, as explained in the House 
report, was included primarily to enable U.S. citizens who obtain 
marine mammal handicrafts in Alaska to return home via Canada without 
encountering problems when they re-enter the United States.
Section 6--Take Reduction Plans
    Although structured somewhat differently than the Administration's 
proposal to expand the section 118 incidental take regime to include 
recreational and subsistence fisheries that frequently or occasionally 
kill or seriously injure marine mammals, this section of H.R. 2693 
incorporates most of the substance of that proposal. The Commission 
believes that this proposal is significantly improved over the one 
included in H.R. 4781. This is much more comprehensive. It would 
include these fisheries under the section 118 incidental take 
authorization and, in so doing, would make them subject to the 
registration, monitoring, reporting, and take reduction requirements 
applicable to their commercial counterparts.
    There are, however, some differences between the proposed 
amendments in H.R. 2693 and the Administration's proposal that merit 
discussion. For example, section 404(h)(5) of the Administration bill 
would add the word ``commercial'' to section 118(c)(3)(E) to clarify 
that this provision applies only to category III commercial fisheries. 
By not incorporating such a change to this subparagraph, H.R. 2693 
could be interpreted as including non-commercial fisheries (other than 
those listed under section 118(c)(1)(A)(i) and (ii)), thereby allowing 
incidental taking by participants in those fisheries, but also 
requiring those fishermen to report any incidental marine mammal 
mortalities or injuries that may occur. Although we have no objection 
to placing such a requirement on those non-commercial fisheries not 
included on the expanded list of fisheries, this may not have been the 
intent of the drafters of the bill.
    Consistent with the Administration's proposal, H.R. 2693 would 
amend subparagraphs (A) and (B) of section 118(d)(4), which pertain to 
priorities for placing observers on vessels engaged in category I and 
II fisheries, to apply to both commercial and non-commercial fisheries. 
No similar amendment to subparagraph (C) is included in the bill. 
Presumably this third-tier criterion should similarly factor in taking 
from all category I and II fisheries, not just commercial fisheries.
    The proposed expansion of section 118 to include some recreational 
and subsistence fisheries has ramifications for other provisions of the 
Act as well. Recommended changes to these other provisions that we 
believe should be made to conform them to the proposed amendments to 
section 118 are set forth in section 404 of the Administration bill. We 
believe that the Committee should give further consideration to 
including these conforming amendments as it considers H.R. 2693. For 
example, unless section 101(a)(5)(E) is modified, there would be no 
mechanism for authorizing the incidental taking of marine mammals 
listed under the Endangered Species Act by non-commercial fishermen, 
even when such taking would have a negligible impact on the species.
Section 7--Pinniped Research
    The Commission agrees that more needs to be done to develop 
effective, non-lethal methods for deterring pinnipeds from engaging in 
harmful interactions with fishing operations. Presumably this is the 
focus of the proposed amendment, inasmuch as paragraph (2) of the 
proposed provision would require the Secretary to include 
representatives of the commercial and recreational fishing industries 
among those tasked with developing the research program. However, by 
referring more generally to ``nuisance pinnipeds,'' the provision 
suggests that its intent is broader than just fishery interactions. It 
therefore would be helpful if the Committee, in its report on the bill, 
were to provide additional guidance as to what constitutes ``nuisance 
pinnipeds'' and the types of problems it expects the program to 
address.
Section 8--Marine Mammal Commission
    We appreciate the Committee's interest in providing the Commission 
with greater flexibility in allocating its resources to meet its 
responsibilities. However, the appropriation levels that would be 
authorized under subsection (c) should be made consistent with the 
levels contained in the President's Budget.
    As reflected in the Administration bill and past Commission 
testimony, the limitation on the daily amount that the Commission can 
spend on experts or consultants has effectively precluded us from using 
such services for some time. We appreciate the Committee's recognition 
of this problem and welcome the amendment in subsection (b), which will 
put the Commission on an equal footing with other agencies in our 
ability to make use of such services.
Section 10--Polar Bear Permits
    As the Commission has noted in previous testimony before the 
Committee concerning reauthorization of the Marine Mammal Protection 
Act, there is little 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 (3), 
the phrase ``required to be'' should be inserted after the words 
``application was'' to clarify that this provision applies whenever a 
notice should have been published, whether or not publication actually 
occurred. Also, a conforming amendment is needed to the first sentence 
of section 104(c)(5)(D) to delete the phrase ``, expeditiously after 
the expiration of the applicable 30 day period under subsection 
(d)(2),''.
Section 11--Captive Release Prohibition
    This provision is patterned on a proposed amendment contained in an 
earlier version of the Administration bill. Since that time, the 
Administration has tried to tighten-up its proposal to clarify that it 
applies only to marine mammals maintained in captivity at a facility 
and that it does not apply to temporary releases of marine mammals for 
military and research purposes by the Department of Defense. We suggest 
that the Committee consider including similar limitations in its 
proposal.
Section 12--Stranding and Entanglement Response
    This section incorporates most of the provisions pertaining to 
Title IV of the Marine Mammal Protection Act recommended in the 
Administration bill. As such, it is a welcome addition to the House 
bill as compared to the bill introduced in 2002. The one substantive 
difference is the omission in H.R. 2693 of the amendment proposed in 
section 511 of the Administration bill. This amendment to section 405 
of the Act would provide the National Marine Fisheries Service the 
flexibility to use other funds appropriated under the Act, not just 
those specifically earmarked for addressing unusual mortality events, 
when needed to respond to such events. We believe that this is a 
worthwhile amendment and encourage the Committee to give it additional 
consideration.
Section 13--Definition of Harassment
    The proposed redefinition of the term ``harassment'' in H.R. 2693 
is similar, but not identical, to that included in the Administration 
bill. As such, there are elements with which we agree, but parts that 
we think may cause problems if enacted. For example, for an act to 
constitute Level A harassment under the introduced bill, there must be 
``the probability'' that a marine mammal or marine mammal stock will be 
injured. The inclusion of this threshold suggests that it must be more 
likely than not that an injury will result from the particular action 
being considered. That is, if there is a 25 percent chance that a 
marine mammal will be injured by exposure to a particular stimulus, a 
one-time exposure would not necessarily be considered harassment, even 
though the risk of injury is substantial. As such, we recommend 
replacing the word ``probability'' in the Level A harassment definition 
with a more inclusive phrase such as ``significant potential,'' as used 
in the Administration's proposal.
    Like the existing definition of Level B harassment and that 
recommended by the Administration, the proposal in H.R. 2693 contains a 
list of behaviors that, if disrupted to the extent specified, would 
constitute harassment. We are concerned, however, that the list of 
specifically identified behaviors in the House bill does not include 
sheltering, which is an element of both the existing definition and the 
Administration's proposal. For example, the resting behavior of spinner 
dolphins in Hawaii, in secluded, inshore areas clearly fits within the 
notion of sheltering. It is not as clear that such behavior would be 
encompassed by the terms ``care of young, predator avoidance, or 
defense,'' which are the closest associated terms under the proposed 
harassment definition in H.R. 2693. Further in this regard, we note 
that the terms ``care of young,'' ``predator avoidance,'' and 
``defense'' included in the proposed definition of Level B harassment 
are not very precise terms. Absent clarification, their inclusion in 
the definition may lead to implementation difficulties and, perhaps 
litigation.
    We are also concerned about the ``potential to disturb'' threshold 
set forth in the second clause of the proposed harassment definition. 
The agencies that developed the Administration's proposed definition 
rejected this language as being overly broad, inasmuch as it would 
include even a very remote possibility that disturbance might occur. We 
believe that the standard included in the Administration proposal, 
``disturbs or is likely to disturb,'' provides a more appropriate 
delimitation concerning what activities should be covered under this 
part of the harassment definition.
    The Commission is pleased that the Committee has recognized the 
value of including a directed taking provision in the definition of 
Level B harassment, as recommended by the Administration. Absent this 
second prong, it would be much more difficult, if not impossible, for 
the regulatory agencies to bring enforcement cases in response to 
activities that traditionally have been considered harassment. Even in 
a case when a marine mammal had been intentionally pursued, the 
government, to prevail, would need to show not only that the animal was 
disturbed by the pursuit, but that the resulting disruption was somehow 
``biologically significant.'' For example, is the disturbance that 
results from chasing a dolphin along a beach for a few hundred yards 
with a jet ski biologically significant? Arguably not. Nevertheless, it 
should be considered harassment.
    We are concerned, however, about the inclusion of the phase ``is 
likely to impact the individual'' in this second part of the Level B 
harassment definition (clause iii). It raises a possible defense in a 
traditional harassment case that, even though a marine mammal was 
clearly disturbed by the directed activities of the defendant, the 
disturbance somehow did not have any impact on the health or well-being 
of the animal. It may be that the intent of the provision is to include 
all directed activities that are likely to disrupt one of the listed 
marine mammal behaviors. If this is the case, it should be clarified, 
either in the statutory language or the accompanying legislative 
report.
Section 14--Incidental Takings of Marine Mammals
    The first three parts of the section parallel amendments to section 
101(a)(5) of the Act proposed by the Administration in the context of 
the Department of Defense's Readiness and Range Preservation 
Initiative. They address the so-called ``small numbers'' and 
``specified geographical region'' limitations of those incidental 
taking provisions. Recognizing that any incidental taking 
authorizations issued under section 101(a)(5) would still require a 
negligible impact determination, the Commission has no objection to 
these amendments.
    The fourth paragraph of this section introduces a new element to 
section 101(a)(5)--a general authorization for certain activities that 
will have a negligible impact on the affected marine mammal stocks. The 
Commission supports the idea of including a general authorization 
provision for certain types of activities that have low-level impacts 
on marine mammals that do not merit the more rigorous authorization 
processes established under section 101(a)(5)(A) and (D). We are 
concerned, however, that the proposed general authorization included in 
H.R. 2693 is overly broad and apparently would include all activities 
that currently receive authorizations under the existing provision 
(i.e., those determined to have a negligible impact).
    Before we can comment further, additional description of the 
proposal is needed. For example, how would the general authorization 
relate to the existing authorization provisions? Existing section 
101(a)(5)(A), which requires the issuance of regulations, allows for 
the authorization of all types of incidental taking (including 
mortalities), provided that a negligible impact finding is made and 
certain other requirements are met. Section 101(a)(5)(D) provides a 
streamlined, notice-and-comment procedure for takings by harassment. It 
would follow that a general authorization would apply to some further 
subset of activities, such as those that involve taking only by Level B 
harassment, or those that so clearly meet the negligible impact 
requirement that a more involved authorization process is not 
warranted. If this is the intention of the provision, we do not think 
that it is reflected in the language of the bill. Even if the provision 
were limited to takings by Level B harassment, we may have concerns 
about using a truncated authorization procedure, inasmuch as the 
proposed redefinition of that term under section 13 of the bill, would 
include only biologically significant disruptions of marine mammal 
activities. That is, there would no longer be a de minimus aspect to 
Level B harassment that would warrant a general authorization of all 
such activities.
    We are also concerned with the extent of the information that those 
seeking coverage under the general authorization would be required to 
submit. For instance, there is no requirement that the ``applicant'' 
provide a description of the activities that will be conducted. Without 
such information, it is not clear how the Services can determine 
whether the activities fit within the scope of the general 
authorization.
    Depending on what activities and levels of taking would be included 
under the general authorization, we also may have concerns about the 
anticipated public involvement in the authorization process. Currently, 
all incidental take authorizations under section 101(a)(5) are subject 
to substantial public notice and review requirements. Although the 
public apparently would have such opportunities at the stage where the 
general authorization and implementing regulations are issued, no 
similar opportunity appears to be provided for determinations as to 
whether specific activities fit within the scope of the general 
authorization. This could be a major shortcoming of the proposal if 
negligible impact determinations will be deferred until specific 
activities are reviewed at this later stage.

                               * * * * *

    The issues not addressed in H.R. 2693 that we believe merit 
consideration by the Committee as it considers reauthorization of the 
Marine Mammal Protection Act are, by and large, those included in the 
Administration bill transmitted to Congress earlier this year. A brief 
summary of those provisions follows.
    As previously discussed before this Committee, we and others 
believe that there is a need to expand the existing authority of 
section 119 of the Act to enable the National Marine Fisheries Service 
and the Fish and Wildlife Service to enter into cooperative harvest 
management agreements with Alaska Native tribes and Native 
organizations authorized by those tribes. The Commission believes that 
such a provision, if carefully crafted, would help guarantee that 
conservation measures, when necessary, can be implemented before a 
marine mammal population has been reduced to a point where it is 
depleted. We note that such a provision, although generally supported 
by diverse constituencies, has been omitted from the introduced bill. 
We hope that this does not reflect a determination that a harvest 
management amendment does not merit further consideration.
    In addition to the proposal to expand the section 118 incidental 
taking regime to include some non-commercial fisheries, which has been 
adopted in H.R. 2693, we believe that certain other clarifying 
amendments to this section are in order. Section 118 currently requires 
that a take reduction plan be developed for each strategic stock that 
interacts with a category I or II fishery, regardless of the level of 
such interactions or whether the reason the stock is considered to be 
strategic is largely independent of fisheries interactions. The 
Commission recommends that the Committee consider an amendment to 
specify that a take reduction plan need not be prepared for those 
strategic stocks for which mortality or serious injury related to 
fisheries is inconsequential. The Commission also believes that further 
consideration should be given to an amendment proposed by the 
Administration to clarify that it constitutes a violation of the Act to 
participate in any category I or II fishery without having registered 
under section 118, regardless of whether incidental takes occur. A 
related amendment that also needs to be considered would specify that 
all participants in category I or II fisheries, whether registered or 
not, are subject to the observer requirements of section 118. The 
Commission also believes that revisions to this section are needed to 
enable the responsible agencies to obtain reliable information on the 
numbers and types of fishery-related mortalities and injuries involving 
California sea otters. Previous Commission testimony has noted that 
available funding has not always been sufficient to place observers 
within all fisheries that need to be monitored or to place them at 
levels needed to provide statistically reliable information. We again 
call this issue to your attention and recommend that you consider 
possible solutions, including securing contributions from the involved 
fisheries.
    The draft bill has picked up on some, but not all, of the permit-
related issues highlighted by the Commission and others during previous 
hearings on Marine Mammal Protection Act reauthorization. The 
Commission continues to be concerned about the appropriateness of 
maintaining certain marine mammals--most noticeably cetaceans--in 
traveling exhibits, which present special problems for successful 
maintenance. We again encourage the Committee to look at this issue 
more closely. Further, we believe that sections 101(a)(1) and 104 of 
the Act need to be amended to specify that export permits can be issued 
directly to foreign facilities.
    We also are concerned that the current system for authorizing 
exports of marine mammals to foreign facilities does not work 
particularly well. We believe, as we recommended in a 3 April 2002 
letter commenting on the National Marine Fisheries Service's proposed 
public display permit regulations, that it would be useful if Congress 
and the interested parties reviewed the current system to identify 
whether there are better ways to achieve the goal of providing 
reasonable assurance that marine mammals exported from the United 
States will be well cared for throughout the duration of their 
maintenance in captivity, and that realistically reflect the ability of 
U.S. agencies to identify and correct deficiencies at foreign 
facilities, while not establishing unnecessary barriers to the exchange 
of marine mammals among qualified facilities. We hope that this is an 
undertaking that the Committee will want to endorse.
    There is also a need to review the issue of exports in contexts 
other than permits and cultural exchanges. For example, the Act's 
waiver provisions under section 103 do not specifically provide for the 
authorization of exports. Likewise, section 101(b) of the Act, which 
relates to taking by Alaska Natives, authorizes the manufacture and 
sale of traditional handicrafts, but does not specifically authorize 
exports of such items.
    On a related point, we continue to believe that there is a need to 
revise section 102(a)(4) of the Act, which, as amended in 1994, 
reinstituted an once-jettisoned impediment to effective enforcement of 
the Act. That section requires the government, in an enforcement 
proceeding under the provision, to show not only that the transport, 
purchase, sale, or export of a marine mammal or marine mammal product 
was unauthorized, but also that the taking underlying such actions was 
in violation of the Act. This problem had previously been recognized 
and rectified by Congress in 1981. The Commission urges the Committee 
to remedy this problem once again.
    The penalties that may be assessed for violations of the Act have 
not been increased since its original enactment 30 years ago. This 
being the case, the maximum penalties available under the Marine Mammal 
Protection Act are quite low as compared to other natural resources 
statutes. We encourage the Committee to review the penalties available 
under sections 105 and 106 and consider increasing them to reflect 
changes in economic circumstances since 1972. The Commission also 
encourages the Committee to give consideration to amending the 
forfeiture provisions of section 106 to allow the seizure and 
forfeiture of a vessel's cargo (i.e., catch) for fishing in violation 
of section 118.
    Another enforcement-related amendment that the Committee might want 
to consider concerns how penalties assessed under the Act may be used. 
A freestanding amendment, enacted in 1999 and codified as part of the 
Marine Mammal Protection Act, authorizes the Fish and Wildlife Service 
to use fines collected under the Act for activities directed at the 
protection and recovery of marine mammals under the agency's 
jurisdiction. We believe that similar authority for the National Marine 
Fisheries Service would likewise benefit that agency's ability to carry 
out its responsibilities under the Act.
    Another provision that merits review by the Committee is section 
110, which identifies specific research projects to be carried out by 
the regulatory agencies. The time frames for completing the existing 
activities set forth in this section have elapsed. As such, those 
provisions that are no longer operative should be deleted. In their 
place, the Committee should consider a more generic directive to the 
agencies, enabling the agencies to pursue pressing, broad-scale 
projects. Among the studies that might be worthwhile are an 
investigation of ecosystem-wide shifts in the Bering and Chukchi Seas 
and an examination of possible changes in the coastal California marine 
ecosystem that may be contributing to the recent declines in the 
California sea otter population.
    As noted above, section 405 of the Act allows appropriations to be 
placed in the Marine Mammal Unusual Mortality Event Fund only if 
specifically earmarked for use with respect to unusual mortality 
events. Thus, funds generally appropriated to the National Marine 
Fisheries Service for implementing the Marine Mammal Protection Act may 
not be used for such purposes, even in years when a large number of 
unusual mortality events might occur. The Commission recommends that 
greater flexibility be provided in how unusual mortality responses can 
be funded.
    Although the Marine Mammal Protection Act establishes explicit 
procedures to address lethal takes and serious injuries due to 
fisheries, it is important to note that there are other ways by which 
marine mammals are lethally taken or seriously injured incidental to 
human activities. The Committee may wish to consider whether activities 
such as, for example, boat or ship strikes of whales might be dealt 
with more effectively through a take reduction process or some other 
mechanism.

                               * * * * *

    The Commission appreciates the inclusion in our FY 2003 budget of 
an appropriation to conduct ``...an international conference, or series 
of conferences, to share findings, survey acoustic ``threats'' to 
marine mammals and develop means of reducing those threats while 
maintaining the oceans as a global highway of international commerce.'' 
Since the appropriation passed in March, we have been busily working on 
this important project.
    We have met with Senate and House to solicit their advice and to 
clarify the intent behind the legislative directive. We have also met 
with a wide range of affected interests such as the oil and gas 
industry, oceanographers from major research institutions, the 
environmental community, and Federal agencies including the National 
Science Foundation, the Minerals Management Service, the Navy (both its 
operations and research components), the National Marine Fisheries 
Service, the Coast Guard, and the State Department. From these 
meetings, we developed a good understanding of potential environmental 
threats that might be caused by sound in the oceans and how to produce 
a series of reports to address research priorities and appropriate 
mitigation measures. We hope the reports will be useful to Congress, 
federal agencies, and the public.
    We plan to hold a series of policy dialogues in which various 
interests will participate. We entered into an agreement with the U.S. 
Institute for Environmental Conflict Resolution (also known as the 
Udall Center) in Tucson, Arizona, to assist us with the dialogues. We 
are about to select a team of professional facilitators to help with 
the dialogues. We are exploring whether there will be a need to charter 
the group holding the dialogues as a federal advisory committee under 
the Federal Advisory Committee Act. We will hold the first meeting of 
the group as soon as possible, probably early in 2004.
    We appreciate the Committee staff's help in discussing this project 
as it has evolved. We will remain in contact with them as we progress.

                               * * * * *

    This concludes my testimony. The Commission appreciates the 
opportunity to provide testimony to the Committee on H.R. 2693, and to 
update you on our progress in convening the conferences called for 
under the Commission's FY 2003 appropriation. I would be pleased to try 
to answer any questions that you may have.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Cottingham.
    Dr. Tyack. Welcome.

  STATEMENT OF DR. PETER TYACK, CONSERVATION BIOLOGIST, WOODS 
                 HOLE OCEANOGRAPHIC INSTITUTION

    Dr. Tyack. Mr. Chair, Mr. Pallone, and Mr. Chair, my name 
is Peter Tyack. I am a biologist at the Woods Hole 
Oceanographic Institution, and I thank you for the opportunity 
to provide my views on H.R. 2693.
    I was a member of two of the Committees of the National 
Research Council on marine mammals and ocean noise, and I would 
like to reiterate some of the repeated suggestions of the NRC 
committees for changes to the Marine Mammal Protection Act.
    When the MMPA was first written, it emphasized takes in 
commercial fisheries. The NRC committees argue that the 
incidental take authorizations need to be updated for new 
issues, such as the effects of noise. As long as a sharp focus 
is maintained on the issue of negligible impact, I support the 
deletion in Section 14 of H.R. 2693 of the conditions for small 
numbers and specified geographical region for these incidental 
take authorizations.
    I also support the definition for Level B harassment in 
Section 13 of H.R. 2693, which, to my take, follows the NRC 
definition much more closely than the definition in either H.R. 
1588 or H.R. 1835. I must point out that I do disagree with 
H.R. 2693's retaining the old definition for activities 
directed at marine mammals. This has the perverse result of 
holding research designed to protect marine mammals to a higher 
standard than activities that do not benefit them.
    As the impacts of pervasive and subtle human influence, 
such as contaminants and noise, have become more important 
compared to whaling and bycatch, our biggest problem involves 
our ignorance of how exposed marine mammals are to these risks 
and our ignorance of the relationship between exposure and 
adverse impacts. I urge Congress to establish a concerted 
research program to address these issues. Without this 
research, regulators will have to guess in the dark about the 
best balance between protecting marine mammals and interfering 
with activities, such as oil exploration and naval sonars, that 
are high national priorities.
    Lack of resources is not the only problem for research to 
protect marine mammals. The current regulatory process itself 
threatens urgently needed research. Let me illustrate with an 
example from the leader in protecting right whales. Scott Kraus 
has been waiting 23 months for a renewal of his permit to test 
whale-safe fishing gear while NMFS tries to finish 
environmental analyses under NEPA. While he waits, at least 10 
right whales have been tangled in fishing gear and six are 
thought to have died. Fishermen continue to place lethal 
fishing gear where it can kill whales, but Kraus cannot test 
new ideas for whale-safe gear because the environmental 
paperwork for his research is not completed even after almost 2 
years of delay.
    I have also personally experienced the mad world where 
Federal actions block the research needed to protect marine 
mammals. Whale-finding sonars that work like fish-finders have 
recently been developed to harmlessly detect whales. A study I 
developed to test how well they can detect whales at sea was 
delayed by a last-minute nuisance lawsuit. In the end, the 
judge ruled that the amendment to my permit was invalid because 
the NMFS permit division had not prepared a new environmental 
assessment under NEPA.
    The failure of NMFS to prevail in recent court challenges 
suggests the need for programmatic environmental assessments or 
impact statements for each activity that may be permitted. And 
I would like to second Dr. Lent's comments on this. I think 
that I am very happy to hear that the Agency is pursuing this 
tack, because I think it is the only path they can take to 
resolve this issue.
    However, I would like to point out that it typically takes 
several months and about $100,000 to produce an environmental 
assessment, and up to a million dollars and one to 2 years to 
produce an environmental impact statement. The NMFS Office of 
Protected Resources will require a considerable injection of 
funds and highly skilled personnel to oversee the production of 
the required NEPA documents while expediting the flow of 
scientific permits.
    The time required to obtain a research permit, particularly 
those in important conservation issues with endangered species, 
has swelled from 3 months to 6 months to 23 months and 
counting. These delays can kill critical research. I urge 
Congress to follow the recommendation of the NRC and set 
deadlines of three to 4 months for issuing a permit for 
scientific research.
    Congress is now evaluating proposals for specific 
exemptions to the MMPA, such as H.R. 1588. Clearly, there are 
problems with the act, but I believe that tailoring exemptions 
for each special interest is not the right solution. One of the 
most important NRC suggestions was to create a uniform process 
for all activities, allocating regulatory effort to situations 
most likely to risk adverse impacts to marine mammals.
    I applaud the House Resources Committee for its efforts to 
establish a general authorization in Section 14 of H.R. 2693. 
However, I believe that the rapid response critical for the 
general authorization would not work without prior programmatic 
analyses under NEPA to determine negligible impact, which is 
critical for this authorization. Congress should require NMFS 
to develop a consultation process, determining for each 
seafaring activity whether marine mammals are taken and, if so, 
what the impact is. NMFS should list activities with no takes 
expected under a de minimis standard for harassment takes. 
Activities that may take marine mammals but have negligible 
impact should obtain a general authorization exactly of the 
sort proposed in H.R. 2693. I believe that other activities can 
be authorized on a case-by-case basis, given the modifications 
of H.R. 2693 for existing incidental take authorizations.
    I hope that this kind of triage can ease the regulatory 
burden where little impact is expected and much can be gained 
for marine mammal conservation, and can focus the regulatory 
resources for activities with the most adverse effects.
    Thank you very much for your attention.
    [The prepared statement of Dr. Tyack follows:]

             Statement of Peter Tyack, Biology Department, 
                  Woods Hole Oceanographic Institution

    Mr. Chair and distinguished members of the Committee, my name is 
Peter L. Tyack. I am a Senior Scientist and Walter A. and Hope Noyes 
Smith Chair in the Biology Department of the Woods Hole Oceanographic 
Institution in Woods Hole, Massachusetts. Thank you for the opportunity 
to provide my views on H.R. 2693, a bill to reauthorize the Marine 
Mammal Protection Act (MMPA).
    I have been fascinated since I was a child with the social behavior 
of marine mammals and how they use sound to communicate and explore 
their environment. I have spent much of the last 25 years following 
these animals at sea, listening to their sounds and watching their 
behavior. As I started my career in basic research it never occurred to 
me that chasing my personal interests would ever become central to such 
an important policy issue.
    In my testimony I address issues concerning section 13 of H.R. 2693 
on the definition of harassment takes under the MMPA, especially those 
for scientific research and section 14 on incidental takings of marine 
mammals, with special reference to incidental effects of manmade noise. 
I would like to start my testimony by congratulating the House 
Resources Committee for correcting what I consider to be serious 
problems with the definition of harassment in H.R. 1835 and 1588 and 
for correcting problems with the authorization process for incidental 
takes. I still have some suggestions for improvements in both areas, 
but I believe that this bill corrects problems with the current MMPA 
and is much better than the changes proposed under H.R. 1835 and 1588.
Introduction
    Three committees of the National Research Council (NRC) of the 
National Academy of Sciences have reviewed issues concerning low 
frequency sound and marine mammals. Each of these NRC committees has 
published a report:
    National Research Council (NRC). 1994. Low-Frequency Sound and 
Marine Mammals: Current Knowledge and Research Needs. National Academy 
Press, Washington, D.C.
    National Research Council (NRC). 2000. Marine Mammals and Low-
Frequency Sound: Progress Since 1994. National Academy Press, 
Washington, D.C.
    National Research Council (NRC). 2003. Ocean Noise and Marine 
Mammals. National Academy Press, Washington, D.C.
    I was a member of the first two committees and reviewed for the NRC 
the report produced by the third committee. I would like to take this 
opportunity not only to give my personal views, but also to reiterate 
some of the repeated suggestions of the NRC committees for changes to 
the MMPA.
Suggested rewording of incidental take authorization for effects of 
        noise.
    When the MMPA was first written, it emphasized takes in commercial 
fisheries. Certainly no one at that time was thinking about whether the 
regulatory process would work for issues such as incidental harassment 
takes resulting from unintentional exposure to noise. Nor was there 
much experience with issues under NEPA of whether the impacts of entire 
activities needed to be evaluated together, or whether it was better to 
authorize each time a ``take'' was possible.
    Since the MMPA was passed, many studies have demonstrated that 
marine mammals respond to ships, dredging, icebreaking and 
construction, and sound sources such as pingers, air guns, and sonars. 
Most of these sound sources are currently unregulated simply because 
NMFS chooses not to enforce the prohibition against taking marine 
mammals by harassment. I doubt that many of these activities could find 
a regulatory procedure under the current wording of the Marine Mammal 
Protection Act that would allow activities with negligible impact while 
controlling those that might have an adverse impact. As has been 
pointed out by each of the three National Academy reports on this 
topic, the dominant source of manmade noise in the ocean is the 
propulsion sounds from ships. Yet this has not been regulated by NMFS. 
As the National Academy 2000 report Marine Mammals and Low-frequency 
Sound put it:
        If the current interpretation of the law for level B harassment 
        (detectable changes in behavior) were applied to shipping as 
        strenuously as it is applied to scientific and naval 
        activities, the result would be crippling regulation of nearly 
        every motorized vessel operating in U.S. waters. (p. 69)
    One response to this conundrum is for each activity to seek special 
exemptions if their activities become targets of regulation. However, 
the National Academy 1994 report Low-Frequency Sound and Marine Mammals 
discouraged that approach:
        ``However, it seems unreasonable that an exemption from the 
        ``take'' prohibitions of the MMPA should be available for some 
        human activities, including some that kill marine mammals, 
        without being available for other human activities whose goal 
        may include the acquisition of information of potential value 
        for the conservation of marine mammals.'' (p 38)
    The first two reports of the National Academy of Sciences on Marine 
Mammals and Low Frequency Sound specifically suggest a broader solution 
to this problem: removing the requirements for small numbers of takes, 
while retaining a criterion of negligible impact:
          Reword the incidental take authorization to delete references 
        to ``small'' numbers of marine mammals, provided the effects 
        are negligible. (p. 39)
          Low frequency Sound and Marine Mammals (1994)
          In addition to making the suggested change in the level B 
        harassment definition, it would be desirable to remove the 
        phrase ``of small number'' from MMPA section 1371(a)(5)(D)(i). 
        If such a change is not made, it is conceivable under the 
        current MMPA language there would be two tests for determining 
        takes by harassment, small numbers first, and if that test were 
        met, negligible impact from that take of small numbers. The 
        suggested change would prevent the denial of research permits 
        that might insignificantly harass large numbers of animals and 
        would leave the ``negligible impact'' test intact. (p. 71)
          Marine Mammals and Low-frequency Sound (2000)
    My understanding of the judge's preliminary ruling in the legal 
challenge to operation of the SURTASS LFA sonar, NRDC v Evans, is that 
the judge ruled against the interpretation followed by NMFS that 
``small'' can be interpreted in terms of population size, and exactly 
following the fears of the National Academy panel, ruled that the 
current MMPA language does require both negligible impact and small 
numbers, where the meaning of the word small could not be interpreted 
in terms of size and status of populations.
    The restriction in the MMPA authorizations for incidental takes to 
``a specified geographical region'' may also rule out this 
authorization process for most impacts of noise. If ``specified 
geographical region'' is taken to mean areas small enough to involve 
the same assemblage of species and oceanographic conditions, then the 
requirements of the incidental take authorizations may be incompatible 
with the NEPA requirement to consider all cumulative uses of a system. 
Many kinds of sound sources are installed on a large number of vessels, 
each of which may cross the ocean in weeks. Many marine mammals also 
migrate thousands of miles through very different habitats. This makes 
it difficult to specify a geographical region for a whale that may be 
in the Caribbean one day, and off New England a few weeks later. 
Different marine mammal populations have boundaries that differ 
according to the ecology and migratory patterns of the species. This 
makes it impossible to identify a unique region that is homogeneous for 
all marine mammals, much less other aspects of the marine ecosystem. If 
the wording specifying a geographical region is to be reconciled with 
the potential numbers and movements of both the animals and the noise 
sources, then the region must be specified in terms of the scope of the 
activity, not homogeneity of the ecosystem.
    The propulsion sounds of ships elevate the ambient noise over the 
world's oceans, and this global impact is likely to reduce the ability 
of whales to detect calls at a distance. I see no process by which such 
takes could be authorized under the current wording of the MMPA. Depth 
sounders and fish finders have sounds that do not carry as far, but 
they are used by tens of thousands of vessels. These sounds have the 
potential to disturb marine mammals, and therefore may take animals by 
harassment, but did Congress intend to require authorization for each 
user? How far could a vessel go before its takes move out of the 
``specified geographical region?'' Oceanographic research, much of 
which uses motorized vessels and uses sound as a tool to explore the 
ocean, also has a global scope, and may be difficult if not impossible 
to authorize under the current regulatory procedures.
    I support the changes proposed in H.R. 2693 to remove the 
conditions of ``small numbers'' and ``specified geographical region'' 
in the wording of the incidental take provisions of the MMPA. I believe 
that as long as a sharp focus is maintained on the issue of negligible 
impact, these changes would make the process work for effects of noise 
on marine mammals, while still protecting marine mammal populations 
from adverse impacts. Since millions of sound sources such as depth 
sounders and the propulsion noises of every motorized vessel could 
cause harassment takes under the current definition, I believe that it 
will be essential for the process to authorize general activities, 
rather than individual vessels or sound sources. This is incompatible 
with restricting the authorization to ``small numbers,'' if this is 
taken literally to mean just a few individuals, or ``specified 
geographical region,'' if this is taken to mean small areas.
Definition of harassment
    The current definition of level B harassment in the MMPA is:
        ``has the potential to disturb a marine mammal or marine mammal 
        stock in the wild by causing disruption of behavioral patterns, 
        including, but not limited to, migration, breathing, nursing, 
        breeding, feeding, or sheltering.''
    The 1994 NRC report on Low Frequency Sound and Marine Mammals 
succinctly reviewed the problem of how harassment has been interpreted 
under the MMPA:
        Logically, the term harassment would refer to a human action 
        that causes an adverse effect on the well-being of an 
        individual animal or (potentially) a population of animals. 
        However, ``the term ``harass'' has been interpreted through 
        practice to include any action that results in an observable 
        change in the behavior of a marine mammal ``.'' (Swartz and 
        Hofman, 1991). (p. 27)
    The 1994 NRC report goes on to note that many minor and short-term 
behavioral responses of marine mammals to manmade stimuli are simply 
part of their normal behavioral repertoire. There is clearly a need for 
some standard of negligible effect, below which a change in behavior is 
not considered harassment.
    The change in the definition of level B harassment proposed by the 
Administration and in H.R. 1835 is:
        ``disturbs or is likely to disturb a marine mammal or marine 
        mammal stock in the wild by causing disruption of natural 
        behavior patterns, including, but not limited to, migration, 
        surfacing, nursing, breeding, feeding, or sheltering, to a 
        point where such behavioral patterns are abandoned or 
        significantly altered.''
    As a biologist who has studied the behavior of marine mammals for 
more than 25 years, I find this wording confusing, and I do not see how 
it addresses the problem identified by the NRC. The last phrase added 
to the definition does add a criterion of significant alteration. 
However the point of the NRC reports was biological significance, a 
disruption that could have an adverse impact. My dictionary defines 
significant as ``likely to have influence or effect.'' The addition of 
the word ``significant'' in the new definition therefore does not give 
the same standard as suggested by the NRC. As our techniques to study 
marine mammals have grown in sophistication and sensitivity, it is now 
possible to demonstrate statistically significant alerting or orienting 
responses that in my opinion fall well below the negligible impact 
standard.
    I find the addition of the word ``abandoned'' particularly 
confusing in the new definition. It certainly makes sense to add a 
criterion for abandonment of critical habitat, but what does this 
wording mean for behavior patterns? A sperm whale or elephant seal can 
dive for an hour or more, but any marine mammal that abandons surfacing 
behavior cannot breathe. If it abandons surfacing for more than a few 
hours, it is certainly dead. If a sperm whale group is sheltering a 
young calf from a killer whale attack, even a momentary abandonment of 
the behavior could be lethal. Calves may be able to survive for days or 
weeks if their mother abandons nursing, and many whales could survive 
for years without feeding, but what is the time period implied by 
``abandon.'' My understanding of ``abandon'' is that it means a 
permanent change. By this definition, the ``abandonment'' wording turns 
level B harassment into a lethal take. Far from distinguishing 
negligible from potentially significant effects, it muddies the waters 
further.
    Another problem with the use of the term ``abandon'' is that I take 
it to mean ``giving up''--a 100% cessation of an activity. Yet since 
the definition of harassment also applies to stocks, this definition is 
not conservative enough for actions that may affect a large portion of 
a stock. For example, suppose an activity caused a 50% reduction in 
foraging rates in a majority of the population, or caused animals to be 
50% as effective in finding a mate for breeding. Such reductions would 
not ``alter'' the form of the behavior, nor would they meet an 
abandonment criterion, but few populations could sustain such changes 
on a long term basis.
    I support the definition of harassment proposed for section 
3(18)(A) (i) and (ii) in section 13 of H.R. 2693. The definition in 
section (ii) closely follows the NRC definition. The primary difference 
is the replacement of ``meaningful'' as a modifier for disruption with 
``biologically significant'' and deleting the phrase ``biologically 
significant'' from the modifier for the kinds of activities. I believe 
that this follows closely the meaning of the definition written by the 
NRC committee.
    I am however very concerned that the harassment definition proposed 
for section (iii) retains the problematic old harassment definition for 
activities directed at marine mammals, including scientific research 
directed at marine mammals. While there is a process to permit such 
research, retaining the old definition for activities directed at 
marine mammals will hold scientific research that enhances the survival 
or recovery of species or stocks to a stricter standard than activities 
that harm marine mammals and do not help them. This does not make 
sense. The only case that in my opinion justifies a lower level of 
regulation involves takes for scientific research that enhances the 
survival or recovery of species or stocks. The proposed changes in the 
definition of harassment for activities directed at marine mammals will 
perversely have the opposite effect.
    NMFS has suggested retaining the old harassment definition for 
activities directed at marine mammals so that they can more easily 
prosecute cases against businesses such as those that charge tourists 
to swim with wild dolphins. I believe that any of the proposed 
harassment definitions fit very well these cases where people 
intentionally pursue marine mammals and annoy them with clear 
disruption of behavioral patterns. It is particularly strange that NMFS 
suggests retaining the old broad definition, when a senior NMFS 
enforcement attorney stated to the 2002 Annual Meeting of the Marine 
Mammal Commission ``the potential to disrupt behavioral patterns, at 
one level, it is a great definition because you go out, you know, we 
can get whatever we want because it is a very broad definition, but 
when you get down to the prosecution level, it is too broad.'' The real 
problem with harassment in my opinion is that NMFS has not shown the 
will to enforce the prohibition against harassment and to prosecute 
cases against growing industries based upon harassing marine mammals in 
the wild. It would be a tragedy for scientific research to be excluded 
from corrections in the definition of harassment as cover for NMFS' 
unwillingness to enforce the prohibition against harassment. If the 
definition of harassment causes problems with prosecution against 
commercial activities directed at marine mammals, which I contest, then 
the solution should be limited to this narrow situation and should be 
worded so as not to impact research directed at marine mammals.
    I would like to take this opportunity to reiterate the suggestion 
of the National Academy of Sciences second report (2000) on Marine 
Mammals and Low Frequency Sound on the definition of level B 
harassment:
        ``NMFS should promulgate uniform regulations based on their 
        potential for a biologically significant impact on marine 
        mammals. Thus, level B harassment should be redefined as 
        follows:
            LLevel B--has the potential to disturb a marine mammal or 
            marine mammal stock in the wild by causing meaningful 
            disruption of biologically significant activities, 
            including, but not limited to, migration, breeding, care of 
            young, predator avoidance or defense, and feeding.
        The Committee suggests limiting the definition to functional 
        categories of activity likely to influence survival or 
        reproduction. Thus, the term ``sheltering'' that is included in 
        the existing definition is both too vague and unmeasurable to 
        be considered with these other functional categories.'' (p 69)
    This definition was written by scientists. Since ``meaningful 
disruption'' is not defined, and since ``biologically significant'' has 
a more specific meaning to biologists, I have no problem with the minor 
changes in wording proposed in H.R. 2693 to fit legal and legislative 
requirements.
    The definition of harassment must take into account our lack of 
knowledge about the ways in which behavioral changes may influence 
marine mammals. For example, prolonged or repeated harassment may lead 
to physiological changes that do not qualify as injury, but that may 
indicate the potential for adverse effects. Prolonged changes in 
behavior that are outside of the normal behavioral repertoire of a 
species may also trigger concern even if the effect on health is not 
immediately obvious. But if the definition of harassment is to be 
changed, the primary focus should be on biological significance in a 
way that clarifies the need for a negligible impact standard. I do not 
think that the changes proposed by the Administration, in H.R. 1588 and 
in H.R. 1835 for the definition of harassment succeed in this task, but 
I support the definition of harassment in (18)(A)(ii) of section 13 of 
H.R. 2963, which closely follows that suggested by the National 
Research Council in any amendments to the MMPA.
Problems with permitting scientific research on marine mammals.
    As a biologist personally concerned with protecting marine life, I 
believe that double standards in the MMPA have led to a particularly 
counterproductive situation for permitting scientific research designed 
to protect marine mammals. The permitting process was created to allow 
an exemption for scientific research from the MMPA prohibition on 
taking marine mammals. The dirty secret of the MMPA is that the 
prohibition on unintentional takes is ignored more often than it is 
regulated and enforced. For example, ships regularly collide with 
marine mammals and often kill them. So many highly endangered right 
whales are killed by vessel collision, that population models predict 
this additional mortality may drive the species to extinction. Yet 
there is no regulation of this risk, nor to my knowledge has any ship 
been prosecuted for striking a whale and killing it. It is ironic that 
far from exempting research from an effective prohibition, NMFS has 
grown an elaborate process for permitting negligible harassment takes 
by researchers, while ignoring widespread and predictable lethal takes 
caused by activities that do not benefit marine mammals.
    As early as 1985, NMFS stated in its Annual Report on the MMPA that 
``one of the most extensive administrative programs in NMFS is the 
permit system that authorizes the taking of marine mammals for 
scientific research and public display.'' I understand that today the 
NMFS Permit Office has 7 personnel devoted to research permits, but 
only two devoted to all other authorizations for incidental taking. 
From my perspective, this is backwards. Scarce regulatory resources 
should only be devoted to minor harassment takes for research after the 
much more significant takes of activities that do not benefit marine 
mammals are controlled by regulations that are effectively enforced.
    It has been recognized for over a decade that the regulatory focus 
on research activities is interfering with research needed to obtain 
critical information to evaluate risk factors for noise exposure in the 
sea. As the 1994 National Academy report on Low-frequency Sound and 
Marine Mammals put it:
          Scientists who propose to conduct research directed toward 
        marine mammals are aware of the permitting requirements of the 
        MMPA and of the Endangered Species Act (ESA) and the associated 
        regulations. Most of their research can be conducted under the 
        scientific permitting process. They routinely apply for and 
        obtain such scientific research permits. However, the lengthy 
        and unpredictable duration of this process can create serious 
        difficulties for research''. In addition to permit delays, 
        certain types of research that are considered ``invasive'' or 
        ``controversial'' either are not allowed under the current 
        permitting process or may require an Environmental Assessment 
        or even an Environmental Impact Statement under the National 
        Environmental Protection Act (NEPA). Such a regulatory burden 
        actively discourages researchers from pursuing those lines of 
        study. (p 29)
          The committee strongly agrees with the objective of marine 
        mammal conservation, but it believes that the present emphasis 
        on regulation of research is unnecessarily restrictive. Not 
        only is research hampered, but the process of training and 
        employing scientists with suitable skills is impeded when 
        research projects cannot go forward. Experienced researchers 
        are the ultimate source for expanding our knowledge of marine 
        mammals. A policy that interferes with the development of this 
        resource appears to be self-defeating. (p 30)
    Things were bad in 1994, but they have recently become much worse. 
The delays for permitting have become much longer, over 21 months in 
some cases. Ironically, the more serious the conservation problem 
addressed by a research project, the more likely the project is to be 
delayed. In addition, the judge in a recent court case involving my 
research permit ruled that all acoustic research on marine mammals is 
controversial. This led him to rule that any permit for acoustic 
research requires an accompanying Environmental Assessment or 
Environmental Impact Statement. This decision means that all of the 
research that can help resolve the marine mammal issues raised by the 
National Academy reports is subject to much more regulatory burden than 
before. Unless Congress changes the regulatory process or provides new 
funds to the NMFS Office of Protected Resources to conduct the analyses 
required under NEPA, the permitting process will not only discourage 
research, but may make it almost impossible to conduct some research 
that has negligible effects and is urgently needed for conservation 
biology.
    Let me illustrate with an example from the research of Scott Kraus, 
a biologist at the New England Aquarium who has studied North Atlantic 
right whales for decades under a series of research permits from NMFS. 
In August of 2001, he applied for a new permit, as his old one was set 
to expire 31 December 2001. In November 2001, after the end of the 
public comment period, the Permit Division received a letter from a 
self-styled ``environmental warrior'' claiming, incorrectly in my 
belief, that the research would harm right whales. In early December 
2001, operating under his old permit, Kraus started aerial surveys to 
keep ships from hitting whales, and he was told the biological opinion 
for the new permit was almost done. Kraus never received his permit by 
the time his old one expired, and on 24 January 2002, NMFS informed him 
that they would defer decisions on a permit until an Environmental 
Assessment was conducted following NEPA rules. This was a complete 
surprise for Kraus, who had to cancel a research program designed to 
develop whale-safe lines for fishing gear. During 2002, at least eight 
right whales entangled in fishing gear, and six were thought to have 
died. It is now July 2003. Kraus had to cancel another attempt to 
repeat the whale-safe fishing line project in 2003, and he still has no 
prediction from the NMFS Permit Division as to when his permit will be 
issued. There may be a new determination of a need under NEPA for an 
Environmental Impact Statement for his permit, not just an 
Environmental Assessment.
    Let me recap. The survival of right whales in the North Atlantic is 
threatened because so many are killed from entanglement in fishing gear 
and from vessel collision. Unlike any airline, as a scientist, Kraus 
needs a permit to fly over right whales, in case the whales might hear 
the plane and somehow be disturbed. Delays in permitting endanger his 
ability to fly surveys designed to warn ships of the presence of 
whales. The ships that regularly kill whales are subject to no 
regulation, and travel wherever they please at any speed through 
critical habitats of the most endangered whale in U.S. waters. In spite 
of some fisheries regulations, whales are dying in fishing gear at 
alarming rates. Fishermen can continue to place lethal fishing gear 
where it can kill whales, but Kraus cannot test new ideas for whale-
safe fishing gear, because the environmental paperwork for his research 
is not sufficient, even after 23 months of delay. Is there something 
wrong with this picture?
    I have also personally had experience with the mad world in which 
Federal actions block the research needed to protect marine mammals 
from poorly regulated impacts of human activities. We cannot protect 
marine life from intense underwater noises until we get better at 
detecting when a marine mammal or sea turtle is in the danger zone. 
Recently, there have been promising developments for whalefinding 
sonars. These are high frequency sonars that work like fish finders to 
detect echoes from animals close enough to be harmed by unintentional 
exposure to intense sounds. When these whalefinding sonars reached the 
point in their design process where they were ready to be tested at 
sea, I submitted an application to amend my research permit to test how 
well a whalefinding sonar could detect migrating gray whales. We know 
how migrating gray whales respond to noise, and I expected little if 
any behavioral response to the whalefinding sonar. The study was 
designed with very sensitive methods to detect whether whales avoided 
the sound source by a hundred meters or so, and I requested permission 
to ``take'' the whales by harassment.
    The Permit Division of NMFS issued the amendment to my permit in a 
timely fashion, but only after deciding that the amendment did not 
require a new environmental assessment. The environmental assessment 
conducted by NMFS for my original permit had already covered testing a 
whalefinding sonar on whales. The wording allowing ``takes'' of gray 
whales alarmed an animal rights advocate in Australia, who gathered a 
few small fringe groups in the U.S. to request an injunction against 
the research the day before the study was to begin. The study was 
delayed by a temporary restraining order and the entire field team and 
one of the research vessels in our national oceanographic fleet were 
tied up for most of the month planned for the research. In the end, the 
judge ruled that the amendment to my permit was invalid because the 
NMFS Permit Division had not prepared a new Environmental Assessment 
under NEPA not just for my original permit, but for each major 
amendment to the permit. Hundreds of thousands of taxpayer dollars were 
wasted and we are a year behind in developing more effective methods 
for monitoring marine mammals.
    The NMFS Permit Division of the Office of Protected Resources has 
just nine personnel and is increasingly inundated. In 2001 they advised 
scientists applying for a permit to expect processing times of at least 
90 days for most marine mammal permits with an additional 135 days for 
permits affecting endangered species. However, some permits have been 
subject to greater delays. NMFS currently advises scientists to allow 
at least 6 months for processing a permit, longer for research 
involving endangered species. In the cases of my and Kraus' permits, it 
appears that last minute complaints by a fringe extremist could trigger 
a ``public controversy'' condition requiring exhaustive environmental 
assessments. Given these precedents, I consider that only permits 
backed by environmental analyses acceptable under NEPA are solid enough 
to protect research from nuisance lawsuits. Due to the increasing 
number of scientific research permits, and the renewed emphasis on NEPA 
analysis, some permit applications may be delayed much beyond 6 months, 
with dramatic increases in the burden on the Permit Division and on the 
applicants. I can personally attest to the heroic efforts of the staff 
of the Permit Division to cope with this disastrous situation, but the 
Division requires additional support and staff to keep the permitting 
process afloat.
    Congress has in the past few years taken strong steps to fund 
research on urgent conservation problems such as declining populations 
of Steller sea lions, or the threat of extinction for the North 
Atlantic right whale, and I applaud these actions. Yet both of these 
research efforts were delayed by more than a year because of delays in 
the permitting process for scientific research. If Congress wants to 
support critically needed conservation research, it is not enough to 
fund the science. Congress will also have to authorize significant 
increases in funding to the Permit Division.
    The time required to obtain a research permit has swelled from 3 
months to 6 months to 21 months and counting. A very important change 
suggested by the NRC would be for Congress to specify a fixed maximum 
time for NMFS to process permits and authorizations. The 1994 NRC 
report suggested 10 days for initial processing, 30 days for the public 
comment period, and 10 days to issue or deny a permit for scientific 
research. The Permit Division used to use a more liberal 30 days for 
initial review, 30 days for the public comment period and a concurrent 
45 days for review by the Marine Mammal Commission, and 30 days to 
issue or deny the permit. This totals to 105 days. I urge Congress to 
follow the recommendation of the NRC and set deadlines of 3-4 months 
for issuing a permit for scientific research.
    The failure of NMFS to prevail in recent challenges to their 
attempts to exempt the permitting process from further environmental 
review under NEPA suggests the need for Environmental Assessments or 
Environmental Impact Statements for each activity that may be permitted 
or authorized. I cannot imagine that even a newly invigorated Permit 
Office could perform these analyses for every project. The only way for 
the permitting process to proceed in a timely fashion given the 
requirements for environmental analyses under NEPA will be for the 
Permit Division to conduct programmatic environmental analyses for most 
typical research activities well before applicants request a permit. My 
understanding is that it typically takes several months and $50,000-
$100,000 to produce an Environmental Assessment, and $500,000-
$1,000,000 and 1-2 years to produce an Environmental Impact Statement. 
This additional workload must be met while the ongoing flow of permit 
applications is expedited. If NMFS is to issue timely and legally 
defensible permits, the permit division and other supporting divisions 
in the Office of Protected Resources will need additional program 
staff, with specialists in many areas such as environmental law, NEPA, 
marine mammal population biology, acoustics, animal health and welfare. 
Congress will also have to authorize significant increases in funding 
for the Office of Protected Resources to hire contract personnel or to 
outsource the analyses required under NEPA and the ESA.
    In order for research not to be over-regulated compared to 
activities with adverse impacts and no benefit to marine mammals, these 
kinds of programmatic environmental analyses are urgently needed for 
setting regulatory priorities not just for research, but for all 
incidental taking. The suit against my test of a whalefinder sonar 
shows how important it could be to researchers for non-research 
activities to undergo similar NEPA review. The whalefinding sonar has a 
frequency range and source level similar to many depthsounding and 
fishfinding sonars. If these other sonars had undergone programmatic 
NEPA analyses, these would have shown that the whalefinder would have 
even less impact because of the way it was operated.
    One suggestion for reducing the regulatory burden on scientific 
research involves including scientific research under the definition of 
harassment for military readiness. This is not helpful for research on 
marine mammals, and could create new problems for marine mammalogists. 
The U.S. Office of Naval Research is the primary funding agency for 
basic marine mammal research in the US. In spite of the excellent 
reputation of ONR as a science agency, the location of this agency in 
the Navy has led to controversy about whether the Navy biases the 
research effort or compromises the integrity of the scientists it 
funds. Fringe groups have even tried to drum up support by conjuring up 
conspiracy theories claiming that critical conservation biology 
projects are secret Navy projects to target marine mammals. If Congress 
were to change the wording of the MMPA to lump scientific research 
under military activities, this would increase concern about the 
relationship between the military and marine mammal research, and could 
accelerate the attacks by anti-research animal rights groups.
    I must emphasize that many of the most serious problems with marine 
mammal research permits have not been MMPA problems as much as NEPA 
problems. Changing the definition of harassment will not affect the 
need for marine mammal researchers to obtain permits for their 
scientific research. Whatever the definition of harassment, I would 
apply for a permit for my research on marine mammals. Most scientific 
journals require permits as a condition of publication. The details of 
the definition of harassment are not the main problem for research 
permits; the problems I face as a scientist involve the significant 
cost of preparing permit applications, the uncertain delays of the 
permitting process, and the vulnerability of the permits to procedural 
challenges. As I mentioned above, the Office of Protected Resources 
will require a considerable injection of funds and highly skilled 
personnel to be able to issue permits in a timely fashion while 
overseeing the timely production of the NEPA documentation required to 
back up research permits.
Special exemptions are not the solution to problems with the MMPA
    During the past several years, there have been efforts to address 
very real problems with the MMPA. Congress today is attempting to fix 
demonstrated problems with authorization under the MMPA of incidental 
takes, especially harassment takes. One way to deal with this problem 
is to tailor special exemptions for groups that have regulatory 
problems. From 1972-2002, this process has created a complex tangle of 
different authorizations for taking marine mammals under the MMPA. The 
basic goals of the Act clearly have not been well served by this 
proliferation of different standards for regulating takes for different 
activities. As the NRC said in 1994, ``it is difficult to understand 
applying different, and less stringent, rules to activities that kill 
marine mammals than to activities that are known to benefit them or to 
have negligible effects on them.''
    I do not think that complicating the Act by creating yet another 
harassment definition for military readiness is the best answer. I 
strongly urge Congress to respond to the problems highlighted by DOD by 
trying to fix the underlying flaws in the regulatory procedures of the 
MMPA for all activities before granting a special exemption that does 
nothing for marine mammal conservation and leaves many other producers 
of sound in the sea with no way to meet the regulatory requirements. If 
Congress restricts this year's solution to military readiness, next 
year they will be likely to have to respond to similar requests from 
some other group such as the seismic or shipping industries. I believe 
that it would be much better if Congress rejects the special exemption 
approach, and instead corrects the deficiencies in the MMPA so that one 
or two simple regulatory processes for authorizing incidental takes 
could be applied evenly to all seafaring activities.
    If done correctly, the regulations might be able to include all 
activities in a streamlined regulatory approach that focuses attention 
on those situations that pose the most risk to marine mammal 
populations. I believe that the provisions of sections 13 and 14 of 
H.R. 2693 go a long way to addressing the problems that have been 
identified in the MMPA. These provisions are much closer to the 
recommendations of the NRC than the provisions of H.R. 1588. I applaud 
the Resources Committee for resisting the drive to add special 
exemptions to the MMPA for specific activities, but instead for 
considering more general modifications that correct problems for 
regulating harassment and incidental takes.
Regulations to protect marine mammals need to be drawn to focus scarce 
        regulatory resources on situations where ``takes'' are most 
        likely to risk adverse impacts to marine mammals.
    One of the most important suggestions of the NRC reports on marine 
mammals and ocean noise is to regulate harassment in the same way for 
all activities, allocating regulatory effort where harassment takes are 
most likely to risk adverse impacts to marine mammals. Currently we are 
far from this goal. For commercial fisheries, section 118 of the MMPA 
allows incidental taking of marine mammals as long as there is 
negligible impact from incidental mortality and serious injury. NMFS 
interprets this as an exemption for commercial fisheries from the 
prohibition of harassment. Harassment takes are also ignored for 
effects of propulsion noise from vessels, which accounts for more than 
90% of the acoustic energy humans put into the sea. Many other users of 
sound in the sea, from the Navy to geophysical contractors to academic 
oceanographers, find themselves in a no-man's land, where the 
appropriate regulatory process for incidental harassment takes is 
obscure. So far the solutions of the regulatory agencies have fared 
poorly in court.
    In my opinion, the best way to direct NMFS to allocate its 
regulatory efforts to the most significant problems is to require 
evaluation of the potential impacts of all seafaring activities on 
marine mammals. A consultation process is needed to tier all sea-faring 
activities into categories for potential harassment: activities 
unlikely to take, activities with takes of negligible impact, and 
activities where the takes might have more than negligible impact in 
some settings. As I discussed in the section on scientific research 
above, this kind of NEPA analysis is required to protect activities 
from nuisance litigation. I believe that in the current climate, even 
harmless activities are vulnerable to legal challenge unless covered by 
this kind of NEPA analysis and MMPA authorization. The provisions of 
H.R. 2693 could be improved by adding a requirement that all activities 
that might take marine mammals should consult with NMFS, so that all 
potential takes to be accounted for.
    The provisions of H.R. 2693 are well suited to creating a simple 
streamlined process for authorizing low impact activities, with 
increased regulation scaling with increased probability of impact. Each 
kind of sea-faring activity that might take marine mammals by 
harassment should be required to consult with NMFS to perform an 
environmental assessment to evaluate the potential for taking, and if 
there are takes, their impact on the population. NMFS should issue 
rules indicating which activities have a remote enough likelihood of 
takes not to require any regulation. A general authorization process is 
essential for activities that may take marine mammals, but that would 
have negligible impacts. Activities that are not eligible for this 
general authorization would need to go through an incidental take 
authorization process on a case-by-case basis. For activities that 
might cause harassment takes beyond the range of detection of the 
vessel, a monitoring program could be established to study animals at 
different ranges from the activity in order to better estimate the 
number of harassment takes. As long as the restrictions on ``small 
numbers'' and ``specified geographic region'' are removed from the 
existing incidental take authorizations, as proposed under H.R. 2693, I 
believe that these existing procedures would work for this kind of 
case-by-case authorization.
    I applaud the House Resources Committee for its efforts to 
establish this kind of streamlined general authorization process in 
section 14 of H.R. 2693. My primary concern about this proposal is that 
I doubt the rapid response mandated for the authorization would be 
possible without prior programmatic analyses under NEPA to determine 
negligible impact. I believe that this general authorization procedure 
would work best after earlier consultation and programmatic 
environmental review of the potential for different kinds of activities 
to cause adverse impacts.
    I urge Congress to develop a consultation process to require NMFS 
to tier activities by expected impact with a streamlined process for 
general authorization of activities with negligible impact and a 
requirement for regulatory effort to be directed to cases with the 
highest expected adverse impact. The NMFS Office of Protected Resources 
will require a considerable injection of funds and skilled personnel to 
participate in these broad NEPA analyses.
Suggested unified procedure for authorizing incidental takes under the 
        MMPA
    The consultation and authorization procedure I have just outlined 
bears similarities with the incidental take provisions of the MMPA for 
commercial fisheries. This regime for regulating fishery takes that may 
kill animals has been quite successful in highlighting situations where 
populations are threatened by fishing. NMFS is required to categorize 
fisheries as to whether they have frequent, occasional, or remote 
likelihood of causing mortality or serious injury. Each fishing vessel 
receives an authorization for incidental takes subject to conditions. 
As long as a fisher registers with this authorization process, complies 
with the conditions, and reports any takes, s/he is exempt from the 
prohibition against taking. Fishers in low impact fisheries have a 
simple and streamlined regulatory process that protects them from 
prosecution in case of an unlikely accident, and regulation ramps up 
corresponding to the threat, up to closing down fisheries that threaten 
the survival of marine mammal populations.
    The 1994 National Academy Report on Low-frequency Sound and Marine 
Mammals approves of the way this regime sets priorities for regulation:
        The proposed regime is designed to redirect regulation to focus 
        on human activities with the largest impact on marine mammal 
        populations, scaling the extent of regulation to the risk the 
        activity poses to populations. (p 35)
    However, the regime for regulating lethal takes or serious injury 
under section 118 of the MMPA has a flaw that may prove fatal to some 
marine mammal populations, such as right whales, where significant 
incidental mortality stems from activities other than fishing. The 
solution to this problem suggested by the NRC 2000 report is to broaden 
this regime to include other activities that might kill or seriously 
injure marine mammals. Obvious examples include vessel collision, 
underwater explosions, and spills of toxic compounds. The MMPA as 
currently written specifies a process to reduce takes from fisheries 
whose lethal take exceeds PBR, but it is silent as to how to regulate 
incidental lethal takes from activities other than fishing. If there 
are situations where non-fishery takes may be as significant as takes 
by fisheries, the MMPA must be modified to clarify how to regulate all 
lethal takes and serious injury, whether from fisheries or other 
sources. When vessels strike and kill whales, for example, this 
mortality must either be subtracted from the PBR or these non-fishing 
activities must be incorporated into a process for allocating takes.
    Section 118 of the MMPA includes a comprehensive program to monitor 
takes from fisheries, but there is no such program to guarantee that 
stock assessments accurately estimate mortality from non-fishery 
activities. If mortality caused by these non-fishing activities is not 
included in the PBR regime, then the regime will not work properly to 
protect marine mammal populations. The strict monitoring requirements 
for fisheries will not protect populations from the effect of non-
fishery mortality unless these sources of mortality are as well 
documented as mortality from fisheries.
Keeping the MMPA up to date with the threats to marine mammals of the 
        21st century
    The impacts of pervasive and subtle human influences such as 
contaminants and noise are much more difficult to identify than death 
by harpoon or injury in nets. As these impacts become more important 
compared to whaling and bycatch, the MMPA must be adjusted to deal with 
these forms of habitat degradation that cannot always be easily or 
effectively regulated under the prohibition on taking. The PBR process 
limits lethal takes to a number small enough not to threaten the 
population. It is more difficult to set a limit on harassment takes, 
since these may vary greatly in impact, and since the effect on 
population growth may be difficult to predict. Exposure to contaminants 
is even more difficult to treat as a take. Ultimately, the significance 
to the population of any take is the effect on the demography of the 
population, the ability of the population to grow or remain a healthy 
size.
    I strongly encourage Congress to adopt wording requiring NMFS to 
account for harassment or effects of contaminants conservatively in 
terms of demographic effects on growth, survival or reproduction of 
individuals and populations. As I discussed in the section of my 
testimony on the definition of harassment, the best way to do this is 
to define harassment in terms of biological significance of the take. 
This is currently a challenging scientific problem, but the correct 
wording should stimulate the appropriate science, while focusing 
attention on the critical issue of keeping marine mammal populations 
healthy. Ultimately a demographic accounting of harassment takes or 
other threats would require population modeling that relates the dosage 
of exposure to population parameters. There has been great progress in 
this kind of population modeling in the past decade. However, right now 
the critical analyses could not be performed for harassment takes 
because we know so little about the extent of the exposure or its 
impact.
    The criteria for harassment takes need to acknowledge our ignorance 
of the scope of exposure to harassing stimuli, and our ignorance of 
many of the effects harassment may have on individuals and populations. 
If we wait until the population has measurable declines, it is too 
late. Therefore it is important to include indicators of adverse impact 
in the criteria. These indicators may be physiological, behavioral, or 
ecological, but must be linked to potential to affect demography.
    Before we can estimate the impacts of subtle threats to marine 
mammals, we must understand the extent of exposure, and the 
relationship between exposure and impact. A critical aspect of the PBR 
regime is that it exempts registered fishers from the prohibition on 
taking as long as they accurately and fully report any takes. A similar 
clause for all vessels that may be involved in harassment would 
ultimately give scientists data needed to estimate exposures that may 
cause harassment. A timely reporting requirement might also make it 
easier to prosecute cases of intentional harassment, as failure to 
report would violate the terms of the authorization.
    Understanding the relationship between exposure to threats and 
adverse impacts caused by the exposures will require a concerted 
research program. I urge that Congress help streamline the regulatory 
obstacles to this kind of research, and also to carefully consider the 
best way to fund and organize this kind of research effort. This must 
include a mechanism to encourage young scientists to become involved in 
this critical area.
    This kind of program would allow NMFS to identify situations where
    1. LA stock was at risk from a particularly high number of takes.
    2. LAn area or activity caused a high number of takes for a variety 
of species.
    3. LThere were particular hot spots of takes.
    4. LThe cumulative takes pose a risk to the population
    Where the sum of takes, lethal, injury, or harassment, pose a risk 
to a population, this regime should require something like the take 
reduction plans used to reduce the problem of fisheries takes. This 
kind of regulatory regime would reduce the burden on activities that 
pose little risk, while focusing attention on species, areas, or 
activities that pose the greatest risk to the most endangered 
populations.
    Some may be concerned that the regulatory process I sketch out 
would lead to reduced protection. It would certainly streamline the 
regulatory process and make it more predictable for most activities, 
but I agree with the National Academy (2000) report on Marine Mammals 
and Low-frequency Noise that such a change would, if done correctly, 
increase protection from the status quo. The current MMPA has 
unbalanced criteria for authorization, allowing some fisheries to kill 
animals with no requirement beyond reporting, while having no procedure 
available to other activities to authorize more than a small number of 
insignificant harassment takes. This does not meet the conservation 
goals of the Act.
Conclusion
    Mr. Chair, I sincerely appreciate your attention to this difficult 
and complex issue. There are real problems with current implementation 
of the MMPA in our changing environment. I believe that H.R. 2963 goes 
a long way to fixing these problems, and I am convinced that Congress 
and the responsible federal agencies can make real progress to create 
permitting and authorization processes that are more predictable and 
efficient, while improving the protection for marine mammals from 
adverse impacts of human activities.
    Thank you, and I look forward to your questions.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Dr. Tyack.
    Dr. Worcester?

  STATEMENT OF DR. PETER WORCESTER, OCEANOGRAPHIC RESEARCHER, 
 SCRIPPS INSTITUTION OF OCEANOGRAPHY, UNIVERSITY OF CALIFORNIA 
                          AT SAN DIEGO

    Dr. Worcester. Mr. Chairman, distinguished members of the 
Committee, my name is Peter Worcester. I am a research 
oceanographer at the Scripps Institution of Oceanography of the 
University of California, San Diego. I very much appreciate the 
opportunity to testify before the Committee on my views on the 
Marine Mammal Protection Act reauthorization as it relates to 
ocean science and the use of sound in the sea.
    Any discussion of the use of sound in the sea must start 
from one basic fact: The ocean is largely transparent to sound, 
but opaque to light and radio waves. What does this mean? It 
means that all of the tasks for which we use light and radio 
waves in the atmosphere must be done using sound in the sea.
    Some examples might help here. We assess fish stocks, 
measure ocean bathymetry, communicate under water, transmit 
data from sub-sea instruments, navigate, profile ocean 
currents, and measure large-scale temperatures and currents. 
Sound in the sea is not just noise. It is used for a wide 
variety of valuable and important purposes.
    With all of that said, what is the problem? The problem is 
that the current regulatory procedures do not adequately 
differentiate between activities that cause minor changes in 
marine mammal behavior, having no adverse impact, and 
activities that cause significant disruption of behaviors 
critical to survival and reproduction. Further, as Dr. Tyack 
noted, the current regulatory procedures are complex, fraught 
with delays, costly in both time and money, and uncertain in 
their outcome. The current regulatory structure makes obtaining 
the necessary authorizations for using sound in the sea so 
arduous that it is having a chilling effect on a wide variety 
of important and valuable uses of sound in the sea as well as 
on the research needed to improve our understanding of the 
impacts of underwater sound on marine life.
    Let me give you an example from a project in which I am 
involved called the North Pacific Acoustic Laboratory. As one 
component of this project, we sought the authorizations needed 
to operate a low-frequency sound source off the north shore of 
Kauai. The source had previously been operated for 2 years as 
part of the Acoustic Thermometry of Ocean Climate Project, 
which included an extensive marine mammal research program to 
determine the effects, if any, on marine mammals. The short 
summary of that research is that subtle effects were detected--
large whales could clearly hear the source--but none of the 
marine mammal experts involved with the program felt that the 
observed effects were biologically significant.
    We started the process of seeking the required 
authorizations in the spring of 1999. We finally completed the 
process and were able to resume transmissions in late January 
of 2002. It took nearly 3 years of my life and cost in excess 
of half a million dollars to get the required permits.
    I hope that this is an extreme example. Nonetheless, it is 
clear that it is simply impractical for a single researcher or 
small research group to undertake such an effort. I personally 
would be unwilling to devote another 3 years of my life to such 
an effort. I doubt that any funding agency would do so. 
Research dollars are simply too scarce.
    So what is the solution? First, the definition of Level B 
harassment needs to be modified to focus on the biologically 
significant disruption of behaviors critical to survival and 
reproduction; that is, on adverse impacts rather than simply 
undetectable changes in behavior.
    Second, the provisions of the MMPA that limit requests for 
an incidental taking or harassment authorization to small 
numbers in a specified geographical region need to be removed, 
while retaining the essential provision that the species or 
stock must be negligibly impacted by the authorized activity.
    Third, the MMPA needs to be modified to provide for the 
issuance of general authorizations allowing for the use of 
oceanographic instrumentation that is in widespread and ongoing 
use for marine research and other valuable purposes; provided, 
again, that any taking by harassment is unintentional and will 
have a negligible impact on the affected species and stocks.
    Finally, it would be helpful for the definition of research 
for which scientific research permits can be issued to be 
broadened to include all legitimate scientific research 
activities, rather than being limited to research on or 
directly benefiting marine mammals. Further, scientific 
research permit procedures should be simplified and 
streamlined.
    The revised definition of harassment and the amendments 
concerning the incidental taking of marine mammals contained in 
H.R. 2693 are largely in accord with the majority of the 
recommendations given above. I therefore strongly support H.R. 
2693. I believe it would facilitate the constructive use of 
sound in the sea, focus regulatory efforts on activities that 
have biologically significant impacts on marine mammals, and 
make it easier to do the research needed to improve our 
understanding of the impacts of underwater sound on marine life 
while continuing to protect marine mammals.
    Although the MMPA changes discussed above are important, 
they are not sufficient in and of themselves to address the 
issues now facing the ocean science community with respect to 
marine mammals. The current understanding of the effects of 
sound in the ocean on the behavior and health of marine mammals 
needs to be improved. A robust marine mammal research program 
is absolutely essential to protecting marine mammals and 
conducting other essential research in our oceans. As you 
undertake the reauthorization process for MMPA, you should 
consider the authorization of such a program.
    I would like to close by stating that I sincerely 
appreciate your attention to this complex and highly emotional 
issues. I look forward to your questions.
    [The prepared statement of Dr. Worcester follows:]

    Statement of Peter F. Worcester, Ph.D., Research Oceanographer, 
  Scripps Institution of Oceanography, University of California, San 
                                 Diego

    Mr. Chairman and distinguished members of the Committee, I am Peter 
Worcester, a Research Oceanographer at the Scripps Institution of 
Oceanography of the University of California, San Diego. I very much 
appreciate the opportunity to testify before the Committee on my views 
on the Marine Mammal Protection Act (MMPA) reauthorization as it 
relates to ocean science.
    Last year I testified before the Subcommittee on H.R. 4781, the 
Marine Mammal Protection Act Amendments of 2002. In my testimony I 
discussed the impact of the MMPA on oceanographic research using 
acoustic methods and suggested amendments to the act intended both to 
facilitate the constructive use of sound in the sea and to improve 
regulatory efforts by focusing them on activities that cause 
biologically significant disruption of marine mammal behaviors critical 
to survival and reproduction, i.e., on adverse impacts.
    Since that time others in the oceanographic community, including 
Scripps Institution of Oceanography, Woods Hole Oceanographic 
Institution, Lamont-Doherty Earth Observatory of Columbia University, 
and the Consortium for Oceanographic Research and Education (CORE) have 
expressed concerns similar to mine in testimony to Congress. The 
recommendations made in their statements closely parallel those that I 
made last year.
    The revised definition of harassment and the amendments concerning 
the incidental taking of marine mammals contained in H.R. 2693 are 
largely in accord with the recommendations that I and others in the 
oceanographic community have made, as will be discussed in detail 
below. If enacted, I believe that they will both facilitate the 
constructive use of sound in the sea and improve regulatory efforts by 
focusing them on activities that have biologically significant impacts 
on marine mammals.
    I therefore strongly support H.R. 2693.
Sound in the Sea
    Any discussion of the use of sound in the sea must start from one 
basic fact:
        The ocean is largely transparent to sound, but opaque to light 
        and radio waves.
    Light travels only a few hundred meters in the ocean before it is 
absorbed. Sound can travel long distances and with great speed 
underwater. Marine mammals--whales, dolphins, seals--therefore rely on 
sound to sense their surroundings, to communicate, and to navigate. 
Similarly, oceanographers, fishermen, and submariners--in short, all 
who work in the ocean--rely on sound to sense their surroundings, to 
communicate, and to navigate. Fishermen, for example, use acoustic fish 
finders to locate schools of fish. Oceanographers use sound in the sea 
for a wide variety of purposes, including assessing fish stocks, 
measuring ocean bathymetry, communicating underwater, transmitting data 
from subsea instruments to the surface, navigating underwater, 
profiling ocean currents, and measuring large-scale ocean temperature 
variability. The U.S. Navy uses sound for many of these same purposes, 
as well as to detect and track submarines and to locate mines.
    Sound in the sea is not just noise. It is used for a wide variety 
of valuable and important purposes.
    With all of that said, what is the problem? The problem is that the 
current regulatory procedures do not adequately differentiate between 
activities that cause minor changes in marine mammal behavior having no 
adverse impact and activities that cause significant disruption of 
behaviors critical to survival and reproduction. Further, the current 
regulatory procedures under the MMPA are complex and fraught with 
delays, costly in both time and money, and uncertain in their outcome. 
The current regulatory structure makes obtaining the necessary 
authorizations for using sound in the sea so arduous that it is having 
a chilling effect on a wide variety of important and valuable uses of 
sound in the sea, as well as on the research needed to improve our 
understanding of the impacts of underwater sound on marine life.
    A project in which I am involved, called the North Pacific Acoustic 
Laboratory, provides an example of the current regulatory process. As 
one component of this project we sought the authorizations needed to 
operate a low-frequency sound source off the north shore of Kauai. The 
source had previously been operated for two years as part of the 
Acoustic Thermometry of Ocean Climate (ATOC) project, which included an 
extensive marine mammal research program to determine the effects, if 
any, on marine mammals. The short summary of that research is that 
subtle effects were detected. Large whales could clearly hear the 
source, but none of the marine mammal experts involved with the program 
felt that the observed effects were biologically significant.
    We started the process of seeking the required authorizations in 
the spring of 1999. We finally completed the process and were able to 
resume transmissions in late January of 2002 (Fig. 1). It took nearly 
three years and cost in excess of half a million dollars to get the 
required permits!
    I believe--hope?--that this is an extreme example. Nonetheless, I 
believe that it is clear that the regulatory burden in this case bore 
little relation to the potential environmental impacts of the project.
    Our understanding of the effects of underwater sound on marine 
mammals and the impact of the existing regulatory structure on 
oceanographic research has been discussed in three recent National 
Research Council reports:
          National Research Council (NRC). 1994. Low-Frequency Sound 
        and Marine Mammals: Current Knowledge and Research Needs. 
        National Academy Press, Washington, D.C.
          National Research Council (NRC). 2000. Marine Mammals and 
        Low-Frequency Sound: Progress Since 1994. National Academy 
        Press, Washington, D.C.
          National Research Council (NRC). 2003. Ocean Noise and Marine 
        Mammals. National Academy Press, Washington, D.C.
    These reports provide an important service in considering how the 
MMPA could be modified ``for facilitating valuable research while 
maintaining all necessary protection for marine mammals'' (NRC, 1994). 
The suggestions made in these reports also provide useful guidance on 
how the MMPA could be modified to facilitate other valuable uses of 
sound in the sea, while maintaining protections for marine mammals.
Definition of Level B Harassment
    The 1994 amendments to the MMPA included a definition of harassment 
as ``any act of pursuit, torment, or annoyance which:
    Level A--has the potential to injure a marine mammal or marine 
mammal stock in the wild; or
    Level B--has the potential to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering.''
    Unfortunately this definition of harassment is somewhat ambiguous 
and has at times been interpreted to mean that any detectable change in 
behavior constitutes harassment. NRC (1994) notes that as ``researchers 
develop more sophisticated methods for measuring the behavior and 
physiology of marine mammals in the field (e.g., via telemetry), it is 
likely that detectable reactions, however minor and brief, will be 
documented at lower and lower received levels of human-made sound.'' 
NRC (2000) concludes that it ``does not make sense to regulate minor 
changes in behavior having no adverse impact; rather, regulations must 
focus on significant disruption of behaviors critical to survival and 
reproduction.'' NRC (2000) suggests that Level B harassment be 
redefined as follows:
    ``Level B--has the potential to disturb a marine mammal or marine 
mammal stock in the wild by causing meaningful disruption of 
biologically significant activities, including, but not limited to, 
migration, breeding, care of young, predator avoidance or defense, and 
feeding.''
    NRC (2003) expands on, rather than replaces, the recommendations 
contained in the previous reports. All three NRC committees are 
therefore in agreement that the definition of Level B harassment should 
be modified to focus on the biologically significant disruption of 
behaviors critical to survival and reproduction, i.e., on adverse 
impacts rather than simply on any detectable change in behavior.
    The revised definition of Level B incidental harassment proposed in 
H.R. 2693 is:
    ``... any act that--
    (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing biologically significant disruption of 
activities, including, but not limited to, migration, breeding, care of 
young, predator avoidance, defense, or feeding...''
    This definition is fully consistent with that recommended by the 
NRC. I therefore strongly support the proposed change.
Incidental Takings--``Small Numbers''
    Another key recommendation made in NRC (2000) is to remove the term 
``small numbers'' from MMPA provisions that deal with the authorization 
of incidental takings. Under current law, requests for an incidental 
taking or harassment authorization apply to ``small numbers'' of marine 
mammals of a species or stock of which the Secretary of Commerce must 
find will be negligibly impacted by the authorized activity.
    Until now, federal managers essentially have interpreted this as a 
single requirement in the authorization process for incidental takes or 
harassment of marine mammals. However, recent court decisions have 
called that interpretation into question and if such a change is not 
made, it is conceivable there would be two distinct and separate tests 
for determining takes--small numbers first, and if that test were met, 
negligible impact from the take of small numbers. The NRC-suggested 
change would prevent the denial of research permits that might 
insignificantly harass large numbers of animals and would leave the 
``negligible impact'' test intact. The goal is to focus our efforts to 
protect marine mammals on avoiding adverse impacts.
    H.R. 2693's proposed removal of language concerning ``small 
numbers'' responds to concerns raised by the NRC. I therefore strongly 
support the proposed change.
Incidental Takings--``Specified Geographical Region''
    Under current law, requests for an incidental taking or harassment 
authorization apply to marine mammals in a ``specified geographical 
region.'' The Secretary of Commerce must find marine mammals in a 
specified geographical region will be negligibly impacted by the 
authorized activity.
    As was the case for ``small numbers,'' it is conceivable there 
could be two distinct and separate tests for determining takes--
specified geographical region first, and if that test were met, 
negligible impact. The suggested change would prevent the denial of 
research permits that might insignificantly harass animals in more than 
one geographical region and would leave the ``negligible impact'' test 
intact. The goal once again is focus our efforts to protect marine 
mammals on avoiding adverse impacts.
    I therefore strongly support H.R. 2693's proposed removal of 
``specified geographical region'' from the MMPA provisions that deal 
with the authorization of incidental takings.
Establishing Timely and Less Burdensome Permitting and Regulatory 
        Guidance
    The complex and lengthy permitting process under the MMPA has 
become a major impediment to conducting ocean research, hindering even 
the research needed to understand better the effect of human-generated 
sound on marine mammals. This problem has been exacerbated in recent 
months by legal decisions that could require extensive analyses under 
the National Environmental Policy Act (NEPA) for any research that may 
affect marine mammals, even in situations where there is widespread 
agreement among federal managers and scientists that the research 
activity has no potential to cause harm. As in the example given above, 
scientists now face lengthy delays and significant additional expense 
that threaten their ability to conduct research. In addition, the 
situation is placing new burdens on the already stretched resources of 
the National Marine Fisheries Service. The ocean science community is 
urgently in need of a timely and predictable permitting or 
authorization process that is not unnecessarily burdensome and provides 
them with assurances that research will proceed in compliance with all 
applicable laws, when the permit is issued.
    One option may be to broaden the relatively streamlined Scientific 
Research Permit procedure for research on or directly benefiting marine 
mammals under section 104 of the MMPA. This procedure is currently 
available only for marine mammal research, and any other scientific 
research affecting marine mammals falls under the Incidental Harassment 
Authorization (IHA) procedure or the lengthy rule-making procedure 
leading to a Letter of Authorization (LOA). These procedures are time 
consuming and burdensome at best, and the NRC (1994) has recommended 
that the definition of research for which Scientific Research Permits 
can be issued be broadened to include a wider range of research 
activities.
    Although such a change would be an important step toward a more 
predictable process for ocean research, the existing procedure for 
obtaining scientific research permits still is enormously time-
consuming and expensive for individual researchers. Today's experience 
is that the costs of permitting and associated legal fees can become as 
expensive as the research investment itself, leading inevitably to less 
ocean research and a slowdown in scientific advancement and the 
benefits that come from it. In addition, the chilling effect of this 
overly-burdensome process is discouraging new researchers from pursuing 
marine science, potentially weakening our human resource capabilities 
in an area that has great potential for new discoveries and large 
information deficits. I would ask that the Committee look at ways to 
further simplify and streamline the process and address the concern of 
the NRC (1994) that ``the lengthy and unpredictable duration of this 
process can create serious difficulties for research.''
    A closely related issue is that oceanographers and other marine 
operators routinely use underwater sound for a wide variety of 
important purposes. However, the MMPA does not provide guidance to 
govern its application to instrumentation that is in widespread and on-
going use, nor does it include a mechanism for allowing for such on-
going uses other than through exemptions that must be applied for on a 
case-by-case basis. I recommended last year either that the National 
Marine Fisheries Service clarify its position on the use of a wide 
variety of routinely used sound sources or that the act be modified to 
provide for the issuance of general authorizations allowing for the use 
of instrumentation that has the potential for taking by harassment in 
situations in which the taking will be unintentional and will have a 
negligible impact on the affected species and stocks. NMFS should be 
tasked with issuing regulations providing general authorizations for 
uses of sound that meet appropriate criteria. Such regulations could 
include provisions excluding critical habitat from the general 
authorization, if appropriate, for example.
    H.R. 2693's proposed provision for a general authorization responds 
to these concerns. I therefore strongly support the proposed change.
Scientific Research on Marine Mammals and Sound
    While the MMPA changes discussed above are important, they are not 
sufficient in and of themselves to address the issues now facing the 
ocean science community with respect to marine mammals. In its reports, 
the NRC makes it clear that the current understanding of the effects of 
sound in the ocean on the behavior and health of marine mammal needs to 
be improved. Different sound frequencies and intensities have different 
effects on various species, and those effects change with location in 
the water column and characteristics of the sea floor. It is clear that 
increasing our scientific understanding would clarify and narrow the 
need to obtain permits and authorizations under the MMPA, as well as 
making it easier for researchers to include effective mitigation 
measures in their experimental plans. A robust marine mammal research 
program is absolutely essential to protecting marine mammals and 
conducting other essential research in our oceans.
    Funding and scientific leadership in this area to date has come 
from the United States Navy. Over the years, the Navy has supported the 
efforts of pioneers like Sam Ridgway and Ken Norris to expand the 
boundaries of our knowledge about these unique animals. Today, the 
Office of Naval Research maintains a substantial research program on 
underwater sound and marine mammals.
    I believe that an enhanced research program on the effects of 
underwater sound on marine mammals is needed. It is important that this 
program be independent and peer-reviewed. It should be broadly based, 
with participation from funding agencies in addition to the Office of 
Naval Research, including the National Science Foundation, the National 
Oceanic and Atmospheric Administration (NOAA), and the Minerals 
Management Service. Support from private industry and non-governmental 
organizations for research managed in such a manner should be 
encouraged. The National Oceanographic Partnership Program offers a 
potential mechanism to bring these entities together in a process that 
provides both needed coordination and scientific independence. As you 
undertake the reauthorization process for the MMPA, you should consider 
authorization of such a program.
Conclusion
    Mr. Chairman and members of the Committee, I sincerely appreciate 
your attention to this complex and emotional issue. Both marine mammals 
and people use sound in the sea for a wide variety of important 
purposes. I believe that the H.R. 2693 responds in a meaningful way to 
the suggestions provided above. If enacted, it will facilitate the 
constructive use of sound in the sea, focus regulatory efforts on 
activities that have biologically significant impacts on marine 
mammals, and make it easier to do the research needed to improve our 
understanding of the impacts of underwater sound on marine life, while 
continuing to protect marine mammals.
    Thank you, and I look forward to your questions.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Dr. Worcester.
    I yield first to--if he has any questions--to the Chairman 
of the full Committee, Mr. Pombo.
    Mr. Pombo. Well, thank you. I would like to get back to Dr. 
Tyack, if I can. You talked about the problems and delays in 
getting a research permit, and I would like you to expand on 
that a little bit for me. Why would it take 18 months or 2 
years to get a permit?
    Dr. Tyack. Yes. I think that not all of these problems are 
problems with the MMPA. They are problems with Endangered 
Species consultations and with NEPA. One of the things that is 
causing more delays than there were in the past is that court 
case that I was involved with hinged on the question of whether 
an amendment to my research permit to do something that had 
already been permitted required a full environmental 
assessment. And the judge ruled that, yes, each amendment 
requires an environmental assessment to back it up.
    Mr. Pombo. So any change in the research you are doing 
would require you to go back and do another environmental 
assessment?
    Dr. Tyack. Or require NMFS to do the assessment. And they 
simply don't have the staff. The Office for Protected Resources 
that does permitting is not geared up to be able to do this. 
These are very difficult time-consuming processes under NEPA. 
And I strongly support the suggestion that Dr. Lent made of 
trying to get ahead of this by doing programmatic environmental 
assessments. But it is going to take a significant effort for 
them to be able to do that and keep the research process going 
on at the same time.
    And I would also like to second Dr. Lent's points that 
there are many research permits for non-endangered species that 
are not involved in the important conservation issues that can 
move very quickly. And there is a general authorization process 
that seems to work quite well for these. The thing that is a 
problem here is that research on endangered species, and 
particularly those that are most involved in tough conservation 
issues like right whales, are the ones that get the most 
delayed. And they are the ones that I think Congress ought to 
focus on trying to support the most. They are the most 
essential for helping resolve the problems that have been 
brought up here.
    Mr. Pombo. What change do we have to make, either in the 
Marine Mammal Protection Act or in the ESA or other laws--
because, I mean, we can blame them, but the truth is, we are 
the ones that pass the laws. So, you know, whether we point 
fingers or not, it is our responsibility.
    What changes would you recommend in existing laws to try to 
speed up that process or eliminate the red tape that exists, or 
the bureaucratic delays that exist?
    Dr. Tyack. I think that giving the resources to do the 
programmatic assessments under NEPA is probably the most 
important step. I personally feel that actually creating a 
deadline would be very important. This was a recommendation of 
the National Research Council, to actually create a deadline of 
three to 4 months, something like that, for issuing the 
permits. The required steps that they need to take can easily 
fit into that time period. And if there were an actual deadline 
that scientists could count on, that would be very helpful. 
Right now, it is a completely open-ended process. So when we 
apply for a permit, we always try to give it about 6 months, 
but we can't know when we will actually receive our permit. And 
very often it involves frantic phone calls by satellite phone 
from a research vessel to D.C. to try to get the permit faxed 
to the ship.
    Mr. Pombo. But--I think we need to think this through a 
little bit more, because it is not just a matter of them 
carrying out the environmental assessments and having the 
people. I think--my question is, is all of that absolutely 
necessary to go through? If you are out and you have been 
permitted to go out and do a research project, if there is a 
minor change in that research, is it really necessary to do 
another environmental assessment, or is this just a full 
employment act to keep more people doing more things?
    Dr. Tyack. This is why I was suggesting at the end of my 
testimony about this triage process. I think if NMFS were able 
to work with a clear de minimis kind of standard for harassment 
and for takes under the MMPA, and publish a list of activities 
that they do not estimate cause takes, then that could maybe 
account for a lot of these kinds of issues. That doesn't occur 
right now. I also think the general authorization process, 
which has been included in H.R. 2693, if that were linked, 
again, to some kind of up-front NEPA kind of analysis showing 
that certain kinds of activities are expected in general to 
have negligible impacts, would streamline it greatly. And if 
the research permits were limited to other activities, I think 
that may both reduce the burden on scientists and on the 
permitting agencies. But there is a considerable amount of 
analysis up front to be able to get to that point.
    Mr. Pombo. And finally, if we were to look at it on the 
broad sense and take research and the activities that you and 
your colleagues have, but to look at all of the activities and 
just come up with these broad definitions of activities that 
would be permitted--because, you know, obviously we get 
complaints from industry, we get complaints from the 
researchers, everybody. Wouldn't it make sense just to come up 
with these broad areas that are considered to have a negligible 
impact and say that if it falls within these areas, it is OK 
and you don't have to go through, you know, a multi-year 
process in order to get a permit. Would that make sense to you?
    Dr. Tyack. Absolutely. And that follows the recommendations 
of NRC to try to have a uniform process applying the same 
standards. Right now, I would say the reason there is so much 
effort--I should be corrected by the Federal agencies if I am 
wrong with the numbers--but I think that seven people are 
involved in authorizing scientific research versus two people 
for everything else. That clearly does not balance the amount 
of impacts caused on these animals. And I think that having 
some process that is streamlined for negligible impact and 
applied uniformly to all activities would greatly help this 
problem.
    Mr. Pombo. Thank you. Thank you, Mr. Chairman.
    Mr. Gilchrest. Thank you, Mr. Pombo.
    Mr. Pallone?
    Mr. Pallone. Thank you, Mr. Chairman. I guess I am really 
asking, well, either Dr. Tyack or Worcester or David Cottingham 
these questions about the harassment definition. The proposed 
change the to the definition of Level B harassment in H.R. 2693 
would require that an activity cause a biologically significant 
disruption of activities including, not limited to, migration, 
breeding, care of young, predator avoidance, defense, or 
feeding. In contrast, the definition proposed earlier by the 
NRC would require that an activity cause a disruption to 
biologically significant activities.
    Now, I know it might not seem like they are not that 
different, but I just wanted to ask if this inversion of the 
words is important and is something that we should be concerned 
about.
    Dr. Tyack. I would be happy to start on this. I think that 
the critical issue, if this hadn't been copy-edited carefully, 
would be something like biologically significant disruption of 
biologically significant activities.
    Mr. Pallone. OK.
    Dr. Tyack. But since there is a--because the point to be 
emphasized is that you want to have a standard that focuses on 
something that could affect growth, reproduction, survival of 
the animals. That should be the standard. And I think since 
there is a list of the activities, and they are obviously 
selected to be biologically significant, as opposed to random, 
I think that if there is only going to be one use of the 
modifier, it is probably more important to be in front of 
``disruption'' than in front of the activities. So I actually 
support the way H.R. 2693 does this. And I don't think that 
that is a particularly problematic change of the exact text in 
the NRC language.
    Mr. Pallone. Does anybody else want to comment on the same 
issue?
    Mr. Cottingham. Let me just add a little bit to that. The 
other part of it is what is in your list. Surfacing was in the 
administration's bill. I don't think surfacing is in--I mean, 
these are really very minor points. The terms and the other 
things that are listed--
    Mr. Gilchrest. If the gentleman will yield just for a 
second?
    Mr. Cottingham. Yes, sir.
    Mr. Gilchrest. Instead of ``surfacing,'' we use the word 
``breathing.''
    Mr. Cottingham. OK. Sorry. ``Breeding'' or ``breathing''?
    Mr. Pallone. ``Breathing''.
    Mr. Gilchrest. ``Breathing''?
    Mr. Cottingham. I don't think that is in there, sir, but I 
stand to be corrected.
    Mr. Pallone. ``Breeding.''
    Mr. Cottingham. ``Breeding'' is there, but I don't believe 
``breathing'' is. But I--
    Mr. Gilchrest. You are right.
    Mr. Cottingham. These are the kind of very detailed 
comments that we want to have the chance to work with the 
Committee on.
    Mr. Pallone. But you don't feel there is a difference 
between the inversion of the words, though?
    Mr. Cottingham. I really think that is almost 
insignificant.
    Mr. Pallone. OK. All right, what about the--
    Mr. Gilchrest. Will the gentleman yield--and I will yield 
you a little bit more time. Just on this point, 
``disruption''--we looked at this yesterday. And ``significant 
biological disruption,'' we had some understanding, was not as 
protective as--this is ``significant biological disruption'' 
versus ``disruption of biologically significant activities.'' 
``Disruption of biologically significant activities,'' as I 
understood it, was more oriented toward the cautionary 
approach, based on the emphasis, as opposed to ``significant 
biological disruption.'' And, you know, I am beginning this 
word-smithing, but we might as well word-smith now as opposed 
to, you know, two, 3 years from now.
    Mr. Cottingham. I actually think you are right, sir, in 
terms of the disruption of those key biological activities, of 
which I think surfacing and breathing would be one.
    Mr. Pallone. I hope I don't regret having asked this 
question.
    Mr. Gilchrest. I will yield you some of my time.
    Mr. Pallone. No, that is all right. If anyone else wants to 
answer it, I --yes, go ahead.
    Dr. Worcester. Yes, if I might comment on that. Not 
speaking as a lawyer, but to talk about the meaningful 
disruption of biological important activities, ``meaningful'' 
seems to be a slightly ambiguous standard; whereas if the goal 
is to make sure we focus on biologically significant 
activities, I would agree with Dr. Tyack that it is better to 
have it modify the term ``disruption.'' I mean, really, the 
goal here is to get away from worrying about merely detectable 
changes and to focus on biologically significant ones.
    Mr. Pallone. OK.
    Dr. Tyack. If I could comment just briefly on why this has 
come up after 30 years of the act. I think in the early years 
of the act, our techniques for following behavior were so weak 
that the assumption was if we could detect any change in 
behavior, it probably was important. And now we have developed 
very sensitive methods to detect does an animal slow its fluke 
beat, does it turn its head when it hears something. Those 
quantify as changes, detectable changes in behavior, and in 
many cases they can be significantly--statistically 
significantly predictable in terms of response to a particular 
sound.
    But it seems like that is not the intent of Congress to 
regulate, an animal turning its head when it detects a signal. 
And, at least the suggestion of the NRC panels was that the 
criterion to use was ``could it'' potentially affect these 
biologically significant activities? Was it a disruption of 
feeding that would actually slow the process for the animal 
getting energy. Was it a disruption of mating behavior that 
might affect reproduction in the population. And that seemed to 
be the criterion to use, rather than ``detectable,'' which the 
Marine Mammal Commission, in the early 1990's, suggested had 
been the standard up to that point.
    Mr. Abercrombie. Would the gentleman yield?
    Mr. Pallone. Oh, sure.
    Mr. Abercrombie. I just want to make sure. Who is speaking?
    Dr. Tyack. My name is Peter Tyack.
    Mr. Abercrombie. I am sorry. I thought it was you, but I 
couldn't see. I just want to make absolutely sure, then. So you 
are saying that--and I think this is important for what the 
Chairman was moving toward, too, that if we change from 
``detectable'' and make the changes that are suggested, this is 
as a result of experience over the past 30 years, which allows 
us to have not necessarily a more sophisticated definition, but 
a definition which gets at what we are really aiming for. After 
all, this is the Marine Mammal Protection Act. And you think 
this will accomplish what both Mr. Pallone and Mr. Pombo are 
inquiring of you with regard to the legislation itself?
    Dr. Tyack. Yes. I think it is very important to remain 
precautionary, but I think the standard should move beyond 
``detectable changes of behavior.''
    Mr. Abercrombie. Which is what we are trying to legislate, 
so that we can put this right.
    Dr. Tyack. Exactly.
    Mr. Abercrombie. Thank you.
    Mr. Pallone. Mr. Chairman, I just want to ask one more 
question about this harassment definition, then I will move 
on--or you can move on.
    The definition for Level A, ``potential to injure'' 
harassment proposed in H.R. 2693, requires that an activity 
have the probability to injure a marine mammal. And I was 
wondering if it seems that this change would require a higher 
burden of proof for a given activity's likelihood of causing 
harm. In other words, does the word ``probability''--you know, 
what is the distinction from ``potential''? Does the word 
``probability'' have a clear and commonly understood legal 
definition? Do you think this change would make the definition 
less protective of marine mammals? Or do you even understand 
what I am talking about? [Laughter.]
    Dr. Tyack. Well, as a scientist I prefer to use numbers for 
quantitative issues like this, but clearly there seems to be a 
spread between ``potential,'' which can and has at times been 
interpreted to be the most sensitive animal within a large 
population, which is very protective, but may be very difficult 
to determine empirically. And ``probable,'' which to me seems 
like it is more than 50 percent, which almost certainly is not 
protective enough.
    So I would assume that there ought to be a middle ground in 
there, which is a bit of a judgment call, but it seems to me 
that these are bound to extremes of probability that I wouldn't 
want to use here. I think something like ``beyond a remote 
possibility'' seems reasonable; ``more than half of the animals 
being disrupted'' seems not precautionary enough. But just 
``potential'' by itself has in the past occasionally been 
interpreted as an exceedingly low level of potential for risk, 
one that is almost impossible to measure.
    Mr. Pallone. Could I ask Dr. Lent to respond to it?
    Dr. Lent. Yes. Thank you. As I mentioned in my testimony, 
we do have concern that the term ``probability'' might have 
some people thinking it would have to be at least 50-50 or more 
than 50 percent. So, again, we welcome an opportunity to 
discuss this language. This is where all of our English classes 
indeed do come in handy.
    Mr. Pallone. OK. Thank you. Thank you, Mr. Chairman.
    Mr. Abercrombie. Do you think Portuguese would help? 
[Laughter.]
    Mr. Gilchrest. There you go.
    How about ``the potential probability''? [Laughter.]
    I yield to the gentleman--did you need any more time, 
Frank?
    Mr. Pallone. No.
    Mr. Gilchrest. Yield to the gentleman from Hawaii.
    Mr. Abercrombie. No more. Thank you.
    Mr. Gilchrest. No questions?
    So, Dr. Lent, the--and, you know, we are eager to absorb 
the kind of information to create a situation where we have 
fundamentally sound--at this point, because it will change in 
20 years, but at this point we have fundamental sound science 
recommendations from the broad community to make it 
``significantly potential'' or ``potential'' or ``probable'' or 
``potentially probable'' or whatever it is. So we want to 
continue to work on those issues. But we are getting some type 
of a consensus here.
    Mr. Abercrombie. Would you yield, Mr. Chairman, on that?
    Mr. Gilchrest. Just let me finish that sentence and I will 
yield. We are getting to a point, I think now, that we are 
looking at a consensus out there in the broader community that 
the word ``probable'' may not be the word we want to use 
because it isn't protective enough. We had some sense that 
``significant potential'' was not protective enough. And we 
might just go back to not changing the Level A definition. I am 
not sure yet, but that is what we are trying to work our way 
through.
    The gentleman from Hawaii.
    Mr. Abercrombie. Yes, thank you. The reason I didn't ask a 
question was, as I probably should have mentioned--what I think 
needs to be done--and this testimony verifies if for me, and I 
will just it out there for your consideration--I think we 
should, the word that needs to come is ``likely.''
    Mr. Gilchrest. We will test that out.
    Mr. Abercrombie. And I am deadly serious about that. 
Because I have been thinking on this for a long time, 
particularly in the context of the Navy experiments with sound 
and all this other. And I think ``likely'' is the thing that 
handles the word--it handles ``probability,'' it handles 
``potential.'' And I think we have reached a level of 
sophistication with respect to scientific research in which 
there is--and I think of it in terms of accident. I am not 
thinking about it in terms of cold-hearted people who are out 
there saying, you know, we're just going to go ahead and do 
this and to hell with the animals, or the mammals.
    What I mean by ``likely,'' is if you--I will draw a rough 
parallel, not necessarily an analogy, that if you are driving 
an automobile at a certain speed and under certain conditions 
and so on, it is--you can use the would with some degree of 
certainty that it is likely an accident will occur, likely that 
you will go into a spin with your car on the ice, likely--
    So if it is likely or unlikely, I think that that is not 
something that is vague. I think it is something that is 
achievable scientifically in terms of determination, and I 
think it stands up in terms of legal definitions that we need 
in order to make a solid legislative judgment. And I think it 
can get beyond the propaganda and the accusations and the 
emotions that can color this kind of consideration 
legislatively.
    Mr. Gilchrest. I thank the gentleman. I am not sure that we 
will ever get free of emotions and propaganda.
    Mr. Abercrombie. That is the reason I think we should--
legislatively, I think we should think in terms of the word 
``likely'' and ask our scientific friends--our friends who have 
a scientific background as well as some experience in terms of 
administration of the law to think as to whether or not that 
might be legislatively useful to us.
    Mr. Gilchrest. We will pursue that line of thinking. Thank 
you very much. I think the--part of what we are trying to do is 
what Dr. Tyack and Dr. Worcester made reference to, and that is 
if the gray whale or other marine mammal moves as a result of a 
ship passing, let's say a Navy ship, we want to get away from 
the idea that that is a process that needs a permit, or that is 
harassment, when that might be normal behavior as the result of 
a whole range of noise in the ocean, not just because that 
particular ship used that particular sonar in that particular 
place; but to the fact that there will be some behavior change 
that will be damaging to that group of marine mammals. And that 
is the fine-tuning that I think we are trying to proceed with 
here.
    And I think we will definitely work on trying to put into 
the language of this reauthorization the recommendations that 
you are making here today, including the ones from Fish and 
Wildlife. We will also try to make, as we work through this 
process and with you, a regulatory regime that is befitting a 
Nation like ours that can focus attention on highly 
sophisticated science that will, in the long term, benefit our 
relationship with marine mammals in the oceans.
    I do want to just focus for a minute on a couple of other 
words dealing with this issue of harassment. The administration 
has used the word ``abandoned,'' as opposed to some of the 
other terms that we have been kicking around here--``disruption 
of biologically significant activities.'' and I would like the 
administration--well, maybe Mr. Cottingham and Dr. Lent to 
explain the difference between the word ``abandoned'' as 
opposed to ``disruption of biologically significant 
activities,'' if I could put those two in alignment. And then 
maybe the other members of the panel, Dr. Tyack, Dr. Worcester, 
and maybe Mr. Jones.
    Mr. Cottingham. Thank you, Mr. Chairman. My--when the 
administration was pursuing this tack, they developed this 
language, or we developed this language with the idea that it 
wasn't just a temporary change. And it was very much like you 
were just bringing up--if a ship goes by and there is a slight 
movement or something. So we went with the approach that the 
change in that behavioral pattern would have to be significant. 
It would have to be more than just a temporary change.
    Mr. Gilchrest. ``Abandon'' is complete.
    Mr. Cottingham. Well, yes, sir. And we have discussed is it 
abandoned right here, is it abandoned--if the animals move a 
mile and start taking up that activity again, is that 
considered ``abandoned''? These are things that we have 
recently been--you know, is it--there's both a spatial and a 
temporal part of abandonment. Is it a 15-minute, is it an hour, 
is it a 1-mile, is it a 5-mile? We have actually been in 
discussions like this with our colleagues at National Marine 
Fisheries Service in the Navy and other agencies to talk about 
both the spatial and temporal types of abandonment.
    Mr. Gilchrest. Dr. Lent?
    Dr. Lent. Thank you. I might just add that in our 
definition, we also say--the complete phrase is ``to a point 
where such behavioral patterns are abandoned or significantly 
altered.'' So it doesn't have to be completely abandoned to 
meet that level.
    Mr. Gilchrest. Is there a reason you-- All right, I am not 
going to kick a dead whale here. [Laughter.] But we do have 
some concern even if it is abandoned or--
    Dr. Lent. Or significant.
    Mr. Gilchrest. --or significant. We are trying to work 
through the word ``abandoned.'' And we know what the 
administration is trying to get at, which is what we are trying 
to get at with ``disruption of biologically significant 
activities,'' so the small turn of the head is not considered 
harassment.
    Mr. Cottingham. Mr. Chairman, if I may--
    Mr. Gilchrest. Yes, sir.
    Mr. Cottingham. One other thought just came in. There may 
be instances where a single instance of a ship going past would 
have a momentary disruption, and that would not be considered, 
under our definition or yours, a biologically significant 
activity. But numerous, cumulative, repeated, you know, every 
day, every hour, every 15 minutes types of activities, we want 
to make sure that whatever definition we come up with has the 
potential for assessing the cumulative impacts of that, 
repeated instances of harassment as well. So I think that is 
just one more point that could get to the ``abandoned'' or 
``significantly altered.'' Because there are a lot of times 
when one vessel or one activity wouldn't do something, but if 
they did it every day, it might.
    Mr. Gilchrest. So you are saying that the word 
``abandoned,'' in a broader sense from your perspective, would 
be more protective of marine mammals because it focuses in or 
you can collect data which determines the cumulative impact of 
that activity on marine mammals?
    Mr. Cottingham. No, I didn't mean it particularly like that 
as much as this is all in the context of authorizations or 
getting permits. And there may be activities that you could do, 
whether it is a research permit or an incidental activity, that 
one researcher going in and collecting samples or doing fly 
overs might not create a big problem. But the problem could 
come if you had 50 researchers who wanted to go on that one 
beach and collect samples from a seal. And there are only so 
many seals, and so they could go in and drive the seals into 
the water when they landed and went on-shore.
    If it only happened once during a summer, it probably 
wouldn't have any effect at all, and the researcher would be 
permitted for that. But if they, over the course of a summer, 
researchers or others went ashore to collect samples, pretty 
those seals or sea lions may not haul out on that particular 
breeding beach. And that would be an abandonment of that beach.
    Mr. Gilchrest. We will have to work through that.
    Mr. Cottingham. OK. I hope I didn't add confusion.
    Mr. Gilchrest. I hope that word ``abandoned,'' then, 
doesn't make it more difficult for researchers to pursue their 
studies. We will work with you on that word ``abandoned.''
    I want to ask a final question to whoever wants to answer 
this, I guess. If you look at the ocean as a whole and you look 
at the noise in the ocean as a whole, let's say prior to human 
activities, before there ships, what was the noise in the 
ocean, the natural noise in the ocean? And can you compare the 
natural noise in the ocean to human noise in the ocean--that is 
commercial shipping, recreational boating, seismic activities 
from marine exploration, to the Navy? And if you were to rank 
that as to what is all this noise--and I guess natural noise--I 
don't know what natural noise is, wave action, volcanoes, 
lightning strikes, you know, those kinds of things, natural 
noise; and what is--we are looking at--I don't want to say we 
are looking at nature harassing marine mammals, or orcas 
harassing marine mammals, or whatever, but we have--you know, 
the noise in the ocean: Where does most of the noise come from, 
given the fact that marine mammals have evolved with that 
natural noise or there is some resiliency to it? But natural 
noise in the ocean, what is the next noisiest thing in the 
ocean? Do you have that information?
    Dr. Worcester. That is a rather complicated question. The 
most recent NRC report was, in fact, in large measure devoted 
to just that issue. There are few simple comments one can make. 
At low frequencies, below a few hundred Hertz, probably the 
best measure we have is by comparing the background ambient 
noise levels in the Northern Hemisphere to those in the 
Southern Hemisphere. And those in the Northern Hemisphere are 
about 20 dB higher--there is about 100 times more power in the 
Northern Hemisphere, predominantly due to shipping. So sort of 
the general background noise in the ocean has increased 
substantially because of mankind's activities.
    At higher frequencies, up around a few kilohertz, wind and 
wave action is typically the dominant source of noise. Rain 
falling on the ocean makes substantial noise, raising the 
level, really, above background wind-and-wave noise. So--
    Mr. Gilchrest. I am just going to interrupt real quick. I 
will end, because maybe Mr. Chairman and Mr. Pallone have other 
questions to follow up.
    I guess what I am looking for is, in a lot of the testimony 
that we read, a lot of the noise, especially human activity 
noise, has an effect on the marine mammals' ability to use 
their acoustics; it interferes, all of this--whether it is 
shipping or seismic or sonar or whatever, it interferes with 
that. So I guess maybe this would be something Mr. Cottingham 
is going to pursue as far as anthropogenic sound and what the 
marine mammals can tolerate.
    So if it is raining, you have big storm out there, that is 
high frequency, versus heavy shipping lanes, which is low 
frequency--does that have an impact on marine mammals in 
general? Does it determine, the marine mammal as far as the 
frequency is concerned, what could be biologically disruptive? 
Those kinds of things. Do we have those--is that scientifically 
discernable now, or is that something that we are not sure of?
    Mr. Cottingham. Mr. Chairman, there are--and Dr. Tyack has 
been on several of these National Research Council panels that 
he mentioned looking into this. And that is exactly the sorts 
of things we will be working with, a group, to not only talk 
about the background sources of noise as--both the chronic and 
the acute sounds, because what Dr. Worcester was talking about 
is really a lot of the background noise that is there. Some of 
the most recent problems or incidences of problems have come 
from the much more acute that are--they only last a short--you 
know, an hour or a day or a few minutes, as with the sonar-type 
activities. We will be looking at that in talking about 
research activities and ways to mitigate those potential acute 
sounds as well.
    Mr. Gilchrest. Thank you very much.
    Mr. Pombo?
    Mr. Pombo. Thank you, Mr. Chairman. I have a lot of 
questions that I would like to ask, but I think this is 
something that over the course of time we need to kind of work 
through a lot of what we mean in terms of definition, so that 
we all understand exactly where we are going.
    But there is one question that somewhat perplexes me, and 
that is--under the general idea of the Marine Mammal Protection 
Act, we give a higher level of protection to marine mammals. 
Should there be a different interpretation or a different level 
of protection when we are talking about a population that may 
be overpopulated in a certain area versus one that is 
endangered or more threatened in terms of an overall 
population? Should there be a different level of protection or 
a different level of what we mean by ``harassment'' or what we 
mean by all of these protections that we have put in in this 
law?
    In California we have areas where we have overpopulation of 
certain marine mammals, and there is increasing conflict with 
human activity because of that. And I am just not sure if we 
should have that difference in there or not.
    Dr. Lent?
    Dr. Lent. Thank you, Mr. Chairman. Increasing populations 
of marine mammals is a happy problem, but it is a problem that 
we are very much aware of, particularly from our recreational 
constituents on the West Coast. I think it is important to note 
that when we make a determination of negligible impact, we 
certainly take into account the number of animals in the 
population--is it going to have an impact or not? It is very 
different for Hawaiian monk seals than it would be for 
pinnipeds off the coast of California.
    So whether or not we need to have different definitions of 
harassment determining the level of population or depending on 
the level of population, I don't know if that is necessary 
given the process we go through to say is it or is it not 
having a significant biological impact on the animal.
    I just want to note that we are very aware and working very 
closely with our constituents in the recreational community, in 
particular on the West Coast, dealing with ways to handle this 
happy problem of too many animals out there. When we have a 
limited number of staff and budget, we have to focus on getting 
those populations that are in bad shape back up, and hopefully 
we will have enough funding eventually to focus on dealing with 
too many animals in certain closed areas. Thank you.
    Mr. Pombo. I agree with you that your focus should be on 
the threatened or more problematic species. There is no 
question that that is where your focus should be.
    Somebody recently handed me a news article about--I believe 
it was in La Jolla, in Southern California, where some guys 
went on to the beach and chased--I don't know if it was sea 
lions or seals or what it was they chased off the beach, and 
they were all arrested and fined $1,000 for doing it. I have a 
hard time putting together your description of not having 
enough money and personnel to take care of things. If that is a 
priority and you can dispatch people to take care of somebody 
doing something like that, I don't--I think maybe you have too 
many people, if that is what you are doing.
    Do you follow what I am saying?
    Dr. Lent. Thank you, Mr. Chairman. I understand the case of 
the children's pool in La Jolla. The folks that were issuing 
the citations were from the enforcement side of the Agency. 
They were not the scientists who were out working with the 
populations that are in trouble. We try very hard to use 
outreach and education and having docents there on the beach to 
inform people that this is not something that we want to have 
happen, rather than to have to issue citations. One of the 
persons that had a citation was in fact injured by the mammals, 
so it is not just for the mammals' protection, but also the 
folks using the beach. Thank you.
    Mr. Pombo. Well, I am going to yield back, Mr. Chairman, 
but I really do think that we need to pursue this a little bit 
in terms of the differences in areas that may be overpopulated 
versus areas that aren't, and look at what we mean in terms of 
harassment of those species. I think that is a big part of the 
conflict that we are having, at least on the West Coast, where, 
you know, people--my average constituent goes down there and 
there are seals all over the beach and they are not supposed to 
use the beach because the seals are there. And it is a conflict 
that I think is unnecessary and causes us problems.
    You know, when we talk about some of these highly valuable 
research projects that are going on and our desire to further 
that research and to protect those marine mammals, I think my 
constituents and others look at that very differently than they 
do a beach that is full of seals. And I think there should be 
some rationale in that whole thing.
    Thank you, Mr. Chairman.
    Mr. Gilchrest. Thank you, Mr. Pombo.
    Mr. Pallone, any more questions?
    Mr. Pallone. Thank you, Mr. Chairman. I just wanted to ask 
a couple of questions about the captive animal welfare, either 
for Rebecca Lent or David Cottingham. In 1994, the changes to 
the Marine Mammal Protection Act gave APHIS the authority for 
captive marine mammal welfare inspections. And I wondered if 
APHIS has demonstrated the requisite expertise and ability to--
oversee marine mammals in captivity. And in addition, you know, 
how many inspectors do they deploy to inspect display 
facilities? Have they promulgated specific care standards? Any 
oversight or reports requirements for APHIS? I am just kind of 
lumping these all together. If either of you would like to 
respond.
    Mr. Cottingham. Thank you, Mr. Pallone. I don't have the 
specific numbers on how many APHIS inspectors there are. Of 
course, this--I believe that APHIS started a negotiated 
rulemaking process and they got part of the way through it and 
in 1998 or 1999, they came up with some of the proposals to 
implement those. But I think some of the most contentious 
aspects were not finally finished.
    Of course, the Commission was on record urging APHIS 
throughout some incidences recently with some polar bears, that 
the situation was such that the APHIS folks were saying that 
the person who was inspecting those facilities had no real 
training in polar bears, they didn't get there very often. And 
it really was quite contentious. It has been resolved, and most 
of the polar bears are now in good--
    Mr. Pallone. Well, let me--maybe what I can do, the more 
specific questions are about the inspectors and the other 
things. Maybe I can ask you those in writing.
    Mr. Cottingham. Right.
    Mr. Pallone. But if either of you could just tell in 
general your opinion about whether you think APHIS has 
demonstrated requisite expertise and ability to do the 
inspection and to oversee the captive marine mammals. I can ask 
those other questions more specific in writing, with your 
permission. But just in general, if you could comment on 
APHIS's ability in that regard, either you or Rebecca Lent.
    Mr. Cottingham. My comment would be that the Commission has 
urged on a number of occasions that APHIS take some more 
training with marine mammals, and with vets who were 
specifically trained in marine mammalogy and dealing with 
animals that are in either public display or research 
institutions.
    Mr. Pallone. OK. Dr. Lent?
    Dr. Lent. Thank you. I don't have anything to add. Thank 
you.
    Mr. Pallone. OK, we will just add those--if we could ask 
those other questions in writing.
    But let me just ask about the polar bears. As you know, the 
traveling exhibit of marine mammals, a number of them gained 
national attention with the Suarez polar bears incident last 
year. I guess one of the polar bears died, in fact. And is 
there a need to include not just--now, cetaceans are what? 
Those are the whales? Dolphins and whales. Boy, you are getting 
me technical here. Is there a need to include not just 
cetaceans but all marine mammals in a prohibition on 
transportation for traveling exhibits? And specifically in 
regard to those Suarez bears, what is their current legal 
status? And you know, I think you were hinting about them being 
located to appropriate institutions. Do you want to comment on 
what happened in that regard?
    I guess that is Mr. Jones, because you did a very good job 
in trying to take care of the bears. So I am asking you that 
question.
    Mr. Jones. All right, thank you, Mr. Pallone. Let me start 
with the specific situation with the Suarez bears first, if I 
could, and then answer the first part of your question.
    As you noted, we first became aware of issues regarding the 
conditions under which the bears were being kept in 2002--or 
late 2001. But we had had even before that a question about the 
documentation. We initially issued a permit for all these bears 
to come in based on our believe that everything was right with 
their paperwork. But in March of 2002, we decided that one of 
the bears, in fact, was not the bear that was identified on the 
documentation we were provided. So we seized that bear. That 
bear is now in the Baltimore Zoo and doing well.
    Mr. Pallone. --go see him.
    Mr. Jones. In November of 2002, we decided that we would 
seize the remaining six bears because of the fact that the 
bears had come into Puerto Rico, into the United States, under 
the conditions that they would be maintained for public 
display. And the circus was no longer displaying them. There 
certainly were questions about the conditions under which the 
bears were kept. Those issues were the responsibility, first, 
of APHIS but also of the Commonwealth of Puerto Rico. We felt 
finally that regardless of the other issues, the bears simply 
were not being used in the way that the permit required, and 
that there were in addition these other issues about care of 
the bears, and we certainly felt a responsibility.
    So we seized those bears. Unfortunately, one of the bears 
died during the transport. The remaining bears, one is at the 
Point Defiance Zoo in Tacoma, Washington; two are--sorry, two 
are at Point Defiance, two are at the North Carolina Zoo in 
Asheboro, North Carolina, and one went to the Detroit Zoo.
    Now, the--we have litigation ongoing on this issue. The 
Suarez Circus has sued the Government and we have actions 
taking place, and I am not able to comment on the details of 
the matters that are pending in court. But I will say that we 
believe that the actions that we took were completely 
appropriate in this case.
    Now to your first question.
    Mr. Pallone. About the prohibition on transport.
    Mr. Jones. It is clear that there is a different level of 
risk to whales, dolphins, porpoises, those species that we are 
not responsible for in the Fish and Wildlife Service that have 
to be maintained in water all the time. And so that is the 
reason that the administration bill focused on these other 
species. The administration does not have a position regarding 
the inclusion of additional species. I will just say 
personally, Mr. Pallone, that I would not object to a 
broadening of that prohibition in the law. But for an 
administration position, we would probably have to provide you 
with that.
    Mr. Pallone. All right, thank you very much and thank you 
for all your help in helping the bears. Appreciate it.
    Mr. Jones. And Mr. Pallone and Mr. Chairman, if I could add 
one other thing, because I was remiss in my opening statement 
not to note something else. I am accompanied here by Judy 
Wilson from the Minerals Management Service, who is the 
endangered species coordinator for MMS. And while most of the 
issues we have discussed this morning regarding oceanic species 
are within the purview of the Fish and Wildlife Service, the 
fact is that MMS is involved through its seismic activities and 
through its regulation of oil and gas development offshore. And 
MMS takes these responsibilities very seriously.
    And while it may not be the place here during this hearing 
today, we are--the Department of Interior would certainly be 
pleased to provide any information to you and your staff that 
you would like to have about MMS and its activities and its 
interactions with marine mammals. MMS does have an active 
research program, and we work closely with them where we can 
help to accomplish those things. And we would be pleased to 
provide you with any information you would like to have.
    Mr. Gilchrest. Thank you very much.
    Mr. Pallone. Thank you.
    Mr. Gilchrest. Thank you, Mr. Pallone.
    Just a final brief question for this panel. I know it is 
getting late. Everybody wants lunch and we have another panel 
to go through and we have to be out of here by 1 o'clock.
    But anyway, Dr. Lent. ``Little 3(i),'' that is what I am 
calling it. Sounds like an Indian name. The paragraph in Level 
B harassment that starts ``is directed toward a specific 
individual'' is still making a number of constituencies a 
little bit uneasy. We understand why the Agency wants this 
language to prosecute those non-permitted activities that 
harass marine mammals. We include the language in our bill to 
address the concerns of the Agency. However, we are questioning 
the need for that paragraph now, since the phrase ``pursuit, 
torment, and annoyance'' has been deleted from the definition. 
Can't the Agency prosecute those non-permitted activities 
without this added paragraph?
    If you need time to ponder that.
    Dr. Lent. Yes, I am waiting for that little song to go that 
gives me time to think, right?
    Mr. Gilchrest. OK, Frank and I could sing some Irish songs. 
[Laughter.]
    Dr. Lent. That would be good.
    Mr. Gilchrest. Frank, you are Irish, aren't you?
    Dr. Lent. Thank you, Mr. Chairman. I think the important 
thing is we really feel that it is important to have something 
in this bill that allows us to go straight to the activities 
that are directed on marine mammals. It is clear, it is 
something that is in there, in the law, so that we can get 
regulations in place to address things like jet skis and swim-
with programs, things that clearly for us are going to alter 
the behavior.
    So we still think it is necessary. Again, as we mentioned, 
we look forward to talking to you about that definition and 
making sure that is the best way to go.
    Mr. Gilchrest. Thank you. And we will pursue that.
    We are going to have votes around 12:00, five votes. They 
will take a lot of time out of here.
    So, I enjoyed this panel. Hope we can get together again. 
But thank you very much for your testimony.
    The second panel today-- Dr. Lent, that might not be a bad 
idea. I know which song you are thinking of. We will bring that 
in here the next time. ``Jeopardy,'' yes--is that ``Jeopardy''? 
I will have a little tape recording.
    Our second panel will be Mr. Robert Hayes, General Counsel, 
Coastal Conservation Association; Ms. Karen Steuer, Senior 
Policy Advisor, National Environmental Trust; Mr. Charlie 
Johnson, Executive Director, Alaska Nanuuq Commission--welcome; 
Dr. Randall Wells, Conservation Biologist, Sarasota Dolphin 
Research Program, Mote Marine Lab; Mr. Robert Zuanich, Board 
Member, United Fishermen of Alaska.
    I want to welcome all of you. If there are no seats in the 
back, for the people that are standing, since I don't think we 
will have any more members, you can sit in the lower dais if 
you so choose. Make it a little bit more comfortable.
    We will start with Mr. Hayes. Folks, thank you for your 
attendance here this morning. We look forward to your 
testimony. Mr. Hayes.

      STATEMENT OF ROBERT HAYES, GENERAL COUNSEL, COASTAL 
                    CONSERVATION ASSOCIATION

    Mr. Hayes. Well, I would like to begin by thanking you for 
pulling together a bill that, from our view--that would be the 
recreational fishermen's view--begins to address potential 
interactions between recreational fishermen and marine mammals, 
but does it in a way that might actually apply a little bit of 
common sense.
    I would like to say that I am here today on behalf of the 
Coastal Conservation Association. But in addition to my remarks 
today on behalf of them, I should point out that I have 
discussed this testimony with the Recreational Fishing Alliance 
and with the American Sport Fishing Association, and they share 
similar views for this testimony.
    You know, Congress in 1972 decided that marine mammals were 
going to take a special position in this world. And 
recreational fishermen certainly support that point of view. 
Recreational fishing, however, has over the last few years, 30 
years, grown to a substantial size industry in volume. The 
National Marine Fisheries Service presently estimates that 
there are 12 to 17 million marine recreational anglers in the 
United States. We think, actually, that number is a little bit 
low. So that is a substantial involvement in the marine 
environment.
    When we first got involved with this concept of how we 
interacted with marine mammals, frankly it was not through 
anecdotal evidence that there was actually an involvement; it 
was through a reading of the administration's bill, which 
referred to us, I think, as non-commercial fishermen. We didn't 
know what that was, exactly, but we assumed it was us. I am 
sure there may be others at the table that it referred to in 
addition, but we assume it referred to us.
    And so we appreciate the approach that you have taken in 
your bill. Your bill basically directs this incidental take 
activity to, really, what the problem is. And the problem, it 
seems to me, is relatively simple. It is not commercial 
fishermen or recreational fishermen that are the problem; it is 
the gear that they use. If you look at the activity of fishing, 
which is essentially what you have done in Section 118, and you 
look at the kinds of activities that the normal, average 
recreational fisherman is involved in, he has very little 
interaction with the marine mammal. He is out there with a rod 
and a reel, he has control of it, he has the ability to see 
what he is doing. He knows what that interaction is. So an 
incidental interaction is, frankly, going to be--not 
``remote,'' but it certainly is infrequent, and it certainly is 
never intentional.
    However, there are--I actually have a report of these 
things--there are reports of recreational fishermen using 
commercial gear. And there is commercial gear which clearly has 
an interaction with marine mammals. Gill nets is my favorite. I 
found a report from the State of North Carolina--I am sorry Mr. 
Jones isn't here--but there is a report from the State of North 
Carolina that there are over 100,000 trips by recreational 
fishermen in 2001 with recreational gill nets. Now, I didn't 
know what a recreational gill net was. I knew what a gill net 
was, but I had a little trouble figuring out what a 
recreational gill net was.
    But the reason I bring that up is that that apparently is 
the impetus, or the largest impetus, for the administration's 
view that non-commercial fishermen ought to be involved in the 
Marine Mammal Protection Act.
    I can point out this--and that is why I like your version 
of the bill: Your bill looks at the problem. The problem is the 
gear that interacts with marine mammals and the significant 
impact, if there is a significant impact, on those marine 
mammals. If it is the gear that interacts, it is the gear we 
ought to focus on. It is not the activity of recreational 
fishing. It is the activity of using a destructive gear.
    And I will point out one other thing, which I found 
remarkable in this North Carolina study. There are 190 trips in 
2001 that are still being used by electric shock by 
recreational fishermen. Now, I thought that was banned 
everywhere, but apparently not in the State of North Carolina. 
And for those folks who are sitting here going what in the 
world is he talking about, it is an old way to catch catfish, 
frankly, is the way they used to do it. You stick an electric 
line down in the water, and over here you have an old crank 
telephone, and you crank the telephone around and it kills lots 
of fish.
    Lord knows, when I was listening to this sound discussion, 
I was thinking, boy, wait till they hear about this.
    But that kind of gear. That kind of gear is clearly 
destructive. It is the thing that we ought to be focusing on. 
But at the same time, I don't think we ought to be engaging, 
frankly, the largest sector of the recreational community and 
the vast of majority of it that uses rod and reel. And so what 
we would like to work with you on your bill, is we would like 
to work on a provision that essentially makes clear that rod 
and reel activity by recreational fishermen is a activity that 
is not going to have very many interactions and is not going to 
get involved, in the normal course of events, with a very 
cumbersome Section 118 process--which I can actually assure 
you, no recreational fisherman I know is going to be able to 
muster the kind of attention that it is going to take to go 
through that process.
    So that is what we would like to work with you on.
    [The prepared statement of Mr. Hayes follows:]

            Statement of Robert G. Hayes, General Counsel, 
                    Coastal Conservation Association

    Good morning Mister Chairman:
    My name is Bob Hayes and I am the general counsel for the Coastal 
Conservation Association (``CCA''). We appreciate being asked to 
testify about the amendments to section 118 of the Marine Mammal 
Protection Act (``MMPA''), which as enacted in 1994 focused entirely on 
commercial fisheries.
    The Coastal Conservation Association is the leading marine 
recreational fishing group in the United States. Formed by a small 
group of sport fishermen in Houston in 1978, CCA has grown to a 
fifteen-state operation with over 90,000 members. Each of our states 
operates somewhat independently focusing on issues in the state that 
are important to marine recreational fishermen. However, like so much 
in oceans management, conservation issues encompass a regional and 
national perspective, therefore, CCA learned long ago that federal and 
international fisheries management were just as important to the local 
marine recreational fishermen as the conservation of the most local 
fish population.
    CCA pursues conservation policies set by our state and national 
Boards of Directors. These boards are made up of active volunteers 
concerned about the health of the nation's marine fisheries. CCA has 
been active in a number of conservation issues in the last twenty 
years, which include: all of the east and gulf coast net bans; gamefish 
status for redfish, speckled trout, tarpon, striped bass, river shad, 
marlins, spearfish and sailfish; and, the reduction of bycatch through 
the use of closed areas and technology. We have also pushed for the 
improvement of the management system through the restructuring of state 
and federal management systems; the elimination of conflicts of 
interests by decision-makers, and the active involvement of our 
membership in the management process.
    The interaction of recreational fishermen and marine mammals has 
not been a CCA priority until recently. In the last three years we have 
been involved in the management of Manatees in the Florida. There the 
interaction of boaters and manatees have resulted in a series of 
regulations issued by the federal government and the State of Florida. 
The most prevailing regulatory concept has been the imposition of slow 
speed zones. The timing and location of the areas is a good example of 
the violation of a management principle CCA has long endorsed. 
Management of fisheries and fishermen is best done at the lowest 
possible level of government. Local officials are more responsive to 
the needs of the public and far informed about what works for the 
impacted resources than officials in the federal government. Despite 
years of interaction with federal fishery managers, I am still 
astonished by the federal decision makers general lack of practical 
answers to easy questions.
    I know that the subject of this hearing and my testimony today is 
not manatees but I would ask the Committee to consider the possibility 
of amending the Act to instill the principle we are endorsing. Where a 
State can manage a resource consistent with all the responsibilities of 
the MMPA then it ought to be allowed to do so, without third party 
recourse to the federal government. Such a delegation would provide 
greater confidence in the regulations controlling the problem and at 
the same time insure the same level of protection required by the Act 
itself.
    Congress and the American public made a policy decision in 1972 to 
protect marine mammals in a way that no other non endangered species 
received protection. As a result of this decision, marine mammals have 
prospered and in some cases have filled ecological niches that have 
resulted in increased interaction with man. Much of that interaction 
has focused previously on commercial fishing which, because of the size 
and location of its operations, has received the most Congressional 
attention. The first of course was the tuna porpoise problem. 
Increasingly however there have been minor interactions between marine 
mammals and other commercial fisheries and in some cases with some 
recreational fisheries.
    Section 118 as enacted provides for an extensive process to 
determine which commercial fisheries interact with marine mammals and a 
process to determine the appropriate regulatory measures to reduce 
those interactions. The Chairman's amendments to section 118 recognize 
that there may be instances where fisheries other than commercial 
interact with marine mammals. It provides the same process for those 
fisheries for a permitted incidental take as is presently provided for 
commercial fisheries. The process is still highly bureaucratic and 
cumbersome.
    There are 12 million saltwater recreational fishermen in the United 
States. The vast majority of them fish with traditional recreational 
rods and reels. They have a very remote, if any, possibility of an 
injurious interaction with marine mammals. Placing them in the section 
118 process would subject them to a new regulatory burden, which I 
doubt very much the average recreational fishermen would find easy to 
participate in. Nor would it be a process that would provide much 
benefit to the marine mammals being protected. A little common sense 
needs to be applied here. Recreational fishing done with rod and reel 
ought to be an exempt activity under the MMPA. Barring that Congress 
ought to make it very clear that rod and real recreational fishing 
ought to be classified by NOAA Fisheries as a category (1) (A) (iii) 
activity.
    We are aware that there may be recreational activities like gill 
netting for spot in North Carolina which may have a higher incidence 
interaction with marine mammals. Clearly that kind of activity ought to 
be included within the section 118 process. It is my understanding that 
recreational gill netting in North Carolina may involve as many as 
100,000 trips a year. Personally I don't think of it as a recreational 
activity and would ban it entirely. But that is a decision best left to 
the fine folks in North Carolina. To my knowledge this kind of activity 
only occurs in North Carolina and Alabama. If there is an interaction 
with marine mammals then the participants ought to be regulated to 
reduce that interaction. Congress does not however need to open the 
door to including 12,000,000 anglers into the mix. A simple 
clarification in HR. 2693 would ensure this result.
    Again, I appreciate the opportunity to be here this morning and I 
would be happy to answer any questions the Committee members may 
have.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Hayes.
    Mr. Hayes. Thank you.
    Mr. Gilchrest. We look forward to that.
    Ms. Steuer.

  STATEMENT OF KAREN STEUER, SENIOR POLICY ADVISOR, NATIONAL 
                      ENVIRONMENTAL TRUST

    Ms. Steuer. Thank you, Mr. Chairman--both Mr. Chairman--and 
Mr. Pallone. I am a senior policy advisor to the National 
Environmental Trust, but I am testifying today on behalf of 
organizations that are supported by millions of Americans from 
Maine to Hawaii. We appreciate the opportunity to provide you 
with our views on H.R. 2693.
    While we support some of the provisions in the legislation 
and appreciate being able to work with you on it, there are 
critical changes from existing law that we believe would 
significantly weaken current levels of protection for marine 
mammals. And it is those provisions that I want to focus on 
today.
    We have concerns about some of the bill's proposed changes 
for take reduction plans. The goal of a take reduction plan, 
under current law, is to reduce the mortality of marine mammals 
to sustainable levels within 6 months of its implementation. 
H.R. 2693's combined changes to the current time lines would 
delay this objective by approximately a year. And in some 
areas, that means that potentially hundreds of additional 
marine mammal deaths will occur.
    Although NMFS's record on meeting the exist act's time 
lines is abysmal, we have to mention that many of the delays 
have been caused actually by political intervention in the 
process. And extending the timeframes, as H.R. 2693 does, will 
not facilitate better implementation or conservation.
    The intention behind the procedures established in Section 
118 in 1994--and I am helped to write them, so I am guilty--was 
to bring all the stakeholders together, and to bring them 
together in a consensus-building process, with the single goal 
of reducing unsustainable incidental takes. But this approach 
is only successful if stakeholders enter the negotiations in 
good faith and if they believe that the consensus-building 
process is their only option.
    Rather than amend the act to modify the deadlines, we would 
really like to urge Members of Congress and State officials to 
refrain from intervening in the Section 118 process once it is 
under way, and allow it to proceed with its current statutory 
requirements. Under these circumstances it will work, and 
actually has worked very well on the West Coast. The Pacific 
Coast team has done a great job on take reduction and putting a 
plan together and beginning its implementation. So we know that 
the process can work.
    H.R. 2693 fails to address the greatest remaining threat to 
the most endangered large whale in U.S. waters, the North 
Atlantic right whale, which was already mentioned in earlier 
testimony today. NMFS regulates, or at least tries to regulate 
fishermen whose gear causes approximately half of the human-
induced mortalities of this species, through the take reduction 
team process. However, the Agency has to date made no attempts 
to regulate shipping traffic, even though we have solid 
documentation that ship strikes cause the other 50 percent of 
the mortalities.
    We would therefore urge that the Committee consider 
including language in the bill that creates a ship-strike 
mortality reduction plan, using the take reduction plan model. 
And we would be happy to work with the Committee on language to 
this effect.
    On to harassment. The bill changes what we believe is the 
most fundamental provision of the MMPA by amending this 
definition. As previously discussed, it shifts the burden for 
Level A harassment from ``potential to injure'' to 
``probability to injure,'' which we believe is a far more 
ambiguous and less protective threshold than currently exists. 
H.R. 2693 also changes the existing definition of Level B 
harassment by requiring a biologically significant disruption 
of activities, but it doesn't define what biologically 
significant disruption means. Nor is that a commonly used 
scientific term.
    The bill also adds a proposed third tier of harassment, as 
we discussed earlier, for activities directed toward specific 
animals. The permitting standard in that tier of harassment is 
one of ``disrupting behavior,'' which is different from the 
other standard of Level B harassment of a ``biologically 
significant disruption.'' So in effect, if you adopt this 
approach, you have created three different standards of 
harassment, but you haven't defined any of the terms included 
in those standards. And we think that is a very dangerous way 
to go.
    We would instead urge the Committee to retain the current 
definition of Level A, and to amend Level B harassment as 
follows: Any act that disturbs or has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of biologically significant activities, including, 
but not limited to-- and then going on to list the activities.
    And I know you have heard this before, but this definition 
almost exactly mirrors the definition proposed by the National 
Research Council. It replaces your ``biologically significant 
disruption'' with what we believe is the far more 
scientifically definable ``biologically significant 
activities.'' And considering that the NRC has just begun plans 
to undertake a new study entitled, ``Describing biologically 
significant marine mammal behavior''--and they are about to 
convene a panel to do so--we believe it would be far wiser to 
use this wording, if indeed it is prudent to amend the 
definition at all at this time when the NRC is undertaking this 
study.
    Finally, H.R. 2693 proposes to establish a general 
authorization for incidental takes. Unlike other general 
authorizations in the MMPA, whose scope is limited to a 
particular activity and type of take, such as commercial 
fishing, the current language that you propose applies to any 
activity. It doesn't restrict the scope of the take, it is of 
unlimited duration, it has no requirement for the applicant to 
provide information on the type of activity or the number of 
animals impacts, and it has no requirements for reporting.
    As currently written, this is a broad authorization that 
would effectively create an escape clause that allows user 
groups to bypass the incidental take permitting process 
entirely. I believe that--
    Mr. Gilchrest. Karen, I am just going to-- We have 
potential for votes very soon, and so I am going to have to 
limit the testimony to as close to 5 minutes as possible. And 
we will continue to talk to you about the words and the 
placement of the adverbs, adjectives, pronouns, dangling 
participles. We are going to do all that. And that is why we 
are going through this process.
    So I am really going to have to ask you to just finish up 
with your last sentence so we can move on.
    Ms. Steuer. The last sentence is that we want to work with 
you on trying to make this better, and we will do everything we 
can from here on in to do that.
    [The prepared statement of Ms. Steuer follows:]

      Statement of Karen Steuer, Senior Policy Advisor, National 
Environmental Trust, on behalf of the Following Organizations: American 
    Cetacean Society; Animal Protection Institute; Cetacean Society 
International; Defenders of Wildlife; Greenpeace; Humane Society of the 
  United States; International Marine Mammal Project of Earth Island 
  Institute; International Wildlife Coalition; National Environmental 
 Trust; Natural Resources Defense Council; Oceana; Society for Animal 
   Protective Legislation; Seaflow; The Ocean Conservancy; Whale and 
         Dolphin Conservation Society; and World Wildlife Fund

    Mr. Chairman and Members of the Resources Committee:
    My name is Karen Steuer. I am a Senior Policy Advisor to the 
National Environmental Trust, and I am testifying today on behalf of 
organizations supported by millions of Americans from Maine to Hawaii. 
Our groups represent a broad range of marine mammal expertise, 
including experience in field research on cetaceans and pinnipeds, 
working with whale watching operations, rescuing stranded whales and 
dolphins, participating in court-related actions to defend U.S. marine 
mammal protection laws, serving on take reduction teams, and drafting 
previous legislative changes to the Marine Mammal Protection Act 
(MMPA.)
    We appreciate the opportunity to provide you with our views on H.R. 
2693, and have the following comments on the provisions contained in 
the legislation, and on additional provisions we believe should be 
included in the reauthorization of the Act. The following analysis 
follows the structure of H.R. 2693.
    Section 4: Limited export authority. The bill corrects a problem 
created by the 1994 amendments to the Act, which allowed a Native of 
Canada, Greenland, or Russia to import legally obtained marine mammal 
products into the United States as part of personal travel or cultural 
exchange, but failed to address the export of those products at the end 
of the travel. We support this correction.
    Section 5: Authorization of appropriations. We would strongly urge 
that the Committee consider increasing the authorization levels in H.R. 
2693, which are considerably less than the agencies require to properly 
fulfill their obligations under the MMPA. In previous testimony before 
this Committee regarding changes to the statute proposed by the 
Department of Defense, we emphasized that in our view the arguments and 
characterizations raised by DOD did not arise from the language of the 
statute, but instead reflected process problems residing within the 
wildlife agencies. It would be disingenuous to insist that the agencies 
correct these problems, take on the additional burdens contained in 
this legislation and recommended elsewhere, and refuse to provide them 
with the funding necessary to complete those tasks. Increasing their 
obligations without concurrently increasing the authorization levels is 
a recipe for disaster--for the agency, the statute, the stakeholders, 
and marine mammal conservation.
Section 6: Take reduction plans.
    Non-commercial fisheries: We recognize that some non-commercial 
fisheries use gear similar or identical to commercial fishing gear and, 
as a result, are taking marine mammals at rates potentially equal to or 
greater than those in commercial fisheries. The 1994 amendments to the 
MMPA added Section 118 to the Act as a new bycatch management regime 
for commercial fisheries. In order for these provisions to be 
accurately and fairly implemented, they must now be extended to non-
commercial fisheries where appropriate. However, we are concerned that 
the amendments proposed in H.R. 2693 are too narrowly focused and do 
not include all the references necessary to bring this subset of non-
commercial fisheries under the authority of the MMPA's Section 118. The 
intention behind the language in H.R. 2693 is unclear; if the 
Committee's intention is to apply the Act equally to all fisheries 
which incidentally take marine mammals, we would recommend that the 
bill be amended to use the approach contained in sections 403 and 404 
of the Administration's proposal.
    Timelines: The goal of a take reduction plan is to reduce, within 
six months of implementation, the mortality or serious injury of marine 
mammals accidentally entangled in fishing operations to sustainable 
levels. H.R. 2693 would (1) delay this objective by three months; (2) 
nearly double the period for review and finalization of a take 
reduction plan; and (3) remove the existing requirement that a take 
reduction team be convened no later than 30 days following the 
publication of a stock assessment indicating that incidental takes for 
that stock exceed the Potential Biological Removal. These delays will 
result in potentially hundreds of additional marine mammal deaths, and 
we strongly oppose these amendments.
    Unfortunately, NMFS' record on following the existing time frames 
and procedures for take reduction plans mandated by the Act is abysmal. 
For example, shortly after the 1994 amendments were enacted, NMFS 
stated that reduction of harbor porpoise bycatch was a priority, given 
the high levels of mortality and the likelihood that an Endangered 
Species Act listing was imminent. Regardless of their stated 
intentions, NMFS convened the team far behind the mandated schedule 
and, although the team reached consensus on a take reduction plan, the 
agency delayed publishing the plan for more than 18 months, during 
which time dozens, if not hundreds, more harbor porpoise were 
needlessly lost to incidental take.
    In another example, NMFS did not convene a take reduction team for 
large whales until forced to do so through a lawsuit, although it was 
widely recognized that one of the species involved, the North Atlantic 
right whale, was highly endangered and clearly subject to unsustainable 
incidental takes in fishing gear. In response to the lawsuit, NMFS 
submitted a plan to the court. Political intervention resulted in NMFS 
substantially weakening the plan to the point at which it merely 
allowed existing fishing practices as bycatch reduction measures. As a 
result, incidental takes remain at unsustainable levels, and again the 
agency finds itself in court.
    The agency can and should meet the current deadlines mandated by 
the Act. Extending the timeframes as H.R. 2693 does will resolve none 
of these problems, nor will it facilitate better implementation or 
conservation. The intention behind the procedures established in 
Section 118 was to bring all stakeholders together to reach consensus 
on methods of reducing unsustainable levels of incidental takes of 
marine mammals within a relatively short time frame. However, this 
approach can only be successful when stakeholders enter the 
negotiations in good faith, understanding that the consensus-building 
process is the best option, and when the agency meets its statutory 
mandates. Rather than amend the Act to modify deadlines, we urge that 
Members of Congress and state officials refrain from intervening in the 
take reduction team process, and allow it to proceed with current 
statutory requirements. Under those circumstances, there is every 
reason to believe it will work.
    Take reduction team members: We support the amendments in H.R. 2693 
that would add broader agency representation to take reduction teams, 
including representatives from the office of NOAA General Counsel, law 
enforcement, NMFS fisheries scientists, and a representative of the 
appropriate NMFS Regional Administrator. We believe these changes can 
serve to provide crucial guidance to the team to ensure that the 
proposed measures can be easily translated into regulatory language, 
are enforceable, and are not in conflict with other fishery management 
measures. Adding this additional expertise during the early stages of 
the take reduction plan process should also assist the agency in 
ensuring more timely review and implementation of proposed take 
reduction plans.
    Changes to take reduction plans: We support the amendment in H.R. 
2693 requiring the Secretary to reconvene take reduction teams to 
explain differences between the draft plan proposed by the team and the 
published plan approved by the Secretary.
    Support for take reduction efforts: The MMPA currently authorizes 
the Secretary to accept gifts, devises, and bequests to carry out 
Section 118, and H.R. 2693 clarifies that this authorization extends to 
observer, research, and education and outreach programs. It is our view 
that this provision will help to provide NMFS with the ability to work 
cooperatively and effectively with various user groups in the 
implementation of take reduction plans, and we support its inclusion.
    Right whales and ship strikes: There is currently no provision in 
H.R. 2693 to address one of the greatest conservation threats to the 
most endangered large whale found in U.S. waters, the North Atlantic 
right whale. NMFS currently regulates fishermen, whose gear causes 
approximately 50% of the human-induced mortalities of this species, 
through the take reduction team process. However, the agency has to 
date made no attempts to regulate shipping traffic, even though ship 
strikes have been documented to cause just as many right whale deaths. 
We therefore propose including language in the reauthorization that 
would create a ship strike mortality reduction plan, using the take 
reduction plan model. We would be happy to provide the Committee with 
draft language.
    Section 7: Pinniped research. Pinnipeds have never been the primary 
cause of the decline of a salmonid, nor has it been scientifically 
demonstrated that they have been a primary factor in the delayed 
recovery of a depressed salmonid species. 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.
    We support H.R. 2693's proposed amendment to provide for research 
into non-lethal removal and control of nuisance pinnipeds. We 
recommend, however, that this section of the bill be amended to: (1) 
require the Secretary to develop a research plan to guide research on 
the non-lethal removal and control of nuisance pinnipeds; (2) clarify 
that the development and testing of safe, non-lethal removal, 
deterrence and control methods shall provide for the humane taking of 
marine mammals by harassment; (3) include other organizations and 
individuals, such as the conservation community, in addition to 
representatives of commercial and recreational fishing industries, in 
the development of the research program; (4) require the Secretary to 
make the annual report to Congress available to the public for review 
and comment; and (5) authorize the Secretary to accept contributions to 
carry out this section, as in Section 118.
    Section 8: Marine Mammal Commission. We oppose the provision in 
H.R. 2693 that states: ``except that no fewer than 11 employees must be 
employed (by the Marine Mammal Commission)--at any time.'' Removing 
this lower threshold may provide some members of Congress with an 
incentive to decrease appropriations and, in turn, staff capacity on 
the Marine Mammal Commission. Congress should instead rely on the 
Commission to fulfill the role for which it was originally created: to 
provide crucial expertise and guidance in the oversight and 
implementation of the Act. The Commission should be empowered to expand 
its authority to promote and undertake visionary dialogues and 
strategic thinking that will advance the purposes and policies of the 
MMPA.
    We support the provision to change the per diem rate in the Act, 
which in our opinion is too low. Consequently, the current provision 
precludes the Marine Mammal Commission from securing the services of 
most experts and consultants. By removing this restriction, the 
Commission will be brought under the government-wide restrictions for 
the payment of experts and consultants.
    We recommend that the authorization of appropriations proposed for 
the Marine Mammal Commission be increased to a more realistic figure of 
$3,400,000.
    Section 9: Scrimshaw exemption. We do not oppose this provision, 
which extends the permits for individuals with pre-ESA ivory, to allow 
them to continue to possess, carve, and sell the ivory until 2007.
    Section 10: Polar bear permits. In 1994, Congress provided for the 
issuance of permits authorizing the importation of trophies of sport-
hunted polar bears taken in Canada, subject to certain findings and 
restrictions. The amendments required the public to be given notice 
prior to and after issuance or denial of such permits. H.R. 2693 
proposes to change this public notification process to a semiannual 
summary of all such permits issued or denied. We oppose this provision, 
as it would establish a blanket exemption to the notice and comment 
requirement and institute a dangerous precedent under which permits 
could be issued or denied without much-needed public scrutiny. The 
public comment process surrounding the issuance of a permit to import 
polar bear parts is needed to provide public oversight to verify that a 
permit is tied to tagging that clearly demonstrates when, and from what 
stock, the polar bear was taken. Rather than removing the public 
comment process, the Fish and Wildlife Service should work to ensure 
that these provisions are effectively enforced and do not result in the 
illegal take or a negative change in the status of stocks that are 
currently depleted.
    Section 11: Captive release prohibition. We support the provision 
in H.R. 2693 amending the MMPA to clarify that the Act expressly 
prohibits any person subject to the United States' jurisdiction from 
releasing a captive marine mammal unless specifically authorized to do 
so. In the absence of mandatory precautionary measures established as 
conditions of a captive release permit, potential harm might result, to 
both the animals released and to wild populations they encounter, in 
the form of disease transmission, inappropriate genetic exchanges, or 
disruption of critical behavior patterns and social structures in wild 
populations. Any such permit requirement must be subject to the same 
jurisdictional and public review requirements that apply to other MMPA 
permits.
    Section 12: Stranding and entanglement response. Each year a 
growing number of marine mammals become entangled in fishing gear and 
other marine debris. It is important that NMFS and FWS have the 
explicit authority to collect information on these entanglements and to 
grant authorization to selected organizations or individuals to 
disentangle animals whose lives are threatened. Disentanglement has 
proven to be an effective mitigation measure for humpback whales, 
northern fur seals, California sea lions, and Hawaiian monk seals, and 
has proven to be significant to the survival of the North Atlantic 
right whale. These efforts promote the conservation and recovery of 
these species and should continue as a matter of priority. To improve 
efforts to monitor and respond to entanglement threats to marine 
mammals, we support the proposed amendments to Title IV of the MMPA to 
include entanglement situations and to define the term 
``entanglement''.
    Section 13: Definition of harassment. On May 6 the Resources 
Committee held a hearing on changes proposed to the MMPA by the 
Department of Defense, among them a change to the definition of 
harassment. During that hearing, many of the organizations represented 
by this testimony expressed grave concerns regarding the proposed 
changes. We noted that in our view any problems with the existing 
harassment definition are not due to ambiguities in the statutory 
language, but to fundamental process problems, including: inconsistency 
in reviews of permit applications, conflicts in the process that 
dovetails the MMPA with the National Environmental Policy Act, and a 
lack of cooperation among federal agencies. If the problem lies in 
process issues that go uncorrected, changing the definition is likely 
to result only in more confusion, more delays in granting permits, and 
more lawsuits. Nothing will be gained, and marine mammal conservation 
will undoubtedly suffer as a result.
    The current definition of ``harassment'', added to the Act in 1994, 
is ``
    ``The term ``harassment'' means any act of pursuit, torment, or 
annoyance which--
        (Level A) has the potential to injure a marine mammal or marine 
        mammal stock in the wild; or

        (Level B) has the potential to disturb a marine mammal or 
        marine mammal stock in the wild by causing disruption of 
        behavioral patterns, including, but not limited to, migration, 
        breathing, nursing, breeding, feeding, or sheltering.''
    H.R. 2693 would shift the burden for Level A harassment from ``has 
the potential to injure'' to ``has the probability to injure.'' We 
oppose this change, and are of the view that the proposed language is 
far more ambiguous than the existing definition. The term ``potential'' 
is clear and requires no further evaluation of the probability of 
injury, whereas ``probability'' is undefined, subjective, and likely to 
result in confusion among potential permittees. An example of the 
inherent difficulty with the ``probability'' would be the issue of 
ships entering Boston Harbor, transiting a National Marine Sanctuary 
and habitat for a number of endangered or threatened large whales. 
Evidence shows that ships entering Boston do occasionally strike and 
kill whales: the potential for ship strike is clear, and dictates that 
preventative measures should be mandated to the extent practicable. But 
the probability of an individual ship striking and injuring a whale 
varies tremendously, depending on season, ship speed, number of ships 
entering the harbor on any given day, and other factors. It would be 
virtually impossible to determine or enforce, resulting in even more 
confusion among stakeholders.
    H.R. 2693 also weakens the existing definition of Level B 
harassment by requiring a ``biologically significant'' disruption of 
activities, including, but not limited to, migration, breeding, care of 
young, predator avoidance, defense, or feeding. The legislation does 
not define the term ``biologically significant disruption,'' nor is it 
a commonly used scientific term...'' The insertion of this term would 
add harmful and unnecessary ambiguity to the definition, increasing 
regulatory uncertainty for regulated entities, and potential risk for 
protected marine mammals.
    Finally, the bill would add the Administration's proposed third 
tier of harassment to include activities ``directed toward'' a specific 
animal or group of animals and ``likely to impact'' those animals by 
``disrupting behavior''. While we recognize the intent in using this 
tier to regulate activities such as dolphin feeding, we would reiterate 
previously expressed concerns regarding ``directed'' activities. In our 
view, this definition would also apply to scientific research and whale 
watching operations. We would also note that the permitting standard 
included in this provision of ``disrupting behavior'' differs from the 
standard included in the other section of Level B harassment, which 
requires a ``biologically significant disruption.''
    If the Committee adopts this approach, it has in effect created 
three different standards of ambiguously defined harassment without any 
clarification as to which standards would apply to whom and under what 
circumstances. If enacted, we have little doubt that this definition 
will result in far more confusion, more lawsuits, and less protection 
for marine mammals, and that we will be debating yet another approach 
to the definition in the next reauthorization of the MMPA.
    Our organizations urge the Committee to instead retain the current 
definition of Level A harassment, and to amend Level B harassment as 
follows:
        any act that disturbs or has the potential to disturb a marine 
        mammal or marine mammal stock in the wild by causing disruption 
        of biologically significant activities, including, but not 
        limited to, breathing, communication, sheltering, migration, 
        breeding, care of young, predator avoidance or defense, and 
        feeding or foraging.
    This definition is similar to that proposed by the National 
Research Council, and has the added advantage of replacing the 
Committee's proposed ``biologically significant disruption'' with the 
far more easily understood and scientifically definable ``biologically 
significant activities.'' It also clarifies the concern expressed by 
others that the current definition could apply to de minimus 
activities--with the addition of the descriptive term ``biologically 
significant activities,'' de minimus activities are specifically 
excluded from consideration. In addition, by defining harassment as 
``any act that'' there is no need for a separate clause related to 
directed activities, as any act includes both incidental and directed 
activities.
    Section 14: Incidental takings of marine mammals. H.R. 2693 
proposes to eliminate key conservation elements that restrict the scope 
of incidental take to ``small numbers'' of marine mammals while 
engaging in a specified activity ``within a specified geographic 
region.'' We oppose the removal of these provisions.
    Retention of these limitations is a vital component of the 
conservation principles embodied in the MMPA. Under the current 
language, regions of operation and numbers of animals impacted are 
drawn as narrowly as possible to accomplish the proposed activity; 
environmental review then takes place on that basis. The status of 
marine mammal conservation varies from species to species and from 
ocean to ocean, and requires that activities be considered on a case-
by-case basis. Geographic regions serve different biological purposes 
for different species, and actions that have little or no impact on one 
species within a specified region may have grave consequences for 
another.
    Finally H.R. 2693 proposes to establish a general authorization for 
incidental takes. The intent of this provision is unclear. Unlike other 
general authorizations in the MMPA that limit the scope of the 
authorization to a particular activity and type of take (such as 
commercial fishing), this authorization applies to any activity; does 
not restrict the scope of the take; is of unlimited duration; has no 
requirement for the applicant to provide information on the type of 
activity or number of animals impacted, proposed monitoring and 
mitigation measures; and has no requirements for reporting. In effect, 
this broad authorization creates an escape clause that allows user 
groups to bypass the incidental take permitting process entirely, and 
we believe there is no basis for a general authorization of this scope, 
which would render the MMPA's conservation goals and mandates virtually 
meaningless.
    Conclusion. It is our view that many of the most important 
provisions of the MMPA, including the harassment definition and 
conditions for incidental takes of marine mammals, would be 
significantly weakened by H.R. 2693. We urge the Committee to consider 
these concerns, and look forward to working cooperatively with the 
Members and staff on these issues in the future.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much.
    Ms. Steuer. Thank you.
    Mr. Gilchrest. Mr. Johnson, welcome, sir.

STATEMENT OF CHARLIE JOHNSON, EXECUTIVE DIRECTOR, ALASKA NANUUQ 
                           COMMISSION

    Mr. Johnson. Thank you, Mr. Chairman. I am the executive 
director of the Alaska Nanuuq Commission, and I am also 
representing the Indigenous Peoples Council on Marine Mammals, 
which was formed in 1994 to fight for co-management.
    We have worked very diligently the last 2 years with the 
U.S. Fish and Wildlife, the National Marine Fisheries, and the 
Marine Mammal Commission to come up with a language for the 
reauthorization of MMPA. This is very different from a few 
years ago. When we first got together, we had somewhat of an 
adversarial relationship, but we have learned to work together 
and to trust each other.
    The language that we have worked up with these agencies is 
largely reflected in the administration bill. And I notice in 
reading your bill that it also puts in most of the language 
that was in the administration bill, and we thank you for that.
    The particular points that we were working on were the 
ability for us to manage before depletion and to enforce 
regulations, that is presently absent in the MMPA. And I notice 
you included those in this bill, and we thank you for that.
    One thing that we would like to see, however, in this bill 
is the disclaimer language that is in the administration bill, 
in that Alaska Natives live in a situation where we have over 
200 political tribes and we, as Alaska Native Marine Mammal 
commissions, get our authority through these tribes. And for 
that reason, we would like to see disclaimer language in there 
that says something to the effect that nothing in this bill 
affects the political status or the authorities of the tribes. 
And that was in the administration bill. We would like to see 
that.
    Also missing from the administration bill, which we see you 
have put back in--and we want to thank you for that--and that 
is the cultural exchange between indigenous peoples of the 
Arctic. And we thank you for doing that.
    We, however, would like to also see in the bill a ban on 
the use of aircraft and a ban on the sale of gall bladders. We 
feel that that is necessary for the protection of marine 
mammals that we depend upon heavily for subsistence.
    Mr. Gilchrest. Mr. Johnson, the ban on aircraft in--'
    Mr. Johnson. In hunting. That is not necessarily for--we 
understand that there is a need for aircraft for doing 
research.
    One other thing that we would like to see, for the Alaska 
Nanuuq perspective, we are working with polar bears, which are 
the U.S. Fish and Wildlife. You know, 95 percent of the polar 
bears' diet is seals. And ice seals are in NMFS. And we would 
like to work with ice seals, but it is very difficult to get a 
permit from NMFS to even take samples off of harvested animals. 
The Alaska Native Harbor Seal Commission, for example, has been 
trying to get a permit to take samples off of harvested animals 
for years and still has not been able to get a permit. Now, I 
can go out and shoot a seal, I can take it home and eat it, dry 
it, trade it, whatever, but I can't send a sample to the 
University of Alaska, for example, to have it tested for 
nutritional values or contaminants without a permit. And to us, 
it doesn't make any sense to have a separate agency manage--it 
makes ecological sense for ice seals, in particular, and harbor 
seals to be under Fish and Wildlife, for there is little 
interaction with fisheries.
    Thank you.
    [The prepared statement of Mr. Johnson follows:]

 Statement of Charles Johnson, Alaska Nanuuq Commission, on behalf of 
       the Indigenous Peoples Council on Marine Mammals (IPCoMM)

    Mr. Chairman, I am Tomungnique, Executive Director of the Alaska 
Nanuuq Commission, which represents the polar bear villages in Alaska 
on matters concerning the conservation of nanuuq, the polar bear. I am 
also representing the Indigenous Peoples Council on Marine Mammals or 
IPCoMM.
    IPCoMM, the Indigenous Peoples Council on Marine Mammals, was 
formed in 1994 to fight for co-management of marine mammals which 
coastal native people of Alaska heavily depend on for subsistence. 
IPCoMM also serves as a sub-committee of the Alaska Federation of 
Natives. Our dependence on marine mammals is more than for food and the 
making of handicrafts handicrafts, it is cultural, spiritual and 
essential to our well being. In 1994 we sometimes had an adversarial 
relationship with the management agencies. That has changed into a 
cooperative relationship as we have learned to trust each other. IPCoMM 
represents most if not all of the Alaska Native marine mammal 
subsistence commissions.
    During the last two plus years IPCoMM has worked diligently with 
the U.S. Fish and Wildlife Service, the National Marine Fisheries 
Service and the Marine Mammal Commission to develop mutually agreeable 
language that meets all of our needs for the reauthorization of the 
MMPA. This language is contained in the Administration bill that we 
strongly support. The key points that we have worked on will allow us 
to work with the agencies to develop regulations that allow management 
before depletion and methods for enforcement of these regulations. 
Alaska Natives want our descendants until at least the seventh 
generation to enjoy the use of marine mammals as we have. The Native 
community in Alaska has expressed its strong support for the harvest 
management provisions of the Administration's bill, as reflected in the 
2002 AFN Resolution attached to my testimony.
    The language in the Administration bill also recognizes the 
political reality that Alaska Natives live in, but at the same time 
contains disclaimer language that is intended to neither add to, or 
take away from or change that political situation. We have developed 
efficient state wide organizations for the co-management of marine 
mammals for subsistence purposes. We recognize that single village 
agreements for co-management is unrealistic and have developed on our 
own these broad representative commissions.
    From the Alaska Nanuuq Commission perspective we would like to see 
a reorganization of management of those species that Alaska Natives use 
for subsistence purposes. It makes no sense for seals to be in NMFS 
when polar bears are in Fish and Wildlife Service. NMFS has stated that 
co-management is not one of their priorities because they are 
constantly dealing with crises''. Seals, in particular ice seals, which 
make up 90-95% of polar bear diets have little or no interaction with 
commercial fisheries. We feel it makes ecological sense for management 
of seals used for subsistence to be under Fish and Wildlife, where co-
management would be efficient. At a meeting on July 10, 03, IPCoMM 
voted to also seek this move of seal management.
    Additionally it has been very difficult to obtain a permit from 
NMFS to collect samples from harvested animals. The Alaska Native 
Harbor Seal Commission has been seeking a permit for several years and 
is now collecting samples under the University of Alaska permit. 
Obtaining a permit from the U.S. Fish and Wildlife Service is as simple 
as getting a letter.
    Alaska Natives have also developed a trust with the major 
environmental organizations who support our efforts to conserve our 
marine resources for future generations. The progress we have made in 
working with them and the management agencies is reflected in the 
language regarding harvest management in the Administration bill.
    However the Administration bill took out the provisions allowing 
Alaska Natives to culturally exchange marine mammal products with 
Native peoples of Canada, Greenland and Russia as we have 
traditionally. Also taken out was the provision that allows Alaska 
Natives and Natives of Canada, Greenland and Russia to take in and out 
of Alaska our traditional clothing made of marine mammal products, We 
urge you to put back in these provisions.
    Also missing is the ban on the use of aircraft while hunting and a 
ban on the sale of ball bladders. We feel that these prohibitions are 
necessary for the conservation of marine mammals.
    We urge you to consider our efforts while you contemplate 
reauthorization of MMPA. THANK YOU and I will answer any questions.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Johnson. You gave 
us a very specific, concise list, and that will be very 
helpful.
    Dr. Wells?

STATEMENT OF DR. RANDALL WELLS, CONSERVATION BIOLOGIST, CHICAGO 
           ZOOLOGICAL SOCIETY, MOTE MARINE LABORATORY

    Dr. Wells. Thank you, Mr. Chairman, Mr. Pallone. My name is 
Randall Wells. I am a conservation biologist with the Chicago 
Zoological Society based at Mote Marine Laboratory in Sarasota, 
Florida, where I also serve as director of Mote's Center for 
Marine Mammal and Sea Turtle Research.
    I began studying dolphins 2 years before the implementation 
of the Marine Mammal Protection Act and I have seen many of the 
accomplishments of this act since that time. Our understanding 
of the scope of threats to which marine mammals are exposed has 
changed over the years. We need to be able to adjust protection 
measures in response to a changing world. Proposed changes to 
the act make some of these adjustments, expanding the scope of 
protection beyond that related to directed takes and commercial 
fisheries. I am honored to have been invited to provide 
testimony in support of reauthorization of this important act.
    Much of the basis for my testimony is derived from research 
on bottlenose dolphins in Sarasota Bay, Florida. Thirty years 
ago, we discovered that at least some in-shore dolphins live in 
resident communities. We are now studying four generations of 
residents, including many known since 1970, along with their 
calves, grandcalves, and great-grandcalves. Knowledge of multi-
generational residency provides important perspective for 
understanding exposure to threats and can be key to providing 
appropriate protection. In-shore dolphins arguably face a 
larger variety and greater intensity of human impacts than many 
marine mammals because of their proximity to where we live, 
work, and recreate.
    I am pleased that recreational fisheries with incidental 
mortality and serious injury of marine mammals will now be held 
accountable for their takes. When recreational fishers are 
using the same gear as commercial fishers in the same waters, 
comparable mortalities and serious injuries are to be expected. 
Including recreational fisheries in the list, leading to 
observer coverage, will yield a more complete basis for 
managing stocks and should be more equitable for commercial 
fishers.
    The prohibition on releasing captive marine mammals is also 
needed. We can't necessarily assume that releasing animals into 
the wild is in the individual's or the host population's best 
interest. My experience from my own dolphin-release experiment 
and from serving as an expert witness for NOAA in a case 
involving a failed dolphin release point to the need for 
requiring scientific research permits.
    Increased support for the Marine Mammal Health and 
Stranding Response Program is also needed. This program 
provides a window to serious threats that are less obvious than 
fishing gear. The first indications of marine mammal health 
problems come from stranded animals. The program brings much-
needed coordination to stranding response and health research.
    Strandings and health research have demonstrated 
accumulation of pervasive pollutants in marine mammals. PCB 
concentrations greater than those of concern for human health 
have been documented. In bottlenose dolphins, high PCB 
concentrations apparently correlate with increased first-born 
mortality, reduced immune system function, and reduce male 
reproductive hormones.
    Congress should consider funding a research program to 
quantify the impacts from pervasive environmental threats. 
Looking at chemical concentrations in the environment in order 
to establish their effects on marine mammals. Other pervasive 
threats, such as noise, could also be included. Cumulative 
risks could then be considered along with more direct takes, 
leading to improved stock assessments.
    The Marine Mammal Health and Stranding Response Program is 
on the front line for detecting emerging toxic chemicals, 
diseases, and pathogen pollution. The authorization for annual 
funding from MMPA funds into the Marine Mammal Unusual 
Mortality Event Fund is essential for emergency responses. I 
hope you will also consider reauthorizing complementary funding 
for the John Prescott Marine Mammal Rescue Assistance Grant 
Program, which supports non-emergency stranding response 
operations and research. Together, these funds allow 
consideration of marine mammals as sentinels of ocean and human 
health.
    Proposed harassment definition changes should reduce human 
interactions, such as touching, feeding, or swimming with wild 
marine mammals. For example, since 1990 we have observed Beggar 
and his associates, wild dolphins fed by boaters. Law 
enforcement has been limited because the harassment and feeding 
prohibitions already in the regulations were considered 
unenforceable. With NOAA Fisheries Protect Wild Dolphins 
program, we evaluated the effectiveness of education in 
reducing this problem, and determined that law enforcement was 
also needed. The new definition should provide sufficient 
clarity to support prosecutions.
    The new harassment definition still requires scientists to 
apply for research permits. This is a burdensome but necessary 
process. My own research activities, ranging from observations 
to hands-on sampling of bottlenose dolphins, are considered 
harassment. While developing ten permit applications since 
1984, I can't say that my research has ever been delayed by the 
permitting process.
    Some other harassment issues are particularly vexing with 
regard to practical regulatory solutions. Boats cause 
disturbance and injuries. About 4 percent of Sarasota Bay 
dolphins bear propeller scars acquired during periods of heavy 
boat traffic and boat races, which attract thousands of 
spectator boats. During a typical dolphin's day, powerboats 
pass within 100 yards every 6 minutes, leading to significant 
changes in dive patterns and acoustic communication. The 
cumulative effects of repeated disturbance are unknown.
    In conclusion, the proposed changes to the MMPA include 
significant advances. I hope that this momentum continues for 
further adjusting our management approaches to respond to 
emerging threats to marine mammals. Fishery impacts have not 
been eliminated, but many mitigation measures have been 
developed during the first 30 years of the MMPA. Similarly, we 
should begin to look for solutions to some of the emerging and 
potentially equally dangerous pervasive threats to marine 
mammals and consider a more complete set of threats in stock 
assessments.
    This concludes my testimony. I would be pleased to respond 
to your questions.
    [The prepared statement of Dr. Wells follows:]

    Statement of Randall S. Wells, Conservation Biologist, Chicago 
  Zoological Society, and Director, Center for Marine Mammal and Sea 
                Turtle Research, Mote Marine Laboratory

    Mr. Chairman and distinguished members of the Committee, my name is 
Randall S. Wells. I am a Conservation Biologist with the Chicago 
Zoological Society, and I am based at Mote Marine Laboratory, in 
Sarasota, Florida, where I serve as Director of Mote's Center for 
Marine Mammal and Sea Turtle Research. I began my career of studying 
dolphins, whales, and manatees in 1970, two years before the 
implementation of the Marine Mammal Protection Act. I have therefore 
had opportunity to monitor the many accomplishments of this Act over 
time. I have also seen our understanding of the scope of threats to 
which marine mammals are exposed change during this same period. The 
ability to adjust marine mammal protection measures in response to a 
changing world is crucial. A number of the proposed changes to the Act 
make these much-needed adjustments. I am truly honored to have been 
invited here today to provide testimony in support of reauthorization 
of this important Act.
Introduction
    Much of the basis for my statements today is derived from my long-
term study of bottlenose dolphins in Sarasota Bay, Florida. This 
ongoing research is conducted by a large team of collaborating 
scientists and students from around the world. In the early 1970's my 
colleagues and I discovered that, at least in some parts of the 
species' range, bottlenose dolphins in bays, sounds, and estuaries live 
in year-round resident communities. We are currently monitoring about 
140 resident dolphins of four generations in Sarasota Bay, including 
about 30% of those we first identified in 1970, as well as their 
calves, grand-calves, and great-grand-calves. This community is one 
piece of a mosaic of such communities along the central west coast of 
Florida. Knowledge of the long-term, multi-generational association 
between dolphins and specific geographic ranges provides important 
perspective for understanding the exposure of these animals to a 
variety of threats, and can be key to providing appropriate protection. 
Inshore bottlenose dolphins arguably face a larger variety and greater 
intensity of human impacts than many marine mammal stocks in United 
States waters because of their proximity to where we live, work, and 
recreate.
    Marine mammals are complex creatures living in complex ecosystems. 
It would be unreasonable to expect that a given stock of marine mammals 
is typically exposed to only a single threat from human activities at 
any given time. Depending on where they live, stocks of marine mammals 
may be faced with a suite of threats of human origin, including 
chemical and noise pollution, habitat degradation or loss, fisheries 
interactions, and harassment. The proposed language continues to expand 
the scope of protection for these animals beyond that related to 
directed takes and incidental takes in commercial fisheries.
Marine Mammal Bycatch Reduction Initiatives
    The inclusion of recreational fisheries in the lists of fisheries 
that have frequent or occasional incidental mortality and serious 
injury of marine mammals is an important step forward. As a charter 
member, and former Chair, of the Atlantic Scientific Review Group, a 
panel established under the 1994 amendments to the Marine Mammal 
Protection Act to provide guidance to NOAA Fisheries and the U.S. Fish 
and Wildlife Service regarding the scientific basis for management of 
marine mammal stocks in the Atlantic Ocean and Gulf of Mexico, I am 
well aware of complications imposed by the previous exemption of 
recreational fisheries from marine mammal regulations governing 
commercial fisheries in the same waters. When recreational fishers are 
using much the same gear as the commercial fishers, comparable 
mortalities and serious injuries are to be expected, but identification 
of the specific source of the mortality or injury when examining a 
carcass or injured animal is often impossible. Evaluation of fishery 
takes of marine mammals relative to Potential Biological Removal 
typically involves extrapolation from data from observers placed on 
commercial fishing boats. Observer data from commercial vessels alone 
lead to underestimates of mortality and serious injury because they do 
not include takes in recreational fisheries. Regulations limited to 
commercial fisheries only deal with a portion of the problem. Inclusion 
of recreational fisheries in the list of fisheries, with associated 
observer coverage as appropriate, will provide a much more complete and 
accurate basis for managing impacted stocks, and will create a more 
equitable situation for commercial fishers. While this change to the 
list of fisheries is an important and overdue step, it is only one step 
toward considering all sources of lethal take or serious injury for 
effective management of marine mammal stocks, as I will discuss later.
Captive Release Prohibition
    The prohibition on captive release is a welcome addition to the 
Act. It cannot necessarily be assumed that releasing a captive marine 
mammal into the wild is in the individual's or host population's best 
interests. My experience with this issue includes conducting the first 
(and one of very few) systematic study of the release of captive 
dolphins back into the wild, with the release of two bottlenose 
dolphins back into their native waters of Tampa Bay in 1990. This 
release was well-documented and successful, and the dolphins have been 
observed more than 10 years post-release, apparently fully-integrated 
into local dolphin communities.
    In addition, I served as an expert witness for NOAA Fisheries in 
its 1999 case involving the illegal release of two dolphins into the 
waters of the Florida Keys. The releasers argued that NOAA Fisheries 
could not require them to operate under the conditions of a Scientific 
Research Permit. The two ex-Navy dolphins were not properly prepared 
for release, nor did they receive appropriate care at the holding 
facility. When the releasers learned that the government was planning 
to confiscate the animals because of animal welfare violations, the 
dolphins were taken offshore and released in waters hundreds of miles 
away from their original capture site, in unfamiliar habitat. The 
release occurred in front of a foreign film crew that paid for the 
opportunity. The release failed. The dolphins had separated and were 
found near shore, in poor condition, seeking contact with humans. The 
individuals responsible for the release were found guilty by a Federal 
Administrative Law Judge of violating the MMPA and were ordered to pay 
$59,500 in civil penalties.
    The release of long-term captive marine mammals into the wild can 
pose serious threats to the release candidates and to the host wild 
populations. Released dolphins may bring new diseases to wild 
populations, diseases they have obtained while in captivity, but to 
which the wild populations have had no previous exposure and therefore 
no immunity. Dolphins released outside of their original range may 
affect the genetic structure of the wild populations through 
interbreeding. Our research has demonstrated significant genetic 
differences across bottlenose dolphin habitats, reflecting long-term 
adaptations to specific suites of ecological influences. Released 
dolphins may also disrupt stable social structures in wild populations, 
established over many generations. Prior to release of captive animals, 
safeguards must be in place to ensure that: 1) the risks of disease 
transmission and inappropriate genetic exchange are minimized, 2) 
adequate preparations have been made and optimal conditions are 
established for the release candidate to survive upon return to the 
wild, 3) an adequate follow-up monitoring program is in place to track 
the released animal as well as any impacts it may be having on the wild 
population, and 4) contingency plans are in place to recover the 
released animal should it fail to thrive. The limited state of our 
knowledge in the area of release of long-term captive marine mammals 
into the wild is such that all releases must be considered 
experimental, and as such should only be conducted under a Scientific 
Research Permit.
Marine Mammal Health and Stranding Response
    Increased support for the activities of the Marine Mammal Health 
and Stranding Response Program should be considered a high priority. 
This program is crucial for providing a window to some of the serious 
threats to marine mammals that are less obvious than fishing gear, but 
of equal concern for the future of marine mammal stocks. As a result of 
my involvement with marine mammal strandings for more than 33 years, 
and my field research on dolphin health during the last 15 years, I 
fully appreciate the challenges of understanding the role of human 
activities in marine mammal health and reproduction problems. Some of 
our first indications of large scale health problems in marine mammals 
come from examination of sick or dead animals that wash up on shore. 
From examination of these cases and tissues collected from the animals, 
scientists can begin to understand relationships between marine mammal 
health and human activities. The Marine Mammal Health and Stranding 
Response Program brings a much-needed level of coordination to 
stranding response, including oversight of: 1) the activities of the 
people and institutions that volunteer to participate in the U.S. 
Stranding Network, 2) disentanglement of marine mammals from lines or 
gear, 3) rehabilitation and subsequent release of stranded marine 
mammals, 4) identifying and responding to unusual marine mammal 
mortality events, and 5) developing and engaging in research focused on 
health-related hypotheses resulting from stranding findings. I will 
provide more detail on the last two activities, as these are two of the 
areas with which I am most familiar from recent interactions with the 
program.
    Large scale, ``unusual'' marine mammal mortality events were first 
noted in the U.S. in the late 1980s. I learned from serving on 
subsequent review panels that responses to these events were sometimes 
delayed or incomplete due to logistical or other constraints, limiting 
the information that could be derived. The Marine Mammal Health and 
Stranding Response Program came about in part in response to the need 
to improve responses to these events, and it has done much to meet this 
goal. As a charter member of the Working Group on Unusual Mortality 
Events (constituted under the Marine Mammal Health and Stranding 
Response Program), I have seen the value of advance preparations for 
responding to unusual stranding events. Preparations include having 
appropriately-trained field personnel on call, laboratories identified 
to process samples expeditiously, a panel of consultants to aid in the 
design of the response and interpretation of the findings, and 
appropriate financial support. It is critical to be able to mount a 
systematic response in a timely manner in order to ensure the 
collection of the appropriate sample materials of sufficient quality to 
offer the greatest chance of accurately determining cause of death.
    Stranded marine mammals have provided us with much insight into the 
factors that can affect their populations. Among the more important 
findings in recent years has been that of the accumulation of high 
concentrations of environmental contaminant residues in the tissues of 
stranded marine mammals such as dolphins. Humans have released more 
than 10,000 chemicals into the environment. This pollution is pervasive 
in the marine environment, and many of the chemicals of concern are 
very persistent, remaining active in the environment for years or 
decades. It has been suggested that marine mammals such as dolphins can 
serve as sentinel species for the toxic effects of contaminants on the 
marine environment, because of their position as top predators in the 
marine food web. However, our understanding of the toxic effects of 
these contaminants on marine mammals is incomplete. The harmful health 
and/or reproductive effects of specific concentrations of some of these 
chemicals on selected terrestrial mammals are known from carefully 
controlled studies in which the animals are given measured doses of 
contaminants. Such cause and effect relationships are largely 
undetermined for marine mammals because of ethical considerations and 
logistical difficulties for conducting dosing studies.
    In lieu of dosing studies, ecotoxicologists, biologists, and 
veterinarians working in collaboration with the Marine Mammal Health 
and Stranding Response Program are taking a ``weight of evidence'' 
approach. Such an approach requires the collection of large enough 
numbers of samples to be able to identify strong correlations between 
contaminants and health or reproductive effects. Research involving 
carcasses from strandings and field studies of free-ranging populations 
are beginning to provide some of the requisite information to identify 
apparent relationships between some contaminants and health or 
reproductive effects. For example, concentrations of PCBs and related 
organochlorine compounds well in excess of what would be of concern for 
humans are being documented in a variety of dolphins, including killer 
whales and bottlenose dolphins. In bottlenose dolphins, high 
concentrations appear to be correlated with high levels of first-born 
mortality, declines in immune system function, and reduced reproductive 
hormone concentrations in males.
    More research is needed. Consistent significant correlations from a 
number of parallel tracks of investigation can provide sufficient 
confidence in findings to warrant management action. To address the 
threats of the new century, Congress should consider funding a major 
research program to identify and quantify the impacts from pervasive 
environmental threats to marine mammals, such as chemical contaminants 
and noise. This program could be directed to look at the concentrations 
of noise and chemicals of concern in the environment in order to 
establish the effects they have on growth, survival, and reproduction 
of marine mammals and stocks.
    The ubiquitous nature of chemical pollutants in the marine 
environment creates severe challenges for management. Many of the 
compounds of current concern have already been regulated, but they 
persist in the environment. Beyond regulation of chemicals of 
documented concern, direct mitigation through removing compounds 
already in the environment may not be practical. It is important, 
however, to assess the risks to specific stocks posed by chemical 
pollutants and other pervasive threats, so that the cumulative impacts 
of these and more directed takes can be considered in stock 
assessments. The research program proposed above should provide the 
quantitative basis for improving the resolution of threat evaluations 
in stock assessments. Responses to threats posed at the population 
level by pervasive environmental threats may require modification of 
the concept of the Take Reduction Team.
    The Marine Mammal Health and Stranding Response Program is the 
front line for identifying the occurrence and scale of current and 
developing situations regarding marine mammal health and many of the 
pervasive environmental threats. Monitoring of stranded animals and 
research on wild populations provide the basis for detecting emerging 
toxic chemicals, diseases, and pathogen pollution. The authorization in 
H.R. 2693 for annual funding from MMPA funds into the Marine Mammal 
Unusual Mortality Event Fund is a very positive step toward ensuring 
that we can optimize our response to acute, large-scale marine mammal 
health situations. Alternative funding for emergency response is not 
available from any other sources, and grants programs, such as the John 
H. Prescott Marine Mammal Rescue Assistance Grant Program, do not work, 
and were not designed, for this kind of immediate response.
    The Prescott grant program is very valuable, and its strength lies 
in maintaining and enhancing the capabilities and operations of 
stranding response programs around the country, and to provide research 
opportunities, to facilitate making important advances in our 
understanding of marine mammal health issues. I would like to take this 
opportunity to recommend reauthorization of the Prescott program, which 
is due to expire at the end of 2003. Marine mammals are closely tied to 
the health of the oceans, and demonstrate tremendous potential to serve 
as sentinels of ocean and human health.
Definition of Harassment
    The proposed changes to the definition of harassment are most 
welcome. The proposed definitions should provide sufficient clarity to 
facilitate permitting and enforcement actions. The changes to the 
harassment definitions should be especially helpful in controlling 
burgeoning human interactions with wild marine mammals such as 
touching, feeding, or swimming with them. For example, since 1990 my 
colleagues and I have been monitoring a dolphin known as ``Beggar'', 
aptly named from his behavior of popping up with his mouth open 
alongside slow-moving boats in a narrow portion of the Intracoastal 
Waterway south of Sarasota Bay. Beggar ingests a wide variety of non-
dolphin-food items that are dropped into his mouth, and bites many of 
the people who reach down to touch him without offering food. There are 
serious concerns about the spread of this behavior, as a number of 
other dolphins that pass through Beggar's range have begun to beg as 
well.
    Over the years, law enforcement activity to control interactions 
with Beggar and other dolphins has been minimal due to a shortage of 
NOAA enforcement agents, other priorities within the agency, and a 
stated reluctance to commit resources because the harassment and 
feeding prohibitions already in the regulations were considered 
unenforceable. Working with the NOAA Fisheries ``Protect Wild 
Dolphins'' program, we participated in a program of educating the 
public through brochures, posters, signage, town hall meetings, and 
public service announcements. We also conducted a docent program in 
which people approaching Beggar were provided with explanations of the 
problems associated with feeding wild dolphins. Only about 1.3% of 
passing boaters interacted with Beggar in the presence of the docent 
boat. Boaters who interacted with Beggar were interviewed, and 60% 
acknowledged that they knew such activities were illegal. Following 
cessation of the docent program, the numbers of interactions increased 
by a factor of four. Thus, it appears that the educational messages 
were received, but in the absence of adequate law enforcement and the 
consequences thereof, the problem persists. Similar findings have been 
made by other Chicago Zoological Society scientists working at other 
sites around the world. The new definitions should provide sufficient 
clarity to support prosecutions for this kind of harassment, but 
increased support for law enforcement activities along with continuing 
educational efforts will be necessary to begin to control these kinds 
of situations that are clearly harmful to marine mammals.
    The new definitions of harassment still lead to requirements for 
scientists to apply for permits for their research activities involving 
marine mammals. This is a burdensome process in terms of time required 
for preparation of applications and response to questions, but it is a 
necessary process for establishing standards for impacts of research on 
the animals. Questions about the over-regulating nature of the process 
are raised when researchers observe members of the general public 
engaging without legal consequences in the very activities for which 
the researchers had to apply for a permit, or when the process 
interferes with the timely implementation of research of importance to 
marine mammal conservation. The latter case is often related to 
research situations requiring NEPA and/or ESA compliance, rather than 
simply MMPA considerations. Fortunately, most of my research is with 
animals for which the ESA does not apply and involves activities that 
have not required the preparation of an Environmental Assessment or 
Environmental Impact Statement under NEPA. In the course of developing 
more than ten permit applications since 1984, implementation of my 
research has never been held up due to delays from the permitting 
process.
    There remain many other human-induced threats to marine mammals for 
which practical regulatory solutions are not immediately evident. Noise 
in the marine environment can interfere with marine mammal 
communication or feeding, but the risks in terms of costs to the 
animals have not been fully investigated, and practical means of 
controlling the widespread noise produced by vessels have not been 
identified. Vessel traffic can lead to disturbance responses, and in 
some cases serious injuries from collisions. For example, about 4% of 
the bottlenose dolphins in Sarasota Bay bear scars from collisions with 
vessels, all of which have been acquired during periods of heavy 
holiday boat traffic and boat races that attract thousands of spectator 
boats. Under normal circumstances, these dolphins have powerboats 
passing within 100 yards of them once every six minutes, leading to 
significant changes in dive patterns and acoustic communication. This 
disturbance occurs during daylight hours every day throughout the lives 
of the animals. It has not been possible to evaluate the cumulative 
effects of these repeated disturbance responses.
    Recreational fishing involving rods, reels, and monofilament line 
is another widespread activity, also with serious consequences for 
marine mammals. In Sarasota Bay, nearly 5% of the 125 stranding cases 
for which cause of death could be determined with confidence by the 
Mote Marine Laboratory Stranding Investigations Program involved 
recreational fishing gear. One young female dolphin was found swimming 
slowly in Sarasota Bay with 1,600 feet of heavy fishing line trailing 
from and cutting through her flukes. If not for rescue actions such as 
those by our research team removing this line, the toll from this kind 
of recreational fishing would be higher.
    In the new century, we have the opportunity to adjust our 
management approach to respond to different and emerging suites of 
threats to marine mammals. Fishery impacts have not been eliminated, 
but effective means of mitigating many of the problems have been 
developed during the first 30 years of the MMPA. In much the same way 
we should begin to look for solutions to reduce the potential impacts 
of some of the emerging, widespread, and equally dangerous, pervasive 
threats to marine mammals. Identifying technological or regulatory 
solutions to some of the emerging problems from environmental 
contaminants, noise, vessel disturbance, oil and gas exploration and 
development, military activities, habitat loss, recreational fishing, 
pathogen pollution, emerging diseases, and other issues may appear 
highly challenging now, but that does not mean that these threats can 
be ignored. Cumulatively, these threats have the potential to have 
significant effects on stocks. An important and feasible first step 
would be to educate stakeholders and members of the public to be aware 
of their potential impacts on the animals, and to make appropriate 
changes to their behavior and use of the habitats that form the 
animals' homes. This approach has been exemplified by the NOAA 
Fisheries ``Protect Wild Dolphins'' campaign. In addition, every effort 
should be made to obtain the requisite information to evaluate risks 
such that they may be considered in stock assessments along with other 
forms of ``take'' for determination of the status of specific stocks.
Conclusion
    The Marine Mammal Protection Act remains a model around the world 
for marine mammal conservation. The process of this reauthorization 
exemplifies the flexibility of this Act to adjust to changing 
conditions. The shift over the last 10 years to consider more of the 
non-fishery-related threats to marine mammals is a very welcome and 
important improvement.
    This concludes my testimony. Thank you very much for the 
opportunity to appear before you today. I would be pleased to respond 
to your questions.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Dr. Wells. You have 
broadened our perspective on another dimension of the problem.
    Mr. Zuanich. Did I pronounce that right?
    Mr. Zuanich. Perfect.
    Mr. Gilchrest. Thank you.

          STATEMENT OF ROBERT ZUANICH, BOARD MEMBER, 
                   UNITED FISHERMEN OF ALASKA

    Mr. Zuanich. Mr. Chairman, I want to take the opportunity 
to thank you and your Committee for allowing us to provide our 
views on reauthorization of the Marine Mammal Protection Act.
    There is little dispute that the act is necessary to 
protect marine mammals from adverse human activities. However, 
we believe there are a few very real problems that your 
Committee must address in considering reauthorization 
legislation.
    First and foremost, the act has the practical effect of 
elevating marine mammals above all others in ocean management 
by imposing upon commercial fishermen a requirement to reduce 
their mortality and injury of marine mammals to a level 
approaching a zero mortality. This zero mortality rate goal, or 
ZMRG, has the practical effect of treating all marine mammals 
as if they were listed as endangered under the Endangered 
Species Act, even if a population is healthy and growing at a 
significant rate.
    We believe, as a biological management tool, the ZMRG 
distorts the ocean ecosystem by giving marine mammals primacy 
in the ocean without fully considering the needs of other 
species. And I would like to give you a few examples.
    There is ample evidence that sea lions and harbor seals, 
whose populations are now at or exceed historic levels, are 
preying heavily on endangered Columbia River salmon. In 
southeast Alaska and in California, sea otters are changing the 
ecosystem by eating large numbers of sea urchins and abalone. 
Again in Alaska, a recent University of Alaska study concludes 
that expanding sea otter populations may soon decimate Glacier 
Bay crab stocks. And similarly, Canada has come out and 
concluded that mammals are hindering the recovery of depressed 
cod stocks.
    Simply put, the we believe the ZMRG is an unrealistic 
management tool and must be redefined or eliminated.
    We believe this ZMRG should be replaced by a standard 
applied by many other environmental protection statutes. That 
is, that the regulated industry--in this case, commercial 
fishing--should be required to use the best practicable and 
economically feasible technology to avoid marine mammals. After 
all, this was the standard when the act was first enacted, to 
apply to the Eastern tropical tuna fishery. And it should again 
be the standard, particularly with regard to Alaska's 
commercial fisheries.
    If, however, we elect to--or you elect to retain the ZMRG, 
then all ocean users who interact with marine mammals should be 
subject to the same standard. Testimony presented last week at 
the MMPA hearing before the Senate Commerce Committee stated 
that sport fishing and recreational and commercial vessel 
activity can significantly impact marine mammals. If ZMRG is 
the right policy, then why is it only applicable to small 
fishermen?
    Finally, we also note that the act requires commercial 
fishermen to place observers upon their vessels when the 
Fisheries Service so demands. Many fishing vessels are small 
and cannot accommodate an observer, which can affect their 
efficiency and their ability to safely operate. For small 
fishing vessels, all observers should be staged on Fisheries 
Service vessels. If this is not possible, then we would ask 
that the Fisheries Service should be required to indemnify the 
vessel owner for many third-party claims associated with the 
observer requirement.
    Again, I want to thank the Committee for the opportunity to 
present the views of the United Fishermen of Alaska on this 
very important legislation.
    [The prepared statement of Mr. Zuanich follows:]

           Statement of Robert P. Zuanich, on behalf of the 
                       United Fishermen of Alaska

    As you may know, the Alaskan commercial fishing industry has been 
gravely impacted by lawsuits brought against the National Marine 
Fisheries Service (``NMFS'') for alleged violations of the Marine 
Mammal Protection Act (``MMPA'') and the Endangered Species Act. More 
such suits loom threateningly on the horizon.
    A central problem that your Subcommittee needs to address in 
considering legislation reauthorizing the MMPA is that the MMPA creates 
serious ocean management issues by elevating one species above all 
others in oceans management. We support amendments to the MMPA that 
will allow the Act to achieve its important objectives while also 
preventing distortions in the ocean ecosystem--- distortions caused by 
the fact that the MMPA calls for the oceans to be managed for the 
benefit of only one species.
    Because of the inherent problems in the management philosophy 
embedded in the MMPA, the following issues must be addressed in any 
MMPA reauthorization.
    1) Zero Mortality Rate Goal (``ZMRG''). The Act requires that 
commercial fishermen reduce the incidental mortality and serious injury 
of marine mammals to an insignificant level approaching a zero 
mortality and serious injury rate. No one advocates unnecessary 
incidental injuries and mortalities and every Alaskan commercial 
fisherman seeks to prevent that. The problem is not with that goal. The 
problem is with the MMPA's philosophy that the ocean is to be managed 
by placing marine mammals above all other species and that anything 
above a zero mortality and injury rate is unacceptable. Indeed, a zero 
mortality policy is the equivalent of treating all marine mammals as if 
they have been listed as endangered under the Endangered Species Act, 
even if the population is healthy and growing at a significant rate.
    As a biological management tool, ZMRG creates distortions in the 
ecosystem. In a terrestrial context, the Forest Service, for many 
years, managed the National Forest System by identifying the primary 
species it wished to benefit in each national forest and then managing 
the forest for the benefit of those species. That system of giving 
management priority to a limited number of species is similar to the 
MMPA which gives marine mammals primacy in the ocean. In contrast to 
the MMPA, the Forest Service generally abandoned this single species 
policy because it adversely affected biodiversity by attempting to 
manage the environment for the benefit of a few species without full 
consideration of the needs of other species. Similarly, managing the 
ocean environment for the benefit of one species places other species 
at a disadvantage and threatens biodiversity. Endangered salmon, for 
example, a food source for certain marine mammals, have been harmed by 
this policy.
    A technical report titled ``Effects of Marine Mammals on Columbia 
River Salmon Listed Under the Endangered Species Act,'' prepared under 
contract for the Department of Energy, concluded that sea lions and 
harbor seals, whose populations are now at or exceed historic levels 
because of the MMPA, are ``preying heavily'' on endangered Columbia and 
Snake River salmon. The report, issued before the last MMPA 
reauthorization, found that ``pinnipeds are taking a disproportionate 
number'' of Columbia and Snake River salmon listed under the Endangered 
Species Act and concluded: ``Threatened and endangered salmon must have 
representation in the [MMPA] reauthorization process.'' They did not, 
and the problem grows worse. In testimony presented to the House 
Resources Committee in October, 2001, NMFS asserted there are ``serious 
concerns about . . . the impacts of pinnipeds on salmon listed under 
the Endangered Species Act.'' NMFS also testified that marine mammals 
may be impairing the recovery of certain endangered and threatened 
salmon. The policy question is whether the MMPA's requirements for 
marine mammal protection should have priority over all other management 
decisions, including the protection and recovery of endangered species.
    In Alaska, scientists for the U.S. Geological Survey studying the 
Glacier Bay ecosystem have stated that the expanding sea otter 
population will have a ``very large impact on the crab population. We 
would expect the number of crabs to decline dramatically.'' A 
University of Alaska scientist studying sea otters concluded that in 
Glacier Bay ``it's just a matter of time before the otters put 
fishermen out of business. . . .'' That scientist also found that sea 
otters are changing the ecosystem in other ways by eating large numbers 
of sea urchins, which eat macro algae, which means a significant 
increase in the amount and the density of kelp.
    In California, sea otters eat abalone. But they eat such large 
quantities of mature abalone that the ecosystem is left with 
significantly reduced quantities and the remaining abalone are small 
juveniles.
    The Canadian Department of Fisheries and Oceans has concluded that 
growing marine mammal populations in that country are hindering the 
recovery of depressed cod stocks. Indeed, some experts have commented 
that marine mammals consume between three and six times the entire 
worldwide commercial fisheries catch.
    Our point is that there are consequences for other ocean species 
that flow from the MMPA's decision to manage the oceans by giving 
marine mammals the first and highest priority.
    We want to emphasize that we do not support or condone actions 
which lead to marine mammal mortality and injury, but ZMRG is an 
unscientific and an unrealistic management tool. It should be replaced 
by a concept applied in many other environmental protection statutes--- 
that the regulated industry should use the best practicable and 
economically feasible technology to avoid and minimize adverse 
environmental impacts. Indeed, this was the policy of Congress when 
ZMRG was first enacted and applied to the eastern tropical tuna 
fishery. See H. Rept. 92-707 (1971) at 24 and S. Rept. 92-863 (1972) at 
6. See also H. Rept. 97-228 (1981) at 17. But Congress has allowed NMFS 
to move away from that standard. Today NMFS defines ZMRG in a way that 
is intended to return marine mammal populations to their pristine 
levels.
    The ZMRG methodology starts with the minimum marine mammal 
population estimate. This number is multiplied by 50% of the expected 
annual net reproduction rate. The resulting number is half of what NMFS 
estimates as the annual net reproduction of the minimum population. 
That number is then reduced by multiplying it by a recovery factor of 
0.1 for endangered species, 0.5 for threatened or status uncertain 
species and 1.0 for others. NMFS then reduces the resulting number by 
90%. Any fishery taking fewer than this final number is at ZMRG. This 
ZMRG formula is designed to return marine mammal populations to the 
levels that would exist in a pristine environment. It places marine 
mammal populations above all others.
    2) End Discrimination. All users of ocean resources should be 
subject to the same standards. If ZMRG is the proper ocean management 
policy, then every user of ocean resources who interacts with marine 
mammals should be held to that standard. However, as now written, ZMRG 
applies only to commercial fishermen. Yet, recreational boating 
activities, large and concentrated recreational fisheries, and merchant 
shipping can each have a significant impact on marine mammals. 
Recreational boating activities in Florida, for example, have a major 
impact on manatees, but no ZMRG is applied to this activity. Testimony 
presented at last week's MMPA hearing conducted by the Senate Commerce 
Committee showed that merchant ships collide with marine mammals, often 
killing them. In fact, the testimony stated that so many endangered 
right whales are killed by vessel collisions that population models 
predict this additional mortality may drive the species to extinction. 
If ZMRG is the correct policy, why isn't it applicable to everyone?
    3) Fisheries Categorization. To achieve ZMRG, the MMPA requires 
NMFS to categorize commercial fisheries into three groups. Category i 
fisheries are those with a frequent incidental mortality and serious 
injury of marine mammals. Fisheries having only an ``occasional'' 
incidental mortality or serious injury of marine mammals are considered 
category ii fisheries. For any fishery placed into category i or ii, 
NMFS must develop a formal marine mammal take reduction plan whose 
objective is to achieve ZMRG. Only a category iii fishery, one which 
has a ``remote likelihood or no known incidental mortality or serious 
injury'' of marine mammals, escapes the requirement for a take 
reduction plan to achieve ZMRG.
    These statutorily created categories again underscore the fact that 
the MMPA establishes a goal of managing the ocean for marine mammals 
above all other creatures. The categories do not reflect any realistic 
set of management priorities based on the true impact of an action on 
marine mammals. Instead, only those fisheries with a remote or no 
interaction with marine mammals escape the ZMRG regulatory process. In 
other words, if you have already achieved ZMRG then no further 
regulation is applied. And, once again, the take reduction plan process 
only applies to commercial fishermen--- it does not apply to other 
ocean users.
    Further exacerbating this problem is the fact that the process by 
which NMFS assigns commercial fisheries to various categories is 
unscientific and arbitrary. For example, the southeast Alaska salmon 
purse seine fishery is listed as a category ii fishery based solely on 
the fact that several years ago one humpback whale swam through a seine 
net ripping apart the net. Similarly, the Cook Inlet set gillnet salmon 
fishery was classified by NMFS as a category ii fishery despite 
vigorous protest from the fishermen about the absence of any sighting 
of marine mammal interactions. When NMFS actually gathered incidental 
take information based on NMFS observer data, NMFS discovered that the 
fishermen were correct and the fishery belonged in category iii. 
Categorization of fisheries must be based on sound science, not 
isolated examples and conjecture.
    4) Potential Biological Removal (``PBR''). A first blush, the 
concept of PBR appears to provide a management concept similar to that 
contained in the Magnuson-Stevens Fishery Conservation and Management 
Act where managers determine the allowable biological catch. However, 
under the Magnuson-Stevens Act, management decisions are based on 
preventing removals from exceeding a biologically safe amount. In stark 
contrast, the PBR concept in the MMPA seeks to continue building all 
marine mammal populations, even healthy stocks, to their optimum 
sustainable population (``OSP''). NMFS defines OSP as a range between 
the largest possible population and the maximum possible net 
reproduction rate. The MMPA's concept of PBR as a management tool is, 
once again, premised on giving marine mammals the primary place in the 
ecosystem. As noted above, this distorts ocean management to the 
disadvantage of other species and to the disadvantage of persons whose 
livelihood depends on a balanced ecosystem.
    Compounding these problems is the fact that, far too often, PBR 
determinations and decisions are made based on weak and limited data. 
This lack of data serves only to complicate ocean management issues 
when all other species are secondary and all doubts are resolved in 
favor of the primary species.
    5) Liability In Any Observer Program. The MMPA requires commercial 
fishermen to accept an observer when NMFS so demands. The problem is 
that many vessels are too small to accommodate another person. Vessel 
captains are often required to reduce crew size, which affects the 
ability to operate the boat safely, or to add another person. The 
observer, whose presence on board a small vessel inhibits crew 
movement, thereby impacting safety. For the small vessel fleets, all 
observers should be staged in a NMFS vessel. If that is not possible, 
the program should indemnify the vessel owner from any third-party 
claims associated with the requirement to have an observer onboard.
    We look forward to working with the Committee to amend the MMPA so 
that it is a balanced and responsible law that relies on sound science, 
requires the use of the best practicable commercially and economically 
feasible technology in mitigating impacts to marine mammals, treats all 
ocean users the same, and does not impose requirements which jeopardize 
human safety.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much. We will try to get 
through some of these questions before the vote.
    Ms. Steuer, your approach to the problem of the right 
whales in the Atlantic Ocean, where you say fishermen cause 
half of the mortality, and there is a regulatory process that 
is in effect right now; ship strikes cause the other 50 percent 
of the mortality, and there is no regulatory regime to deal 
with that issues. There has been--it is my understanding, and 
maybe it would have been better if NMFS--I see some NMFS people 
peppered out through the audience there, so maybe they can 
answer this question.
    The IMO, with the help of our National Marine Fisheries 
Service, it was my understanding, developed a process for 
international shipping, when they approach the U.S. coastline, 
to work with our Coast Guard and NOAA--I guess it is a 
voluntary thing--to avoid right whales, or to report right 
whales. But there was a system put into place. And I understand 
it is a voluntary system. If you are aware of that system with 
the IMO, is there some--is there something we can do with that 
structure, do more with that structure to help with the right 
whale situation? And there was--or there is research going on 
with Dr. Tyack with those fish-finders being used on ships to 
maybe locate right whales or other marine mammals as the ships 
go through.
    So a quick comment on what IMO is doing, and is that 
research by Dr. Tyack something that you think would be 
worthwhile pursuing?
    Ms. Steuer. On the research end, all of it is worthwhile 
pursuing, because we don't know, frankly, why so many right 
whales get hit by ships. We hate to say it, but maybe they are 
just so dumb they can't avoid them.
    The IMO system, as I understand it, is an information-
gathering system only. It does not obligate a vessel owner or a 
captain to move his vessel--slow down, avoid, or do any of the 
things that are necessary to protect right whales. What we 
don't have at the moment is an approach that, like the TRT--
    Mr. Gilchrest. I do think, though, that there is some 
communication between--and I know it is a voluntary thing, but 
I do think there is some communication between the ship 
captain, the pilot, and the Coast Guard, where the Coast Guard 
can actually contact that ship that there's right whales in the 
vicinity.
    Ms. Steuer. In the area. Right. But there is no process 
that forces the shipping companies to come to the table, as 
with fishermen, and say, OK, here is what we can and can't do, 
here is what we should and shouldn't do to reduce ship strikes. 
And that has to happen, and it has to happen soon. Because 
every single loss of a right whale is a detriment to the 
species, that is so much on the edge.
    So I think NMFS needs to--and we appreciate that it is a 
tough one with the IMO involved, but Canada just did it. They 
moved traffic, shipping traffic lanes in and out of the Bay of 
Fundy through an IMO process in an attempt to reduce right 
whale strikes. And my view of that is if Canada can do it, we 
can sure do it.
    Mr. Gilchrest. So Canada changed the route upon which ships 
travel to that port?
    Ms. Steuer. Yes. They moved their shipping lanes, and I 
believe there are also speed reductions involved.
    And so I know it is a complicated process, but I think that 
sets a model for us that can be done. And one of the 
researchers involved is actually working in Massachusetts. So 
we have the model set up and we should be looking at it.
    Mr. Gilchrest. Well, thank you very much.
    Mr. Johnson, how was your trip from Alaska?
    Mr. Johnson. I was here last week, and I went back home. It 
is a 2-day trip coming here, so it is a long trip.
    Mr. Gilchrest. Are you going to stay a couple of days now?
    Mr. Johnson. Well, I am here. Every time I come back, I try 
to make as many visits to as many different offices as possible 
because it is so long. You know, we complain in Alaska--I deal 
a lot with polar bears in Russia, and they claim the same 
problems that we have.
    Mr. Gilchrest. What, going to Moscow?
    Mr. Johnson. They say it is both a good thing and a bad 
thing to be so far away from your capital. [Laughter.]
    Mr. Gilchrest. We hope you are finding it a good thing 
right now.
    Could I ask about--you made a comment about sale of gall 
bladders and the ban on airplanes, and the permits for seals 
with Fish and Wildlife as opposed to just National Marine 
Fisheries Service. Those are three very specific 
recommendations. Do you see us-- And we would like to help with 
that, and I am just wondering if--and, you know, we will talk 
to staff and counsel and all those other things. Do you see 
those three recommendations being specific in the language of 
this reauthorization in the report language? How would we 
actually, from your perspective, implement a ban on gall 
bladders, no airplanes can do any hunting? Is it in this--is 
the Senate dealing with this issue as well?
    Mr. Johnson. Yes, the Senate is dealing with the ban on 
airplanes for polar bear hunting. That is in the treaty that we 
just negotiated with Russia. And the ban on the sale of gall 
bladders has been in, I think, in the past--in the language. Or 
else it has been in regulations.
    As far as the management of species, that was in the 
original 1972 act, where it put seals under management of 
Department of Commerce. And we have a good relationship with 
NMFS. I am not, you know, saying that we don't like NMFS. but 
the fact of the matter is they have told us that, you know, 
they are constantly dealing with crisis situations and 
lawsuits, and because of that co-management with Alaska Natives 
is not a priority. That is their words almost--
    Mr. Gilchrest. I think that is something that we can 
probably change through the regulatory process, or in this 
bill, the relationship between the permits for what you would 
like to do with the seals, between NMFS and Fish and Wildlife, 
I think we can deal with that in this legislation. The treaty, 
I guess, with the gall bladders, with Russia is something that 
we will pursue here and continue to look at. I don't know if 
that is something that we could actually put in this 
legislation. But I appreciate you raising it to us here this 
morning. And I also think we can work on the airplanes, no 
hunting from airplanes.
    We may have a second round if we have enough time, but my 
time has expired, so I am going to yield now to Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman. I wanted to ask Ms. 
Steuer, because I know she was a former staffer to the Merchant 
Marine and Fisheries Committee--I wish we still had the 
Committee, but such is life.
    Mr. Gilchrest. We are working on it.
    Mr. Pallone. Are we working? Oh, that is right, you are 
working on it. Oh, well, I hope you succeed. And I will help 
you, if I can--I don't know if what I say matters.
    Mr. Gilchrest. Maybe Karen can come back as a Republican 
staffer this time. [Laughter.]
    Ms. Steuer. For you, Mr. Gilchrest, anything.
    Mr. Pallone. Anyway, Karen, you were an active participant 
when the new definition of harassment was created, because I 
know you mentioned it before. Would you comment on the original 
intent of providing such a specific definition for this one 
aspect of take?
    Ms. Steuer. What happened in 1994, Mr. Pallone, is that we 
were actually approached by the scientific community with the 
very same complaints that we are hearing this time around. 
Prior to 1994, there was no definition. And so we created the 
two-tiered definition with the intention of having a tier--that 
is, Level B harassment--that would apply to incidental takes, 
like those of the scientific community, which were clearly to 
be of negligible impact. And we were relying on NMFS to set up 
a process to make their lives easy.
    Unfortunately, that didn't happen. And so here we are 
again. And it is one of the reasons why I, at least, would--I 
don't think that I could give any stronger advice to the 
Committee on the definition this time than to say that no 
matter what language you use, you define every single term in 
the statute; or you direct NMFS to do a rulemaking within a 
specified period of time to define the terms. Because that is 
where we were negligent in 1994, and that is what needs to 
happen now.
    And when I testified a few months ago on the DOD bill, I 
believe, I said the same thing; and that is that it is not--
that the language of the statute alone isn't going to resolve 
any of the problems we have heard today unless we have a clear 
process that resolves all the process problems that we have 
seen, that resolves all the conflicts on ambiguous terms, and 
that sets up the proper standards for scientists, fishermen, or 
anybody else. And so you have to have that in combination with 
whatever language you put in Level A and Level B harassment.
    Mr. Pallone. Well, this is related or, you know, I wanted 
to ask you specifically, though, the language in Section 14, 
which provides a general authorization for incidental take at 
the discretion of the Secretary, you know, would that produce 
the desired outcome, or do you feel it opens an unrestricted 
loophole for a variety of other activities in the ocean that 
may also cause the incidental taking of a marine mammal, such 
as offshore oil and gas exploration, for example?
    Ms. Steuer. I think, as it is currently worded, the problem 
is that it is a big loophole. And I am sure that is not the 
intention in the bill. And it seems to me that some of the 
testimony that we heard on the first panel might be very useful 
in that regard, in terms of the agencies setting up, perhaps, 
the equivalent of a programmatic review process in which 
certain activities can be determined to be of de minimis 
impact. Others can be moderate impact, or however they want to 
go through it. But to set up a general authorization that 
doesn't more clearly define its intent in terms of reference I 
think would be a mistake.
    Mr. Pallone. Let me ask about this new World Wildlife Fund 
study that was released in June. This is again for you, Karen. 
Released in June, conducted by both American and Scottish 
biologists, suggests that accidental capture of bycatch by the 
fishing industry may be the biggest immediate threat to the 
survival of some marine mammals, especially large whales. And 
it analyzed bycatch mortality affecting 125 marine mammal 
populations over 10 years. It estimates that 1,000 whales, 
dolphins, and porpoises drown every day, annually approximately 
308,000 marine mammals die unintentionally.
    Are there any conclusions that can be drawn about the 
effectiveness of Section 118, take reduction team process, 
because of this study? Maybe others might want to answer this. 
I know Mr. Hayes talked about the fishing gear, whether 
specific types of fishing gear should be permanently retired 
due to their associated level of bycatch.
    Ms. Steuer. Yes. I mean, there is no doubt that incidental 
bycatch in fishing gear is the largest single threat globally, 
particularly to what we call small cetaceans, small whales and 
dolphins. Absolutely no doubt about it. And at a paper 
presented to the Scientific Committee of the International 
Whaling Commission this year, the global estimate number is now 
up to more than 300,000 whales and dolphins a year, 600,000 
pinnipeds a year. The numbers are huge. And certainly type of 
gear is the bottom line. As Mr. Hayes was saying, it is not 
about the fishermen, it is about the gear they use.
    And in that regard, Section 118 has been extremely helpful. 
Because what Section 118 allows the agencies to do is collect 
data on which gears and how many and when and how and on what 
mitigation measures work. And in fact, that data was used in 
the International Whaling Commission discussions this year in 
terms of how do we now get that kind of data out to the rest of 
the world so that they can follow the kinds of practices that 
we are trying to set up with Section 118.
    Mr. Pallone. Thank you. I don't know if Mr. Hayes wants to 
say anything. You kind of already addressed it, I guess.
    Mr. Hayes. I think I addressed it. It is a huge problem.
    Mr. Pallone. OK. Thank you, Mr. Chairman.
    Mr. Gilchrest. Thank you, Mr. Pallone.
    This is--we are working on a series of definition changes 
and in our bill we have, if I could use--I guess it is one-i, 
two-i, three-i, or A, B, and C. But what we have attempted to 
do is to focus on the problem areas of the difference between a 
minor change in the behavior which is not significant, to a 
significant change that we really need to focus in on with our 
limited resources, to help the scientists improve their 
research without dealing with the whole disruptive, fragmented, 
underfunded regulatory process, and to find a way to get at 
some of the harassment of marine mammals that we don't have the 
ability to do now. And also what you said, Ms. Steuer, we can't 
do it all with the definition of harassment; there has to be 
some really comprehensive, competent regulatory regime. And 
whether we come up with a rulemaking process, whether we define 
those very specifically now, we want to do that.
    And we are hearing all this, and we are going to do our 
best to accomplish this task, including helping the fishermen 
catch their fish without making a priority within the creation 
of God's Earth that a porpoise is better than a salmon--or any 
of that. Balance all of this.
    I guess the question I have, though, here is specific to 
Level 3, which are trying to create to get at the--where there 
is feeding, swimming problems, where you want to swim with the 
dolphins, you want to feed the dolphins, you want to drive your 
jet ski around the dolphin. So it is our understanding right 
now that Level C harassment, little three-i, helps get at that 
particular problem, though there is some feeling that it 
doesn't, that it is not a good provision to put into the 
statute.
    So I guess I would ask does the present language, without 
this reauthorization, give the enforcement agencies the ability 
to stop that type of harassment? Is it presently--does it 
presently exist, or do we need to change it? And if Level C 
that we have in there is not adequate, or doesn't help that, 
what in fact should we do?
    And Dr. Wells, in your scientific research--and you 
mentioned--I think you may have been the one that mentioned 
feeding and swimming--do you see the present language in MMPA 
as OK to enforce that? Apparently you didn't. Do you see our 
language as directed toward those activities more helpful?
    Dr. Wells. Thank you. My background certainly is not in the 
legal profession, so I am not sure I am going to have a lot of 
valid input on this, but it has been my experience to date with 
my own research situation in Florida in dealing with NOAA 
Fisheries personnel that the current definition doesn't work. 
It is not a strong enough definition to get the legal counsel 
and law enforcement wings of NOAA to be able to act on a number 
of these situations that you describe.
    In talking with the same NOAA Fisheries staff about the 
proposed definition, it seems like something that they would 
feel comfortable would allow them to move forward with 
prosecutions much more effectively.
    Mr. Gilchrest. Ms. Steuer?
    Ms. Steuer. It is not clear to me why language that says 
``any act,'' eliminating ``of torment or annoyance,'' doesn't 
allow NOAA Fisheries to enforce any act of harassment.
    The concerns that we have about ``directed toward'' are 
that it is unclarified. I mean, as I read it, and we mentioned 
this before, at the moment, if you are directing an activity 
toward marine mammals, that includes scientific research. So 
you now fall under that standard, unless something in the 
statute or in regulation is going to clarify that you don't.
    Jet skis doing recreational running around marine mammals 
within an activity that is not directed toward them 
specifically, it doesn't seem to me that this would necessarily 
cover that.
    And if what the Agency wants to do is regulate dolphin 
feeding, dolphin swimming, and jet skis, then it seems to me 
that we ought to have the nerve to put into the statute ``an 
act''--we would say, ``dolphin feeding, dolphin swimming, and 
jet ski activity around''--
    Mr. Gilchrest. Is a prohibited activity.
    Ms. Steuer. Is prohibited activity or shall be regulated 
differently. If that is how clear we need to be, then let's be 
that clear.
    Mr. Gilchrest. One of the scientists, I am not sure if it 
was Dr. Tyack or--either here or at some other hearing, made a 
comment that if they tried to get a permit to ride around 
dolphins in a jet ski to see if they were being harassed, it 
would be difficult to get that permit. I guess. Although Dr. 
Wells said he didn't have any trouble getting permits.
    Dr. Wells. And actually, some of our work did involve 
looking at controlled approaches to dolphins to understand 
their responses.
    Mr. Gilchrest. I wonder if the--well, we will have to ask 
some of the NMFS people later, who aren't testifying right 
now--is it--in the process of getting a permit for scientific 
research, whether it is Florida, California, Massachusetts, 
Alaska, or wherever it happens to be, is that--because Dr. 
Wells says the permitting process is fundamentally sound right 
now--you said it was OK--is that the problem of individuals 
that you work with in those regions, or do those individuals 
help in that process, is it Washington, is it somebody that 
files a lawsuit? You know, where is that stream, because we 
have heard some specific examples of specific scientists that 
had a very difficult time getting permits.
    Dr. Wells. I believe one of the differences is that most of 
my work is with bottlenose dolphins. Not being endangered 
species exempts them from some of the NEPA and ESA 
considerations that these other scientists have had to face. I 
think my experience is consistent with Dr. Tyack's in terms of 
dealing strictly with MMPA authorizations or permits, in that 
that process seems to be working well. But when you have the 
additional complications of NEPA and ESA considerations, that 
is when it starts to get difficult.
    Mr. Gilchrest. So you see some streamlining with that 
process?
    Dr. Wells. That presumably would help out.
    Mr. Gilchrest. Mr. Pallone, any further questions?
    Mr. Pallone. I just wanted to ask Mr. Johnson about, you 
know, when you talked about the co-management, and I know that 
the bill has some changes in cooperative agreements. But in 
terms of Native Alaskans having the capabilities to support and 
train enforcement operations for effective co-management, would 
you just comment on that? I mean, is there sufficient 
capabilities, or is there a greater need for other--you know, 
if you just mention to us about their ability to do the 
enforcement pursuant to these cooperative agreements.
    Mr. Johnson. Yes, what we want is the ability to enforce 
regulations that we might develop for harvest limitation. For 
example, the villages of Gambell and Savunga on St. Lawrence 
Island have an unenforceable ordinance that they have developed 
limiting the number of walrus that can be taken. Presently that 
is not enforceable. The reason that we want the enforcement 
language in the bill is that legally an Alaska Native tribe can 
only enforce on its own members. So if a member from another 
tribe comes and hunts in that area, he doesn't have to abide by 
the same regulations that a tribal member can. The language in 
the bill that we would like to see in there, it allows anybody, 
any Alaska Native that is hunting in an area that has 
regulations, it forces them to live by the same regulations. We 
do have the capability, in most case, because we do have 
village peace officers in most villages in Alaska.
    Mr. Pallone. OK thank you. That is all I have, Mr. 
Chairman.
    Mr. Gilchrest. Thank you very much, Mr. Pallone.
    Prior to adjourning, I ask unanimous consent that the 
statement of Monica Riedel be submitted for the record. Without 
objection, so ordered. I have been meaning to say that for 2 
hours.
    [The prepared statement of Monica Riedel follows:]

        Statement of Monica Riedel, Executive Director and CEO, 
                  Alaska Native Harbor Seal Commission

    Thank you for the opportunity to present this testimony. My name is 
Monica Riedel and I am testifying in my capacity as the Executive 
Director and CEO of the Alaska Native Harbor Seal Commission (ANHSC). I 
am also a subsistence user of marine mammals, Native artist, and tribal 
member of the Native Village of Eyak located in Prince William Sound, 
Alaska.
    The ANHSC spans a geographic area almost equal to the width of the 
United States. We encompass approximately eighty remote villages most 
of which are accessible only by air or water.
    The commission was organized specifically to develop and implement 
Co-management of harbor seals and to address issues related to the 
Native subsistence harvest. Co-management is viewed as an effective 
means of addressing the decline of harbor seals in the Gulf of Alaska 
while providing for a continuation of traditional subsistence uses.
Importance of harbor seals to Alaska Natives
    Alaska Natives have been harvesting marine mammals for centuries. 
Current Harvest data shows that out of an estimated population of 
180,000 harbor seals in Alaska, approximately 2,500 are taken for 
subsistence. (Information from NMML and the Alaska Department of Fish & 
Game, Subsistence Division)
    The nutritional value derived from the seal far exceeds any other 
foods introduced to Alaskan villages. The oil is unsaturated, ``and is 
an excellent source of the long-chain omega-3 fatty acids that help 
prevent coronary heart disease'' (Professor Fereidoon Shahidi of 
Memorial University, Nammco International Conference and Exhibition 
Nov. 1997). Furthermore, recent studies show that seal oil may contain 
antibiotic properties. Just 3 oz of seal meat provides 95% of a 
person's daily requirement of iron.(Alaska Native Health Board)
    Over the past 30 years, congress has consistently recognized the 
use of marine mammals by Alaska Natives as an integral part of our way 
of life. Marine mammals, including the harbor seal, are a key source of 
food and clothing for Alaska Natives living throughout coastal Alaska. 
Alaska Natives make a wide variety of handicrafts and clothing from the 
marine mammals they harvest. They barter these items through 
traditional trading networks throughout Alaska. The sale of handicrafts 
made from marine mammal by-products is a crucial source of income to 
many who live in remote Native villages. Marine mammals also play a 
prominent role in Native stories, art, traditions, and cultural and 
spiritual activities.
Background information on ANHSC Programs:
Community-Based Harbor Seal Management and Biological Sampling
    With support from the Exxon Valdez Oil Spill (EVOS) Trustee 
Council, the ANHSC in collaboration with the Alaska Department of Fish 
& Game, Subsistence Division(ADF&G) has been conducting a biosampling 
program to collect tissue samples from subsistence-harvested seals. The 
overall purpose of the program is to combine Native traditional 
knowledge with western science to address the restoration and recovery 
of the seal population impacted by the 1989-oil spill. Over the past 5 
years, the project has trained and certified over 100 hunters, and 
subsistence users in rural Alaskan villages. The project has collected 
over 500 sample sets for distribution to a wide range of researchers 
and for the University of Alaska Tissue Archival Project.
Youth Area Watch
    Through coordination with another EVOS funded program, an 
additional 400 students have been exposed to the scientific methods of 
collecting data. During youth spirit camps the hunters teach protocols 
of hunting methods, as well as cultural relationships to the animal, 
while an ADF&G veterinarian and ANHSC staff train the youth in the 
scientific protocols of data collection. During the year, staff also 
visits elementary and high schools to educate students on Natives and 
marine mammal harvests.
Harbor Seal, Monitoring, Research and Management Program
    With Congressional appropriations through the National Marine 
Fisheries Service (NMFS) in the amount of $97,000 for each of the years 
1997, 1998, and 1999, and 150K for the years 2000,2001,2002 and 2003, 
the ANHSC has conducted a ``Harbor Seal Monitoring, Research and 
Management'' program. This program, combined with the EVOS biosampling 
project, has supported a full time executive director, and a contracted 
biologist to monitor harbor seal research on a statewide and national 
level. There are five main components to the program:
    1. LAdmin support for ANHSC and Board of Directors
    2. LCooperative Agreements
    3. LHarvest Assessment Oversight
    4. LExpansion of Biosampling
    5. LANHSC Outreach and Education
Self-regulation and Co-management
    The use of marine mammals for thousands of years has made Alaska 
Natives wise stewards of marine mammal populations. We bring unique 
knowledge and historical perspective to resource management. The 
National Marine Fisheries Service (NMFS), the federal agency with 
jurisdiction for the management of harbor seals, recognizes the 
advantages of direct involvement of subsistence users in managing 
harbor seals. Indigenous inhabitants and NMFS share the common goals of 
conservation and maintenance of a sustainable subsistence harvest. For 
that reason, the NMFS entered into a Marine Mammal Protection Act, 
Section 119 Co-management Agreement with the ANHSC.
    Through co-management, hunters and Native Tribal representatives 
sit as equals within the policy-making bodies that make resource 
management decisions. Co-management provides an effective means of 
conservation without diminishing the ultimate authority or 
responsibility of the Secretary of Commerce.
Development of ANHSC/NMFS Sec. 119 Agreement
    Co-management discussions between the Harbor Seal Commission and 
the National Marine Fisheries Service began in April 1995, shortly 
after the formation of the commission, and NMFS's proposed listing of 
the Gulf of Alaska harbor seal stock as ``strategic''.
    In spite of the impediments of long distance communications between 
NMFS headquarters in Washington D.C. and between our remote villages, a 
Section 119 Co-management Agreement between the Alaska Native Harbor 
Seal Commission and the National Marine Fisheries Service was finalized 
and signed in April 1999.
Proactive management through Sec. 119 Agreements
    It is envisioned that through the Co-management Committee structure 
established in Article V and Article VII Section B and C in the 
``Agreement Between The Alaska Native Harbor Seal Commission and The 
National Marine Fisheries Service, the ANHSC and NMFS will consult on 
issues relating to regulation and enforcement. Article VII Sec. C), 
States: As concern about any Alaska harbor seal stock arises (i.e., 
prior to listing as strategic or depleted under the MMPA and/or as 
threatened or endangered under the ESA) the Parties agree that the Co-
management Committee shall:
    1. LConsult and recommend about a possible need to list;
    2. LConsult and recommend about management strategies to avoid a 
possible listing;
    3. LAfter listing, consult and recommend about possible 
regulations; and
    4. LAfter listing, consult and recommend about possible 
arrangements for ensuring compliance and enforcement.
    Co-management Committee meetings are held on a regular basis. 
Specifically, we are addressing harbor seal stock delineation. The 
ANHSC has committed to conduct an independent scientific review of the 
genetic data used by NMFS to propose new stock boundaries.
How Co-management Agreements have benefited Natives and marine mammals
    Before the ANHSC was formed, hunters occasionally met with agencies 
to exchange information about harbor seals. Now, the dialogue is much 
broader. With formal and equal representation, scientific consultation, 
and through the co-management committee, as developed in the NMFS/ANHSC 
Sec. 119 Agreement, hunters and subsistence users contribute their vast 
traditional knowledge to address research and conservation needs. The 
ANHSC Board of Directors is made up of hunters and subsistence users. 
They are directly involved in data analysis of the seal population, 
harvest numbers, as well as data generated from the biosampling 
program. ANHSC meetings are open to the public and the organization 
distributes newsletters, brochures and biosampling training videos.
Room for improvement
    As background, it should be noted that the ANHSC recognizes that 
the most important data for managing any harvested population are 
regular censuses and monitoring of the size and composition of the 
harvests. The NMFS and the ADFG are well equipped for censusing harbor 
seals and they have an on-going census program. The ANHSC are 
responsible users and recognize the importance of harvest monitoring. 
The ANHSC is in the best position to do so because harvests are spread 
over a very wide area (from Ketchikan to the western Aleutian Islands) 
and throughout the year, it is impractical to monitor the harvests from 
agency offices. The ANHSC has representatives throughout the harbor 
seal's range in Alaska, and those representatives are knowledgeable 
about local hunting practices.
    We need to continue to build capacity and find long-term 
commitments to support conservation and local management plans. ANHSC 
is hard at work collecting data on the harbor seals, participating in 
federal, state and private research, monitoring the harvest and other 
activities. Adequate support would enable the commission to assist its 
villages in developing formal codes and ordinances, databases, and 
generally support the work of the commission. With the recent increase 
in funding, ANHSC has assumed more responsibility for monitoring the 
harvest of harbor seals formally done by ADF&G Subsistence Division.
    General comments on the MMPA and/or ways the MMPA could be 
improved:
    1. LSection 119 needs to be amended to include language contained 
in the administration bill that we strongly support.
    2. LFull funding for Section 119A for activities such as:
         A. Ldeveloping infrastructure, management plans
         B. Lcollecting and analyzing population data
         C. Lharvest monitoring
         D. Lcross-cultural training and other educational projects
         E. Lbiosamapling and tissue archival projects
    FACA exemption for Section 119 Agreements
    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to testify on the 2003 amendments to the Marine Mammal 
Protection Act. I will be glad to answer any questions you may have.
                                 ______
                                 
    Mr. Gilchrest. I want to thank all of you for coming this 
afternoon--well, it is this afternoon now. We will continue to 
discuss these issues with you as we move through the process. 
We are obviously not going to mark this up before the August 
recess, but it will be done, in our hopes, sometime in the 
September timeframe to reach the House floor for a vote. And we 
are working with the Senate to hope that there is some 
concurrent process there as well. So that in this session of 
the 108th Congress we will, hopefully, reauthorize the Marine 
Mammal Protection Act. And your contribution to this effort is 
vital and greatly appreciated. Thank you very much.
    The hearing is adjourned.
    [Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]

    The following individuals responded to questions submitted 
for the record. Their responses follow:

     Cottingham, David, Executive Director, Marine 
Mammal Commission
     Jones, Marshall, Deputy Director, Fish and 
Wildlife Service, U.S. Department of the Interior
     ent, Dr. Rebecca, Deputy Assistant Administrator 
for Fisheries, National Marine Fisheries Service, U.S. 
Department of Commerce
     Steuer, Karen, Senior Policy Advisor, National 
Environmental Trust
     Tyack, Dr. Peter, Senior Scientist and Walter A. 
and Hope Noyes Smith Chair, Department of Biology, Woods Hole 
Oceanographic Institution
     Wells, Dr. Randall, Conservation Biologist, 
Chicago Zoological Society, Mote Marine Laboratory
     Worcester, Peter F., Ph.D., Research 
Oceanographer, Scripps Institution of Oceanography, University 
of California at San Diego

   Response to questions submitted for the record by Marshall Jones, 
  Deputy Director, Fish and Wildlife Service, U.S. Department of the 
                                Interior

Questions from Chairman Wayne Gilchrest
     1. Question: The USFWS has been referred to as the agency that 
supported the changes to level A harassment in the Administration's 
bill. The level A harassment in the Administration's bill reads 
``injures or has the significant potential to injure a marine 
mammal....'' Can you explain why this specific language was chosen?
    Answer: The changes to Level A harassment proposed by the 
Administration's bill represent the combined efforts of several 
agencies having responsibilities under the Marine Mammal Protection Act 
(MMPA). The agencies crafted this language with the best interest of 
the public, marine mammals, and our respective agency missions in mind.
    The current definition of harassment, which uses the term 
``potential,'' does not provide a clear enough threshold for what 
activities may constitute harassment. As currently defined, Level A 
harassment is any act of pursuit, torment, or annoyance, that has the 
``potential to injure,'' and Level B harassment is any such act that 
has the ``potential to disturb.'' The term ``potential'' is too broad 
and would include any activity that could cause a negative response, no 
matter how remote the possibility. It provides little guidance to those 
who engage in activities that may have an effect on marine mammals for 
determining when their activities may result in prohibited harassment 
that is subject to regulation and, therefore, when it would be 
advisable for them to seek authorization (or modify their activities). 
Adding the term ``significant'' provides a modification that attempts 
to identify the appropriate level of certainty that an activity would 
result in harassment and could actually cause injury to the individual 
or stock.
    2. Question: What is the status of the Polar Bear Treaty 
implementing legislation being developed by the Department?
    Answer: The Polar Bear Treaty implementing legislation is still 
under review by the Administration. The Senate recently recommended 
ratification of the treaty (on July 31, 2003) by unanimous consent.
    3. Question: The Department has asked for authorities under section 
118 of the MMPA to collect information on fishery interactions with sea 
otters on the west coast. The Department currently has authority to 
collect information under P.L. 99-625, which required the Department to 
establish fishing areas and translocate sea otters to a special 
protection area. Has the agency determined whether or not the actions 
it has taken under P.L. 99-625 have been a failure? Why doesn't the 
Department collect the information it seeks under this Act?
    Answer: There are no provisions within Public Law 99-625 that 
specifically address collection of information on fisheries 
interactions. This law authorizes the U.S. Fish and Wildlife Service 
(Service) to develop a translocation plan for southern sea otters and 
provides specific requirements for translocation and management of sea 
otters. Although this legislation clearly identifies an interest in 
minimizing conflicts between sea otters and fisheries, it seeks to 
reduce these conflicts through movement of sea otters out of a 
designated management zone. The Administration's bill would clarify an 
ambiguity in the existing section 118 specific to California sea 
otters, noting that the provision should not be read to limit 
collection of information on southern sea otter/fisheries interactions. 
This information is important because, in recent years, fisheries that 
are thought to interact with sea otters have been subject to 
increasingly stringent regulations imposed by the State of California. 
With little or no information on fishery interactions with sea otters, 
it is difficult to determine means to minimize such interactions or to 
evaluate the effectiveness of any such measures that are adopted.
    It is clear that the primary objectives of the translocation 
program have not been met. Accordingly, the Service is currently 
reevaluating the program, including the possibility of declaring that 
it has been a failure. In April 2001, the Service released a scoping 
report that contained comments solicited from the public in preparation 
for developing a Supplemental Environmental Impact Statement that will 
analyze the effects of alternatives to the current translocation plan.
    4. Question: Has the Minerals Management Service, through the 
research it conducts or supports, reached any findings that would be 
considered surprising? For instance did a marine mammal act in a way 
that was not expected when a seismic activity or research activity was 
performed?
    Answer: According to the Minerals Management Service (MMS), while 
there are no final results yet available for discussion, there are 
several important MMS-funded marine mammal-related studies underway, 
including Sperm Whale Seismic Studies (SWSS) and studies under the 
Sperm Whale Acoustic Monitoring Program (SWAMP).
    The SWSS is an international collaborative effort, which includes 
among its participants the National Science Foundation (NSF) and 
industry representatives, comparing the ``normal behavior'' of sperm 
whales to that observed when seismic vessels are operating in the study 
areas. Controlled exposure experiments (CEE's) are planned to measure 
sperm whale responses to a typical air-gun array. Research vessels and 
remote sensing devices will also obtain ambient noise measurements and 
physical oceanographic data to allow a detailed habitat 
characterization; mapping of both physical oceanographic features and 
ambient underwater noise levels will be correlated to sightings of 
sperm whales and other observed cetaceans. In addition, methods to 
profile sperm whale dives using passive acoustic monitoring will be 
developed. For longer-term analysis of dive times and whale movement, 
satellite tags were tested in Fiscal Year 2001 and are being deployed 
through Fiscal Year 2004. Using these different study methods, whale 
vocalizations, dive profiles, and surface movement will be 
characterized and then compared to data when seismic boats are active 
in the area or during CEE's.
    This study is intended to immediately address information necessary 
for informed Section 7 consultations and possible MMPA take 
authorizations associated with seismic survey operations. The study 
will also provide essential baseline information on sperm whale 
behavior and response to noise needed to conduct more detailed studies.
    The SWAMP study focus was on obtaining a detailed characterization 
of Gulf of Mexico sperm whales in terms of sex and age distribution in 
industry-active areas, genetic profiles, habitat use, and seasonal 
movement patterns.
    As noted above, the information collected during the MMS-funded 
SWAMP and the ongoing SWSS is still preliminary and requires careful 
analysis before any conclusions can be reached. Once the scientists 
analyze the data, the work will be submitted for peer-review 
publication and will be readily available to the public.
    5. Question: In your testimony you stated MMS analyzes impacts, 
designs mitigation and monitoring guidelines, and defines how actions 
are to be carried out to minimize the potential for harassment or 
injury to marine mammals. Is MMS doing this on its own or is it 
coordinating with the NMFS when making these decisions?
    Answer: MMS coordinates protected species issues with the Service 
and the National Marine Fisheries Service (NOAA Fisheries) on a regular 
basis through interagency reviews of our NEPA documents and ESA section 
7 consultations. This ongoing coordination allows MMS to more 
effectively analyze alternatives to proposed actions, assess potential 
impacts of proposed actions, and to design mitigation and monitoring 
alternatives. For example, in addition to ongoing MMS, NOAA Fisheries, 
and industry collaborative research efforts, MMS has been working very 
closely with NOAA Fisheries Headquarters, NOAA Fisheries Southeast 
Region, and many representatives of the oil and gas industry for the 
past year and a half on mitigation, monitoring, and reporting issues 
related to seismic surveys and explosive removals of offshore 
structures in the Gulf of Mexico. Through our collaborative efforts we 
hope to have the most effective and reasonable mitigation and 
monitoring approaches to conducting seismic surveys and removing 
offshore structures with explosives while advancing the intent of the 
MMPA and the ESA.
Question from Congressman Jim Saxton
     1. Question: Why has the agency refused to include in recent 
budgets money for the John H. Prescott Marine Mammal Rescue Assistance 
Grant Program--since the law was passed over two years ago? And do you 
have plans to include funds for a Prescott program in the 2005 FWS 
budget? FWS's jurisdiction covers an endangered species (manatees) and 
a threatened species (California sea otters). Certainly help with 
rescue and rehabilitation--and financial support for research 
benefiting these marine mammals--would be in the best interest of these 
declining species?
    Answer: The Service supports the authority created by the Marine 
Mammal Rescue Assistance Act of 2000 to provide assistance to eligible 
marine mammal stranding network participants. Stranding network 
participants carry out activities--including rescue and rehabilitation 
of stranded marine mammals and collection of data from living and dead 
stranded marine mammals--that are important to the conservation and 
management of marine mammal species under our jurisdiction. Much of the 
work performed by these organizations cannot be done by the Service, 
which makes their contributions even more important.
    The Service has not requested funding for the Prescott Grants 
Program due to numerous competing priorities. Nonetheless, we have been 
actively involved in the process through our participation in the NOAA 
Fisheries technical and merit review processes. The Service greatly 
appreciates being given the authority to request appropriations to 
provide assistance to stranding network participants.
Questions from Congressman Frank Pallone, Jr.
Definition of harassment
    1. Question: Over the past year, Congress has been presented with 
several different options to re-define the definition of harassment. A 
new definition is being offered in H.R. 2693. Please compare the 
definition proposed in H.R. 2693 and discuss whether it compares 
positively or negatively to other proposed definitions.
    Answer: In proposing the changes identified in the Administration's 
bill, our intent was to provide a definition that would clarify for the 
regulated public what activities may constitute a violation. The 
existing definition, which limits harassment to ``any act of pursuit, 
torment, or annoyance,'' is too restrictive and may allow some actions 
that clearly harm marine mammals to avoid regulation. And, we felt that 
the unmodified form of ``potential'' was too broad. The modified form 
of ``significant potential'' provides greater predictability of what 
activities truly cause Level A harassment.
    The various definitions try to better focus the agencies' resources 
on those activities that pose a greater risk to animals, and seek to 
set a more workable conservation standard as well as clarify for the 
regulated public what activities would constitute harassment. However, 
we support the clarity of the definition contained in the 
Administration's proposal.
    For example, we believe that the use of the word ``probability'' as 
a qualifier in H.R. 2693 could be read to create a greater-than-fifty 
percent threshold. Such a numerical threshold would require a strict 
quantitative assessment, which would be difficult to conduct when 
considering biological behaviors, and that may be impossible to 
enforce. In addition, we are concerned that a greater than-fifty-
percent threshold may create a standard that is too high to apply to 
certain activities that may have negative impacts on marine mammals. 
The term ``significant potential'' provides a clearer standard for the 
regulated public, as well as enforcement personnel, and a more 
appropriate standard that ensures all activities that could lead to 
negative impacts on marine mammals would constitute harassment.
    2. Question: How will the proposed change to the definition of 
harassment affect scientific research and/or military readiness 
activities? Are there specific activities that might fall outside this 
definition?
    Answer: The scientific research community and the military would be 
subject to the new harassment definition as would any other citizen. 
These groups would, appropriately, need to receive authorization before 
conducting activities that could injure marine mammals or significantly 
disrupt important biological functions. We would work with both of 
these groups to provide appropriate authorizations as quickly as 
possible. Although the only activities we would expect to fall outside 
of the proposed definition of harassment are those that do not have a 
biologically significant impact, we are unable to more definitely 
identify such activities because we do not have a clear understanding 
of how the term ``probability'' in H.R. 2693 would be interpreted.
    3. Question: The definition for Level A (potential to injure) 
harassment proposed in H.R. 2693 requires that an activity have ``the 
probability to injure'' a marine mammal. It seems to me that this 
change would require a higher burden of proof for a given activity's 
likelihood of causing harm. Do you feel that this change would make the 
definition of harassment less protective of marine mammals? Does the 
word ``probability'' have a clear and commonly understood legal 
definition? What is the distinction from ``potential?'' Would the 
addition of a modifier that explains the relative probability of injury 
(such as 20%, 50%, 90%) be helpful in clarifying the intent of the word 
``probability?''
    Answer: We believe the term ``probability'' implies that a 
mathematical or statistical threshold should be employed or, at the 
very least, would require evidence that a response is more likely to 
occur than not to occur. The difficulty in using this term when 
referring to animal behavior, i.e., harassed or not harassed, is trying 
to make a numerical measurement of that animal's reaction that could be 
compared to some baseline level. The same difficulty applies if a 
modifier is added to the term. We are also concerned that this may 
create a standard that would not apply to some activities that may 
cause significant negative impacts to marine mammals.
    The Service is unaware of the use of ``probability'' in any other 
wildlife conservation law. The term ``potential'' appears in the 
current definition and we believe that the term ``significant 
potential'' would be the appropriate term and one that the regulated 
public would understand. It provides a standard between the current 
definition, which uses merely ``potential'' and the proposed 
definition, which would use the term ``probability.''
    Adding a percentage-based modifier, e.g., 20 percent, would make it 
even more difficult to enforce because it would indicate that evidence 
of that particular level must be presented before enforcement could 
occur. We believe this would result in less protection for marine 
mammals.
Permitting for Scientific Research
    1. Question: It is clear to me from the testimony that we have 
heard today that the permitting process for scientific research is 
still problematic for many scientists, but I am still not clear on the 
root cause of the problem.
     Is the permitting process severely limited by a lack of 
resources and staff?
    Answer: At the pace allowed under current priorities in the context 
of the President's Budget, we are making progress in our permits reform 
efforts to address the concerns of scientists. The Service is in the 
process of reviewing all of its permitting activities to determine how 
well they serve the public and conservation of the resources in 
question. We have asked the regulated public for input and developed a 
permits strategic vision and action plan (Leaving a Lasting Legacy: 
Permits as a Conservation Tool, a copy of which is enclosed for your 
reference) to improve permitting services, while still ensuring species 
conservation. One of our goals is to simplify and streamline the 
permitting process. For example, we have developed guidelines with NOAA 
Fisheries to process one joint application and issue a single permit in 
situations where proposed research activities include marine mammal 
species under both agencies' jurisdiction.
     Would the development of a classification system 
identifying specific activities and their associated risk to marine 
mammals be a more useful approach to expedite consideration of 
different types of activities on a more programmatic basis?
    Answer: The Service agrees that the development of a classification 
system could be a useful approach to expedite different types of 
activities on a more programmatic basis. One of the objectives of the 
Service's permits action plan is to identify activities by level of 
risk and to develop consistent policy, guidelines, and procedures for 
processing permit applications based on risk. Another objective is to 
provide clear policies and regulations to the permitted public. To 
accomplish these goals, we are in the process of reviewing which permit 
regulations and policies need to be revised or developed.
    We note that the review of a permit under the MMPA may also entail 
a review under the National Environmental Policy Act and the Endangered 
Species Act (ESA--for southern sea otters and manatees). Under some 
instances, this may add time to application processing.
Take Reduction Teams
    1. Question: A new World Wildlife Fund study released in June 
conducted by American and Scottish biologists suggests that accidental 
capture or ``bycatch'' by the fishing industry may be the biggest 
immediate threat the survival of some marine mammals, especially large 
whales. This study analyzed bycatch mortality affecting 125 marine 
mammal populations over the period of 1990-1999. The study estimates 
that 1000 whales, dolphins, and porpoises drown every day. Annually, 
approximately 308,000 marine mammals die unintentionally.
     In light of this information, what conclusions can be 
drawn about the effectiveness of the Section 118 take reduction team 
process?
     Should specific types of fishing gear be permanently 
retired due to their associated level of bycatch?
     Should a robust program be established to dedicate 
adequate resources and technical assistance to promote ``marine mammal 
safe'' fishing gear?
    Answer: Please see the response to the next question.
    2. Question: H.R. 2693 would extend the deadlines imposed on take 
reduction teams and the agency for requirements under section 118, the 
taking of marine mammals incidental to commercial fishing operations.
     Have these extensions been requested by the agency?
     Have take reduction teams been unable to meet these 
deadlines in the past?
    Answer: The Service supports the reduction of the incidental taking 
of marine mammals in the course of commercial fishing operations, and 
encourages efforts to diminish and ideally eliminate such taking. 
However, we note that Take Reduction Plans and their associated 
process, which are outlined in Section 118 of the MMPA, are under the 
purview of the Secretary of Commerce. The Service believes this issue 
is more appropriately addressed by our sister agency and, therefore, we 
defer to the NOAA Fisheries to respond to these questions.
Stock Assessments
    1. Question: Why have stock assessments not been completed for all 
stocks of marine mammals? What is the limiting factor? How adequate are 
existing population estimates?
    Answer: Stock assessments under the MMPA are used as a tool to 
assess the status of marine mammal populations and to determine 
acceptable levels of incidental take by fisheries. Stock assessments 
have been completed for all Service-managed species, however, with the 
exception of Alaska species, they are out of date.
    Current stock assessments are available for the following stocks in 
Alaska: Beaufort Sea Polar Bears; Chukchi/Bering Sea Polar Bears; 
Pacific Walrus; Southwest Alaska Sea Otters, Southcentral Alaska Sea 
Otters; and Southeast Alaska Sea Otters. Of these stocks, the Southwest 
Alaska Sea Otter stock is considered strategic as it is currently under 
review for listing under the ESA and therefore, as required by the 
MMPA, this stock assessment will be reviewed on an annual basis.
    Accurate population estimates and effective techniques for tracking 
population trends are critical for management of marine mammals or any 
other species. Population information (size, demographics) on marine 
mammal stocks managed by the Service in Alaska varies by species. The 
Pacific Walrus population has not been surveyed since 1990, and that 
survey was considered incomplete due to logistic and technical 
limitations of aerial surveys inherent to vast, remote and ice-
dominated environments. The Service hosted a workshop in March 2000 to 
review survey techniques and identify strategies for obtaining an 
accurate population assessment. As a result of the workshop, the 
Service is working with partners to develop new survey techniques using 
remote sensing and satellite tracking. A comprehensive survey is 
tentatively planned for spring 2005. The Beaufort Sea Polar Bear 
population estimate will be revised upon completion of an ongoing mark-
recapture study that is being coordinated with the Canadian Wildlife 
Service. A reliable population estimate for Chukchi/Bering Sea polar 
bears is not available, although crude estimates have been developed 
based on estimates of numbers of denning females on Wrangel Island. 
Existing population estimates for sea otters in Alaska will be complete 
and current by fall 2003. The southwest stock was surveyed in 2000 and 
2001; the majority of the southcentral stock has been surveyed on an 
annual basis since the 1989 (following the Exxon Valdez oil spill); and 
a comprehensive survey of the southeast stock will be completed by fall 
2003.
    Regarding southern (California) sea otter, population estimates of 
the species are remarkably accurate, in part because of the species' 
distribution in nearshore waters, and in part because of the 
consistency of the survey methodology, which has been in place since 
1983. Because the southern sea otter is listed as a threatened species, 
and incidental take of southern sea otters in fisheries is not governed 
under Section 118 of the MMPA, the development of stock assessment 
reports to determine acceptable levels of incidental take of southern 
sea otters is not given a high priority relative to other priorities 
competing for the limited funds in our budget. Nevertheless, we are 
currently preparing an updated 2003 stock assessment report for the 
southern sea otter.
    A stock assessment for Washington sea otters was completed in 1995. 
In 2001, our Western Washington Fish and Wildlife Office (WWFWO) 
contracted with the Washington State Department of Fish and Wildlife 
(WDFW) to prepare a draft stock assessment report. The WWFWO is in the 
process of preparing the draft stock assessment report for review and 
approval.
    In the state of Washington, the WDFW and U.S. Geological Survey 
(USGS) began regularly surveying the Washington sea otter population in 
1987. This population has been surveyed every year since, with a 
combination of aerial and ground surveys. The surveys encompass the 
currently known distribution of the population, with the exception of 
the few individuals that enter into the Puget Sound. The results of the 
surveys are not an exact count of the population, but serve as a 
minimum population estimate and provide trend information. In 
Washington, it would be difficult to obtain a more accurate population 
estimate because of the inaccessibility of the coastline.
    Regarding the Florida and Antillean manatee, the most recent stock 
assessment was also published in 1995. Our Florida Field Office is 
currently revising the stock assessment to reflect the most recent 
scientific research concerning the status of this species. This 
includes the determination made as part of our recent MMPA incidental 
take rule-making process that the Florida manatee is comprised of four 
separate stocks. However, litigation driven manatee tasks are hindering 
our ability to finalize a draft revised stock assessment report.
    A statistically robust estimate of the manatee population size does 
not exist. However, we do have an estimate of minimum population size 
based on annual synoptic surveys conducted throughout the manatee's 
winter habitat. Although these are unadjusted counts, we believe they 
provide a useful estimate of the minimum population size. The Florida 
Marine Research Institute and the USGS are currently conducting 
research into better methods for calculating manatee population size.
Zero Mortality Rate Goal
    1. Question: Robert Zuanich testified that the marine mammals hold 
a loftier status than all other animals in the ocean. Wasn't this at 
least, in part, the goal of the protective approach of the MMPA? The 
ZMRG codifies this placement of marine mammals in the ocean by stating 
that anything above a zero rate mortality and injury rate is 
unacceptable. Although clearly intractable, this principle sets a high 
bar and a principle for how humans interact with marine mammals.
     Can you comment on whether the zero mortality rate goal 
should be retained? What is its relation to the precautionary 
philosophy of the MMPA?
    Answer: The zero mortality rate goal is one of the ways that the 
intent of the MMPA is achieved. In enacting the MMPA, Congress found 
that certain species and population stocks of marine mammals are in 
danger as a result of human activities, and that these species and 
stocks should not be allowed to diminish below their optimum 
sustainable population levels. Congress affirmed the international, 
esthetic, recreational, and economic importance of these species and 
recognized the inadequacy of current knowledge of the ecology and 
population dynamics of marine mammals.
    The taking of marine mammals, incidental to commercial fishing 
operations, remains one of the most substantial sources of human-caused 
mortality of marine mammals. By setting the goal that commercial 
fisheries shall reduce incidental mortality and serious injury of 
marine mammals to insignificant levels approaching zero, the ZMRG 
applies this goal to the management of interactions between marine 
mammals and commercial fishing. The ZMRG, therefore, is important and 
appropriate to achieving the objective of ensuring the continued 
existence of marine mammals and the critical role they provide to the 
marine ecosystem.
Harvest management agreements with Alaskan Natives
    1. Question: H.R. 2693 does not revise Section 119 of the current 
law, which establishes the authority for marine mammal cooperative 
agreements in Alaska. The administration's draft bill would change the 
cooperative agreements to harvest management agreements.
     Can you elaborate on why this change is important?
    Answer: The Administration's bill adds a section that provides a 
new framework for developing agreements for active management of 
subsistence harvest including development and enforcement of harvest 
limits. The existing provisions of Section 119 remain--they would not 
be changed or affected by the Administration's proposed amendment. 
These cooperative agreements, in general, support collection of 
information about subsistence harvest patterns and about the species 
harvested. While these existing agreements have supported increased 
communication within the subsistence community and provided data on 
harvested species, they are limited in scope as they support basic 
information gathering and exchange, but are not designed to address 
harvest management because any harvest limits would be voluntary and, 
therefore, unenforceable. The proposed amendment defines a new type of 
agreement to develop and enforce harvest restrictions prior to 
depletion, i.e., before a conservation problem develops. Without such 
an approach, the status quo is a completely unrestricted harvest unless 
a species is depleted under the MMPA, or listed under the ESA (which 
automatically confers depleted status under the MMPA), and the managing 
agency finds subsistence harvest is limiting population recovery, 
followed by a formal rule-making to limit subsistence harvest.
    The Alaska Native community, recognizing the desirability of 
management prior to depletion, initiated the discussions to develop 
harvest management agreements. Their interest was in part a response to 
the depletion of beluga whales in Cook Inlet from over-harvest by 
subsistence users. Community leaders were frustrated by their inability 
to manage that harvest and wanted to work with the resource management 
agencies to develop a cooperative management capability to prevent the 
recurrence of such situations. Limitations of the current approach 
(formal rule-making for depleted and listed species) is further 
demonstrated by Cook Inlet beluga whales, as three years later, harvest 
regulations are still not finalized.
     Do native Alaskans have sufficient capabilities to 
support and train enforcement operations for effective co-management?
    Answer: Generally, they have the capability to support and train 
enforcement operations for effective co-management; however, this 
varies among organizations. Agencies would be expected to provide some 
technical assistance and training to build capacity and ensure 
effective co-management. With appropriate resources, the capabilities 
can be developed as demonstrated by the Alaska Eskimo Whaling 
Commission, which recently (and effectively) disciplined a boat captain 
for violating harvest guidelines for bowhead whales.
     Should future co-management agreements with native 
Alaskans apply to species or stocks that are already designated as 
strategic or depleted?
    Answer: It would be helpful to have the capability to develop 
agreements for all stocks regardless of status. Under current law, 
regulations for subsistence harvest can only be developed for depleted 
or listed species if the managing agency can make a positive finding 
that subsistence harvest is detrimental to population recovery. These 
conditions have only been met for one stock (beluga whales in Cook 
Inlet). For all species, regardless of status, the ability to manage 
subsistence harvest provides an additional useful management tool, 
whether or not harvest levels are related to population status. For 
example, the Alaska Eskimo Whaling Commission and NOAA have an 
effective agreement for the endangered bowhead whale; this agreement is 
a model for other agreements.
     Is it likely or desirable for seals, currently under NOAA 
Fisheries' jurisdiction, that are used for subsistence to be managed 
under the U.S. Fish and Wildlife Service so that all species that 
Alaska Natives use for subsistence purposes will be under one agency?
    Answer: We assume based on this question that Congress is 
interested in evaluating the merits of transferring management 
responsibility of ice seals (beard, ringed, ribbon, and spotted seals) 
and harbor seals from NOAA Fisheries to the Service. Congressional 
action would be necessary to accomplish a change in species 
jurisdiction under terms of the MMPA. Several factors should be 
considered in evaluating a potential change in management 
responsibilities for seals from NOAA Fisheries to the Service. There 
are a number of advantages and disadvantages to be considered in making 
such a decision.
    Initially, such a transition would be disruptive to the public, 
government agencies, and other interested parties. NOAA Fisheries has a 
long history of conducting research on and management of seals and 
whales in Alaska. For example, NOAA Fisheries initiated a harbor seal 
assessment program in Alaska in the early 1990s, and has subsequently 
reported on the status of this species every three years, as required 
by Congress. Regarding ice seal research and management, Congress 
appropriated $250K in FY03. A research plan has been jointly 
implemented between NOAA Fisheries and the Alaska Department of Fish 
and Game.
    Further, efforts are currently underway to organize an Alaska 
Native Organization that represents the subsistence users of ice seals. 
The agency has developed extensive and broad expertise in aspects of 
management and research related to seals, sea lions, and whales and 
maintaining state of the art research facilities and vessels. NOAA 
Fisheries also has a significantly larger overall budget for their 
marine mammal activities, including their current seal management 
responsibilities. In addition, NOAA Fisheries is currently responsible 
for managing the subsistence harvest of bowhead and beluga whales in 
Alaska. These harvests occur in many of the same villages where ice 
seals are harvested. Finally, NOAA Fisheries has an organizational 
structure that closely integrates management at their Alaska Regional 
Office and research at their Alaska Fisheries Science Center.
    The Service has experience and expertise conducting research on and 
management of two other ice-dependent species of marine mammals (polar 
bears and Pacific walrus). Given the remote environment and logistic 
difficulties in conducting marine mammal studies, such efficiencies can 
be quite important in effectively utilizing available resources. The 
Service is well positioned to work with the subsistence community as 
the agency administers subsistence programs for waterfowl, fish, and 
wildlife on Federal lands as well as walrus, polar bears, and sea 
otters. The subsistence community is relatively small and integrated--
in general the same people harvest all species in their geographic 
area. Having different agencies managing what is a single type of 
activity in a rural community can be confusing to the residents. The 
Service also maintains an established network throughout rural Alaska 
for collecting harvest information. For example, harvest of all sea 
otters, polar bears, and Pacific walrus is reported by regulation 
through the Marking, Tagging and Reporting program administered by the 
Service. This program could also be used to collect harvest information 
on ice seals and harbor seals.
    We emphasize that, with any change contemplated, it is important 
that research and management functions remain within the same agency 
for greatest effectiveness. Splitting research and management functions 
would be confusing to user groups and the public at large and lead to 
inefficiencies and unnecessary complexities in addressing research and 
management questions.
Threats to Marine Mammals
    1. Question: There seem to be many emerging threats to marine 
mammals that were not considered 25 years ago, when the original act 
was written.
     Do you think it would be helpful for the Marine Mammal 
Commission to report on the magnitude of emerging and existing threats 
to marine mammals?
     Is it practical to believe that we can address these 
threats, and if so, what threats should be priorities for action?
     This might include identifying data gaps, coming up with 
research plans and evaluating the health of marine mammal stocks in the 
wild as relates to other environmental parameters.
     Would such an undertaking be within the scope and purview 
of the MMC?
     Has the MMC ever investigated the growing incidence of 
ship strikes? Would the MMC support a mandate to convene a panel to 
recommend steps to reduce ship strikes and report to Congress in 2 
years?
     Should there be a similar directed program on ocean noise 
that would be mandated under the MMC or another program such as the 
National Oceanographic Partnership Program?
    Answer: We agree that marine mammals face new threats that were 
either not existent or not as persistent when the MMPA was first 
enacted to protect these species over 30 years ago. An evaluation of 
threats and potential management issues could be a useful tool for the 
managing agencies and interested public.
    Identifying and determining the magnitude of existing and emerging 
threats to marine mammals is imperative to our abilities to provide 
protection to and conservation of these species. However, we must first 
identify the various threats and their potential impacts before we can 
set priorities or evaluate whether or not they can be addressed. 
Furthermore, understanding changes that are inevitable is useful for 
developing strategies to avert change, to mitigate the impacts of 
change, and to adapt to changes.
    A comprehensive overview and planning effort to identify and 
evaluate emerging threats would benefit from the involvement of all 
parties with appropriate expertise. The Service believes that the 
Marine Mammal Commission (MMC) may be uniquely suited to facilitating 
efforts to identify data gaps and research needs for examining these 
increasing threats, and to developing strategies to address these 
issues. Fully identifying issues and their implications for marine 
mammal health and survival requires involvement of the resource 
management agencies that have the Congressionally-delegated 
responsibility under the MMPA for conserving and managing marine 
mammals. The Service believes other interested parties, including 
academia and other agencies with expertise on potential threats to 
marine mammals, should also be included in this process. Through 
involvement of all those with expertise and interest in the welfare of 
marine mammals, a compilation and evaluation of potential threats and 
proposed actions could be developed and would be a useful tool for 
protection of marine mammals.
 Captive Animal Welfare
    1. Question: The 1994 changes to the Marine Mammal Protection Act 
gave APHIS the authority for captive marine mammal welfare inspections.
     Has APHIS demonstrated requisite expertise and ability to 
inspect and oversee marine mammals in captivity?
    Answer: While there may be limitations associated with using 
minimum requirements under the Animal Welfare Act (AWA), the Service 
believes that the Animal and Plant Health Inspection Service (APHIS) 
has veterinarians with the expertise necessary to oversee marine 
mammals held in captivity. In addition, APHIS has always been 
responsive to our consultation requests. The Service works closely with 
APHIS to ensure that all marine mammal facilities are being maintained 
in compliance with the requirements of the Animal Welfare Act (AWA). 
Further, the Service meets with APHIS, MMC, NOAA Fisheries, and 
Department of State representatives on a monthly basis to ensure broad-
spectrum oversight of captive-held marine mammals.
     How many inspectors does APHIS deploy to inspect display 
facilities?
    Answer: The Service contacted APHIS in order to provide an accurate 
response to this question. APHIS provided the following reply:
        APHIS has 100 field inspector positions, and will add several 
        more in the coming fiscal year. APHIS has additional staff, 
        including nine supervisory Animal Care Specialists, at its 
        Regional offices and headquarters.
     To your knowledge, has APHIS promulgated marine mammal-
specific care standards for captive marine mammals? And have such 
standards been provided to the public?
    Answer: The Service contacted APHIS in order to provide an accurate 
response to this question. APHIS provided the following reply:
        APHIS first proposed marine mammal specific regulations and 
        standards under the AWA in 1978. Theses standards were 
        finalized in 1979. All regulations and standards promulgated 
        under the AWA follow all Administrative Procedures Act 
        requirements, including providing a public comment period and 
        publishing the final rules in the Federal Register. All AWA 
        regulations and standards are found in Title 9, Code of Federal 
        Regulations, Chapter 1, Subchapter A.
    The AWA marine mammal regulations were amended from 1983-84. In 
1993, APHIS published an advanced notice of proposed rulemaking to 
revise and amend the marine mammal standards through a process called 
negotiated rulemaking. All major stakeholders in the marine mammal 
industry were represented in this process, including animal welfare 
groups, the veterinary profession, the Navy, industry groups, 
independent marine mammal experts, NOAA Fisheries, the Service, and the 
MMC, although the agencies participated as non-voting members. The 
negotiated rulemaking process was undertaken under the Federal Advisory 
Committee Act, and the public was welcome to observe all meetings. The 
proposed rule for 13 of the 18 sections of the regulations was 
published in February 1999 and the final rule was published in January 
2001. The sections not included in the negotiated rulemaking will be 
handled under more traditional rulemaking procedures.
    Subsequent to the 1994 MMPA amendments, APHIS published a proposed 
rule for swim-with-the-dolphin programs in January 1995. A final rule 
was published in September 1998. Changes in the types of programs being 
offered and other issues raised led APHIS to suspend enforcement of the 
SWTD rule until the issues could be reviewed. All facilities remained 
regulated under the general marine mammal standards of the AWA.
    In May 2002, APHIS published an advanced notice of proposed 
rulemaking requesting public input and information in anticipation of 
publishing a proposed rule to cover the marine mammal sections not 
covered in the negotiated rulemaking and amendments to the SWTD section 
of the standards. APHIS has received 365 comments on the ANPR and is 
currently drafting the proposed rule docket. This docket is anticipated 
to be published for public comment in 2004.
    The rulemaking process is open to the public and APHIS makes the 
documents available on our Animal Care web page. Once a rule is final, 
the new regulations and standards are included in the CFR and on the 
Animal Care web page. In addition, all licensees and registrants are 
notified of all final rules.
     Is there any oversight or reporting requirements for 
APHIS in the discharge of this responsibility? Should APHIS be required 
to report annually to Congress?
    Answer: The Service contacted APHIS in order to provide an accurate 
response to this question. APHIS provided the following reply:
        For over 30 years, APHIS submitted an annual report to Congress 
        as required by the Animal Welfare Act (7 U.S.C. 2155). Once 
        released by Congress, the report was posted on our website. 
        However, the AWA annual report is no longer required to be sent 
        to Congress as result of criteria established under P.L. 104-
        66. Accordingly, APHIS is exploring different formats that will 
        allow enforcement statistics and supporting materials to be 
        posted to our website in a more timely fashion, ensuring that 
        all of our stakeholders have immediate access to this important 
        information.
    2. Question: The public display community has complained that NOAA 
Fisheries deliberately misinterpreted the intent of Congress in 1994 in 
its promulgation of regulations regarding permits allowing the 
transport and exchange of captive marine mammals.
     Is this complaint valid?
     If not, what aspect of the proposed regulations should be 
revised?
    Answer: The Service is not aware of the particular complaint 
referred to in this question, and we defer to NOAA Fisheries for a 
response. With regard to the proposed regulation, the Service provided 
comments to NOAA Fisheries on the proposal relating to permits for the 
capture or import marine mammals, as well as the transport, transfer, 
and export of marine mammals. The Service will continue to consult with 
NOAA Fisheries as they draft their final regulations.
Captive Release Prohibition
    1. Question: H.R. 2693 includes a prohibition on releasing captive 
marine mammals into the wild.
     Considering the very limited space available to care for 
stranded marine mammals, could such a change create a situation where 
animals are held in captivity permanently regardless of their health 
and survival?
    Answer: The prohibition on the release of captive marine mammals 
included in H.R. 2693 would not affect stranded marine mammals being 
held for rehabilitation purposes under section 109(h) of the MMPA. 
Section 109(h) requires steps to be taken to return stranded marine 
mammals to their natural habitats whenever feasible, i.e., when health, 
behavior, and survivorship issues have been addressed. Only stranded 
marine mammals that are determined to be non-releasable are placed in 
permanent captivity. The new provision in H.R. 2693 would ensure that 
marine mammals, other than those undergoing rehabilitation, could be 
released only under a permit for scientific research or enhancement of 
recovery. This would protect the captive and wild animals that might be 
negatively impacted by a well-intentioned, but poorly conceived, 
release.
     Would this provision affect NOAA Fisheries' release of 
the five pilot whales that were stranded on April 18, 2003?
    Answer: This question refers to animals under the jurisdiction of 
NOAA Fisheries, therefore, we defer to our sister Agency for a 
response.
     Does this provision require a U.S. citizen to apply for a 
NOAA Fisheries permit to release a marine mammal in other countries' 
EEZ (would this apply to Keiko's release in Norway)?
    Answer: This question also refers to an action under the 
jurisdiction of NOAA Fisheries, and we similarly defer to them for a 
response.
                                 ______
                                 

  Response to questions submitted for the record by Dr. Rebecca Lent, 
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
    Service, National Oceanic and Atmospheric Administration, U.S. 
                         Department of Commerce

Questions Submitted by Chairman Wayne Gilchrest
    1. Question: Concerns have been raised that NMFS has not done 
enough to address ship strikes of marine mammals. Can you tell us what 
the Agency has done to reduce ship strikes? Does the agency have any 
jurisdiction over vessel traffic?
    Answer: NOAA Fisheries has a program to reduce ship strikes that 
has been ongoing over the last decade and has been expanded in recent 
years as ship strikes continue. To date, the agency has focused most of 
its efforts to reduce ship-marine mammal interactions on the North 
Atlantic right whale, due to its critically endangered status, its 
particular vulnerability to ship strikes, and Congressional and public 
interest. Efforts to address ship strikes of right whales are believed 
to provide ancillary benefits to other marine mammals and to serve as a 
template to address the issue more broadly with other marine mammals. 
Ongoing activities include aerial surveys to notify mariners of right 
whale sighting locations; operation of the northeast U.S. and southeast 
U.S. mandatory ship reporting systems to provide information to 
mariners entering right whale habitat; working with the U.S. Coast 
Guard (USCG) to issue periodic notices to mariners regarding ship 
strikes; support of Recovery Plan Implementation Teams that provide 
recommendations to NOAA Fisheries on recovery activities; support of 
shipping industry liaisons; and Endangered Species Act (ESA) Section 7 
consultations. In addition, the agency funds research to investigate 
technological devices that may aid in reducing the likelihood of ship 
strikes. Since such advances may cause adverse biological effects, any 
approved ship strike reduction technology must also meet legal and 
biological criteria to ensure that it does not adversely affect an 
endangered species and can be permitted for use.
    The agency recognizes that this is a complex problem that requires 
additional, more pro-active measures. In late 2001, NOAA Fisheries 
formed a working group to address the issue of ship strikes. This 
process culminated in the agency's development of a Ship Strike 
Reduction Strategy, approved by NOAA in May 2003. The Strategy is a 
multi-year blueprint of specific steps to be taken to reduce or 
eliminate the threat of ship strikes that incorporates regional 
differences in oceanography, commercial ship traffic patterns, and 
navigational concerns. Since interagency collaboration is key to the 
Strategy's success, NOAA Fisheries sent out letters to agency 
counterparts in August 2003 to establish an Interagency Working Group 
on the Reduction of Ship Strikes to Right Whales to aid in the 
Strategy's implementation and enforcement. The purpose of this Working 
Group is to review and provide comments on the Strategy, provide 
clearance on two proposed international measures, assist NOAA in 
identifying means to ensure the implementation of a robust Strategy, 
and establish a timeline.
    NOAA Fisheries expects to publicly announce the Strategy following 
the initial establishment of the Interagency Working Group. The Working 
Group is expected to meet for 6-8 months. Initial steps have been made 
toward NEPA analysis, and economic impacts are being evaluated for 
potential regulation. Further, a ship strike outreach and education 
plan has been developed as an integral part of the NOAA Ship Strike 
Reduction Strategy; at present, the Northeast and Southeast Right Whale 
Recovery Plan Implementation Teams are helping NOAA Fisheries begin to 
implement this plan.
    In response to the second part of the above question, NOAA 
Fisheries has responsibilities for right whales under the ESA and the 
Marine Mammal Protection Act (MMPA); however, the USCG is the agency 
with primary responsibility for the regulation of ship traffic under 
the Ports and Waterways Safety Act (PWSA). While it may be possible for 
NOAA to implement some measures of the Strategy through the ESA and 
MMPA, the PWSA provides more explicit statutory authority for measures 
contained within the Strategy that deal with ship traffic. NOAA will 
work closely with partners, such as the USCG, to carry out the goals of 
the Strategy to the fullest extent.
    2. Question: It was reported at the hearing that Canada has altered 
its shipping traffic into the Bay of Fundy and incorporated speed 
reductions in certain areas to help reduce ship strikes of right 
whales. It was mentioned that this was done using the International 
Maritime Organization (IMO) process. Are you familiar with the actions 
taken by Canada? Did they institute these actions using national 
legislation or was is done solely through the IMO? Could the U.S. take 
similar actions? Would it require legislation?
    Answer: NOAA Fisheries is aware of Canada's actions to change its 
shipping lanes to help reduce ship strikes of right whales. The changes 
approved by the IMO came about through a four-year collaborative 
process involving Transport Canada, industry, and research and 
conservation organizations. Canada's federal government Habitat 
Stewardship Program also provided support for initial research and 
consultation projects that contributed to the lane change proposal. 
Lane changes have required amendments to navigational charts, vessel 
traffic control procedures, and distribution and notification 
procedures.
    NOAA Fisheries was regularly consulted for advice during the 
development of this proposal. Through the agency's efforts, the United 
States Government was an active supporter of the Canadian proposal at 
IMO and helped Canada lobby to get the proposal approved by the 
Subcommittee on Safety of Navigation.
    Although we are uncertain whether legislation is actually necessary 
under Canadian law to implement the change, action is undoubtedly 
required by Canada since IMO is not a supranational body. IMO only 
approves and adopts vessel traffic measures and it is up to the 
proposing government (in this case Canada) to implement the change. It 
should be noted that in the case of the Canadian proposal to amend the 
Bay of Fundy Traffic Separation Scheme that the action to be taken was 
in some ways much clearer than the action that should be taken to 
address the circumstances the United States faces off its coast. Years 
of research in the Bay of Fundy demonstrated that the traffic 
separation scheme ran directly through the highest abundance of whales 
and the risk could be reduced by moving the traffic toward the coast, 
where there was still sufficiently deep water for navigation to take 
place.
    Measures contained within the NOAA Fisheries Ship Strike Reduction 
Strategy seek to reduce the overlap of ships and whales to reduce the 
likelihood of ship strikes, in part through routing changes. NOAA 
Fisheries has developed its Strategy as a multi-faceted package, 
elements of which may require IMO approval for effective 
implementation. In addition, all of these elements will require actions 
within the U.S. NOAA Fisheries is beginning the interagency process to 
determine how the Strategy will be most effectively implemented and 
whether the actions will require additional legislation.
    3. Question: The paragraph in level B harassment that starts ``is 
directed toward a specific individual,'' is still making a number of 
permitted constituency groups uneasy. We understand why the agency 
wants this language, to prosecute those non-permitted activities that 
harass marine mammals. We included the language in H.R. 2693 to address 
the concerns of the agency. However, we are questioning the need for 
the paragraph. Since the phrase ``pursuit, torment, and annoyance'' has 
been deleted from the definition leaving the standard as ``any act--
can't the agency prosecute these non-permitted activities without this 
added paragraph?''
    Answer: Deleting the terms ``pursuit, torment, or annoyance'' from 
the definition of harassment is key to improving the harassment 
standard's enforceability. While deleting these terms would help, 
through the Administration bill's proposed Section 3(18)(B)(ii), NOAA 
Fisheries and the U.S. Fish and Wildlife Service seek different 
language for regulating harassment incidental to a particular activity 
and harassment that is directed at individuals or groups of marine 
mammals in the wild. Specifically, this language is intended to make 
explicit that activities such as closely approaching, swimming with, or 
touching marine mammals that may not overtly lead to significant 
alteration of the marine mammal's natural behavioral pattern at the 
time, but that are likely to cause disruption of natural behavioral 
patterns that are associated with cumulative, long-term harm to marine 
mammals, constitute harassment. As such, in an enforcement proceeding 
for harassment described in the Administration bill's proposed Section 
3(18)(B)(ii), the agencies would not need to show that disruption of a 
behavior was significant. In addition to enhancing enforcement of the 
harassment standard, this paragraph will help agencies better educate 
members of the public about avoiding marine mammal harassment when 
recreating in waters used by the animals.
    We would like to emphasize that this language will not adversely 
affect the scientific research community since there is already a 
process in place under Section 104 of the MMPA and its implementing 
regulations regarding General Authorizations for bona fide scientific 
research on marine mammals that results in no more than Level B 
harassment. This provides the scientific research community with a 
streamlined process to conduct such research.
    4. Question: The current definition of harassment has made it 
difficult for the agency to prosecute certain activities that harass 
marine mammals. Can you tell us what activities the agency has been 
able to enforce under the current definition?
    Answer: NOAA Fisheries has been successful in prosecuting 
violations involving observable actual injury of marine mammals, such 
as a recent case involving the shooting of a sea lion with a bow and 
arrow. In addition, the agency has successfully prosecuted violations 
involving feeding or attempting to feed marine mammals in the wild. The 
current definition of harassment has been an impediment to prosecutions 
for activities such as swimming with, touching or petting marine 
mammals in the wild.
    5. Question: How do you suggest that we protect, to the greatest 
extent possible, marine mammals from injury in Level A harassment 
within a statutory and regulatory framework?
    Answer: Given that marine mammals may be injured incidental to the 
conduct of otherwise lawful activities (other than commercial fishing), 
such as commercial shipping, oil and gas exploration and development, 
harbor construction, and military activities, the MMPA requires that 
taking incidental to such activities be authorized only if it is 
determined that the taking will have a negligible impact on the 
affected populations. Further, any such authorization is to be 
structured to ensure that the taking is reduced to the lowest level 
practicable. In that regard, the incidental take authorization process 
would be improved by removal of the term ``small numbers'' because the 
negligible impact standard, coupled with the requirement that taking be 
reduced to the lowest level practicable, should be sufficient to 
protect marine mammals without the small numbers provision.
    In addition, the current statutory framework should be supported by 
enforcement, educational outreach, and research to develop more 
effective mitigation and safe alternatives to current operating 
practices. Fiscal resources for these activities have been constrained 
in the past and the agency hopes to prioritize funds toward increased 
research, outreach, and education efforts in the future.
    6. Question: What are some of the factors Congress should consider 
when crafting a final harassment definition?
    Answer: We encourage Congress to consider the same factors the 
Administration considered when developing amendments to the harassment 
definition: 1) enhancing enforceability of the harassment standard; 2) 
clarifying the threshold for what activities do and do not constitute 
harassment by narrowing the breadth of the current definition to those 
acts that have biologically significant, harmful effects on marine 
mammals, rather than those that have de minimis effects; and 3) making 
explicit that activities directed at marine mammals in the wild that 
are likely to disturb the animals are considered harassment and should 
be avoided since this can result in harm to the animals, as well as the 
people who conduct these activities.
    7. Question: How do we incorporate the level of current scientific 
knowledge about how marine mammals may be injured and at the same time 
protect animals from injuries we have not yet been able to measure?
    Answer: Marine mammals may be injured by a variety of human 
activities, including shipping traffic, fishing, pollution, scientific 
research, and noise. While we have information on the degree and types 
of injuries that result from some activities, such as ship strikes and 
fishing gear, we are still collecting information on the types of 
injuries that result from others, such as noise and pollution. The 
important thing is to use what we do know about the impacts of some 
activities, combined with examination of those areas where uncertainty 
exists, to ensure that impacts of human activities on marine mammals 
are negligible where possible. In addition, the agency identifies and 
prioritizes research to better investigate those activities where there 
is a combination of uncertainty and concern about their impact on 
marine mammal stocks.
    8. Question: How should scientific research activities with 
potential impacts on marine mammals be treated by the incidental permit 
process in statute if the activity is designed to test the level of 
harassment that the activity causes in certain marine mammal species?
    Answer: Thus far, scientific research designed to test the level of 
harassment caused by a specific activity, such as use of airguns in 
seismic exploration, has involved direct takes of marine mammals 
through attachment of tags or close approaches to document changes in 
behavior. Such activities are authorized under permits issued pursuant 
to Section 104 of the MMPA (and Section 10 of the ESA where threatened 
or endangered species are involved). It is appropriate to continue to 
authorize takes for research activities directed at marine mammals 
under this section of the MMPA because of the distinction the MMPA 
makes between permits for acts that intentionally result in harassment 
versus authorizations for those activities that incidentally result in 
harassment. The distinction is very clear: If the activity does not 
involve scientific research on marine mammals, the researcher should 
apply for an incidental take authorization under Section 101(a)(5) of 
the MMPA. If the activity involves scientific research on marine 
mammals, then the researcher should obtain a scientific research permit 
under Section104 of the Act. Both processes work well and NOAA 
Fisheries is not proposing changes to these processes at the current 
time.
    9. Question: What is the difference between ``probability'' and 
``potential'' in describing the level of concern that would generate a 
need for an incidental take permit under Level A harassment (injury) 
for a particular activity?
    Answer: Because these terms are not currently included in (in the 
case of ``probability'') or defined in (in the case of ``potential'') 
the MMPA, we look to the ordinary meaning of the terms as they appear 
in the dictionary. Webster's New International Dictionary, 2nd ed., 
unabridged, provides that the term ``potential'' means ``that which is 
possible.'' Thus ``potential to'' implies a greater than 0% chance of 
causing a particular outcome. ``Probability'' is that ``quality or 
state of being probable,'' which implies having more evidence for than 
against (greater than 50% chance) the occurrence of a particular 
outcome. When applied to Level A harassment, the phrase ``potential to 
injure'' would mean any activity that could possibly cause injury would 
be considered harassment under the MMPA. The phrase ``probability to 
injure'' would mean any activity that is likely to or has greater than 
a 50% chance of causing injury would be considered harassment.
    While the threshold for Level A harassment using the term 
``potential'' is likely too low, the threshold using the term 
``probability'' is too high and could result in a difficult burden of 
proof for NOAA Fisheries and U.S. Fish and Wildlife Service to 
demonstrate a certain probability of injury before the agencies could 
take action to address activities injurious to marine mammals. The 
agencies looked at a range of options in the development of the 
Administration bill to clarify that the appropriate threshold for an 
act to constitute Level A harassment was somewhere in between 
``probability to injure'' and ``potential to injure.'' Ultimately, the 
Administration decided that ``significant potential to injure'' 
achieved the appropriate balance to allow the agencies to address 
harassment involving injury.
    10. Question: How should the broader impacts or potential impacts 
of sound (for example ship propellers) that may disturb or disrupt 
natural behaviors of marine mammals, be treated in statute?
    Answer: There is a long list of the ``potential'' impacts of noise 
on marine mammals, although there is little scientific information 
corroborating actual impacts. We have a poor understanding of what the 
actual noise levels resulting from human activities are in most of the 
ocean, much less how they relate to pre-industrial levels. For 
instance, while propeller hum is highly likely to mask whale 
communication calls, it is unknown over what range and period of time 
this occurs. We have little data on how shipping causes masking of 
acoustic signals for marine mammals. And, we currently have no 
mechanism to gauge the cumulative impacts of human noise pollution on 
populations of animals. Given all these uncertainties, it is difficult 
to recommend specific statutory language addressing noise impacts. 
Rather, at this time what is needed is a greater emphasis on efforts to 
understand the nature and extent of noise impacts and sufficient 
flexibility in the MMPA to address ocean noise in a practical but 
cautious manner as we obtain more information on the nature of the 
noise impacts.
    Question 11: How should the range of currently non-permitted 
activities that may be directed at marine mammals (i.e. feeding or swim 
with dolphin activities, or jet ski harassment) be treated by the 
statutory or regulatory process?
    Answer: As NOAA Fisheries provided in an Advance Notice of Proposed 
Rulemaking on the subject, at 67 FR 4379,4380 (January 30, 2002):
    Interacting with wild marine mammals should not be attempted, and 
viewing marine mammals must be conducted in a manner that does not 
harass the animals. NOAA Fisheries cannot support, condone, approve or 
authorize activities that involve closely approaching, interacting or 
attempting to interact with whales, dolphins, porpoises, seals or sea 
lions in the wild. This includes attempting to swim with, pet, touch or 
elicit a reaction from the animals. NOAA Fisheries believes that such 
interactions constitute ``harassment'' as defined in the MMPA since 
they involve acts of pursuit, torment or annoyance that have the 
potential to injure or disrupt the behavioral patterns of wild marine 
mammals.
    We encourage Members of Congress to consider amendments to the 
harassment definition contained in the Administration MMPA 
reauthorization bill to address this issue. That language would 
consider as a second tier of Level B harassment, ``any act which is 
directed toward a specific individual, group, or stock of marine 
mammals in the wild that is likely to disturb the individual, group, or 
stock of marine mammals by disrupting behavior, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering.'' If this amendment were adopted, NOAA Fisheries would 
clarify its intent and application in regulations to provide further 
guidance to the public.
    12. Question: In the definition of Level B harassment, does it make 
sense to qualify the activity (migration, breeding) or the effect 
(biologically significant disruption of behaviors) in Level B 
harassment? Why or why not?
    Answer: The Administration bill in proposed Section 3(18)(B)(i) 
would qualify the effect in Level B harassment by providing that the 
act ``disturbs or is likely to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of natural behavioral 
patterns...to a point where such behavioral patterns are abandoned or 
significantly altered.'' [Emphasis added.] One reason that this was 
proposed was to clarify that Level B harassment under this subparagraph 
means those acts that have biologically significant, harmful effects on 
marine mammals rather than those that have de minimis effects.
    13. Question: Which is the more scientifically used term 
``biologically significant activity'' or ``biologically significant 
disruption?'' Should either of these terms be defined in H.R. 2693?
    Answer: There is much published information on what activities 
would commonly be considered ``biologically significant'' in terms of 
what is necessary for an individual animal to maintain homeostasis or 
for a population to be maintained (e.g., sheltering, feeding, or 
breeding). Therefore, it would not be necessary to define 
``biologically significant activity'' in H.R. 2693. ``Biologically 
significant disruption'' is much more subjective, especially given 
scientific uncertainty, and could, therefore, be more difficult to 
implement. It would be useful for Congress to provide guidance to the 
agency on the intent of this phrase.
    14. Question: Is it possible to define ``harassment'' and still 
provide the agency flexibility to modify its regulations to respond to 
new scientific information?
    Answer: Yes. For example, the Administration's proposed definition 
of harassment still links the level of disturbance, in the case of 
Level B harassment, to natural behavioral patterns such as migration, 
breeding, nursing, and others, such that when scientific information 
becomes available better demonstrating the impact of a particular 
disturbance on one of these activities, NOAA Fisheries could revise its 
regulations regarding the threshold for harassment accordingly.
    15. Question: Which would you describe, feeding or foraging, as 
more biologically significant in terms of behaviors of marine mammals 
that should be listed in the definition of harassment?
    Answer: Most ecologists and marine mammal scientists would consider 
these two terms generally synonymous. However, while foraging includes 
the search, pursuit, capture, handling and consumption of food items, 
feeding is generally viewed as actual consumption. In terms of 
biological significance, the entire process of foraging is important. 
Either could be used to represent a biologically significant marine 
mammal behavior. Any list of biologically significant behaviors in the 
harassment definition, should not be stated in such a way that it would 
be viewed as exhaustive. Rather, it should be clear the list of 
behaviors is merely illustrative, but not exclusive.
    16. Question: The Administration's definition uses ``surfacing'' 
instead of ``breathing'' which is in the current definition of 
harassment. Why was this change made?
    Answer: ``Surfacing'' is a broader term that captures a variety of 
important natural behavioral patterns, such as resting and avoidance of 
impacts at depths, in addition to breathing. As such, its use is 
preferable to ``breathing'' in the harassment definition.
    17. Question: Does the agency interpret and/or implement Level A 
harassment for an activity interacting with marine mammals as an 
imminent death of the animal or as a recoverable injury?
    Answer: In the context of incidental takes of marine mammals, MMPA 
Section 101(a)(5)(D) sets forth a streamlined process for issuing one-
year authorizations for incidental taking by harassment only. The 
definition of Level A harassment refers to those activities that have 
the potential to injure a marine mammal; therefore those activities may 
qualify for the authorization process under Section 101(a)(5)(D). 
However, for activities that will result in taking by more than just 
harassment, take authorizations are governed by the less streamlined 
process under Section 101(a)(5)(A). Therefore, if an activity is likely 
to result in take by mortality, including through injury that is likely 
to result in mortality, NOAA Fisheries will treat such a take 
authorization request under the requirements of Section 101(a)(5)(A).
    18. Question: What activities could injure an animal, but not cause 
a mortality?
    Answer: Virtually any activity that occurs in the ocean, or causes 
a change in ocean micro-climates could kill or injure marine mammals; 
however, some are more likely to result in death or injury than others. 
Research activities can occur that cause injury but are not likely to 
result in mortality if the animal is otherwise in good health. For 
example, remote biopsy sampling a right whale causes a puncture wound 
(an injury), but it is highly unlikely that the small wound would 
result in death. Other activities, such as disturbance that interferes 
with important behaviors like breeding or feeding may not directly 
cause mortality, but can have chronic or cumulative sub-lethal effects 
that reduce an individual's fitness (e.g., compromise its immune 
system, prevent it from breeding successfully). Commercial activities 
not directed at marine mammals, such as commercial/recreational 
fishing, may also incidentally injure an animal but not cause 
mortality. However, authorizations for these activities may include 
measures to mitigate potentially lethal effects. NOAA Fisheries has 
received reports about marine mammals that have been entangled and 
injured (e.g., cuts, bruises) in fishing nets but that ultimately are 
released or able to escape due to human intervention or gear 
modifications that aid escapement of entangled animals. In fact, large 
whales are often identified by scars from fishing gear in which they 
became entangled, but from which they ultimately escaped. Recreational 
activities directed at marine mammals (e.g., closely approaching by jet 
ski, swimming with wild marine mammals) can also result in both short 
and long term injury to an animal but are not likely to result in 
death.
    19. Question: How much research is funded by the Agency to 
determine the effects of human caused sound in the ocean on marine 
mammals?
    Answer: NOAA Fisheries supports a scientific program related to 
acoustics and the effects of noise on marine animals (mammals and 
turtles) at a level of $200,000 per year (for each of the last three 
fiscal years).
    20. Question: Concerns have been raised regarding the scientific 
basis used by the agency to list fisheries as category I (frequent), II 
(occasional) or III (remote) under section 118 of the Act. What 
information does the agency use when making these determinations?
    Answer: The current fishery classification system was developed by 
NOAA Fisheries scientists and is rooted in the relationship between 
allowable mortality and serious injury and the amount of time it takes 
a particular marine mammal stock to recover to its optimum sustainable 
population (OSP) level. The classification system is based on a two-
tiered, stock-specific approach that first addresses the total impacts 
of all fisheries on each marine mammal stock and then addresses the 
impacts of individual fisheries on each stock. Tier 1 considers the 
additive fishery mortality and serious injury for a particular stock, 
while Tier 2 considers fishery-specific mortality for a particular 
stock. This approach is based on the rate, in numbers of animals per 
year, of serious injuries and mortalities due to commercial fishing 
relative to a stock's potential biological removal (PBR) level.
    Under the Tier 1 analysis, if the total annual mortality and 
serious injury across all fisheries that interact with a stock is less 
than or equal to 10 percent of the PBR level of such a stock, then all 
fisheries interacting with this stock would be placed in Category III. 
Otherwise, these fisheries are subject to the next tier to determine 
their classification. Under the Tier 2 analysis, those fisheries in 
which annual mortality and serious injury of a stock in a given fishery 
is greater than or equal to 50 percent of the stock's PBR level are 
placed in Category I, while those fisheries in which annual mortality 
and serious injury is greater than 1 percent and less than 50 percent 
of the stock's PBR level are placed in Category II. Individual 
fisheries in which annual mortality and serious injury is less than or 
equal to 1 percent of the PBR level would be placed in Category III.
    The threshold between Tier 1 and Tier 2 was set at 10 percent of 
the PBR level based on recommendations that arose from a PBR Workshop 
held in La Jolla, California, in June 1994. The Workshop Report 
indicated that if the total annual incidental serious injury and 
mortality level for a particular stock did not exceed 10 percent of the 
PBR level, the amount of time necessary for that population to achieve 
the OSP level would only increase by 10 percent. Thus, 10 percent of 
the PBR level for a particular stock was equated to ``biological 
insignificance.'' This approach ensures that fisheries are categorized 
based on their impacts on stocks and allows NMFS to focus resources on 
those fisheries that have more than a negligible impact on marine 
mammals.
    The agency uses observer program data, where available, to place 
fisheries into one of the three categories. Observer programs collect 
information on the incidental mortality and serious injury of marine 
mammals, in addition to other information. While the agency uses 
observer data to place a fishery into Category I, NOAA Fisheries 
regulations provide that other factors, such as fishing techniques, 
gear used, methods used to deter marine mammals, target species, 
seasons and areas fished, qualitative data from logbooks or fisher 
reports, stranding data, and the species and distribution of marine 
mammals in the area, where appropriate, may be evaluated to determine 
whether fisheries should be placed in Category II.
    21. Question: Why did the Administration use the term ``non-
commercial'' in its amendments to section 118? What types of fishing 
was this language trying to capture?
    Answer: The Administration bill does not contain the term ``non-
commercial'' fishery, but specifically would apply the Section 118 
provisions to ``listed fisheries,'' defined as a fishery included on 
the list of fisheries published under Section 118(c). In effect, this 
would enable NOAA Fisheries to address any source of fishery-related 
incidental mortality or serious injury of marine mammals occurring on a 
frequent or occasional basis. The sectional analysis describing the 
Administration bill refers to expanding Section 118 provisions to 
``non-commercial fisheries.'' NOAA Fisheries uses this term to include 
those recreational, personal use, or other fisheries that result in 
frequent or occasional incidental mortality or serious injury of marine 
mammals. The reason for these amendments is to allow NOAA Fisheries to 
equally address all fishing gear that is found to have frequent or 
occasional incidental mortality or serious injury of marine mammals and 
not limit the focus to commercial fisheries when other fisheries may be 
using the same gear in a similar manner.
    22. Question: There have been a number of instances where research 
activities or other activities using sonar were enjoined by the courts. 
The reason these activities were stopped wasn't because of MMPA issues, 
but lack of compliance with the National Environmental Policy Act or 
the Administrative Procedure Act requirements. What actions has the 
agency taken to address these issues?
    Answer: All applications for scientific research permits under the 
MMPA must comply not only with the requirements of Section 104(c)(3) of 
the Act, but with NEPA, and any other applicable laws (e.g., ESA). 
Environmental Assessments and Environmental Impact Statements are being 
prepared for any proposed research on marine mammals that would result 
in adverse effects on an endangered species, could result in cumulative 
adverse impacts on the human environment, or for which the impacts are 
uncertain. To ``front-load'' the scientific research permit process, 
the agency is conducting programmatic NEPA analyses on various 
scientific research programs including acoustics. Additionally, NOAA 
Fisheries recently hired national and regional NEPA coordinators to 
help train staff and provide expertise throughout this and other NEPA 
processes.
    Other activities that seek authorization under Section 101(a)(5) 
often have a NEPA analysis conducted on the activity or authorization 
by a different Federal agency (for activities authorized, funded, or 
carried out by a Federal agency), and NOAA Fisheries continues to 
assist other Federal agencies in conducting these NEPA analyses.
    23. Question: Questions regarding the use of observer data have 
been raised by a number of groups. Can observers collecting fishery 
data also collect marine mammal data and vice versa or are they 
restricted to collecting only one type of data? If so, why?
    Answer: In most cases, observers collect information on all catch 
and bycatch (finfish, marine mammals, sea birds, sea turtles, and other 
species). NOAA Fisheries created its National Observer Program 
specifically to coordinate existing statutory requirements for 
monitoring fisheries and to ensure that observer programs are 
collecting data to fulfill all these requirements. More specifically, 
all observers are trained in the identification of marine mammals and 
other species and collect data on a range of conservation and 
management issues, including species composition of the catch; weights 
of fish caught; and bycatch of finfish, marine mammals, sea turtles, 
and other protected species. Observers fill out and submit forms to 
NOAA Fisheries that report on all of the above information.
    Nonetheless, different data collection protocols are applied in 
terms of sampling designs for observer coverage in order to account for 
the differences in the nature and occurrence of marine mammal/other 
protected species bycatch versus finfish bycatch. Given the nature of 
marine mammal and other protected species bycatch, sampling methods for 
observer programs primarily devoted to monitoring marine mammal bycatch 
may vary from those primarily devoted to monitoring finfish bycatch. 
For example, because protected species bycatch events tend to be rarer 
than finfish bycatch events, marine mammal observer programs may 
require increased coverage and allocation of observers to vessels 
operating in distinct locations in order to obtain an accurate 
depiction of the occurrence of marine mammal bycatch. NOAA Fisheries 
allocates observers to fisheries to monitor incidental mortality and 
serious injury of marine mammals as well as to fulfill other statutory 
obligations as resources allow.
    24. Question: How long does it take the agency to disseminate the 
data collected by the observers? Is there a backlog on reviewing and 
using this data?
    Answer: Availability of data varies from program to program, but in 
general the data are subject to a quality control review that takes a 
maximum of 60-90 days before it is made available to NOAA Fisheries 
scientists and managers, as appropriate.
    Processing observer program data is labor-intensive. Situations in 
which there are delays in analyzing and processing data are usually due 
to human resource constraints, specifically, insufficient analytical 
support. Where this has been a problem, NOAA Fisheries has requested 
additional FTEs both for better oversight and for analytical support.
    25. Question: There have been comments about the cumulative effects 
of activities on marine mammals. What is our current state of knowledge 
regarding cumulative effects? Do we currently have the ability to 
determine how different activities cumulatively affect marine mammals? 
Is it possible for any marine mammal affected by different activities 
to have time to recover from the first effect prior to the second 
effect happening?
    Answer: We generally do not know the cumulative effects of many 
different activities on marine mammals. However, monitoring programs 
that are part of authorizations to take marine mammals incidental to 
various activities and behavioral observations have provided data upon 
which some estimates may be based. For example, tagging and monitoring 
animals over the long-term following a human interaction allows NOAA 
Fisheries to evaluate the impacts of various activities and to estimate 
whether and how soon after a certain activity marine mammals resume 
their normal activities (such as pinnipeds hauling out on a beach after 
a disturbance has displaced one or more animals).
    Marine mammals affected by different activities can recover from 
some of the effects. For example, if an activity disturbed seals or sea 
lions from a haulout site, they generally return to the area after a 
relatively short time. On the other hand, if a marine mammal were 
injured incidental to a human activity, recovery, if it occurs, may be 
prolonged. There is insufficient information to predict how many 
disturbances (or how often they would have to occur) are required to 
cause a marine mammal to avoid a specific area due to the disturbances. 
Therefore, such cumulative effects must be based on what data are 
available and on assumptions. NOAA Fisheries is working with its 
partners, including the Marine Mammal Commission, to investigate the 
cumulative impacts of some human activities, such as noise.
    26. Question: How can we manage for cumulative effects when we may 
not have scientific knowledge on how activities actually affect marine 
mammals? If we were to manage based on what we thought were the 
impacts, wouldn't that create havoc with the different industries and 
scientists that may have interactions with marine mammals?
    Answer: The Findings section of the MMPA sets a high standard for 
marine mammal protection, stating, ``Marine mammals have proven 
themselves to be resources of great international significance, 
esthetic and recreational as well as economic, and it is the sense of 
the Congress that they should be protected and encouraged to develop to 
the greatest extent feasible commensurate with sound policies of 
resource management and that the primary objective of their management 
should be to maintain the health and stability of the marine 
ecosystem.''
    While the Act does not provide specific guidance with respect to 
addressing cumulative impacts, it is clear in its intent that resource 
management policies should ensure marine mammal protection to the 
greatest extent feasible. Thus, NOAA Fisheries attempts to manage for 
cumulative effects first by using what we know in the most effective 
manner and making assumptions based upon what we do know to fill in 
gaps in scientific knowledge. In addition, we design research and 
monitoring measures for activities to fill in gaps in scientific 
knowledge. By utilizing tools like mitigation measures on 
authorizations, the agency strives to ensure that research and other 
human activities can continue, while ensuring to the greatest extent 
possible that the conservation of marine mammals is not compromised.
Questions Submitted by The Honorable Frank Pallone, Jr.
Definition of harassment:
    1. Question: Over the past year, Congress has been presented with 
several different options to re-define the definition of harassment. A 
new definition is being offered in H.R. 2693.
     Please compare the definition proposed in H.R. 2693 and 
discuss whether it compares positively or negatively to other proposed 
definitions.
    Answer: NOAA Fisheries is pleased that H.R. 2693 has sought to 
address the enforceability and clarity of the current harassment 
definition by proposing amendments to the definition. In particular, we 
support H.R. 2693's deletion of the words ``pursuit, torment, or 
annoyance'' since this phrase adds an additional hurdle the agency must 
meet before it can address acts involving injury or disturbance, making 
it more difficult for the agency to address cases of harassment. The 
Administration's amendments to the harassment definition would make 
this same change.
    We also support H.R. 2693's inclusion of a second tier for Level B 
harassment, which makes explicit that activities that are directed at 
individuals or groups of marine mammals, such as swimming with, closely 
approaching, touching or feeding these animals in the wild, that are 
likely to disrupt marine mammal behavior constitute harassment. While 
the language in the Administration bill differs slightly from that in 
H.R. 2693, the effect of this section in both bills would be similar.
    We support the intent of the bill's proposed changes to the current 
definition of Level B harassment. These changes under the first tier of 
Level B harassment will clarify that Level B harassment means those 
acts that are likely to result in biologically significant, harmful 
effects rather than those activities that result in de minimis impacts 
on marine mammals. Overall, the proposed definition of harassment 
contained in H.R. 2693 is similar in intent to the one in the 
Administration proposal. Both proposed definitions will result in more 
meaningful protections for marine mammals and apply a clearer standard 
of harassment to the entire regulatory community. Nonetheless, we are 
concerned that H.R. 2693's proposal to retain the language, ``potential 
to disturb,'' would perpetuate the overly broad standard of Level B 
harassment, inasmuch as it would include even a very remote possibility 
that disturbance might occur. We believe that the standard included in 
the Administration proposal, ``disturbs or is likely to disturb,'' 
provides a more appropriate delimitation concerning what activities 
should be covered under this part of the harassment definition. We also 
note that the Administration bill does not include ``care of young'' or 
``predator avoidance in the list of behaviors in Level B harassment.
    With regard to changes H.R. 2693 would make to Level A harassment, 
we are concerned about the use of the word ``probability'' in the 
phrase ``probability to injure.'' Specifically, since the word 
``probability'' implies that a particular outcome is more likely to 
occur than not (i.e., with greater than a 50% likelihood), we are 
concerned that this standard may create too high a threshold for an act 
to constitute harassment. The Administration bill clarifies that Level 
A harassment is an act with the ``significant potential to injure.'' 
This term clarifies that the threshold for Level A harassment is higher 
than the current threshold, which implies that an act having any remote 
possibility to cause injury could constitute harassment, and lower than 
the threshold in H.R. 2693, which could exclude some important injury-
related impacts on marine mammals.
    2. Question: How will the proposed change to the definition of 
harassment affect scientific research and/or military readiness 
activities?
     Are there specific activities that might fall outside 
this definition?
    Answer: The proposed amendments in H.R. 2693 and the 
Administration's bill will likely make the process easier for the 
scientific research community. Because the proposed amendments would 
raise the threshold for acts directed at marine mammals involving Level 
A harassment (injury), which are permitted under Section 104 of the 
MMPA, more scientific research applications will likely fall under 
Level B harassment. Scientific research involving Level B harassment 
would continue to be covered by the General Authorization process, a 
more streamlined process than the scientific research permit process 
under Section 104. Nonetheless, these amendments would still enable the 
agency to keep track of the effects of scientific research on marine 
mammals.
    The amendments will likely clarify for the regulated community, 
including the Department of Defense, when their acts constitute 
harassment and when they do not. They will clarify that Level B 
harassment means those acts that are likely to have biologically 
significant, harmful effects on marine mammals rather than those that 
have de minimus effects.
    By amending the definition of harassment, activities that 
potentially could have very minor incidental behavioral effects on 
marine mammals (e.g., kayakers and scientists using low intensity 
sonars and other instruments to map the surface of the sea floor or 
water current characteristics) should fall outside the definition, 
depending on circumstances such as duration of the activity and 
location of its occurrence.
    3. Question: The definition for Level A (potential to injure) 
harassment proposed in H.R. 2693 requires that an activity have ``the 
probability to injure'' a marine mammal. It seems to me that this 
change would require a higher burden of proof for a given activity's 
likelihood of causing harm.
    Do you feel that this change would make the definition of 
harassment less protective of marine mammals? Does the word 
``probability'' have a clear and commonly understood legal definition? 
What is the distinction from ``potential?'' Would the addition of a 
modifier that explains the relative probability of injury (such as 20%, 
50%, 90%) be helpful in clarifying the intent of the word 
``probability?''
    Answer: This language could result in less protection for marine 
mammals. The word ``probability'' implies that a particular outcome has 
a greater chance of happening than not (i.e., greater than 50% 
likelihood of occurring), which may result in too high a threshold for 
an activity involving injury to constitute harassment.
    ``Probability'' is not a term that is currently in the MMPA. 
Therefore, there is no useful legal reference for that term as it 
relates to the MMPA. In addition, the term ``potential'' is only used 
in the harassment definition of the MMPA, and it is not defined in the 
MMPA. Therefore, there is no clear definition of that term in the MMPA, 
and there is no ability to compare how it is used elsewhere in a 
similar context.
    Thus, a court would likely look to the ordinary meaning of the word 
as it appears in the dictionary. Webster's New International 
Dictionary, 2nd ed., unabridged, offers two definitions of 
``probability'' that are relevant to its application in the harassment 
definition: 1) The quality or state of being probable (probable means 
having more evidence for than against; supported by evidence strong 
enough to establish presumption, but not proof, of its truth); 
reasonable ground for presuming; true, real, or likely to occur, 
likelihood; and 2) That which is or appears probable.
    Since ``probability'' means that a particular outcome has a greater 
chance of happening than not, in this case it would mean that those 
acts that have a greater than 50% of causing injury to marine mammals 
would constitute Level A harassment.
    Webster's defines ``potential'' as ``that which is possible.'' 
Thus, it includes everything that's probable/likely (i.e., more 
evidence for than against) plus things that are not probable/likely. 
The only thing excluded from ``potential'' is that which is not 
possible at all. The phrase, ``potential to injure,'' in the harassment 
definition implies that any act that has greater than a 0% chance of 
causing injury could constitute Level A harassment.
    While the threshold for Level A harassment using the term 
``potential'' is likely too low, the threshold using the term 
``probability'' is likely too high to protect marine mammals from 
injury. The agencies looked at a range of options in developing the 
Administration bill to clarify that the appropriate threshold for an 
act to constitute Level A harassment was somewhere in between 
``probability to injure'' and ``potential to injure.'' Ultimately, the 
Administration decided that ``significant potential to injure'' 
achieved the appropriate balance to allow the agencies to address acts 
involving injury.
    Adding a fixed percentage to the definition to qualify the word 
``probability'' may result in an inflexible burden on the agency given 
the difficulties in determining with what degree of likelihood an act 
will cause injury. For instance, if Level A harassment only applied 
when an act had a greater than 30% chance of causing injury, the agency 
would be forced to prove that an act had more than a 30% chance of 
causing injury before it could address the action. This would be 
difficult given the level of uncertainty that currently exists 
regarding the impacts of various human activities, especially those 
activities for which research has been limited.
Permitting for Scientific Research:
    1. Question: Has the permitting process for targeted scientific 
research on marine mammals and oceanographic research that falls into 
the incidental take (Level B) category been sufficiently streamlined as 
a result of the 1994 amendments? What additional changes, either 
legislative or regulatory, are necessary? Are there still problems with 
the permitting process for targeted research on marine mammals that 
falls into the Level A (probability to injure) category?
    Answer: On the first question, yes, the General Authorization for 
Scientific Research has worked well. Authorizations (Letters of 
Confirmation) have been issued, on average (1999-2002), within 33 days 
of the time a letter of intent is considered complete.
    NOAA Fisheries does not feel that legislative or regulatory changes 
for targeted scientific research on marine mammals are necessary at 
this time. As stated in our oral testimony for the July 24, 2003 MMPA 
hearing, our challenges in scientific research permitting are 
fundamentally linked to NEPA and ESA and our fiscal and human resource 
constraints, and not to limitations inherent in the MMPA.
    There is not a problem with the MMPA or the regulatory process 
regarding scientific research permits involving Level A harassment. 
Most applications for permits under the MMPA are processed within 90 
days. This period includes a mandatory 30-day public comment period. 
Some delays in processing applications for permits have occurred; 
however, this has usually been for those applications also involving 
endangered or threatened species--for which an ESA permit is also 
required--and for which substantial NEPA analyses were necessary due to 
the complex or controversial nature of the research.
    2. Question: How do overlapping requirements under the Endangered 
Species Act and NEPA interact with permitting requirements under the 
MMPA? What could be done to further streamline the process or 
coordinate timetables when a proposed project involves a threatened or 
endangered species? Would moving the NEPA requirement earlier in the 
permitting process help to expedite the final awarding of a permit? Why 
or why not? Would conducting programmatic NEPA reviews in various 
categories of frequent permit applications be helpful in eliminating 
individual NEPA requirements on each application?
    Answer: There are separate requirements under the three Acts, but 
NOAA Fisheries has streamlined the permit process by issuing joint 
MMPA/ESA permits and by conducting simultaneous environmental analyses 
under ESA and NEPA.
    Moving the NEPA requirement earlier in the permitting process would 
not help expedite the process. Under existing regulations, the NEPA 
requirement is already at the front end of the process, even before 
publication of the Notice of Receipt of the application in the Federal 
Register, in part to meet the MMPA requirement to make a permit 
decision within 30 days of the close of the public comment period. 
However, no matter where it goes in the process, it can be time and 
resource consuming because of the often complex nature of the analyses 
required, especially for endangered or threatened species.
    Conducting programmatic NEPA reviews would help NOAA Fisheries 
streamline the NEPA process. The agency is proceeding with development 
of programmatic NEPA documents that will help front-load and streamline 
the process. For example, we are currently working on contracting out a 
programmatic NEPA analysis to investigate the effects of scientific 
research involving active acoustics. We have identified the need for a 
number of such programmatic documents, which will take several years to 
complete.
    3. Question: It is clear to me from the testimony that we have 
heard today that the permitting process for scientific research is 
still problematic for many scientists, but I am still not clear on the 
root cause of the problem.
     Is the permitting process severely limited by a lack of 
resources and staff?
     Would the development of a classification system 
identifying specific activities and their associated risk to marine 
mammals be a more useful approach to expedite consideration of 
different types of activities on a more programmatic basis?
    Answer: Yes. Resource and staff limitations can delay the timing of 
permit issuance, particularly given the current level of applications 
for research on endangered and threatened species and the NEPA and ESA 
Section 7 analyses that are required for those permits. In addition, 
because there is not a permit application cycle (unlike the typical 
grant process), applications are received throughout the year, which 
makes planning for and completing the necessary NEPA and ESA analyses 
problematic.
    There is currently such a classification system in place. 
Activities that have the potential to disturb but not injure a marine 
mammal or marine mammal stock in the wild (Level B harassment) are 
covered by the General Authorization, an expedited process for 
researchers to obtain an authorization for research activities. 
Alternatively, researchers can obtain a scientific research permit for 
those activities that have the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment). In addition, we 
have begun to conduct programmatic NEPA and ESA analyses for certain 
categories of actions. Therefore, future permit applications involving 
only those activities would have a reduced processing time, as the NEPA 
and ESA analyses would already be essentially completed or would 
require only streamlined supplemental analyses.
    A more specific classification system detailing activities could be 
difficult especially since the risk and impact associated with many 
human activities is unknown. The system currently in place is 
preferable because since it is based on impacts on the marine mammal--
either injury or disturbance--it is flexible enough to adapt to changes 
in scientific information. For instance, as more information becomes 
available on the nature of a given activity and its impacts, then more 
is known about where that activity fits on the scale of injury, 
disturbance, and negligible impact.
Take Reduction Teams:
    1. Question: A new World Wildlife Fund study released in June 
conducted by American and Scottish biologists suggests that accidental 
capture or ``bycatch'' by the fishing industry may be the biggest 
immediate threat the survival of some marine mammals, especially large 
whales. This study analyzed bycatch mortality affecting 125 marine 
mammal populations over the period of 1990-1999. The study estimates 
that 1000 whales, dolphins, and porpoises drown every day. Annually, 
approximately 308,000 marine mammals die unintentionally.
     In light of this information, what conclusions can be 
drawn about the effectiveness of the Section 118 take reduction team 
process?
     Should specific types of fishing gear be permanently 
retired due to their associated level of bycatch?
     Should a robust program be established to dedicate 
adequate resources and technical assistance to promote ``marine mammal 
safe'' fishing gear?
    Answer: The WWF study calculates an annual level of marine mammal 
bycatch occurring on a global basis, not a national basis. Most 
countries are not bound by the same statutory requirements as the U.S. 
to reduce marine mammal bycatch to biologically and socially acceptable 
levels. Interestingly, the study found that bycatch of cetaceans 
declined significantly during the period 1995-1999, as compared to 
1990-1994. Inasmuch as fishing effort did not decrease during this 
period, the authors conclude that these reductions are likely 
attributable to the take reduction measures adopted pursuant to the 
1994 MMPA amendments.
    MMPA Section 118 provides a sound framework in which to address 
marine mammal bycatch concerns. While mortality and serious injury of 
marine mammals incidental to fishing continues to be a problematic 
source of marine mammal mortality nationwide, NOAA Fisheries has 
achieved many bycatch reduction successes as a result of the take 
reduction team (TRT) and take reduction plan (TRP) development process 
outlined in Section 118 of the MMPA. Namely, the Pacific Offshore 
Cetacean Take Reduction Plan (POCTRP) has successfully reduced bycatch 
of beaked whales, pilot whales, pygmy sperm whales, sperm whales, and 
humpback whales in the swordfish/shark drift gillnet fishery off 
California and Oregon. The POCTRP has achieved the MMPA's short-term 
goal of reducing incidental takes below the potential biological 
removal (PBR) level for all species covered under the Plan and has 
further reduced takes of some marine mammal stocks to below 10% of the 
PBR level (which is the level that NOAA Fisheries currently uses in its 
Stock Assessment Reports to determine whether the total fishery-related 
mortality and serious injury level for the stock can be considered to 
be insignificant and approaching a zero mortality and serious injury 
rate). Additionally, take reduction plans (TRPs) in the Gulf of Maine 
and Mid-Atlantic have successfully reduced bycatch of harbor porpoise 
to levels below the stock's PBR. NOAA has also experienced management 
challenges related to preventing entanglement of large whales in the 
Atlantic in certain gear types. We are currently working closely with 
the ALWTRP to develop viable alternatives to address these challenges 
and feel that Section 118 provides an effective framework in which to 
meet these challenges.
    NOAA Fisheries plans to implement a final TRP for Western North 
Atlantic coastal bottlenose dolphins in early 2004. Modeling efforts 
show that the anticipated management measures will reduce incidental 
serious injury and mortality of bottlenose dolphins to levels below the 
stock's PBR. Over the next several years, NOAA Fisheries plans to 
convene TRTs to address bycatch of common dolphins and pilot whales in 
Atlantic longline and trawl fisheries. Thus, the agency has plans to 
address the instances in which incidental mortality and serious injury 
of marine mammals exceed PBR for a particular stock.
    While Section 118 has provided a sound framework in which to 
address these issues in a stakeholder-inclusive process, there are 
still improvements that can be made in the program itself. We encourage 
Members of Congress to consider amendments to Section 118 proposed in 
the Administration bill that would include non-commercial fisheries 
that have frequent or occasional incidental serious injury or mortality 
of marine mammals in the TRT and TRP development process, as well as 
other amendments aimed at providing monitoring alternatives and gear 
innovation initiatives.
    The requirements under Section 118 of the MMPA provide an adequate 
framework to address a variety of management challenges related to 
marine mammal interactions with fishing gear. The TRT and TRP 
development processes have allowed NOAA Fisheries to reduce marine 
mammal bycatch in gillnets, traps, and pots. The agency has plans to 
address marine mammal bycatch in pound nets, haul seines, longlines, 
and trawl gear via future TRTs and TRP development. The challenge is 
finding the right combination of management measures, and enforcement 
and monitoring capability, to achieve success. Section 118 provides 
adequate flexibility for the agency to consider a broad range of 
management measures, including closed areas, gear modifications, gear 
restrictions, and acoustic deterrent requirements, to meet the bycatch 
reduction goals of the Act. NOAA Fisheries is also working to reduce 
overcapitalization in U.S. fisheries, which should help eliminate 
excess fishing capacity, and thus gear, in some areas.
    A program dedicated to researching and developing gear that reduces 
interactions with marine mammals would be helpful and would aid the 
agency in fulfilling the complex task of promoting fishing on the one 
hand, as a requirement under the Magnuson-Stevens Fishery Conservation 
and Management Act, and reducing the mortality and serious injury of 
marine mammals incidental to fishing gear on the other, pursuant to the 
MMPA. In fact, NOAA Fisheries' Pascagoula Lab has a dedicated gear 
research program that looks at modifying gear to reduce various types 
of bycatch.
    The Administration MMPA reauthorization bill currently contains 
amendments (see Section 516) that would direct the Secretary of 
Commerce to establish a fishing gear research and development program 
aimed at evaluating and developing new gear technologies to reduce 
mortality and serious injury of marine mammals incidental to fishing. 
These amendments also authorize the Secretary of Commerce to establish 
a fishing gear buyback program through the take reduction plan 
development process, to work with other countries to foster gear 
technology transfer initiatives aimed at reducing marine mammal 
bycatch, and to establish a gear research mini grant program to promote 
the evaluation and development of fishing gear innovations.
    2. Question: H.R. 2693 would extend the deadlines imposed on take 
reduction teams and the agency for requirements under section 118, the 
taking of marine mammals incidental to commercial fishing operations.
     Have these extensions been requested by the agency?
     Have take reduction teams been unable to meet these 
deadlines in the past?
    Answer: NOAA Fisheries did not request these deadlines, and these 
extensions are not included in the Administration bill. However, the 
amended deadlines proposed in H.R. 2693 are more achievable than the 
current statutory deadlines in Section 118 and we do not expect that 
they would substantially compromise marine mammal protections.
    While the agency has done its best to meet Section 118 deadlines in 
the past, it is often challenging to meet them given the various steps 
required throughout the TRP development process including, completing 
and analyzing stock abundance and mortality data, recruiting TRT 
members, holding TRT meetings, allowing the TRT time to submit a draft 
plan, developing proposed regulations, holding a public comment period, 
and finalizing regulations. Additionally, the agency must comply with 
NEPA and ESA requirements, among other requirements that apply to 
regulatory actions, and must work with the fishery management councils 
and state fisheries agencies to ensure that all the regulations 
coincide to meet a variety of statutory mandates. Another complicating 
factor is that this process is conducted in an environment in which 
data continually change and new data needs emerge.
Stock Assessments:
    1. Question: Why have stock assessments not been completed for all 
stocks of marine mammals? What is the limiting factor? How adequate are 
existing population estimates?
    Answer: Stock assessments have been completed for all population 
stocks of marine mammals that occur regularly in the EEZ of the United 
States; however, they have not been completed for the marine mammals 
that inhabit the EEZ of U.S. Territories in the Caribbean Sea or 
Pacific Ocean. Highest priorities have been assigned to the collection 
of assessment information to sustain the regime to govern interactions 
between marine mammals and commercial fishing operations and on those 
stocks where immediate threats are substantial and immediate. Thus, for 
some stocks (e.g., Right whales in the Western North Atlantic, Gulf of 
Maine harbor porpoise, Cook Inlet beluga whales, and Hawaiian monk 
seals), assessment information is relatively accurate, precise, and 
frequent. For other stocks (e.g., ice seals, which include ringed, 
spotted, bearded, and ribbon seals; all cetaceans in the EEZ around the 
Hawaiian Islands; and beaked whales, which are widely distributed and 
behave in such a way that assessment is difficult (dive deep and often; 
occur singly or in very small groups)), assessment information is 
incomplete.
    Staff, available platforms (e.g., survey vessels), and funding 
limit our ability to assess marine mammal stocks. In some cases, 
technology to detect marine mammals that are not readily visible at the 
surface is not available. NOAA Fisheries continues to explore ways to 
improve its assessment technologies. The agency's FY 04 budget request 
consisted of $14,200 K for marine mammal stock assessments.
    In many cases, existing population estimates are sufficient to 
address fundamental questions, such as whether or not human caused 
mortality exceeds sustainable limits (i.e., Potential Biological 
Removal levels). In other cases (e.g, short and long-finned pilot 
whales in the Atlantic Ocean), abundance estimates are not high enough 
to rule out human-caused mortality as a threat to the population; 
however, many of the affected marine mammal populations that would fit 
this situation are widely distributed in an ocean basin, and 
comprehensive abundance estimates would be exceedingly expensive.
    Currently, NOAA Fisheries has a limited understanding of the 
relative impacts of ecosystem processes other than direct-human caused 
mortality on stock abundance and status. We are currently engaged in a 
Stock Assessment Improvement Plan that will help the agency investigate 
a broad range of factors, including natural ecosystem processes, 
affecting stock abundance.
Zero Mortality Rate Goal:
    1. Question: Robert Zuanich testified that the marine mammals hold 
a loftier status than all other animals in the ocean. Wasn't this at 
least, in part, the goal of the protective approach of the MMPA? Can 
you comment on whether the zero mortality rate goal should be retained? 
What is its relation to the precautionary philosophy of the MMPA?
    Answer: MMPA Section 2, the Findings and Declaration of Policy 
section, expresses the importance of marine mammals and goals for their 
protection relative to optimum sustainable population and the carrying 
capacity of their habitat. In addition, specific sections of the MMPA 
reflect these goals.
    For example, the zero mortality rate goal (ZMRG) of the MMPA 
provides that commercial fisheries shall reduce the incidental 
mortality and serious injury of marine mammals to insignificant levels 
approaching a zero mortality and serious injury rate within seven years 
of enactment of Section 118 of the statute. This requirement 
demonstrates the highly protected status of marine mammals and sets a 
high standard for management policies designed to protect marine 
mammals.
    The ZMRG has been a concept within the MMPA since its enactment in 
1972. In 1994, the MMPA was amended to specify a specific date (April 
30, 2001) by which the ZMRG would be achieved. Congress may want to 
examine the role of the specific date by which the ZMRG was to have 
been achieved and evaluate whether or not a specific date is helpful.
    Reasonable evidence will be necessary to support any determination 
that a fishery has achieved ZMRG. Such evidence will be difficult and 
expensive to attain since as mortality becomes lower, the statistical 
precision of mortality estimates will decrease for a given level of 
effort (e.g., observer coverage). To detect the continued reduction in 
mortality and serious injury rates as incidental mortality becomes a 
small part of each stock's Potential Biological Removal level will be 
difficult and will require substantial resources.
Harvest management agreements with Alaskan natives:
    1. Question: H.R. 2693 does not revise Section 119 of the current 
law, which establishes the authority for marine mammal cooperative 
agreements in Alaska. The administration's draft bill would change the 
cooperative agreements to harvest management agreements.
     Can you elaborate on why this change is important? Do 
native Alaskans have sufficient capabilities to support and train 
enforcement operations for effective co-management? Should future co-
management agreements with native Alaskans apply to species or stocks 
that are already designated as strategic or depleted? Is it likely or 
desirable for seals, currently under NOAA Fisheries' jurisdiction, that 
are used for subsistence to be managed under the U.S. Fish and Wildlife 
Service so that all species that Alaska Natives use for subsistence 
purposes will be under one agency?
    Answer: The Administration's proposed amendments to this section 
are important because subsistence harvest of marine mammals by Alaska 
Natives is not currently subject to regulation unless a marine mammal 
stock is designated as depleted. Additionally, there is no provision 
for enforcing harvest restrictions that may be established in 
cooperative agreements other than through voluntary compliance. The 
amendments contained in Section 201 of the Administration bill would 
allow for joint regulation of subsistence harvests prior to a depletion 
finding. This would provide a mechanism for Alaska Natives and NOAA 
Fisheries to prevent stock depletion before it becomes a more difficult 
and costly problem.
    Alaska Native local governments have the ability to develop and 
train staff for enforcement operations; however, such co-management 
operations are not always realized due to a variety of factors. Native 
governments address such issues reasonably where resources are 
available, such as for the enforcement of whaling ordinances by the 
Alaska Eskimo Whaling Commission, which has local government support.
    Proposed section 119A would allow the Federal government to work 
with Alaska Natives, through co-management agreements, to effectively 
regulate subsistence harvest of stocks whether or not the stock is 
depleted. This would provide an additional process to regulate 
subsistence harvest of depleted stocks. The proposed section is not 
meant to replace existing provisions for depleted stocks; rather, it is 
meant to supplement regulatory authority through the co-management 
process.
    We do not feel it is necessary or wise to transfer authority for 
management of seals to the U.S. Fish and Wildlife Service. NOAA 
Fisheries houses the majority of the technical expertise and 
institutional infrastructure for addressing seals. The management of 
seals could be compromised if such a transfer were to occur at this 
time.
Threats to Marine Mammals:
    1. Question: Commercial fishermen rightly criticize Federal 
regulators for going after them and not global shipping lines to reduce 
marine mammal mortality.
     What is the administration doing to engage the 
International Maritime Organization to reduce ship strikes in the U.S. 
EEZ and across the world's oceans?
    Answer: NOAA Fisheries has a program to reduce ship strikes that 
has been ongoing over the last decade and has been expanded in recent 
years as ship strikes continue. The agency has focused most of its 
efforts to reduce ship - marine mammal interactions to date on the 
North Atlantic right whale, due to its critically endangered status, 
its particular vulnerability to ship strikes, and Congressional and 
public interest. Efforts to address ship strikes of right whales are 
believed to provide ancillary benefits to other marine mammals and to 
serve as a template to address the issue more broadly with other marine 
mammals.
    Recognizing that ship strikes account for more right whale 
mortalities than entanglements in fishing gear or any other human-
related activity, NOAA Fisheries formed an internal working group in 
late 2001 and began a proactive approach to address the issue of ship 
strikes. This process culminated in the development of a Ship Strike 
Reduction Strategy, a proposed multi-year blueprint of the specific 
steps that could be taken to reduce or eliminate the threat of ship 
strikes. Measures proposed in the Strategy would reduce the overlap of 
ships and whales to reduce the likelihood of ship strikes. This 
approach allows for consideration of regional differences in 
oceanography, commercial ship traffic patterns, and navigational 
concerns. Since interagency collaboration is key to the Strategy's 
success, NOAA Fisheries recently established an Interagency Working 
Group on the Reduction of Ship Strikes to Right Whales to aid in the 
Strategy's implementation and enforcement. The purpose of this Working 
Group is to review and provide comments on the Strategy, provide 
clearance on two proposed international measures, assist NOAA in 
identifying means to ensure the implementation of a robust Strategy, 
and establish a timeline. Actions needed to execute the overall project 
include rulemaking, various analyses, and international action.
    NOAA Fisheries plans to seek approval from the International 
Maritime Organization (IMO) for implementation of any of the proposed 
measures within the Strategy that would require international action. 
The IMO is already engaged in the right whale-ship strike issue through 
the recent actions of Canada to change its shipping lanes to help 
reduce ship strikes of right whales. After a four-year collaborative 
process involving Transport Canada, the federal Habitat Stewardship 
Program, industry, and conservation/research organizations, the IMO 
approved the proposal to alter shipping lanes in the Bay of Fundy in 
2002.
    Similar changes are sought for right whale protection under the 
NOAA Fisheries Ship Strike Strategy. The Strategy proposes measures 
that would apply to the entire eastern seaboard, and thus are 
significantly more complex than those facing Canada in the localized 
area of the Bay of Fundy. Recognizing that interagency collaboration is 
key for the success of the Strategy, NOAA Fisheries is currently 
engaged in the interagency process to begin implementation of the 
Strategy. After an interagency task force has been formed to address 
this issue, NOAA Fisheries anticipates engagement with the IMO to 
address the Ship Strike Strategy.
    2. Question: There seem to be many emerging threats to marine 
mammals that were not considered 25 years ago, when the original act 
was written.
     Do you think it would be helpful for the Marine Mammal 
Commission to report on the magnitude of emerging and existing threats 
to marine mammals? Is it practical to believe that we can address these 
threats, and if so, what threats should be priorities for action? Would 
such an undertaking be within the scope and purview of the MMC?
    Answer: The Marine Mammal Commission currently reports on emerging 
and existing threats to marine mammals and on the agencies' (U.S. FWS 
and NOAA Fisheries) efforts to address these threats. During the first 
week in August 2003, the Commission convened a workshop of scientists 
and some managers to discuss future research and scientific needs for 
marine mammals and the ecosystems upon which they depend. Presumably, 
the report of this workshop will characterize research and information 
needs within the context of existing and emerging threats. Therefore, a 
special report may not be necessary; however, if such a report is 
necessary, the Marine Mammal Commission has the responsibility and the 
capability to compile one.
    This undertaking would be within the scope of the Marine Mammal 
Commission's responsibilities under the MMPA, and they have already 
performed it to a certain extent in their annual reports to Congress 
and in specialized reports that the Commission produces.
    At least some aspects of such an undertaking could also be within 
the purview of the three regional Scientific Review Groups established 
under section 117(d) of the MMPA.
    3. Question: Has the MMC ever investigated the growing incidence of 
ship strikes? MMC-directed, Would the MMC support a mandate to convene 
a panel to recommend steps to reduce ship strikes and report to 
Congress in 2 years?
    Answer: NOAA Fisheries defers to MMC for the response to this 
question.
    4. Question: Should there be a similar directed program on ocean 
noise that would be mandated under the MMC or another program such as 
the National Oceanographic Partnership Program?
    Answer: It would be useful for the Marine Mammal Commission (MMC) 
or the National Oceanographic Partnership Program (NOPP) to convene 
panels of experts to further explore the issue of ocean noise and the 
MMC or NOPP could make recommendations related to the protection and 
conservation of marine mammals. However, neither the MMC nor the NOPP 
is the appropriate entity to run a program or to assign national 
priorities for the study or management of ocean noise because neither 
has management responsibility for marine resources. NOAA has 
responsibility for the evaluation and management of ocean noise in 
terms of its effects on living marine resources, such as marine 
mammals, as well as other natural marine resources, such as benthic 
habitats. The agency already runs a program on ocean noise and sets 
priorities based on its mandates under the MMPA, ESA, and other 
statutes. In addition, NOAA coordinates on a regular basis with the 
USFWS, Minerals Management Service, Department of Defense, MMC, and 
NOPP.
    5. Question: Two programs currently exist to respond quickly to 
threats to marine mammals. These include the Prescott Marine Mammal 
Rescue Assistance Grant Program and the Marine Mammal Health and 
Stranding Response Program, both authorized under Title IV of the MMPA.
     I have heard that these programs need increased funding. 
Would you agree?
     Would it be helpful for NOAA Fisheries if the 
administration of Prescott grants were transferred to an outside group, 
such as the National Fish and Wildlife Foundation? Would this be a 
cost-effective way to free up biologists to do other important work?
    Answer: As mentioned, there are two emergency response funds 
available under the Marine Mammal Health and Stranding Response 
Program: the Marine Mammal Unusual Mortality Event Fund (called the 
Contingency Fund), which provides funds for the responses to designated 
unusual mortality events, and the emergency response funds under the 
Prescott grant program. The Contingency Fund was initially authorized 
for $500,000 in 1993 and was intended to be able to solicit additional 
funding from outside sources or donations. In 1999, NOAA Fisheries 
started setting aside $125,000 per year for this fund from operational 
funds, and these funds were transferred to the National Fish and 
Wildlife Foundation (NFWF). The current administrative costs for the 
fund are 3% per year and no solicitations for outside funding have been 
made. NOAA Fisheries staff provide all the coordination, review the 
reimbursement applications, monitor the response, and maintain current 
financial records for all potential recipients. During that time we 
have responded to several marine mammal die-offs and spent $216,389 on 
reimbursements to the network. The current balance in the account is 
$266,311 and there are four die-offs for which requests for 
reimbursement have not been received. There have been some problems in 
the reimbursements for die-off investigations. In the 1999-2000 die-off 
of gray whales along the west coast, the Contingency fund was 
restricted from reimbursing for the significant carcass disposal costs, 
and therefore many animals could not be necropsied. This significantly 
hampered the investigation. In addition, small stranding network 
organizations often cannot pay for costs upfront without overwhelming 
the financial status of the organization.
    The network would be able to respond to the mortality events more 
efficiently if there were more flexibility in how the money could be 
spent and if some costs could be paid in real time rather than as a 
reimbursement.
    For the Prescott emergency fund, NOAA Fisheries has made available 
$600,000 out of funds appropriated for this assistance program and 
three emergency grant applications have been received, totaling 
$230,000.
    At this time there would be no benefit to recipients in moving the 
whole program to NFWF and such a move would not necessarily free up 
biologists to do other important work. Currently NOAA Fisheries 
biologists are involved in the development of the request for 
proposals, which includes developing funding priorities, the review 
process (merit review), and monitoring of the facilities and 
organizations. Regardless of the grants administration process, NOAA 
Fisheries staff must oversee the network, coordinate activities of the 
network and work in partnership with the network and other scientists 
to implement the Marine Mammal Health and Stranding Response Program. 
NOAA Fisheries biologists will continue to be needed to set priorities, 
review applications, and coordinate the Prescott funded work with other 
portions of the stranding program. There is a real benefit to having 
all aspects of the program described in Title IV coordinated by NOAA 
Fisheries staff into an integrated program. If the grants 
administration were transferred to NFWF, it would still have to involve 
NOAA Fisheries' biologists in the development of the solicitation and 
the review of applications. In addition, NFWF administrative fees are 
higher than what is currently allowed in the legislation.
    In the future, with NOAA's streamlining of the grants 
administration process and Prescott program's solicitation of proposals 
earlier in the year, we anticipate an improvement in the time it takes 
to get funds to recipients.
Captive Animal Welfare:
    1. Question: The 1994 changes to the Marine Mammal Protection Act 
gave APHIS the authority for captive marine mammal welfare inspections.
     Has APHIS demonstrated requisite expertise and ability to 
inspect and oversee marine mammals in captivity?
     How many inspectors does APHIS deploy to inspect display 
facilities?
     To your knowledge, has APHIS promulgated marine mammal-
specific care standards for captive marine mammals? And have such 
standards been provided to the public?
     Is there any oversight or reporting requirements for 
APHIS in the discharge of this responsibility? Should APHIS be required 
to report annually to Congress?
    Answer: NOAA Fisheries does not have authority to participate in or 
review APHIS' inspections or oversight of marine mammals in captivity. 
Therefore, NOAA Fisheries has no basis to determine whether APHIS has 
demonstrated the requisite expertise and ability in these areas.
    NOAA Fisheries does not know how many inspectors APHIS deploys to 
inspect facilities, and defers the response to this question to APHIS 
or the MMC.
    Marine mammals are specifically addressed in 9 CFR Part 3, Subpart 
E, specifications for the Humane Handling, Care, Treatment, and 
Transportation of Marine Mammals, which was promulgated under the 
Animal Welfare Act (AWA). APHIS conducted negotiated rulemaking with 
stakeholders to revise these regulations and published a final rule 
with resulting revisions at 66 FR 239, January 3, 2001. APHIS is 
considering amendments to the regulations at 9 CFR Part 3, Subpart E to 
address the items that were not previously agreed to during the 
negotiated rulemaking process as well as standards for marine mammals 
used in interactive programs (i.e., ``swim-with-dolphin'' programs) see 
APHIS' advance notice of proposed rulemaking at 67 FR 37731, May 20, 
2002. NOAA Fisheries respectfully suggests that requests for details 
regarding these rulemaking processes should be addressed to APHIS.
    NOAA Fisheries is currently unaware of any reporting requirements 
for APHIS related to the MMPA or AWA. NOAA Fisheries defers to APHIS 
and the MMC to respond to this question.
    2. Question: The public display community has complained that NOAA 
Fisheries deliberately misinterpreted the intent of Congress in 1994 in 
its promulgation of regulations regarding permits allowing the 
transport and exchange of captive marine mammals.
     Is this complaint valid?
     If not, what aspect of the proposed regulations should be 
revised?
    Answer: The complaint is not valid. The proposed rule does not 
require permits for transport/transfer (including exports) of legally 
held captive marine mammals in U.S. facilities. The rights of legal 
holders of captive marine mammals are currently described in the MMPA 
and the proposed rule only provides a process through which holders can 
exercise their rights by meeting the requirements of the MMPA. 
Recently, holders of exported marine mammals that were loaned or leased 
to foreign facilities experienced problems in reasserting custody of 
the animals so that they could be returned to the U.S. or found that 
the foreign facility no longer met standards comparable to the MMPA or 
Animal Welfare Act. NOAA Fisheries' current policy is the best 
mechanism currently available for allowing the U.S. government to 
request the appropriate foreign agency to intercede on behalf of the 
U.S. and the holder to insure that these standards are met. The export 
procedures in the proposed rule were intended to codify this policy and 
address these kinds of situations for the benefit of the marine mammals 
and their U.S. holders. Permits are still required for capture from the 
wild and first-time imports into the U.S. consistent with the MMPA.
    There are some needed clarifications that were identified during 
review of the public comments received on the proposed rule. In 
particular, these include specifying the need and purpose of 
inspections (for inventory verifications only), and clarifying or re-
proposing the export provisions of the proposed rule.
Captive release prohibition:
    1. Question: H.R. 2693 includes a prohibition on releasing captive 
marine mammals into the wild.
     Considering the very limited space available to care for 
stranded marine mammals, could such a change create a situation where 
animals are held in captivity permanently regardless of their health 
and survival?
     Would this provision affect NOAA Fisheries' release of 
the five pilot whales that were stranded on April 18, 2003?
     Does this provision require a U.S. citizen to apply for a 
NOAA Fisheries permit to release a marine mammal in other countries' 
EEZ (would this apply to Keiko's release in Norway)?
    Answer: This provision would not affect the release of pilot whales 
in question. The prohibition on releasing captive marine mammals back 
to the wild without a scientific research permit is specifically 
directed at animals held at public display or scientific research 
facilities, including those born at the facilities or long-term captive 
animals. It does not include stranded animals or those in 
rehabilitation because it provides an exception for animals maintained 
in captivity under MMPA Section 109(h).
    We recognize the limited resources and facilities available to 
respond to and care for stranded marine mammals. The release of 
rehabilitated stranded marine mammals is still governed by the 
provisions of section 109(h) of the MMPA and the implementing 
regulations. The primary goal of any rescue and rehabilitation program 
authorized under the MMPA is to return stranded animals back to their 
natural habitat as long as their health allows it. Otherwise, animals 
are euthanized or placed permanently in captivity. However, these 
latter options are only exercised when the animal's health and chances 
of survival are compromised by releasing it back to the wild.
    This provision would require a permit for release of a marine 
mammal by a U.S. citizen on the high seas, but not inside the country's 
territorial sea. The Administration is currently examining the issue 
regarding whether the MMPA applies in other countries' EEZs. However, 
Keiko was being held captive in Iceland when he was released. NOAA 
Fisheries worked with the Government of Iceland to encourage them to 
adopt protocols for Keiko's release similar to those involved in 
issuing NOAA Fisheries permits.
                                 ______
                                 

Response to questions from The Honorable Frank Pallone, Jr., submitted 
      for the record by Karen Steuer, National Environmental Trust

Definition of harassment:
    1. Over the past year, Congress has been presented with several 
different options to re-define the definition of harassment. A new 
definition is being offered in H.R. 2693.
     Please compare the definition proposed in H.R. 2693 and 
discuss whether it compares positively or negatively to other proposed 
definitions.
    On May 6 the Resources Committee held a hearing on changes proposed 
to the MMPA by the Department of Defense, among them a change to the 
definition of harassment. During that hearing, I noted that any 
problems with the existing harassment definition are not due to 
ambiguities in the statutory language, but to fundamental process 
problems, including: inconsistency in reviews of permit applications, 
conflicts in the process that dovetails the MMPA with the National 
Environmental Policy Act, and a lack of cooperation among federal 
agencies. If the problem lies in process issues that go uncorrected, 
changing the definition is likely to result only in more confusion, 
more delays in granting permits, and more lawsuits. Nothing will be 
gained, and marine mammal conservation will undoubtedly suffer as a 
result. Any definition--whether the language is that proposed by DOD, 
the Administration, or in H.R. 2693--should take this into 
consideration.
    All the definition proposed to date use ambiguous language that is 
unlikely to correct current perceived problems. Such terms as 
``significantly altered'' and ``abandoned,'' (Administration proposal) 
or ``biologically significant disruption'' (H.R. 2693) will result in 
even more confusion and even more legal action, since their meaning 
varies from species to species and from behavior to behavior.
    Like all the other definitions proposed to date, the definition 
proposed by H.R. 2693 considerably weakens the existing standard, and 
creates confusion as to application to various activities. By applying 
one standard to Level A and two different standards to Level B, the 
bill creates three different standards, all of which are ambiguously 
defined without any clarification as to which standards would apply to 
whom and under what circumstances.
    Regarding Level B harassment, H.R. 2693 first requires a 
``biologically significant'' disruption of activities, including, but 
not limited to, migration, breeding, care of young, predator avoidance, 
defense, or feeding. The legislation does not define the term 
``biologically significant disruption,'' nor is it a commonly used 
scientific term. .'' The insertion of this term would add harmful and 
unnecessary ambiguity to the definition, increasing regulatory 
uncertainty for regulated entities, and potential risk for protected 
marine mammals.
    The bill would then add the Administration's proposed third tier of 
harassment to include activities ``directed toward'' a specific animal 
or group of animals and ``likely to impact'' those animals by 
``disrupting behavior''. While I recognize the intent in using this 
tier to regulate activities such as dolphin feeding, as currently 
written this definition could also apply to scientific research and 
whale watching operations. To make matters more confusing, the 
permitting standard included in this provision of ``disrupting 
behavior'' differs from the standard included in the other section of 
Level B harassment, which requires a ``biologically significant 
disruption.''
    2. How will the proposed change to the definition of harassment 
affect scientific research and/or military readiness activities?
    Please see the response above regarding some of the implications 
for scientific research by use of the term ``directed activities.''
    Regarding scientific research, it is important to recognize that 
there are some types of research that are likely to be harmful to 
marine mammals. Geologic surveys, for example, use air gun arrays which 
blast very loud sounds into the ocean bed. Under these circumstances, a 
general authorization for research, as has been proposed by some in the 
research community, would be unwise unless accompanied by very specific 
standards and clarifications as to which research activities would be 
covered.
    It should also be noted that many of the difficulties encountered 
by research permit applicants are not due to the language of the MMPA, 
but to requirements under the ESA and NEPA. Testimony presented before 
the Committee on Resources on July 24 clarified this critical point: 
research on highly endangered species is subject to more scrutiny than 
that on other marine mammals--as it should be.
    Regarding military readiness, I see no reason why the military 
should be held to a lower standard than any other American. DOD has 
never been denied a permit or incidental take authorization by NMFS. In 
Congressional testimony the Navy has frequently referred to fictitious 
situations that have no bearing on the actual language or the agency's 
interpretation of the law. The often-used scenario in which a naval 
vessel is prevented from leaving the harbor because a sea lion on the 
neighboring beach will turn its head to watch the boat simply bears no 
resemblance to the type of activity that NMFS actually regulates. 
Typical of these activities are missile firings, which cause pinnipeds 
hauled out on nearby rocks and beaches to stampede, killing their pups; 
and ship-shock tests, which involve detonations of thousands of pounds 
of high explosives. NMFS has never required a permit of an activity 
that merely caused a sea lion to turn its head.
    Changing the current permitting process by instituting programmatic 
reviews of military activities could be extremely helpful. Planned 
activities could be reviewed by region and timing as to possible 
impacts on marine mammals, and mitigated appropriately. This approach 
would not require any legislative changes.
     Are there specific activities that might fall outside 
this definition?
    Given the lack of clarification as to the new terms proposed for 
both Level A and Level B, I think it is quite likely that some 
activities could fall outside this definition. For example, where does 
shipping traffic fit? Oil and gas exploration? Until the terms are 
defined, it is impossible to determine whether some previously 
regulated activities might go unregulated.
    3. The definition for Level A (potential to injure) harassment 
proposed in H.R. 2693 requires that an activity have ``the probability 
to injure'' a marine mammal. It seems to me that this change would 
require a higher burden of proof for a given activity's likelihood of 
causing harm.
     Do you feel that this change would make the definition of 
harassment less protective of marine mammals?
     Does the word ``probability'' have a clear and commonly 
understood legal definition? What is the distinction from 
``potential?''
    I agree that this change would require a far higher burden of proof 
than that which currently exists. The term ``potential'' is clear and 
requires no further evaluation of the probability of injury, whereas 
``probability'' is undefined, subjective, and likely to result in 
confusion among potential permittees. An example of the inherent 
difficulty with the ``probability'' would be the issue of ships 
entering Boston Harbor, transiting a National Marine Sanctuary and 
habitat for a number of endangered or threatened large whales. Evidence 
shows that ships entering Boston do occasionally strike and kill 
whales: the potential for ship strike is clear, and dictates that 
preventative measures should be mandated to the extent practicable. But 
the probability of an individual ship striking and injuring a whale 
varies tremendously, depending on season, ship speed, number of ships 
entering the harbor on any given day, and other factors. It would be 
virtually impossible to determine or enforce, resulting in even more 
confusion among stakeholders.
    It is critical to recognize that all of these terms are subjective. 
At the Subcommittee hearing on July 24, Congressman Abercrombie 
expressed his view that the insertion of the term ``likely'' would 
clarify the proposed definition, as in ``likely to injure''. Yet 
``likely'' can easily be construed to be the same standard as 
``probably'', creating similar confusion to that noted in the previous 
paragraph.
     Would the addition of a modifier that explains the 
relative probability of an injury (such as 20%, 50%, 90%) be helpful in 
clarifying the intent of the word ``probability?''
    Marine mammal biology and habitat use would make the use of such a 
calculation impractical in broad legislative terms. For example: a 
vessel entering the shipping lanes in the Great South Channel (off 
Rhode Island) in late fall or early spring has a very high 
``probability'' of encountering and possibly striking feeding right 
whales. However, in most years the probability lessens at other times 
of the year when right whales either move south to breed or north to 
feed, although the potential still exists. This scenario is further 
complicated when variations in the North Atlantic due to weather 
patterns result in changes in plankton production, which also result in 
changes in right whale behavior patterns.
    It might be more practical to consider incorporating the use of 
relative probability modifiers in developing regulations to apply to 
various activities that affect marine mammal behavior.
Threats to Marine Mammals:
    1. There seem to be many emerging threats to marine mammals that 
were not considered 25 years ago, when the original act was written.
     Do you think it would be helpful for the Marine Mammal 
Commission to report on the magnitude of emerging and existing threats 
to marine mammals?
    Yes, such a report could be useful in determining future direction 
for legislative and regulatory action, and particularly for deciding 
priorities for appropriations. However, it may be more efficient in 
terms of time and effort to have the MMC work on this report in 
consultation with the Scientific Committee of the International Whaling 
Commission (IWC). Every year the IWC Scientific Committee brings 
together many of the best marine mammal scientists in the world to 
discuss research needs, results of previous research, and 
recommendations for future efforts on the most important issues 
affecting cetaceans on a global scale. The Committee and its various 
subcommittees and working groups address, inter alia, climate change, 
habitat protection, whale watching, bycatch, and competition with 
fisheries. The report and recommendations of the Scientific Committee 
are then taken into account by the 39 member nations of the IWC when 
making policy decisions.
    The current chair of the Scientific Committee is Dr. Douglas 
DeMaster from NMFS' Seattle lab, and he could certainly provide the MMC 
with advice on current global trends in cetacean threats and research.
     Is it practical to believe that we can address all these 
threats, and if so, what threats should be priorities for action?
    It is not practical for the U.S. to believe that it can address all 
these threats unilaterally, since most have impacts on migratory marine 
mammals and require international cooperation. Certainly the most 
immediate priority for action should be international bycatch, or 
incidental take, of marine mammals in commercial fishing operations--
now recognized as the single largest threat to the survival of many 
marine mammal populations, and particularly of small whales and 
dolphins. The most recent estimate of global incidental takes, as 
reported to the IWC Scientific Committee at its 2003 meeting, is that 
as many as 750,000 marine mammals are killed annually in fishing 
operations.
    This might include identifying data gaps, coming up with research 
plans and evaluating the health of marine mammal stocks in the wild as 
relates to other environmental parameters.
     Would such an undertaking be within the scope and purview 
of the MMC?
    As noted above, I would recommend that this effort be undertaken in 
consultation with the IWC Scientific Committee.
     Has the MMC ever investigated the growing incidence of 
ship strikes? Would the MMC support a mandate to convene a panel to 
recommend steps to reduce ship strikes and report to Congress in 2 
years?
    It is my understanding that NMFS has undertaken an internal review 
of the needed steps as part of the North Atlantic Right Whale Recovery 
Plan; the draft of that plan has not yet been made public for review. 
Given that the Right Whale Recovery Team has been discussing this issue 
and recommended actions for years, I would not recommend convening 
another panel to produce yet another report. NMFS should be mandated to 
undertake immediate actions to reduce ships strikes based on the work 
and recommendations made to date.
     Should there be a similar directed program on ocean noise 
that would be mandated under the MMC or another program such as the 
National Oceanographic Partnership Program?
    The National Research Council has already convened panels and 
produced reports on ocean noise and its effects on marine mammals. I 
would recommend that prior to mandating another program, the 
recommendations within those reports be taken into account.
Captive release prohibition:
    H.R. 2693 includes a prohibition on releasing captive marine 
mammals into the wild.
     Considering the very limited space available to care for 
stranded marine mammals, could such a change create a situation where 
animals are held in captivity permanently regardless of their health 
and survival?
    This is unlikely. Limited space dictates that animals should be 
released as soon as practicable, and current law and regulations 
require that the holder of a marine mammal apply for a permit to keep 
it indefinitely. The prohibition on release would change none of the 
requirements.
     Would this provision affect the NOAA Fisheries' release 
of the five pilot whales that were stranded on April 18, 2003?
    I am unfamiliar with the circumstances, and do not know if the 
release prohibition would have affected these animals.
     Does this provision require a U.S. citizen to apply for a 
NOAA Fisheries permit to release a marine mammal in other countries' 
EEZ (would this apply to Keiko's release in Norway?)
    It is my understanding that, as currently written, the phrase ``any 
person subject to the jurisdiction of the United States'' would apply 
to all U.S. citizens regardless of the location of the release. 
However, the bill should clarify the language to ensure that any such 
permit requirement is subject to the same jurisdictional and public 
review requirements that apply to other MMPA permits.
                                 ______
                                 

   Response to questions submitted for the record by Peter L. Tyack, 
       Biology Department, Woods Hole Oceanographic Institution.

Questions from Chairman Wayne Gilchrest
    1. The Marine Mammal Protection Coalition, a group of environmental 
groups, has proposed adding the word ``foraging'' to the definition of 
level B harassment. Is it necessary to include this term when 
``feeding'' is already included? Is this term easily defined for all 
marine mammals? Which would you describe--feeding or foraging--as more 
biologically significant in terms of behaviors of marine mammals that 
should be listed in the definition of harassment?
    My dictionary defines ``forage'' as ``a search for food or 
provisions''. ``Feed'' is defined as ``to eat'' or more generally ``to 
provide something necessary for the growth, development, or existence 
of.'' It can be very difficult to define when a marine mammal is 
searching for food as opposed to travel for other purposes. By 
contrast, the act of eating is obvious. Therefore, I believe that the 
act of feeding is more easily defined for all marine mammals than 
``foraging.''
    While searching for food is part of the foraging process, the more 
critical issue for biological significance seems to me to be did the 
animal get the food it needed for growth and development. Therefore, 
while adding ``foraging'' is a broader and perhaps more protective 
definition, the ``feeding'' definition is closer to the intention of 
focusing on the biologically significant aspects of the activity as 
opposed to all parts of the process.
    2. The Marine Mammal Protection Coalition also includes 
``communication'' in their definition. Can you give an assessment on 
the inclusion of this behavior? Did the NRC discuss this behavior when 
determining behavior to be included in the NRC recommended definition?
    This question parallels the last one. Communication can play an 
important role in feeding, in care of young, predator defense, or 
mating. Most of my own research focuses on communication, and I believe 
it to be a fascinating and important subject. However, it is not en end 
in itself from an evolutionary perspective. The NRC committees 
discussed communication extensively, but I do not remember whether they 
specifically discussed whether communication in general be included in 
the list. I think not, because the NRC list is selected by contrast to 
highlight behavioral categories that are inherently essential for 
growth, survival, and reproduction.
    I hope an example might help highlight the critical issues. When 
humpback whales are exposed to the sounds of LFA sonar, their songs 
become longer and more redundant. This may represent a mechanism to 
compensate for increased noise, much as we speak differently on a 
walkie talkie than in person. Similarly, shipping noise increases the 
ambient noise, and whales may compensate by increasing the loudness of 
their vocalizations, much as we speak more loudly in a cocktail party 
or on the subway. I think that the critical issue for regulation is not 
whether the details of the communication signal changed, but rather 
whether the communicative exchange was disrupted. If the effective 
range of a mating signal is reduced from 100 mi to 1 mi in the presence 
of shipping noise, and if this means that males and females cannot get 
together for mating, that is a serious problem for the population. On 
the other hand, if animals show statistically significant changes in 
their signals in the presence of noise, but these changes are what 
allows animals to compensate for the noise, then this may not 
automatically qualify as harassment.
    3. The NRC definition of harassment did not include ``sheltering''. 
Since you were involved with the NRC panel that recommended the 
proposed definition, can you explain why ``sheltering'' was not 
included?
    The NRC National Academy of Sciences second report (2000) on Marine 
Mammals and Low Frequency Sound specifically addressed this question:
        The Committee suggests limiting the definition to functional 
        categories of activity likely to influence survival or 
        reproduction. Thus, the term ``sheltering'' that is included in 
        the existing definition is both too vague and unmeasurable to 
        be considered with these other functional categories.'' (p. 69)
    4. The NRC definition of harassment did not include ``surfacing'', 
which is contained in the Administration's definition. The current MMPA 
definition contains ``breathing''. Was there a reason why the NRC did 
not include either of these behaviors?
    Many earlier studies of ``harassment'' counted blows or timed 
surfacing of marine mammals, testing for statistical significance of 
differences in control vs disturbed settings. This is the classic 
example where studies need to change to focus on biological 
significance vs statistical significance. Surfacing and breathing were 
chosen because they were easy to measure, not because the studies could 
evaluate the functional significance of disruption. Clearly breathing 
at the surface is a critical behavior. However, any acute effects 
caused by a disturbance preventing an animal from surfacing to breathe 
should be viewed in terms of injury or lethal take, not just disruption 
of behavior. I would have to strain to find an example where disruption 
of breathing would have a biologically significant behavioral effect 
with no physiological injury. On the other hand, animals may modify 
their surfacing behavior to adapt to changing circumstances in ways 
that may not pose any risk of harm.
    5. The Marine Mammal Commission had some concerns with certain 
words contained in the level B definition of harassment in H.R. 2693, 
specifically ``care of young, predator avoidance, defense'' saying that 
these terms are not very precise and without clarification could lead 
to implementation difficulties and possibly lawsuits. Why did the NRC 
recommend these biological activities and can they be defined?
    The NRC selected these activities precisely because they identify 
some of the critical behavioral functions that if disrupted would 
prevent animals from meeting critical goals. The distinguished panel of 
biologists on the NRC panel challenged the term ``sheltering'' 
precisely because it was ``too vague and unmeasurable to be considered 
with these other functional categories.'' It can be more difficult to 
give an operational description of a functional category than a purely 
descriptive one, but the NRC panel carefully and intentionally made the 
list a functional one to highlight that this list was closely tied to 
the concept of biological significance. The House committee will simply 
have to decide whether they consider an expert panel of outside experts 
selected by the National Academy of Sciences to be more or less 
competent than the Marine Mammal Commission in making decisions about 
scientific precision.
    6. The current definition of level B harassment has ``nursing'' as 
a listed behavior. However, the NRC recommended ``care of young''. Why 
was this change recommended? What other activities fall under ``care of 
young'' that may not be covered under ``nursing''?
    I consider ``nursing'' to be imprecise and ambiguous. It could be 
taken to be restricted to suckling the young, or might more broadly be 
interpreted as providing care to the young in general. The NRC panel 
chose to be more precise in making the definition a broader more 
functional one. For example, newborn whales cannot swim as well as the 
mother. They often position themselves to take advantage of the 
slipstream of the mother. If a mother's swimming behavior were 
disrupted and the calf could not keep up with her, then this would be 
likely more threatening than a brief hiatus of suckling.
    7. What are some of the factors Congress should consider when 
crafting a final harassment definition?
    The goal of the definition should be to include any non-lethal 
effect that might pose adverse impacts to marine mammals, while 
clarifying the exclusion of minor effects with negligible impact. The 
definition must also decide and define what level of probability for 
the effect would trigger regulation. I personally believe that few of 
the problems identified with the definition will be resolved simply by 
redefinition. This definition falls under the prohibition on taking 
whales, a prohibition that is ignored for most takes by most human 
activities. Problems of cumulative effects of lots of ``takes'' simply 
cannot be regulated effectively using a prohibition. Congress should 
consider other regulatory mechanisms for dealing with this kind of 
habitat degradation, much as we deal with the effects of small levels 
of chemical contaminants with humans. We use criminal penalties to deal 
with poisoning, but regulatory solutions to deal with chronic effects 
of everyday exposure that might pose long term risks.
    8. How do we incorporate the level of current scientific knowledge 
about how marine mammals may be injured and at the same time protect 
animals from injuries we have not yet been able to measure?
    At its most basic, this is a question about the appropriate balance 
between being precautionary and practical. It cannot be answered in 
black and white. If injury is defined as a detrimental physiological 
change, we can never prove absence of injury. Nor can we prohibit all 
seagoing activities on the basis of an unknown potential to injure.
    However this is an academic question, far removed from the urgent 
needs of conserving whales today. Right now, we know that some 
populations such as right whales of the NW Atlantic are threatened with 
extinction because they are killed by vessel collision. We know exactly 
how these animals are killed by ships, and we know that this level of 
mortality is likely to make the difference between survival and 
extinction of the right whale. At its most basic, we know that keeping 
lethal ships away from whales can solve the problem, albeit at great 
cost. Yet NMFS has done nothing to regulate shipping to reduce, much 
less eliminate the risk.
    In terms of effects of noise, we are at the opposite end of this 
spectrum. Scientists can measure subtle, fully recoverable changes in 
hearing after noise exposure. We humans have these temporary shifts in 
our ability to hear (TTS) every time we go on a loud subway or plane, 
or go to a rock concert. These subtle changes clearly identify levels 
of sound that could, after repeated exposure, cause more permanent 
injury. As we humans age, these exposures couple with the natural aging 
process so that our hearing sensitivity decreases with age. Yet there 
has been heated debate about whether these painless reversible changes 
constitute injury itself for marine mammals. This kind of sophistry 
will not protect real marine mammals in the real world. The NRC report 
specifically recommends the following de minimis standard for level A 
acoustic harassment: ``any sound that produces a TTS of 10 dB or less 
in exposure episodes that are separated by non-exposure intervals that 
are ample to allow full recovery (at least 24 hours) does not 
constitute a major risk to the auditory system of a marine mammal.'' 
(NRC 2000; p 68) This is designed as a highly conservative scientific 
standard that is safe in the face of most reasonable uncertainty.
    9. In the definition of Level B harassment, does it make sense to 
qualify the activity (i.e. biologically significant activities, 
including, but not limited to, migration, breeding..) or the effect 
(biologically significant disruption of behaviors) in Level B 
harassment? Why or why not?
    The NRC qualified both the disruption and the activity: 
``meaningful disruption of biologically significant activities.'' I 
think that the main reason they did not suggest ``biologically 
significant disruption of biologically significant activities'' is the 
copy editing motive of not being so repetitive. If one had to choose 
either the effect or the activity, I believe that it makes more sense 
to qualify the effect, especially if the list of activities is chosen 
to emphasize functional categories selected for their inherent 
biological significance. If the disruption is biologically significant, 
then clearly the activity that was disrupted must also be. On the other 
hand, it is certainly possible to have trivial disruptions of 
biologically significant activities.
    10. Which is the more scientifically used term--``biologically 
significant activity'' or ``biologically significant disruption''? 
Should either of these terms be defined in H.R. 2693?
    The phrase ``biological significance'' has been developed by 
scientists dealing with environmental issues, similar to the concept of 
``adverse impact'', or ``injury'' and ``disease,'' in medical science. 
The main reference book on Marine Mammals and Noise has an entire 
chapter on ``significance of responses and noise impacts.'' This 
chapter uses the concept of biological significance for the actual 
disruption response rather than for the activity. I personally agree 
with this usage: if one must choose whether to apply ``biological 
significance'' to disruption or activity, the best choice is to qualify 
the effect ``biologically significant disruption.''
    It would be extremely useful for the MMPA to define its usage of 
``biological significance.'' In my opinion, the same definition could 
be applied to both the disruption and the activity.
Questions from The Honorable Frank Pallone, Jr.
Definition of harassment:
    1. Over the past year, Congress has been presented with several 
different options to re-define the definition of harassment. A new 
definition is being offered in H.R. 2693.
     Please compare the definition proposed in H.R. 2693 and 
discuss whether it compares positively or negatively to other proposed 
definitions.
    The current definition of level B harassment in the MMPA is:
        ``has the potential to disturb a marine mammal or marine mammal 
        stock in the wild by causing disruption of behavioral patterns, 
        including, but not limited to, migration, breathing, nursing, 
        breeding, feeding, or sheltering.''
    The 1994 NRC report on Low Frequency Sound and Marine Mammals 
succinctly reviewed the problem of how harassment has been interpreted 
under the MMPA:
        Logically, the term harassment would refer to a human action 
        that causes an adverse effect on the well-being of an 
        individual animal or (potentially) a population of animals. 
        However, ``the term ``harass'' has been interpreted through 
        practice to include any action that results in an observable 
        change in the behavior of a marine mammal ``.'' (Swartz and 
        Hofman, 1991). (p. 27)
    The 1994 NRC report goes on to note that many minor and short-term 
behavioral responses of marine mammals to manmade stimuli are simply 
part of their normal behavioral repertoire. There is clearly a need for 
some standard of negligible effect, below which a change in behavior is 
not considered harassment.
    The change in the definition of level B harassment proposed by the 
Administration and in H.R. 1835 is:
        ``disturbs or is likely to disturb a marine mammal or marine 
        mammal stock in the wild by causing disruption of natural 
        behavior patterns, including, but not limited to, migration, 
        surfacing, nursing, breeding, feeding, or sheltering, to a 
        point where such behavioral patterns are abandoned or 
        significantly altered.''
    As a biologist who has studied the behavior of marine mammals for 
more than 25 years, I find this wording confusing, and I do not see how 
it addresses the problem identified by the NRC. The last phrase added 
to the definition does add a criterion of significant alteration. 
However the point of the NRC reports was biological significance, a 
disruption that could have an adverse impact. My dictionary defines 
significant as ``likely to have influence or effect.'' The addition of 
the word ``significant'' in the new definition therefore does not give 
the same standard as suggested by the NRC. As our techniques to study 
marine mammals have grown in sophistication and sensitivity, it is now 
possible to demonstrate statistically significant alerting or orienting 
responses that in my opinion fall well below the negligible impact 
standard.
    I find the addition of the word ``abandoned'' particularly 
confusing in the new definition. It certainly makes sense to add a 
criterion for abandonment of critical habitat, but what does this 
wording mean for behavior patterns? A sperm whale or elephant seal can 
dive for an hour or more, but any marine mammal that abandons surfacing 
behavior cannot breathe. If it abandons surfacing for more than a few 
hours, it is certainly dead. If a sperm whale group is sheltering a 
young calf from a killer whale attack, even a momentary abandonment of 
the behavior could be lethal. Calves may be able to survive for days or 
weeks if their mother abandons nursing, and many whales could survive 
for years without feeding, but what is the time period implied by 
``abandon.'' My understanding of ``abandon'' is that it means a 
permanent change. By this definition, the ``abandonment'' wording turns 
level B harassment into a lethal take. Far from distinguishing 
negligible from potentially significant effects, it muddies the waters 
further.
    Another problem with the use of the term ``abandon'' is that I take 
it to mean ``giving up''--a 100% cessation of an activity. Yet since 
the definition of harassment also applies to stocks, this definition is 
not conservative enough for actions that may affect a large portion of 
a stock. For example, suppose an activity caused a 50% reduction in 
foraging rates in a majority of the population, or caused animals to be 
50% as effective in finding a mate for breeding. Such reductions would 
not ``alter'' the form of the behavior, nor would they meet an 
abandonment criterion, but few populations could sustain such changes 
on a long term basis.
    I support the definition of harassment proposed for section 
3(18)(A) (i) and (ii) in section 13 of H.R. 2693. The definition in 
section (ii) closely follows the NRC definition. The primary difference 
is the replacement of ``meaningful'' as a modifier for disruption with 
``biologically significant'' and deleting the phrase ``biologically 
significant'' from the modifier for the kinds of activities. I believe 
that this follows closely the meaning of the definition written by the 
NRC committee.
    I am, however, very concerned that the harassment definition 
proposed for section (iii) retains the problematic old harassment 
definition for activities directed at marine mammals, including 
scientific research directed at marine mammals. While there is a 
process to permit such research, retaining the old definition for 
activities directed at marine mammals will hold scientific research 
that enhances the survival or recovery of species or stocks to a 
stricter standard than activities that harm marine mammals and do not 
help them. This does not make sense. The only case that in my opinion 
justifies a lower level of regulation involves takes for scientific 
research that enhances the survival or recovery of species or stocks. 
The proposed changes in the definition of harassment for activities 
directed at marine mammals will perversely have the opposite effect.
    NMFS has suggested retaining the old harassment definition for 
activities directed at marine mammals so that they can more easily 
prosecute cases against businesses such as those that charge tourists 
to swim with wild dolphins. I believe that any of the proposed 
harassment definitions fit very well these cases where people 
intentionally pursue marine mammals and annoy them with clear 
disruption of behavioral patterns. It is particularly strange that NMFS 
suggests retaining the old broad definition, when a senior NMFS 
enforcement attorney stated to the 2002 Annual Meeting of the Marine 
Mammal Commission ``the potential to disrupt behavioral patterns, at 
one level, it is a great definition because you go out, you know, we 
can get whatever we want because it is a very broad definition, but 
when you get down to the prosecution level, it is too broad.''
    The real problem with harassment in my opinion is that NMFS has not 
shown the will to enforce the prohibition against harassment and to 
prosecute cases against growing industries based upon harassing marine 
mammals in the wild. It would be a tragedy for scientific research to 
be excluded from corrections in the definition of harassment as cover 
for NMFS' unwillingness to enforce the prohibition against harassment. 
If the definition of harassment causes problems with prosecution 
against commercial activities directed at marine mammals, which I 
contest, then the solution should be limited to this narrow situation 
and should be worded so as not to impact research directed at marine 
mammals. If the problem for NMFS is prosecuting cases where commercial 
enterprises are feeding wild marine mammals or taking customers to swim 
with them, I suggest that the solution is a ban on these activities. 
Such a ban would serve the interests of protecting the public as well 
as the animals.
    I would like to take this opportunity to reiterate the suggestion 
of the National Academy of Sciences second report (2000) on Marine 
Mammals and Low Frequency Sound on the definition of level B 
harassment:
        ``NMFS should promulgate uniform regulations based on their 
        potential for a biologically significant impact on marine 
        mammals. Thus, level B harassment should be redefined as 
        follows:
          LLevel B--has the potential to disturb a marine mammal or 
        marine mammal stock in the wild by causing meaningful 
        disruption of biologically significant activities, including, 
        but not limited to, migration, breeding, care of young, 
        predator avoidance or defense, and feeding.
        The Committee suggests limiting the definition to functional 
        categories of activity likely to influence survival or 
        reproduction. Thus, the term ``sheltering'' that is included in 
        the existing definition is both too vague and unmeasurable to 
        be considered with these other functional categories.'' (p. 69)
    This definition was written by scientists. Since ``meaningful 
disruption'' is not defined, and since ``biologically significant'' has 
a more specific meaning to biologists, I have no problem with the minor 
changes in wording proposed in H.R. 2693 to fit legal and legislative 
requirements. It would be helpful to define ``biological significance'' 
in this amendment of the MMPA.
    The definition of harassment must take into account our lack of 
knowledge about the ways in which behavioral changes may influence 
marine mammals. For example, prolonged or repeated harassment may lead 
to physiological changes that do not qualify as injury, but that may 
indicate the potential for adverse effects. Prolonged changes in 
behavior that are outside of the normal behavioral repertoire of a 
species may also trigger concern even if the effect on health is not 
immediately obvious. But if the definition of harassment is to be 
changed, the primary focus should be on biological significance in a 
way that clarifies the need for a negligible impact standard. I do not 
think that the changes proposed by the Administration, in H.R. 1588 and 
in H.R. 1835 for the definition of harassment succeed in this task, but 
I support the definition of harassment in (18)(A)(ii) of section 13 of 
H.R. 2963, which closely follows that suggested by the National 
Research Council in any amendments to the MMPA.
    2. How will the proposed change to the definition of harassment 
affect scientific research and/or military readiness activities?
    Since the new definition retains the old version for activities 
directed at marine mammals, I do not think it will improve the 
situation for marine mammal research. Both military training and other 
forms of scientific research that may incidentally take marine mammals 
will have improvements in the definition and in the language for 
authorizing incidental takes. I believe that the modifications in the 
authorization language are much more important than the changes in the 
definition.
     Are there specific activities that might fall outside 
this definition?
    The activities that apply for scientific research permits are 
directed at marine mammals. Therefore the proposed change in the 
definition of harassment retains the problematic old harassment 
definition for activities directed at marine mammals, including 
scientific research directed at marine mammals. While there is a 
process to permit such research, retaining the old definition for 
activities directed at marine mammals will hold scientific research 
that enhances the survival or recovery of species or stocks to a 
stricter standard than activities that harm marine mammals and do not 
help them. This is perverse. The only case that in my opinion justifies 
a lower level of regulation involves takes for scientific research that 
enhances the survival or recovery of species or stocks. The proposed 
changes in the definition of harassment for activities directed at 
marine mammals will have the opposite effect.
    If NMFS supports this ``directed'' language to facilitate 
prosecution against swim programs with wild marine mammals etc, then I 
suggest the inclusion of a prohibition on swimming with or feeding wild 
marine mammals. This is important to protect both wild animals and also 
humans.
    3. The definition for Level A (potential to injure) harassment 
proposed in H.R. 2693 requires that an activity have ``the probability 
to injure'' a marine mammal. It seems to me that this change would 
require a higher burden of proof for a given activity's likelihood of 
causing harm.
     Do you feel that this change would make the definition of 
harassment less protective of marine mammals?
    One could view the suggested initial phrases in the definitions of 
level A or B harassment as lying on a continuum of probability:
    Potential (>0) more than a remote possibility (>1) significant 
potential (??) probable, likely (>50%)
    The term ``potential'' has been interpreted as such a vanishingly 
small probability that I think it is open to abuse. However, this does 
not mean that one must swing all the way to ``probable'' or ``likely'' 
both of which I take to mean >50% chance of occurring.
     Does the word ``probability'' have a clear and commonly 
understood legal definition? What is the distinction from ``potential?"
    I am not a lawyer, so I cannot answer this personally. However, I 
can offer this advice. The noise issue is very similar to effects of 
toxic compounds on humans. I suggest that the Committee staff research 
the case law and legislative language for toxicology to suggest an 
appropriate language for the intended level of probability.
     Would the addition of a modifier that explains the 
relative probability of injury (such as 20%, 50%, 90%) be helpful in 
clarifying the intent of the word ``probability?"
    Absolutely. As a quantitative scientist, I can only look with 
wonder at all the misunderstandings when words are used to describe 
numbers. If Congress intends a specific level of probability, the only 
way to prevent misinterpretation is to state the number.
    4. The proposed change to the definition of Level B harassment 
would require that an activity cause a ``biologically significant 
disruption'' of activities including, but not limited to, migration, 
breeding, care of young, predator avoidance, defense, or feeding. In 
contrast, the definition proposed earlier by the NRC would require that 
an activity cause a ``disruption to biologically significant'' 
activities.
     Is this inversion of words important? Why?
    I do not think this is a critical difference. The NRC said 
``meaningful disruption to biologically significant activities.'' I 
think the main reason the NRC did not say ``biologically significant 
disruption to biologically significant activities'' was copy editing.
    5. It seems to me that it would be easier to define a disruption to 
a biologically significant activity than it would be to determine what 
constitutes a biologically significant disruption to that activity.
     If this is true, would the proposed change in the 
definition make it less protective of marine mammals?
    The NRC definition qualified both the disruption and the activity. 
Removing either qualification would make the definition broader and 
therefore, in principle, more protective. However, the point of the NRC 
definition was to focus regulation on ``takes'' that might pose an 
adverse impact. There are many minor changes in biologically 
significant activities that would not meet this standard. The main 
point of NRC was that the conservation goals of the act would be better 
met if uniform regulation would target takes with the highest risk of 
adverse impact. Applying the biological significance qualifier to the 
disruption would achieve this goal better than applying it to the 
activity.
    6. How would the change in the definition of Level B (potential to 
injure) harassment affect scientific permitting?
    Level B involves behavioral harassment not injury, which is level 
A. If this question refers to potential to injure, then I think that 
the change from ``potential to injure'' to ``probability to injure'' 
would likely reduce the number of activities requiring a permit. My 
understanding of ``probability to injure'' means more than a 50:50 
chance of injuring, while ``potential to injure'' means even a remote 
chance to injure. On the other hand, I doubt any marine mammal 
scientist conducting research that might injure a marine mammal would 
split hairs and not apply for a permit based on the difference between 
``potential'' and ``probability.'' If an animal is injured in the 
course of the research, the permit would be very important.
    If the question refers to behavioral disruption, the change in the 
definition would have next to no benefit for scientific permitting. All 
research on marine mammals that is permitted is directed at them. The 
H.R. 2693 definition retains the problematic definition for directed 
activities, so retains a higher standard for research directed at 
protecting marine mammals than activities that incidentally harm them 
with no benefit. This is perverse.
    7. Are there activities, such as 'sheltering' or 'resting', that 
are missing from the list of ``migration, breeding, care of young, 
etc.''? If so, which behaviors are missing and why are they important 
to explicitly mention in the proposed definition?
    Most definitions of harassment have something of a hodge-podge list 
of activities, which must be why the list is qualified ``including, but 
not limited to.'' The NRC list was carefully crafted to include all of 
the major classes of behavior that directly impact survival, growth, 
and reproduction in mammals. I do not believe that any critical classes 
are missing from this list.
    8. Would this revised definition still allow for the consideration 
of the cumulative negative impact on an individual or population of 
marine mammals?
    The definition of harassment comes into play regarding the 
prohibition of taking marine mammals. I cannot see how regulation and 
enforcement of the prohibition on individual acts of taking is the 
place to deal with cumulative impacts. NEPA analyses are the well-
tested existing method to deal with cumulative impacts. I believe that 
adding a requirement for all seafaring activities to consult with NMFS 
to do NEPA analyses would be the best way to address the issue raised 
by this question.
    9. If the consideration of small numbers and geographic area were 
to be eliminated, how would this affect the ability to determine the 
potential negative impact for an activity?
    The critical issue for negative impact is the well established 
finding of no significant impact. Whether numbers are small or area is 
specified, is simply not important except to the extent necessary to 
make a determination about adverse impact. To the extent this 
information is used to determine the potential negative impact, it 
should be required, but it need not be a separate requirement on top of 
negligible impact.
    10. Has NOAA Fisheries or USFWS contemplated regulating truly 
incidental activities that have little if any direct effect on marine 
mammals, such as boat wakes?
    I am not aware of this. However, NOAA Fisheries clearly regulates 
scientific research to much higher standards than other activities not 
designed to benefit marine mammals. The majority of NMFS staff working 
on MMPA issues, regulate research, even though this has a tiny impact 
compared to other human activities.
Permitting for Scientific Research
    1. Has the permitting process for targeted scientific research on 
marine mammals and oceanographic research that falls into the 
incidental take (Level B) category been sufficiently streamlined as a 
result of the 1994 amendments?
    Oceanographic research not on marine mammals is not eligible for 
scientific research permits. The first NRC report on Low-Frequency 
Sound and Marine Mammals recommended that research permits be made 
available to a broader range of oceanographic research.
    The 1994 amendments added a streamlined general authorization 
process for research involving only level B takes to marine mammals 
that were not endangered. My understanding is that this system works 
well for this limited category. However, research on endangered 
species, which is often the most critical for conservation, can be 
delayed for years. The ironic situation today is the more important the 
research is for conservation, the more delay in permitting.
     What additional changes, either legislative or 
regulatory, are necessary?
    One of the simplest and most helpful changes would require NMFS to 
issue permits within a fixed deadline of 3-4 months. This is compatible 
with the normal planning and funding cycle for research. In general, 
both research and the cause of marine mammal conservation would best be 
served by uniform standards for regulating all activities, with 
regulation and enforcement targeting those situations that pose the 
highest risk of adverse impact.
     Are there still problems with the permitting process for 
targeted research on marine mammals that falls into the Level A 
(probability to injure) category?
    I am not aware of many applications being held up on this ground. 
Obviously every vessel that maneuvers around marine mammals has a 
potential to injure, so there might be potential to harass researchers 
on those grounds. Luckily it has not happened yet.
    2. How do overlapping requirements under the Endangered Species Act 
and NEPA interact with permitting requirements under the MMPA? What 
could be done to further streamline the process or coordinate 
timetables when a proposed project involves a threatened or endangered 
species?
    ESA species trigger a section 7 consultation. When I have called 
about delays in processing my permit, the personnel from the Permit 
Division who I deal with often state that the permit is delayed in the 
section 7 office. This office appear impervious to the urgency of 
impending field seasons. It would help if the MMPA specified a 
timetable for this section 7 consultation, and required the permit 
office to notify the applicant when the application was sent to the 
section 7 division. The applicant should have some way to obtain 
compensation if either the permit division or the section 7 section did 
not meet the statutory deadlines. In my experience, NMFS may not decide 
whether to conduct a NEPA analysis until after receiving comments from 
the Marine Mammal Commission, which is often a month or so after 
submission at the earliest. An EA can take several months, and an EIS a 
year or more. One way to expedite the NEPA paperwork would be to 
require NMFS to develop background NEPA documentation for all research. 
Then only completely new techniques would trigger these delays of a 
year or more.
     Would moving the NEPA requirement earlier in the 
permitting process help to expedite the final awarding of a permit? Why 
or why not?
    Absolutely. Recent court cases have challenged NMFS' usual reliance 
on a categorical exclusion from NEPA for research permits. This means 
that Environmental Assessments or Impact Statements will need to be 
prepared for many if not most research permits. EAs typically take 
several months to complete, and EIS's often take more than a year. 
Delays of a year or more will kill most research projects. Therefore 
NMFS must develop a proactive strategy to meet NEPA requirements for 
common research methods in advance of permit applications. They need to 
advise scientists developing new methods of the requirement to prepare 
new NEPA documentation if the method is not covered under existing 
paperwork.
     Would conducting programmatic NEPA reviews in various 
categories of frequent permit applications be helpful in eliminating 
individual NEPA requirements on each application?
    Absolutely. I am extremely pleased at Rebecca Lent's testimony to 
the committee stating that NMFS is planning to conduct programmatic 
NEPA reviews. Unless Congress finds a way to reverse the higher 
standards applied to research compared to activities that do not 
benefit marine mammals, I believe that this is the only way for 
Congress to protect marine mammal research from the crushing burdens of 
time and money imposed by Federal regulation. This commitment will 
require considerable funding from Congress, especially in the first few 
years as NMFS must prepare the NEPA documents while continuing to 
process permits.
    A more ambitious approach to require uniform standards for 
regulation might meet the needs of research without requiring this 
extra bureaucracy. I think that Chairman Pombo was exploring this issue 
in his questioning at the hearing. Most challenges under MMPA now are 
procedural, so the very act of requesting a permit or authorization 
triggers threats that do not exist for activities that violate the MMPA 
but never ask for permission to ``take.'' If fisheries, commercial 
shipping, etc were all required to adhere to the same standards as 
research, I am confident that researchers would quickly find themselves 
with a workable regulatory process. From my perspective, uniform 
standards would also better meet the conservation goals of the Act, 
than the current system of proliferating loopholes. Perhaps the best 
way to achieve this would be to require each seafaring activity or user 
group to consult with NMFS to perform a NEPA analysis of the risks of 
adverse impact.
Section 14- Incidental Taking of Marine Mammals
    1. Why does the scientific community seek a general authorization 
for marine mammal research activities, in both the Level A and Level B 
category?
    The 1994 amendments to the MMPA created a general authorization 
process for level B harassment involving non-endangered species. I am 
not aware that the scientific community has requested that this be 
broadened to include level A harassment. What I have supported is for a 
streamlined general authorization be made available to any activity 
that after NEPA analysis has been found to have a negligible impact.
    2. Would the language in Sec. 14 (which provides a general 
authorization for incidental take at the discretion of the Secretary) 
produce the desired outcome? Do you feel that it opens an unrestricted 
loophole for a variety of other activities in the ocean that may also 
cause the incidental taking of a marine mammal, such as off shore oil 
and gas exploration?
    Under the current regime, most of the effort goes into the 
mechanics of the authorization process, which is so difficult, 
expensive, and restrictive, that most activities try to avoid it 
altogether. As long as the new GA is restricted to activities 
demonstrated to have ``negligible impact,'' I favor a streamlined 
process. What is missing from section 14 is the necessary requirement 
for all seagoing activities to consult with NMFS under NEPA to assess 
the broad impacts of their activities. If this were added to section 
14, this would redirect regulatory effort to the area where it would do 
the most good. Once activities are determined to have negligible 
impact, in a well-defined NEPA process, why not streamline 
authorization?
Threats to Marine Mammals:
    1. There seem to be many emerging threats to marine mammals that 
were not considered 25 years ago, when the original act was written.
     Do you think it would be helpful for the Marine Mammal 
Commission to report on the magnitude of emerging and existing threats 
to marine mammals?
    There have been more than a dozen such reports. I do not believe 
that we need more workshops on the problem. We require focused efforts 
to suggest new regulatory mechanisms to protect marine mammals from 
these more diffuse and pervasive threats, which often can better be 
viewed as forms of habitat degradation rather than acute ``takes.''
     Is it practical to believe that we can address these 
threats, and if so, what threats should be priorities for action?
    This might include identifying data gaps, coming up with research 
plans and evaluating the health of marine mammal stocks in the wild as 
relates to other environmental parameters.
    Yes. Right now Federal actions stifle research on impacts of human 
activities on marine mammals, and the worse the problem, the more 
difficult it is to conduct critical research. Each of the three NRC 
panels on the effects of noise on marine mammals list the same data 
gaps, and suggest basically the same research. Now what is needed is a 
commitment from Congress to correct the regulatory obstacles, and to 
fund a research program following these suggestions. I strongly urge 
Congress to request similar NRC panels on the impact of chemical 
contaminants on marine mammals, and on the impact of fisheries 
modifying marine ecosystems to the detriment of marine mammals. Once 
these panels develop research programs, they would likely require 
similar levels of funding. Prior to crises such as the Steller sea lion 
or northern right whale, great progress could be made with budgets of 
several million dollars per year. After this kind of crisis, costs go 
up and benefits drop rapidly. One important area for Congress lies in 
the decision of how to organize the research program. I favor an open 
peer-reviewed process overseen by a review board of groups that fund 
the science and that are concerned about the policy and regulatory 
priorities.
     Would such an undertaking be within the scope and purview 
of the MMC?
    The MMC is a small commission with primarily an oversight role. Its 
primary activity is review, writing letters, and issuing a handful of 
grants at about $10k apiece. It would have to be changed and expanded 
considerably to take on the role of a science funding agency at a level 
commensurate with the research needs. I believe that it would be more 
efficient to identify an existing successful program that selects and 
funds science research projects at a level of several million dollars 
annually. It should also involve larger partnerships on the funding 
side and on the science performer side than is common in marine mammal 
research today.
     Has the MMC ever investigated the growing incidence of 
ship strikes? Would the MMC support a mandate to convene a panel to 
recommend steps to reduce ship strikes and report to Congress in 2 
years?
    Yes the Commission investigated the ship strike issue and David 
Laist of the Marine Mammal Commission has shown a steadfast involvement 
in this problem. However, this issue has moved well beyond the 
government panel of experts stage. NGOs such as the International Fund 
for Animal Welfare have consulted with the shipping industry in an 
attempt to find workable solutions. Where Congress could help would be 
to require relevant agencies to take part in this broader search for 
solutions. Obvious Federal agencies include NMFS, the Coast Guard, and 
any agencies involved in establishing or maintaining shipping channels. 
These channels represent Federal actions that may direct ships to areas 
where they may collide with whales. It would be worth inquiring whether 
shipping channels go under NEPA review, and if not, why not. This is an 
international problem; Congress could help by supporting international 
efforts to resolve this issue, with the IMO and other organizations.
     Should there be a similar directed program on ocean noise 
that would be mandated under the MMC or another program such as the 
National Oceanographic Partnership Program?
    The group tasked with running this research program should have 
demonstrated competence with the relevant administrative resources 
already in place. It makes little sense to spend money duplicating 
administrative overhead, especially for an organization without proven 
abilities to run this kind of research program. As I mentioned above, I 
do not believe the MMC is set up to run a research program on ocean 
noise of the scale suggested by the NRC. By contrast, NOPP routinely 
runs research programs on exactly the scale suggested by NRC. They 
maintain open peer review of proposals, and have a mechanism to involve 
partners from academia, government agencies, and industry. The one area 
where it may need slight modification is the addition for research so 
directly relating to policy, of an executive oversight board, to ensure 
that the science is as focused as possible on the critical issues.
Captive release prohibition:
    H.R. 2693 includes a prohibition on releasing captive marine 
mammals into the wild.
     Considering the very limited space available to care for 
stranded marine mammals, could such a change create a situation where 
animals are held in captivity permanently regardless of their health 
and survival?
    No. H.R. 2693 allows release under sections 104 and 109 of the 
MMPA. There have been irresponsible releases, and the few that have 
been demonstrated to have succeeded have involved close follow through 
from researchers. Release remains an experimental approach, best 
permitted as a research activity.
     Would this provision affect NOAA Fisheries' release of 
the five pilot whales that were stranded on April 18, 2003?
    I do not know
     Does this provision require a U.S. citizen to apply for a 
NOAA Fisheries permit to release a marine mammal in other countries' 
EEZ (would this apply to Keiko's release in Norway)?
    NMFS views research activities in territorial waters of other 
countries as under the jurisdiction of other countries. However, my 
understanding of the CBD vs NSF case is that if the vessel came from 
the U.S. or was funded by US, requirements for permitting may extend to 
the territorial seas of other countries. This is an area where Federal 
courts in some districts may disagree with current NMFS policy, so the 
safe approach would be to apply for the permit.
                                 ______
                                 

  Response to questions submitted for the record by Randall S. Wells, 
   Conservation Biologist, Chicago Zoological Society, and Director, 
     Center for Marine Mammal and Sea Turtle Research, Mote Marine 
                               Laboratory

Questions submitted by The Honorable Wayne Gilchrest
    1) Do you think marine mammals immune systems are affected by human 
activities? If so, which activities would cause such a reaction?
    Yes. Research is underway to investigate relationships between 
human activities and marine mammal immune system function. I am not an 
immunologist, but several work in collaboration with my long-term 
bottlenose dolphin research program in Sarasota Bay, Florida. 
Preliminary findings indicate that declines in dolphin immune system 
function are correlated with elevated concentrations of some 
environmental contaminants, such as PCB's and DDT and its metabolites. 
This finding is consistent with those from studies of effects of these 
man-made chemicals on terrestrial mammals.
    2) Is it possible to determine if a marine mammal is having 
immunological effects from an activity by observing the animal?
    To the best of my knowledge, the identification and measurement of 
immunological effects requires collection of samples from the animal, 
especially blood samples. Marine mammals such as dolphins are very 
adept at hiding health problems until they become severe--an ability 
that is very useful if you do not wish to appear vulnerable to a 
potential predator. While at some point in the course of condition 
development it may become possible to determine from observations that 
a marine mammal is ill, the specific root of that illness 
(immunological vs. some other cause) would likely have to be determined 
through veterinary examination and sampling.
    3) Can you determine such effects by taking a blood or biopsy 
sample from the animal? How would taking a sample from an already 
immunologically affected animal impact the animal? Would it cause any 
additional harm? If so, how can we properly address this issue?
    Small blood samples can be used in a variety of tests to evaluate 
immune system function. The collection of blood from small cetaceans 
(from a vessel in the tail flukes) is a relatively simple and straight-
forward process that should have minimal impact on the animal. The 
potential impacts from the capture process itself would depend on the 
species and the animal's condition. Some species, such as bottlenose 
dolphins, can typically handle such activities with few if any 
problems, while other dolphin and porpoise species are more highly-
strung and do not respond as well to the capture process. As an 
individual's condition worsens, it should be expected to be less 
tolerant of any stress that might be associated with capture. Thus, 
selecting relatively hardy species for evaluation of effects of 
activities/pollution on immune system function would be a reasonable 
approach--balancing minimizing risk with the ability to detect 
indications of immunological effects.
    4) You mention reauthorizing funds for the Prescott Marine Mammal 
Rescue Assistance Grant Program. Have you received grants under this 
program? If so, have you had any difficulties in receiving the funds? 
Has the agency been helpful to you in the grant process?
    I have not personally received any grants through this program, but 
in my role as Director of Mote Marine Laboratory's Center for Marine 
Mammal and Sea Turtle Research, I oversee scientists who have received 
such grants. They have experienced no problems in receiving the funds, 
and have found the agency to be helpful in the process. This program 
has been much-appreciated by the members of the stranding response 
network that has been established around the country. This is a 
volunteer network, with most of the resources provided by the members 
themselves. Stranding response can be a very expensive operation--
federal support through the Prescott Program has been most welcome.
    5) There are a number of different behavioral terms recommended by 
the NRC, environmental groups, and the Administration for a revised 
definition of level B harassment. Here is a list of terms used: 
``breathing'' or ``surfacing''; ``feeding'' or ``foraging''; 
``communication''; ``migration''; ``breeding''; ``nursing'' or ``care 
of young''; ``predator avoidance'' or ``defense''; and ``sheltering''. 
Can you give us your opinion on what terms are biologically significant 
and should be used in a revised definition of level B harassment to 
more appropriately address those activities that cause more than a 
minor disturbance?
    Most of these terms identify significant activities in an animal's 
life. The relative importance of some of the terms may vary from 
species to species (for example, a pinniped or otter on a beach is not 
concerned with surfacing). A swimming and diving marine mammal must 
breathe, and in order to do this it must surface. Either foraging or 
feeding can be an inclusive term that summarizes the process of 
searching for, capturing, handling, and consuming prey--each component 
is integral to the animal meeting its energetic requirements. Of the 
two, foraging might be considered the broader term, whereas feeding 
often is considered in the narrower context of ingesting food. 
Communication is very important among many of the cetaceans, and can be 
crucial to coordination of groups. The importance of communication to 
pinnipeds, sea otters, or manatees, for example, outside of breeding or 
rearing contexts is less the clear. Some marine mammals migrate, while 
others do not. For migratory species, successful completion of the 
migration can be crucial to survival. Some of these species are pushing 
energetic limits (i.e., they do not feed again until they complete the 
return migration, or they need to move ahead of temperature changes) 
such that disruptions to their normal migration may drain resources to 
the point of compromising the animals. Breeding is absolutely necessary 
to continue the species. Nursing is one aspect of care of young, 
reflecting simply the nutritional requirements. Caring for young 
involves more than simply providing milk for many species. Maternal 
care includes protecting them from predators and other members of the 
same species in some cases, and teaching them what it will take to 
survive as an independent individual. For some species of dolphins, 
calves will remain in their mothers' care for 3-6 years or more. With 
regards to activities relative to predators, there are several 
biologically important components. Predators must first be detected, 
which can be done acoustically (active or passive) or visually, 
depending on the habitat and the nature of the predator. The most 
common marine mammal predators are large sharks, killer whales, or 
polar bears. If a predator is detected, most marine mammals' first 
response is to try to avoid the predator. In some cases, an active 
defense might be mounted, but this depends on the relative size and 
numbers of predators and marine mammals, and the nature of the habitat 
and predator. I have never used the term ``sheltering'' and therefore 
can not comment on the original intent of the term, nor its importance 
for inclusion in the definition.
    6) It has been suggested by some scientists that in order to get a 
better understanding of the hearing ranges of marine mammals rarely 
seen by man, that a hearing device similar to those used to test the 
hearing in newborns should be used on stranded marine mammals. What are 
your thoughts on this? Is this technology currently being used on 
stranded marine mammals? Has it been successful in gaging the hearing 
range of stranded animals? Have there been any problems using this 
technology, either with the animals or getting permits to use the 
device?
    Given the increasing concerns about the effects of anthropogenic 
sounds on marine mammals, it is crucial that hard data be gathered on 
the hearing capabilities of the animals, and how these capabilities may 
have changed as a result of human activities. Stranded individuals 
provide some of our only access to marine mammals that inhabit deep, 
offshore waters. It should be stressed that acoustic impacts are not 
just limited to marine mammals rarely seen by man. More common coastal 
species, such as bottlenose dolphins, are also subject to much 
anthropogenic sound, through boat traffic, coastal construction, and 
industrial activities. While some of the deep-water species may face 
more acute trauma from sound (such as military sonars or seismic 
exploration), the more subtle but chronic impacts on coastal species 
must also be considered. In both cases, data on hearing capabilities 
are needed, and non-invasive techniques are available to obtain the 
necessary data. I have been working with colleagues from the University 
of South Florida to evaluate wild bottlenose dolphin hearing 
capabilities through measurements of auditory brainstem response (ABR). 
This is, I believe, the technology to which you are referring. The 
process involves placing 3 suction-cup-mounted electrodes on the head 
and body of a dolphin (in our case, the dolphin is resting on a foam 
pad on our veterinary examination boat), and then playing back a range 
of sounds through another small suction cup, recording the ABR on an 
attached computer. The entire process takes about 5-10 minutes, and 
there have been no adverse effects on the dolphins. I do not know if 
this technique has been used on stranded marine mammals, but I can 
think of no reason why it should not. There is no risk to the 
individual, and there is great potential for gathering information of 
benefit to entire populations. We encountered no difficulties in 
modifying our Level A permit to include this procedure for wild 
bottlenose dolphins.
Questions submitted by The Honorable Frank Pallone, Jr.
Definition of harassment:
    1. Over the past year, Congress has been presented with several 
different options to redefine the definition of harassment. A new 
definition is being offered in H.R. 2693.
     Please compare the definition proposed in H.R. 2693 and 
discuss whether it compares positively or negatively to other proposed 
definitions.
    In general, I consider the definition proposed under H.R. 2693 to 
be reasonable, and a significant improvement over the current 
definition in the Act. It is a simplified, more direct definition that, 
with slight modifications, should greatly facilitate interpretation and 
enforcement. I would suggest clarifying (i) by changing it to: ``(i) 
injures or has the potential to injure a marine mammal or marine mammal 
stock in the wild;'' The phrase ``has the probability'' is essentially 
meaningless. All actions have a probability for an effect, some low, 
some high. If an activity has been demonstrated to cause injury to 
marine mammals, or if such a demonstration is lacking but the activity 
includes components that clearly could injure a marine mammal, and it 
is likely (more than 50% probability) that marine mammals will be 
exposed to this activity, then it should be considered as Level A 
harassment.
    2. How will the proposed change to the definition of harassment 
affect scientific research and/or military readiness activities?
     Are there specific activities that might fall outside 
this definition?
    The effectiveness of the Act is directly related to its 
inclusivity. As proposed in H.R. 2693, the definition of Level A 
harassment would seem to provide opportunities for exemptions of some 
activities that should be of concern, but for which insufficient 
evidence is available to demonstrate a ``probability to injure.'' 
Though I am not a legal expert, the proposed definition (with my 
modifications) should cover most eventualities of concern.
    3. The definition for Level A (potential to injure) harassment 
proposed in H.R. 2693 requires that an activity have ``the probability 
to injure'' a marine mammal. It seems to me that this change would 
require a higher burden of proof for a given activity's likelihood of 
causing harm.
     Do you feel that this change would make the definition of 
harassment less protective of marine mammals?
    Yes, I agree that the proposed wording in H.R. 2693 would be less 
protective, as it would seem to allow activities that have not yet been 
demonstrated to cause harm, and for which insufficient data are 
available to demonstrate a likelihood that harm would occur. The 
precautionary principle should be applied, providing protection for the 
animals until such time as sufficient information is available to make 
an informed decision relative to risks.
     Does the word ``probability'' have a clear and commonly 
understood legal definition? 'What is the distinction from 
``potential?"
    I am not a legal expert, but it seems to me that the phrase ``has 
the probability'' is essentially meaningless. All actions have a 
probability for an effect, some low, some high. Without a quantitative 
modifier, the term is no more clear than ``potential,'' which appears 
to be used in a sense of indicating the existence of a possibility that 
an impact could occur.
     Would the addition of a modifier that explains the 
relative probability of injury (such as 20%, 50%, 90%) be helpful in 
clarifying the intent of the word ``probability?''
    The inclusion of a quantitative modifier would help to clarify the 
meaning of ``probability''--leading to useful distinctions between a 
possibility (any probability) vs. a likelihood (more than 50% 
probability). There would need to be further clarifications of how such 
probabilities should be measured and expressed. For example, how would 
the probability of injury be calculated for an activity that was very 
likely to injure a marine mammal if it occurred within 100 meters of an 
animal, but the activity is unlikely to take place within such close 
range? What would happen in the case of an activity that had never been 
used with marine mammals (so no information is available on the 
likelihood of injury that would allow quantification of a probability), 
but which will definitely occur in close proximity to marine mammals? 
Would the percent probability refer to injury to any individual? I 
would prefer to return to more basic language, such as: ``(i) injures 
or has the potential to injure a marine mammal or marine mammal stock 
in the wild;'' This language is more in accordance with the 
precautionary principle, and presumably would place the burden on those 
desiring to conduct an activity to collect the data demonstrating the 
level of risk, before exposing the animals to the activity.
    4. The proposed change to the definition of Level B harassment 
would require that an activity cause a ``biologically significant 
disruption'' of activities including, but not limited to, migration, 
breeding, care of young, predator avoidance, defense, or feeding. In 
contrast, the definition proposed earlier by the NRC would require that 
an activity cause a ``disruption to biologically significant'' 
activities.
     Is this inversion of words important? Why?
    The NRC definition is much more in concordance with the 
precautionary principle. It appears to presume that any disruption to a 
biologically significant activity is of concern. This definition is 
fairly straight-forward for enforcement action in terms of defining 
harassment as any demonstrable disruption of normal activities. The 
proposed definition in H.R. 2693 would require clear definitions of 
what constituted ``biologically significant'' disruption before 
enforcement action could be taken. This is a less conservative 
approach, providing reduced protection for the animals.
    5. It seems to me that it would be easier to define a disruption to 
a biologically significant activity than it would be to determine what 
constitutes a biologically significant disruption to that activity.
     If this is true, would the proposed change in the 
definition make it less protective of marine mammals?
    As I indicated in response to the previous question, I agree. The 
proposed change in H.R. 2693 would make the Act less protective.
    6. How would the change in the definition of Level B (I assume you 
mean Level A?) (potential to injure) harassment affect scientific 
permitting?
    I do not foresee any major changes to the permitting process for 
scientific activities with the potential for injury.
    7. Are there activities, such as 'sheltering' or 'resting', that 
are missing from the list of ``migration, breeding, care of young, 
etc.''? If so, which behaviors are missing and why are they important 
to explicitly mention in the proposed definition?
    Marine mammals engage in a wide variety of activities, and engage 
in them in a continuous string that forms their daily lives. It would 
be very difficult to identify the relative importance of different 
activities, because the behavioral patterns that we see are the result 
of millions of years of evolution--each behavioral component is an 
integral part of the whole of the animals' activity patterns that are 
required for survival and continuity of the populations. While some 
activities are easy to identify, others are less conducive to 
definition. Thus, keeping the list open-ended is important. I would 
suggest adding several terms, because they can be clearly identified:
    Resting--Resting is important to all mammals, to recover from 
activity. Many marine mammals rest in places where they are exposed to 
human activities, so protection during this important period may be 
necessary.
    Socializing--Many marine mammals are very social, and periods of 
intense social activity (not just breeding) are important for the 
development and strengthening of social bonds and coordination of 
activities (development and refining of the relationships that are 
needed to facilitate coordinated feeding, for example, on fish 
schools). In some species, socializing is a regular component of the 
daily activity cycle. This period often includes many activities that 
are very visible, such as leaping and other aerial behavior. These 
behaviors attract people, and therefore may lead to the need to protect 
the animals during this activity state.
    Communicating--Communication is crucial for all marine mammals, 
whether it be limited to breeding and calf rearing, or whether it 
includes complex communication among members of large groups of the 
more social species. The acoustic mode is the primary communication 
means in the aquatic environment, and human activities can mask 
important components of acoustic communication.
    Traveling--Many marine mammals move through daily ranges. These 
daily movements should be considered separately from longer-distance 
migrations, but they are equally important as they get the animals 
between different habitats where different activities occur.
    Foraging--I would add this to feeding, as it includes the stages of 
searching for prey, capturing prey, and handling prey, leading up to 
ingestion--the actual act of feeding.
    8. Would this revised definition still allow for the consideration 
of the cumulative negative impact on an individual or population of 
marine mammals?
    It is not clear to me how the revised definition considers 
cumulative effects. Explicit consideration of cumulative effects would 
be an important advance in protection of the animals.
    9. If the consideration of small numbers and geographic area were 
to be eliminated, how would this affect the ability to determine the 
potential negative impact for an activity?
    Most marine mammal stocks are defined at least in part by 
geographical criteria. It is crucial for stock assessments and 
evaluation of potential Biological Removals that takes be able to be 
assigned to specific stocks. It seems that elimination of consideration 
of geographic area would unnecessarily complicate this process.
    10. Has NOAA Fisheries or USFWS contemplated regulating truly 
incidental activities that have little if any direct effect on marine 
mammals, such as boat wakes?
    I do not feel that I can speak to the contemplations of the 
agencies.
Permitting for Scientific Research:
    1. Has the permitting process for targeted scientific research on 
marine mammals and oceanographic research that falls into the 
incidental take (Level B) category been sufficiently streamlined as a 
result of the 1994 amendments?
     What additional changes, either legislative or 
regulatory, are necessary?
    I have not encountered any problems with obtaining scientific 
research permits/authorizations for Level B activities since 1994. The 
idea that researchers must put the time and effort into applying for 
authorization to do what in some cases members of the general public do 
without any such authorization is sometimes frustrating, especially 
when the researchers likely are more aware of, and more sensitive to, 
the needs of the animals than are most members of the public.
     Are there still problems with the permitting process for 
targeted research on marine mammals that falls into the Level A 
(probability to injure) category?
    I have not encountered any problems with obtaining scientific 
research permits/authorizations for Level A activities since 1994.
    2. How do overlapping requirements under the Endangered Species Act 
and NEPA interact with permitting requirements under the MMPA? What 
could be done to further streamline the process or coordinate 
timetables when a proposed project involves a threatened or endangered 
species?
     Would moving the NEPA requirement earlier in the 
permitting process help to expedite the final awarding of a permit? Why 
or why not?
    I have no first-hand experience with the NEPA process, and 
therefore do not feel that I can comment meaningfully on this.
     Would conducting programmatic NEPA reviews in various 
categories of frequent permit applications be helpful in eliminating 
individual NEPA requirements on each application?
    This would seem to make sense, but again, I have no first-hand 
experience with the NEPA process, and therefore do not feel that I can 
comment meaningfully on this.
Section 14 -- Incidental Taking of Marine Mammals:
    1. Why does the scientific community seek a general authorization 
for marine mammal research activities, in both the Level A and Level B 
category?
    I am not familiar with the specific origin of this effort, but my 
best guess would be that this is an effort to streamline the process of 
seeking authorization for generic activities, rather than considering 
separately a number of requests by individual researchers to conduct 
similar research. In theory, this would reduce the workload of the 
agency, and would allow researchers to better predict the probability 
of implementing a research project on time.
    2. Would the language in Sec. 14 (which provides a general 
authorization for incidental take at the discretion of the Secretary) 
produce the desired outcome? Do you feel that it opens an unrestricted 
loophole for a variety of other activities in the ocean that may also 
cause the incidental taking of a marine mammal, such as off shore oil 
and gas exploration?
    This clause has the potential to meet the presumed need, but it 
does raise concerns about providing loopholes for a variety of 
activities that could be authorized at the discretion o the Secretary. 
The key to the effectiveness of this clause is in how it will be 
determined that the generic activity ``will have a negligible impact on 
such species or stock.'' If the initial process of permitting the 
generic activity is one that follows the lines of permit reviews, with 
public comment, then this may work. If it is simply at the discretion 
of the Secretary, then it does not provide appropriate or adequate 
safeguards for the animals.
Threats to Marine Mammals:
    There seem to be many emerging threats to marine mammals that were 
not considered 25 years ago, when the original act was written.
     Do you think it would be helpful for the Marine Mammal 
Commission to report on the magnitude of emerging and existing threats 
to marine mammals?
    I understand that this is in progress. The Marine Mammal Commission 
just sponsored a workshop in Portland, Oregon, on future directions in 
marine mammal research. The workshop was intended to identify threats 
to the animals and the research needed to address these issues.
     Is it practical to believe that we can address these 
threats, and if so, what threats should be priorities for action?
    It is essential to marine mammal conservation that we address these 
threats. Though many of the threats may appear at this time to be of a 
scope or nature as to be impractical to address, or incapable of being 
mitigated, we should not be deterred in our efforts to begin to address 
them. When the Marine Mammal Protection Act was first implemented, the 
ideas that commercial whaling could be fully controlled, or fisheries 
could be managed to reduce marine mammal takes without complete 
closures likely also seemed impractical. We have made much progress in 
30+ years under the Act, and these advances have come through the 
dedicated efforts of a number of bright, capable, and creative minds. 
If these same kinds of resources are directed toward the emerging 
issues, then we will likely find workable solutions.
    The threats that should receive immediate attention include:
    1. LEnvironmental contaminants--including existing and emerging 
contaminants of concern to marine mammal health and reproduction (such 
as persistent organic pollutants, heavy metals, pathogens). Information 
is needed on the effects of specific contaminants relative to specific 
concentrations. Parallel efforts are needed to assess the risks to 
specific stocks of marine mammals, and identifying mitigation measures.
    2. LAnthropogenic sounds in the environment--including military, 
scientific, and industrial acoustic activities, industrial noise, 
shipping noise, boat traffic, and marine construction.
    3. LVessel traffic--as it relates to collisions with marine mammals 
and disturbance.
    4. LHabitat loss and/or degradation.
    5. LRecreational fishing activities.
    6. LHuman interactions with wild marine mammals, including feeding 
and swimming with them.
    A parallel effort needs to be undertaken to determine the best 
method to integrate risks from these emerging threats with 
consideration of fishery takes through the Potential Biological Removal 
process, to arrive at more complete and meaningful stock assessments. 
Work will need to be done to begin to identify cumulative, long-term 
effects of some of these threats.
    This might include identifying data gaps, coming up with research 
plans and evaluating the health of marine mammal stocks in the wild as 
relates to other environmental parameters.
     Would such an undertaking be within the scope and purview 
of the MMC?
    The Marine Mammal Commission (MMC) is an oversight agency, without 
the resources or personnel to engage in large-scale research or 
conservation action. It would seem more reasonable to task NOAA 
Fisheries and the U.S. Fish and Wildlife Service with these 
responsibilities, with MMC oversight.
     Has the MMC ever investigated the growing incidence of 
ship strikes? Would the MMC support a mandate to convene a panel to 
recommend steps to reduce ship strikes and report to Congress in 2 
years?
    The MMC has a long-standing interest in the ship strike issue and 
MMC staff members have been involved in scientific publications and 
other efforts to address this problem, especially as it relates to the 
endangered Northern Right Whale.
     Should there be a similar directed program on ocean noise 
that would be mandated under the MMC or another program such as the 
National Oceanographic Partnership Program?
    I understand that the MMC is currently funded to hold a series of 
workshops on ocean noise. The specific topics of the workshops are 
currently under consideration, but will likely cover a wide range of 
issues, including the acute trauma to deep-diving marine mammals 
exposed to military sonar and seismic exploration, as well as the more 
subtle, but chronic, and perhaps more serious effects of noise on 
coastal species of marine mammals.
Captive release prohibition:
    H.R. 2693 includes a prohibition on releasing captive marine 
mammals into the wild.
     Considering the very limited space available to care for 
stranded marine mammals, could such a change create a situation where 
animals are he1d in captivity permanently regardless of their health 
and survival?
    The proposed language allows for release of captive marine mammals 
under a scientific research permit. In the past, this process has 
sometimes been followed voluntarily, but in other cases marine mammals 
have been released without such authorization, with near-tragic 
consequences. My understanding is that this language has been developed 
to provide more control over future releases to ensure the welfare of 
the release candidates and potential host populations, and to increase 
the probability of obtaining high quality data from releases that can 
inform future efforts.
    My understanding is also that this prohibition does not refer to 
stranded marine mammals. Determination of the releasability of stranded 
marine mammals undergoing rehabilitation is based on criteria 
established in a set of release guidelines prepared by NOAA Fisheries 
and the U.S. Fish and Wildlife Service. There should not be any impact 
on rehabilitation facilities. Accepted practice for rehabilitation of 
marine mammals is to care for them in isolation from captive marine 
mammals, in order to minimize the potential for transfer of disease. 
Thus, stranded and captive marine mammals should be maintained in 
separate pools and enclosures, with separate life support systems, and 
ideally separate staff caring for them.
     Would this provision affect NOAA Fisheries' release of 
the five pilot whales that were stranded on April 18, 2003?
    I do not believe that this provision would have affected the 
release of the five stranded pilot whales, as they were not considered 
captives.
     Does this provision require a U.S. citizen to apply for a 
NOAA Fisheries permit to release a marine mammal in other countries' 
EEZ (would this apply to Keiko's release in Norway)?
    I would defer to legal experts for interpretation relative to this 
question. I would like to see such a requirement in order to provide 
greater assurance that releases are conducted in the most humane 
manner, optimizing the potential for gaining information.
                                 ______
                                 

 Response to questions submitted for the record by Peter F. Worcester, 
  Ph.D., Research Oceanographer, Scripps Institution of Oceanography, 
                  University of California, San Diego

Questions submitted by The Honorable Wayne T. Gilchrest, Chairman, 
        Subcommittee on Fisheries Conservation, Wildlife and Oceans
    1. There have been comments made that with a revised definition of 
harassment, which would create a de minimis standard, a general 
authorization under section 101(a)(5) is not necessary? What are your 
thoughts on this?
    I believe that adoption of a revised definition of harassment that 
focuses regulatory efforts on the biologically significant disruption 
of behaviors critical to survival and reproduction, i.e., on adverse 
impacts rather than simply on any detectable change in behavior, is the 
single most important change needed in the Marine Mammal Protection Act 
(MMPA).
    Nonetheless, I feel that it would still be very useful to include 
provision for a general authorization in the MMPA. The problem is that 
oceanographers and other marine operators routinely use underwater 
sound for a wide variety of important purposes. Even with a revised 
definition of harassment, the MMPA would not provide explicit guidance 
to govern its application to instrumentation that is in widespread and 
on-going use. Without a general authorization it is conceivable that it 
might be necessary to prepare Environmental Assessments for a large 
fraction of oceanographic research cruises, for example, even if the 
ultimate conclusions were that the activities would not result in 
harassment under a revised definition. There is also no mechanism under 
the MMPA for allowing for on-going activities that might have 
biologically significant effects on only a small fraction of a 
population, other than through exemptions that must be applied for on a 
case-by-case basis. It is possible that there are activities that might 
cause the biologically significant disruption of behaviors critical to 
survival and reproduction for such a small fraction of the population 
that these activities would have a negligible impact on the affected 
species and stocks. It would therefore be helpful to modify the act to 
provide for the issuance of general authorizations allowing for the use 
of instrumentation that has the potential for taking by harassment in 
situations in which the taking will be unintentional and will have a 
negligible impact on the affected species and stocks.
    2. Your research focuses on how sound travels through water at 
different water temperatures. When a sound is made and it travels 
through the ocean, does it travel throughout the water column or only 
through certain portions? Do different sounds travel in similar ways 
through the ocean? For instance, we hear a lot about sonar in the ocean 
and there is a perception that the sound as it travels through the 
ocean is at the same sound level as when it first was emitted from its 
source. Is this true?
    Sound in the ocean initially spreads out in all directions from a 
source (except for special cases in which the source is specifically 
designed to transmit in only certain directions). As the sound travels 
to long ranges in deep water, however, it is affected by the ocean 
sound channel. In the ocean the lowest sound speed typically occurs at 
depths of 800 to 1000 m, with faster sound speeds above and below this 
depth. Sound tends to be focused near the sound speed minimum because 
sound waves are continually bent, or refracted, towards the depth with 
the lowest sound speed. Sound that travels upward from a source at the 
sound speed minimum is bent back towards the minimum. Similarly, sound 
that travels down from the source is bent back up toward the minimum. 
The result is that sound can travel long distances, cycling above and 
below the sound speed minimum without hitting the seafloor or ocean 
surface. The sound therefore travels throughout the water column. Sound 
tends to be loudest near the depth of the sound speed minimum for a 
source located near the minimum, however.
    Different sounds spread out from a source in the same way. Sounds 
of different frequencies are absorbed at very different rates, however. 
High frequency sounds are absorbed much more rapidly than low frequency 
sounds. This means that, under the same conditions, a high frequency 
sound will not travel as far as a low frequency sound.
    The combination of spreading and absorption mean that sound rapidly 
gets weaker as it travels away from a source in the ocean. This effect 
is of course familiar from every day experience, in which sounds in air 
become weaker the further one is from the source. The magnitude of the 
effect can be surprising, however. For the situation in which sound 
spreads uniformly in all directions from a source, the sound 
intensity100 m (328 feet) distant from the source is only 1/10,000 of 
the sound intensity one meter from the source, for example.
    Many of these questions are addressed more fully at a new web site, 
entitled ``Discovery of Sound in the Sea (DOSITS),'' which is located 
at http://omp.gso.uri.edu/dosits/dosits.htm. The web site has a section 
on the Science of Sound in the Sea, which includes discussions of why 
sound gets weaker as it moves and of how sound travels long distances 
in the ocean.
    3. You encountered delays in getting your permit issued. Were these 
delays due to MMPA requirements or National Environmental Policy Act 
requirements?
    The rule-making process required to obtain a Letter of 
Authorization (LOA) under the MMPA involves the complex interplay of 
National Environmental Policy Act (NEPA), MMPA, and Endangered Species 
Act (ESA) requirements. NEPA documents, including the Draft and Final 
Environmental Impact Statements, are needed at various points in the 
MMPA rule-making process, for example. A Section 7 consultation under 
the ESA, involving a Biological Assessment and a Biological Opinion, is 
needed before the MMPA rule-making process can be completed. It is 
therefore difficult to assign the delays as due specifically to NEPA, 
MMPA, or ESA requirements. It would clearly help in any event to have a 
revised definition of harassment that focuses regulatory efforts on the 
biologically significant disruption of behaviors critical to survival 
and reproduction, i.e., on adverse impacts rather than simply on any 
detectable change in behavior.
    4. The bill has language to create a general authorization process 
for section 101(a)(5), which allows the Secretary to issue 
authorizations for incidental takings of marine mammals. Some 
provisions will need to be added to this language to clarify a time 
limit, reporting, monitoring and require a description of the activity 
to be authorized. Can you make any recommendations for a time limit, 
reporting, and monitoring requirements?
    My principal concern with the language creating a general 
authorization process is that I believe it is unrealistic to expect 
that NOAA Fisheries could issue a general authorization and 
implementing regulations within 120 days after the enactment of the 
amendments. The issues involved in the impact of undersea sound on 
marine mammals are complex, and considerable care and effort will be 
required to ensure that the activities allowed under the general 
authorization will have a negligible impact on the species or stock. A 
one-year deadline for issuing a general authorization and the 
associated implementing regulations might be more realistic.
    It is, of course, essential that the general authorization process 
be clearly defined. I am afraid that I do not feel that I can provide 
useful guidance here. It might well be valuable to obtain some input 
from NOAA Fisheries, as they must deal with the permitting process on a 
daily basis.
Questions submitted by The Honorable Frank Pallone, Jr.
Definition of harassment
    1. Over the past year, Congress has been presented with several 
different options to re-define the definition of harassment. A new 
definition is being offered in H.R. 2693.
     Please compare the definition proposed in H.R. 2693 and 
discuss whether it compares positively or negatively to other proposed 
definitions.
    The appropriate definition for Level B harassment has been 
discussed in three recent National Research Council reports:
          National Research Council (NRC). 1994. Low-Frequency Sound 
        and Marine Mammals: Current Knowledge and Research Needs. 
        National Academy Press, Washington, D.C.
          National Research Council (NRC). 2000. Marine Mammals and 
        Low-Frequency Sound: Progress Since 1994. National Academy 
        Press, Washington, D.C.
          National Research Council (NRC). 2003. Ocean Noise and Marine 
        Mammals. National Academy Press, Washington, D.C.
    All three NRC committees are in agreement that it ``does not make 
sense to regulate minor changes in behavior having no adverse impact; 
rather, regulations must focus on significant disruption of behaviors 
critical to survival and reproduction'' (NRC, 2000). In my mind the 
starting point for any discussion of an appropriate definition for 
Level B harassment is therefore that offered by NRC (2000):
        ``Level B has the potential to disturb a marine mammal or 
        marine mammal stock in the wild by causing meaningful 
        disruption of biologically significant activities, including, 
        but not limited to, migration, breeding, care of young, 
        predator avoidance or defense, and feeding.''
    The definition of Level B harassment contained in H.R. 2693 is:
    ``(A) The term ``harassment'' means any act that--
          (i) has the probability to injure a marine mammal or marine 
        mammal stock in the wild;
          (ii) has the potential to disturb a marine mammal or marine 
        mammal stock in the wild by causing biologically significant 
        disruption of activities, including, but not limited to, 
        migration, breeding, care of young, predator avoidance, 
        defense, or feeding; or
          (iii) is directed toward a specific individual, group, or 
        stock of marine mammals in the wild and is likely to impact the 
        individual, group, or stock of marine mammals by disrupting 
        behavior, including, but not limited to, migration, breeding, 
        care of young, predator avoidance, defense, or feeding.
    (B) The term ``Level A harassment'' means harassment described in 
subparagraph (A)(i).
    (C) The term ``Level B harassment'' means harassment described in 
subparagraph (A) (ii) or (iii).''
    Subparagraph (A) (ii) is very close to the NRC definition. One 
difference is that H.R. 2693 replaces the phrase ``meaningful 
disruption'' with ``biologically significant disruption,'' making 
somewhat clearer the sense in which the disruption must be 
``meaningful.'' A second difference is that H.R. 2693 replaces the 
phrase ``biologically significant activities'' with ``activities,'' 
presumably because it is implicit that the activities must be 
biologically significant if the disruption is to be biologically 
significant. In my view the two definitions are consistent, although 
the H.R. 2693 definition is perhaps somewhat less ambiguous.
    My personal preference for the definition of Level B harassment 
would be to combine the two definitions:
          ``(ii) is likely to disturb a marine mammal or marine mammal 
        stock in the wild by causing biologically significant 
        disruption of biologically important activities, including, but 
        not limited to, migration, breeding, care of young, predator 
        avoidance, defense, or feeding.''
    The use of the word ``biologically'' may seem somewhat repetitive, 
but the result is unambiguous.
    Of more concern to me is Subparagraph (A) (iii) in H.R. 2693. The 
reason for this is that subparagraph (A) (iii) retains the existing 
standard for harassment for activities ``directed toward a specific 
individual, group, or stock of marine mammals...'' The existing 
standard has been interpreted to mean that any detectable change in 
behavior constitutes harassment. Ironically, this standard would 
presumably apply to marine mammal research, which would then be 
regulated more stringently than other activities, including other 
oceanographic research. I recommend that Subparagraph (A) (iii) be 
deleted. If the goal is to regulate activities directed toward specific 
individuals or groups of marine mammals, such as whale watching and 
swimming with dolphins, the act should explicitly provide for this, 
rather than defining harassment in a way that would place marine mammal 
research, whale watching, and swimming with dolphins in the same 
category.
    2. How will the proposed change to the definition of harassment 
affect scientific research and/or military readiness activities?
     Are there specific activities that might fall outside 
this definition?
    I believe that the revised definition of Level B harassment 
proposed in H.R. 2693 would facilitate the constructive use of sound in 
the sea, focus regulatory efforts on activities that have biologically 
significant impacts on marine mammals, and make it easier to do 
important oceanographic research, while continuing to protect marine 
mammals. If Subparagraph (A) (iii) were deleted, it would also make if 
easier to do the research needed to improve our understanding of the 
impacts of underwater sound on marine life.
    3. The definition for Level A (potential to injure) harassment 
proposed in H.R. 2693 requires that an activity have ``the probability 
to injure'' a marine mammal. It seems to me that this change would 
require a higher burden of proof for a given activity's likelihood of 
causing harm.
     Do you feel that this change would make the definition of 
harassment less protective of marine mammals?
     Does the word ``probability'' have a clear and commonly 
understood legal definition? What is the distinction from 
``potential?''
     Would the addition of a modifier that explains the 
relative probability of injury (such as 20%, 50%, 90%) be helpful in 
clarifying the intent of the word ``probability?''
    Assessing the legal definition of the word ``probability'' is 
outside my area of expertise. In common English, I personally feel that 
``the probability to injure'' sets a higher standard than ``the 
potential to injure.'' I would tend to favor the phrase ``the 
likelihood to injure,'' as being somewhere in between. I am dubious 
that it will be possible to make numerical assessments of the relative 
probability of injury that are scientifically meaningful in the near 
term.
    4. The proposed change to the definition of Level B harassment 
would require that an activity cause a ``biologically significant 
disruption'' of activities including, but not limited to, migration, 
breeding, care of young, predator avoidance, defense, or feeding. In 
contrast, the definition proposed earlier by the NRC would require that 
an activity cause a ``disruption to biologically significant'' 
activities.
     Is this inversion of words important? Why?
    Please see my response to item 1.
    5. It seems to me that it would be easier to define a disruption to 
a biologically significant activity than it would be to determine what 
constitutes a biologically significant disruption to that activity.
     If this is true, would the proposed change in the 
definition make it less protective of marine mammals?
    Please see my response to item 1.
    6. How would the change in the definition of Level B (potential to 
injure) harassment affect scientific permitting?
    Please see my response to item 1.
    7. Are there activities, such as ``sheltering'' or ``resting'', 
that are missing from the list of ``migration, breeding, care of young, 
etc.?'' If so, which behaviors are missing and why are they important 
to explicitly mention in the proposed definition?
    Assessment of the behaviors critical to survival and reproduction 
is outside the area of my expertise.
    8. Would this revised definition still allow for the consideration 
of the cumulative negative impact on an individual or population of 
marine mammals?
    The revised definition of harassment would not affect the 
consideration of cumulative impacts, as cumulative impacts are 
considered as part of the NEPA process.
    9. If the consideration of small numbers and geographic area were 
to be eliminated, how would this affect the ability to determine the 
potential negative impact for an activity?
    Under current law, requests for an incidental taking or harassment 
authorization must apply to ``small numbers'' of marine mammals of a 
species or stock, which the Secretary of Commerce must find will be 
negligibly impacted by the authorized activity. Similarly, requests for 
an incidental taking or harassment authorization must be for marine 
mammals in a ``specified geographical region,'' which the Secretary 
must find will be negligibly impacted by the authorized activity.
    Until now, federal managers essentially have interpreted the 
requirements for small numbers, specified geographically region, and 
negligible impact as a single requirement in the authorization process 
for incidental takes or harassment of marine mammals. However, recent 
court decisions have called that interpretation into question and if 
such a change is not made, it is conceivable there would be three 
distinct and separate tests for determining takes--small numbers and 
specified geographical region first, and if that test were met, 
negligible impact from the take. The proposed change would prevent the 
denial of research permits that might insignificantly harass large 
numbers of animals or animals in more than one geographic region, while 
leaving the key ``negligible impact'' test intact. The goal is to focus 
our efforts to protect marine mammals on avoiding adverse impacts.
    10. Has NOAA Fisheries or USFWS contemplated regulating truly 
incidental activities that have little if any direct effect on marine 
mammals, such as boat wakes?
    This question should be directed to NOAA Fisheries and USFWS.
Permitting for Scientific Research
    1. Has the permitting process for targeted scientific research on 
marine mammals and oceanographic research that falls into the 
incidental take (Level B) category been sufficiently streamlined as a 
result of the 1994 amendments?
     What additional changes, either legislative or 
regulatory, are necessary?
    The permitting process for scientific research on marine mammals 
was streamlined as a result of the 1994 amendments by the establishment 
of a Scientific Research Permit procedure for research on or directly 
benefiting marine mammals. No special provision was made for other 
oceanographic research, Any other scientific research affecting marine 
mammals falls under the Incidental Harassment Authorization (IHA) 
procedure for activities lasting less than one year or the lengthy 
rule-making procedure leading to a Letter of Authorization (LOA) for 
longer term activities, such as those needed for monitoring climate 
change. These procedures are time consuming and burdensome at best.
    The complex and lengthy permitting process under the MMPA has 
become a major impediment to conducting both the research needed to 
understand better the effect of human-generated sound on marine mammals 
and other oceanographic research. This problem has been exacerbated in 
recent months by legal decisions that could require extensive analyses 
under the National Environmental Policy Act (NEPA) for any research 
that may affect marine mammals, even in situations where there is 
widespread agreement among federal managers and scientists that the 
research activity has no potential to cause harm. In addition, the 
situation is placing new burdens on the already stretched resources of 
the National Marine Fisheries Service. The ocean science community is 
urgently in need of a timely and predictable permitting or 
authorization process that is not unnecessarily burdensome and provides 
them with assurances that research will proceed in compliance with all 
applicable laws, when the permit is issued.
     Are there still problems with the permitting process for 
targeted research on marine mammals that falls into the Level A 
(probability to injure) category?
    This question is outside the area of my expertise.
    2. How do overlapping requirements under the Endangered Species Act 
and NEPA interact with permitting requirement under the MMPA? What 
could be done to further streamline the process or coordinate 
timetables when a proposed project involves a threatened or endangered 
species?
     Would moving the NEPA requirement earlier in the 
permitting process help to expedite the final awarding of a permit? Why 
or why not?
     Would conducting programmatic NEPA reviews in various 
categories of frequent permit applications be helpful in eliminating 
individual NEPA requirements on each application?
    The various permitting processes under the MMPA involve the complex 
interplay of NEPA, MMPA, and ESA requirements. NEPA documents are 
needed at various points in the MMPA permitting process, for example. 
For activities that might affect endangered species, a Section 7 
consultation under the ESA, involving a Biological Assessment and a 
Biological Opinion, is often needed before the MMPA permitting process 
can be completed. It is difficult to assign delays in the permitting 
process as due specifically to NEPA, MMPA, or ESA requirements when 
they are so interrelated. I am therefore dubious that somehow moving 
the NEPA requirements earlier in the permitting process would help 
expedite the final awarding of a permit under the MMPA. Conducting 
programmatic NEPA reviews in various categories of frequent permit 
applications might well be helpful if doing so eliminated individual 
NEPA requirements on each application.
Section 14 -- Incidental Taking of Marine Mammals:
    1. Why does the scientific community seek a general authorization 
for marine mammal research activities, in both the Level A and Level B 
category?
    I believe that adoption of a revised definition of Level B 
harassment that focuses regulatory efforts on the biologically 
significant disruption of behaviors critical to survival and 
reproduction, i.e., on adverse impacts rather than simply on any 
detectable change in behavior, is the single most important change 
needed in the MMPA.
    Nonetheless, I feel that it would still be very useful to include 
provision for a general authorization in the MMPA. The problem is that 
oceanographers and other marine operators routinely use underwater 
sound for a wide variety of important purposes. Even with a revised 
definition of harassment, the MMPA would not provide explicit guidance 
to govern its application to instrumentation that is in widespread and 
on-going use. Without a general authorization it is conceivable that it 
might be necessary to prepare Environmental Assessments for a large 
fraction of oceanographic research cruises, for example, even if the 
ultimate conclusions were that the activities would not result in 
harassment under a revised definition. There is also no mechanism under 
the MMPA for allowing for on-going activities that might have 
biologically significant effects on only a small fraction of a 
population, other than through exemptions that must be applied for on a 
case-by-case basis. It is possible that there are activities that might 
cause the biologically significant disruption of behaviors critical to 
survival and reproduction for such a small fraction of the population 
that these activities would have a negligible impact on the affected 
species and stocks. It would therefore be helpful to modify the act to 
provide for the issuance of general authorizations allowing for the use 
of instrumentation that has the potential for taking by harassment in 
situations in which the taking will be unintentional and will have a 
negligible impact on the affected species and stocks.
    2. Would the language in Sec. 14 (which provides a general 
authorization for incidental take at the discretion of the Secretary) 
produce the desired outcome? Do you feel that it opens an unrestricted 
loophole for a variety of other activities in the ocean that may also 
cause the incidental taking of a marine mammal, such as off shore oil 
and gas exploration?
    As noted above, I believe that a general authorization such as that 
specified in Section 14 of H.R. 2693 would be very helpful to the 
scientific community. I feel that it is unrealistic to expect that NOAA 
Fisheries could issue a general authorization and implementing 
regulations within 120 days after the enactment of the amendments, 
however. The issues involved in the impact of undersea sound on marine 
mammals are complex, and considerable care and effort will be required 
to ensure that the activities allowed under the general authorization 
will have a negligible impact on the species or stock. A one-year 
deadline for issuing a general authorization and the associated 
implementing regulations might be more realistic.
Threats to Marine Mammals:
    1. There seem to be many emerging threats to marine mammals that 
were not considered 25 years ago, when the original act was written.
     Do you think it would be helpful for the Marine Mammal 
Commission to report on the magnitude of emerging and existing threats 
to marine mammals?
     Is it practical to believe that we can address these 
threats, and if so, what threats should be priorities for action?
    This might include identifying data gaps, coming up with research 
plans and evaluating the health of marine mammal stocks in the wild as 
relates to other environmental parameters.
     Would such an undertaking be within the scope and purview 
of the MMC?
     Has the MMC ever investigated the growing incidence of 
ship strikes? Would the MMC support a mandate to convene a panel to 
recommend steps to reduce ship strikes and report to Congress in 2 
years?
    These questions should be directed to the MMC.
     Should there be a similar directed program on ocean noise 
that would be mandated under the MMC or another program such as the 
National Oceanographic Partnership Program?
    Our understanding of the effects of underwater sound on marine 
mammals is discussed in the three recent NRC reports referenced above. 
In its reports, the NRC makes it clear that the current understanding 
of the effects of sound in the ocean on the behavior and health of 
marine mammal needs to be improved. Different sound frequencies and 
intensities have different effects on various species, and those 
effects change with location in the water column and characteristics of 
the sea floor. It is clear that increasing our scientific understanding 
would clarify and narrow the need to obtain permits and authorizations 
under the MMPA, as well as making it easier for researchers to include 
effective mitigation measures in their experimental plans. A robust 
marine mammal research program is absolutely essential to protecting 
marine mammals.
    Funding and scientific leadership in this area to date has come 
from the United States Navy. Over the years, the Navy has supported the 
efforts of pioneers like Sam Ridgway and Ken Norris to expand the 
boundaries of our knowledge about these unique animals. Today, the 
Office of Naval Research maintains a substantial research program on 
underwater sound and marine mammals.
    I believe that an enhanced research program on the effects of 
underwater sound on marine mammals is needed. It is important that this 
program be independent and peer-reviewed. It should be broadly based, 
with participation from funding agencies in addition to the Office of 
Naval Research, including the National Science Foundation, the National 
Oceanic and Atmospheric Administration (NOAA), and the Minerals 
Management Service. Support from private industry and non-governmental 
organizations for research managed in such a manner should be 
encouraged. The National Oceanographic Partnership Program offers a 
potential mechanism to bring these entities together in a process that 
provides both the needed coordination and scientific independence.
Captive release prohibition:
    H.R. 2693 includes a prohibition on releasing captive marine 
mammals into the wild.
     Considering the very limited space available to care for 
stranded marine mammals, could such a change create a situation where 
animals are held in captivity permanently regardless of their health 
and survival?
     Would this provision affect NOAA Fisheries' release of 
the five pilot whales that were stranded on April 18, 2003?
     Does this provision require a U.S. citizen to apply for a 
NOAA Fisheries permit to release a marine mammal in other countries' 
EEZ (would this apply to Keiko's release in Norway)?
    The issues raised by the prohibition on releasing captive marine 
mammals contained in H.R. 2693 are outside the area of my expertise.
                                 ______
                                 

         Response to questions submitted for the record by the 
                        Marine Mammal Commission

Questions from Chairman Wayne Gilchrest
    1. You mention in your testimony how you met with federal agencies 
and affected interests and from these meetings developed a good 
understanding of potential environmental threats that might be caused 
by sound in the oceans. Can you go into more detail on what these 
threats are?
    Response: Potential threats to marine mammals caused by 
anthropogenic sound in the marine environment can be categorized as 
direct or indirect. Direct threats include the following:
     Disruption of normal behavior--Such disruptions may be 
brief in duration or may extend over long periods, thereby having more 
significant consequences. If animals are disturbed once or twice at a 
single site, they may leave the area temporarily. If they are disturbed 
repeatedly, they may abandon the area permanently. For example, if 
pinnipeds are disturbed during the reproductive season, they may 
abandon primary pupping habitat. In such cases, disturbance could 
reduce their reproductive success. Similarly, marine mammals may 
abandon primary feeding habitat or change migratory routes, with 
multiple consequences to their health and condition and, ultimately, to 
their ability to survive and reproduce. We have limited ability to 
predict the nature and severity of an animal's response to a particular 
stimulus because it is a function not only of the perturbing activity, 
but also of the animal's perception of the threat posed by that 
activity.
     Masking--Marine mammals use sounds for a variety of 
purposes (e.g., communication, prey detection, navigation). Their 
ability to do so depends on their ability to distinguish useful sounds 
from background or ambient levels of noise. If anthropogenic sound 
levels increase to the point that marine mammals are no longer able to 
make those distinctions, then masking occurs, which may have a variety 
of significant consequences.
     Physiological stress and injury--If sound levels are 
sufficiently intense, they may result in significant physiological 
responses and injury. Such effects may result in stress and may lead to 
more severe consequences if, for example, distressed animals beach 
themselves. Temporary and permanent hearing threshold shifts are 
examples of such stress and injury.
     Death--Postmortem examinations of marine mammals that 
have died from stranding on beaches--for example episodes involving 
beaked whales in the Bahamas and Canary Islands--have revealed trauma 
to the ears of some individual animals. Although it is not yet possible 
to understand fully the sequence of events that led to their deaths, 
some of these strandings have occurred following exposure to certain 
types of anthropogenic sounds introduced into the marine environment.
    Detrimental indirect effects may occur when anthropogenic sounds 
adversely affect elements of marine ecosystems (e.g., prey) upon which 
marine mammals are ecologically dependent. Scientists are just 
beginning to study the potential effects of sound on other marine 
vertebrates and invertebrates, and it is premature to characterize the 
risks to them.
    2. How soon will you determine whether or not you will need to 
charter the group holding the meetings as a federal advisory committee?
    Response: The Commission has worked with the U.S. Institute for 
Environmental Conflict Resolution to procure facilitation services from 
Suzanne Orenstein, Lee Langstaff, and Linda Manning. The team will be 
assessing the situation by interviewing people who represent diverse 
interests on the effects of sound in the ocean on marine mammals. The 
purpose of the assessment is to determine the likelihood of a 
successful policy dialogue and the format that such a dialogue should 
take, assuming we pursue one. The consultants completed their 
assessment in December and the Commission has chartered the advisory 
committee. The Commission will continue to provide Congress with 
periodic updates on the progress being made on the project.
    3. What interest groups will you have participating in these 
workshops or as a member of the advisory committee? Will there be an 
equitable distribution of affected constituencies?
    Response: The Commission is keenly aware of the diverse interests 
among many stakeholders in this process. We have discussed the project 
with more than 80 representatives of various groups. To foster early 
acceptance of the process, the Commission and the Institute invited 
representatives of the oil and gas seismic industry, academic/research 
institutions, environmental groups, and federal agencies (Navy 
operations and research, the Minerals Management Service, the Fish and 
Wildlife Service, and the National Marine Fisheries Service) to advise 
us on the selection of facilitators. Six people not associated with the 
Commission participated in the interviews and advised the Commission 
and Institute about potential facilitators.
    The Commission has balanced representation on the advisory 
committee, as required by the Federal Advisory Committee Act. 
Representatives of the following interests are participating:
     oceanographic research institutions,
     various sectors of the oil and gas industry,
     shipping industry,
     environmental organizations, and
     federal agencies including the National Marine Fisheries 
Service, the Minerals Management Service, the Navy, the Fish and 
Wildlife Service, and the National Science Foundation.
    4. It was reported at the hearing that Canada has altered its 
shipping traffic into the Bay of Fundy and incorporated speed 
reductions in certain areas to help reduce ship strikes of right 
whales. It was mentioned that this was done using the International 
Maritime Organization (IMO) process. Are you familiar with the actions 
taken by Canada? Did they institute these action using national 
legislation or was is done solely through the IMO? Could the U.S. take 
similar actions? Would it require legislation?
    Response: The U.S. Coast Guard serves as the lead agency 
representing the United States at meetings of the IMO and would be the 
most appropriate agency to answer this question. However, the 
Commission is familiar with the Canadian action to shift the designated 
shipping lanes and the process used to do so.
    Action to reconfigure or move a designated shipping lane within the 
jurisdictional area of a nation is done under domestic laws and 
regulations. Canada, like the United States, is a member of the IMO and 
is obligated to ensure that any actions affecting international vessel 
traffic are consistent with regulatory standards and provisions agreed 
to by the IMO. In this case, the Canadian Coast Guard proposed to shift 
an established shipping lane in the Bay of Fundy eastward so as to 
reduce its overlap with known right whale feeding areas. The proposal 
(and the action subsequently implemented), however, did not incorporate 
any speed restrictions. If that was suggested during the hearing, it 
was done so in error. Once the proposed action was agreed to 
domestically, the Canadian Coast Guard, which represents Canada at 
meetings of the IMO, presented it to the IMO to ensure consistency with 
the international measures agreed to by IMO members. Canada's proposal 
was subsequently reviewed by at least two IMO committees--the Marine 
Environment Protection Committee and the Marine Safety Committee--both 
of which approved the action. The U.S. Coast Guard expressed support 
for the action at meetings of both committees when the matter was 
considered. With IMO's approval, the Canadian Coast Guard then 
implemented the measure under its domestic authority and regulations.
    The U.S. Coast Guard has similar authority to designate and change 
shipping lanes under U.S. law (the Ports and Waterways Safety Act), and 
we do not believe that additional legislation would be needed to take 
an action similar that which Canada took. It is somewhat less clear 
whether such an action could be taken under U.S. law in areas outside 
of territorial waters but within the U.S. Exclusive Economic Zone for 
the purpose of protecting right whales in high-use feeding habitats or 
whether moving shipping lanes would be an appropriate action. For 
example, in the Great South Channel off Massachusetts and Rhode Island, 
shipping lanes cross a designated right whale critical habitat. 
Shifting those lanes to avoid the critical habitat would expose ships 
to shoals that would pose a navigational safety problem and is not 
practical. Additional legislation may be needed to provide authority 
for establishing mandatory routing and speed measures, which were not 
part of Canada's action. The National Marine Fisheries Service has, for 
several years, been studying whether to address ship strikes of large 
whales by regulating vessels speeds but to date has not proposed a 
regulatory program to do so.
    Because of the uncertainty concerning what actions can be taken 
under existing law, the Commission is currently supporting an analysis 
by independent legal experts of U.S. and international authorities 
regarding such measures. We expect the analysis to be completed soon 
and will provide a copy to you when it is available.
    5. How do you suggest that we protect, to the greatest extent 
possible, marine mammals from injury in Level A harassment within a 
statutory and regulatory framework?
    Response: The current definition of Level A harassment includes 
activities that have the potential to injure a marine mammal or marine 
mammal stock in the wild. The agencies charged with implementing the 
MMPA believe that this definition is too broad and would include 
activities with any potential to injure a marine mammal, no matter how 
remote. Therefore, in crafting the Administration's proposed 
definition, we sought to exclude potential injuries that are highly 
unlikely to occur. This was done by requiring that there be a 
``significant potential'' for injury. The definition originally 
proposed in H.R. 2693 would have established a higher standard by 
requiring that there be a ``probability'' of injury. As reflected in 
the Commission's testimony, we are concerned that this would be 
interpreted as meaning that injury would be more likely than not to 
occur. As we indicated at the 24 July hearing, this is not a protective 
enough standard. We are pleased that the Committee adopted a more 
inclusive term at mark-up, but continue to believe that defining Level 
A harassment as ``any act that has [any] potential to injure a marine 
mammal...'' is overly broad.
    In crafting the definition that ultimately is adopted, Congress 
should be mindful not only of the definition itself, but how it fits 
within the overall framework of the Act. That is, the definition acts 
as the initial filter for identifying those activities that merit 
greater scrutiny. We believe that when an activity poses more than a 
remote threat of injury (i.e., that there is a significant potential 
for injury), either to individual animals or to marine mammal 
populations, review by the responsible resource agencies during an 
authorization process is warranted. This does not mean that the 
activity cannot go forward. It merely means that agency examination and 
authorization are needed. If, for example, an activity has a 
significant potential of causing incidental injuries, the agency would 
need to determine that, should such an injury occur, it would have a 
negligible impact on the stock. The agency would also consider whether 
mitigation measures could reasonably be taken to reduce the frequency 
or magnitude of any such injuries.
    6. What are some of the factors Congress should consider when 
crafting a final harassment definition?
    Response: A good and usable definition should meet several 
objectives. First and foremost, it should provide sufficient clarity 
such that the regulatory agencies, those whose actions might harass 
marine mammals, and the general public have a common understanding of 
what activities would or would not constitute harassment. There should 
be clear guidance as to when an authorization for taking marine mammals 
is needed and when enforcement actions are warranted.
    An appropriate definition also needs to be sufficiently protective 
of marine mammals. That is, it should be broad enough to include all 
actions that can be expected to adversely affect marine mammals or 
marine mammal populations. At the same time, the definition should not 
be so broad that it places undue burdens on the regulatory agencies and 
the public. It makes no sense to expend agency resources and to require 
someone to obtain an authorization when the expected impact on marine 
mammals is truly de minimis.
    The definition should also provide a mechanism for considering the 
cumulative impacts of activities that may individually have only minor 
impacts on marine mammals but that collectively could have significant 
effects on those animals and on marine mammal populations. For example, 
a flight response of a marine mammal to a passing vessel may be 
relatively benign, but if it happens frequently in response to repeated 
exposures, or in conjunction with other types of disturbance, it could 
significantly alter the animal's behavior in ways that could affect its 
health or survival or that could lead to population-level effects, such 
as changes in distribution patterns.
    Another consideration in crafting a harassment definition is its 
adaptability to a variety of situations. It needs to recognize the 
diversity among marine mammals. For example, the response of a manatee 
to a particular stimulus may be quite different than that of a baleen 
whale, which might vary considerably from the response of a pinniped, 
polar bear, or sea otter. There should also be a recognition that a 
marine mammal's response, and the importance of that response, may vary 
depending on a variety of factors, including age, seasonal behavioral 
patterns, or the activity in which the animal is engaged.
    7. How do we incorporate the level of current scientific knowledge 
about how marine mammals may be injured and at the same time protect 
animals from injuries we have not yet been able to measure?
    Response: Marine mammals may be injured by a variety of human 
activities including, among other things, boat or ship strikes, 
entanglement with actively fishing gear as well as fishing and other 
debris, illegal shooting, exposures to intolerable levels and types of 
anthropogenic sounds, and injuries that occur when pinnipeds are 
disturbed on land and injure themselves in their efforts to escape to 
the sea. Because it is difficult to examine injured animals at sea, the 
full nature and extent of such injuries and their eventual consequences 
are difficult to evaluate. Injuries from shooting, entanglement, and 
propeller strikes may be less difficult to detect because they result 
in consequences that can be observed visually. Blunt-force injuries or 
those that occur as a result of sound may be less easily detectable 
because they are internal. If injuries result in decreased survival or 
reproduction, then they are significant not only for the affected 
animal but also may have significant population-level effects. Although 
research has been conducted to understand the effects of injury on 
individuals and populations, we are still considerably limited in our 
ability to fully and reliably characterize the significance of such 
injuries.
    8. How should scientific research activities with potential impacts 
on marine mammals be treated by the permit process in statute if the 
activity is designed to test the level of harassment that the activity 
causes in certain marine mammal species?
    Response: The Commission believes that well-designed research into 
the effects of various activities on marine mammals can provide 
valuable information that would be useful for implementing the 
provisions of the MMPA. For example, rather than relying on 
extrapolations from tests using sound levels well below those that 
would be used in operating the LFA SURTASS sonar to predict the likely 
effects on marine mammals, the Commission encouraged the Navy to 
conduct additional research to test the reactions of marine mammals to 
the louder source. We also encouraged the Navy to conduct additional 
experiments to test the effectiveness of other sonars in locating 
marine mammals for use as a possible mitigation measure. A permit was 
issued by the National Marine Fisheries Service to authorize this 
additional research but was later enjoined because of problems with 
compliance with the National Environmental Policy Act in issuing the 
permit.
    The Commission believes that additional research into the potential 
effects of various human activities on marine mammals is needed and 
will help us make the determinations required under the MMPA. Currently 
there is no impediment under the Act to authorizing such research 
provided that it is bona fide and, if lethal taking is involved, it 
meets the other requirements of section 104(c)(3). The Commission 
recommends that the availability of such authorizations remain 
unchanged.
    9. What is the difference between ``probability'' and ``potential'' 
in describing the level of concern that would generate a need for an 
incidental take permit under Level A harassment (injury) for a 
particular activity?
     Does the word ``probability'' have a clear and commonly 
understood legal definition? What is the distinction from 
``potential''?
    Response: The word ``probability'' has a common dictionary 
definition as something that is probable--i.e., it is more likely than 
not to occur. The word also has a meaning in a statistical sense to 
mean the likelihood with which something will happen, e.g., there is a 
30 percent chance that it will rain tomorrow. Absent some indication 
that we intend it to mean a lower likelihood in the particular 
instance, however, it is generally interpreted to mean more than a 50 
percent likelihood.
    ``Potential,'' on the other hand, is a much more inclusive term. It 
is generally defined to mean something that is capable of happening, 
even something with a very low probability of occurrence.
    As reflected in our testimony at the July 24 hearing, the 
Commission believes that the probability standard used in the 
definition of Level A harassment establishes too high a threshold for 
defining what constitutes taking by injury. In this regard, the common 
understanding of the term probability, absent any modifier (e.g., a 10 
percent probability 1), is that something is more likely 
than not to happen. When addressing possible injuries to marine mammals 
and marine mammal populations, this is not a very protective standard.
---------------------------------------------------------------------------
    \1\ This value is used for illustrative purposes only. The 
Commission recommends against including any such value, because it goes 
beyond the level of resolution that available science and data can 
provide. For further discussion, see our response to question 3 from 
Congressman Pallone.
---------------------------------------------------------------------------
    10. How should the broader impacts or potential impacts of sound 
(for example ship propellers), that may disturb or disrupt natural 
behaviors of marine mammals, be treated in statute?
    Response: We are just beginning to understand the potential impacts 
of anthropogenic sound in the marine environment. If we are to ensure 
that marine mammals are protected, we must recognize the uncertainties 
associated with such potential effects, carry out research to resolve 
those uncertainties, and manage cautiously to minimize the risk to 
marine mammals while avoiding undue constraints on activities (e.g., 
shipping) that are deemed essential to national needs for security, 
energy, food, and commerce. The effects of human activities must be 
evaluated in the context of all factors that may threaten marine 
mammals (e.g., contaminants, diseases, direct and indirect fisheries 
interactions, coastal development, and habitat loss). Such effects may 
be evident only when viewed over the long term. The single occurrence 
of a ship passing an important marine mammal foraging area may have no 
significant effect on those animals. The establishment of a shipping 
lane through that same area may have significant effects if animals 
eventually abandon the site due to repeated disturbance. Therefore, we 
believe that statutes should recognize the potential for long-term, 
cumulative effects of such sounds, provide for essential research into 
those effects, and provide a cautious management approach that 
recognizes the uncertainties.
    11. How should the range of currently non-permitted activities that 
are directed at marine mammals (i.e., whale watching, swim with dolphin 
programs, or jet ski harassment) be treated by the statutory or 
regulatory process?
    Response: The Commission believes that such activities, if they 
disturb marine mammals, should be prohibited unless specifically 
authorized. In this regard, we believe that the current definition of 
harassment is sufficiently broad to encompass most of the activities of 
concern. Nevertheless, enforcement of the definition as it applies to 
such activities would likely be improved if were more explicit that 
actions directed at marine mammals in the wild that are likely to 
disturb the animals constitutes harassment. Although the Commission has 
recommended that the National Marine Fisheries Service promulgate 
regulations to establish objective criteria for determining when a 
taking by harassment has occurred as one way to address interaction 
problems at specific sites where problems are particularly acute (e.g., 
the dolphin resting bays in Hawaii), a statutory change in the 
definition would provide a clearer and more comprehensive solution.
    The Commission continues to be concerned that activities that 
disturb marine mammals, if not checked, have the significant potential 
to alter marine mammal behavior in detrimental ways and, if persistent, 
can cause marine mammals to abandon important areas used for feeding, 
resting, or other essential activities. The Commission therefore 
recommends that, whatever definition of harassment is ultimately 
adopted, it be sufficiently broad to provide an effective mechanism for 
addressing sources of disturbance targeted at marine mammals. As 
reflected in the Administration's proposed definition of Level B 
harassment, we believe that, for these generally avoidable sources of 
disturbance, enforcement actions should be based simply on the fact 
that the animals were disturbed without requiring an additional showing 
that the disturbance somehow adversely had significant impacts--e.g., 
that it adversely affected the survival or reproduction of the marine 
mammal or marine mammal stock.
    12. In the definition of Level B harassment, does it make sense to 
qualify the activity (i.e. migration, breeding) or the effect 
(biologically significant disruption of behaviors) in Level B 
harassment? Why or why not?
    Response: What we should be striving for is the inclusion in the 
definition of those responses and effects that have some biological 
significance either at the individual or the population level. There 
nevertheless needs to be a recognition that predicting what activities 
will result in biologically significant effects, or even in determining 
whether a particular response is biologically significant, may be 
difficult. Making such determinations when marine mammals are exposed 
to multiple activities that may not individually result in biologically 
significant disruption, but which cumulatively exceed that threshold, 
is likely to be even more difficult. Whatever definition is adopted, it 
needs to be broad enough to include such situations.
    Although less ideal in the theoretical sense, a definition based on 
the disruption of biologically significant activities would likely be 
easier to implement. That is, once these important activities are 
identified, the only determination to make is whether such an activity 
were being disrupted--there would be no value judgment to make as to 
whether or not the disruption were biologically significant. Because of 
this, however, the definition in some cases would likely be overly 
broad by including de minimis disruption of important behaviors.
    13. Which is the more scientifically used term--``biologically 
significant activity'' or ``biologically significant disruption''? 
Should either of these terms be defined in H.R.2693?
    Response: Neither of these phrases are generally used scientific 
terms of art. As a result, there will still be a need for additional 
interpretation, be it in statutory language, regulatory definition, or 
case-by-case implementation. We believe that under most of the 
definitions that have been proposed there is a fair amount of latitude 
in how they might be interpreted. That is, there is no unanimity as to 
what would constitute a biologically significant disruption of a 
particular activity or behavior, or even as to what activities should 
be considered to be biologically significant. Thus, we believe that, 
whatever definition is ultimately adopted, additional guidance 
concerning its implementation and interpretation would be useful. This 
could be provided either through additional statutory definitions or 
through more detailed guidance in the committee reports and other 
legislative history of the provision.
    14. Is it possible to define ``harassment'' and still provide the 
agency flexibility to modify its regulations to respond to new 
scientific information?
    Response: Virtually all of the definitions being debated provide 
some such flexibility. Under the Administration's proposed definition, 
harassment would include those activities with a significant potential 
to injure a marine mammal or marine mammal stock or that is likely to 
disturb a marine mammal or marine mammal stock by causing disruption of 
natural behavior patterns to a point where those patterns are 
significantly altered or abandoned. The interpretation of what 
activities would fit under this definition is subject to change as new 
information is gathered. For example, as we obtained additional 
information to refine our understanding of the intensities and types of 
sounds that pose threats to various taxa of marine mammals, the 
definition would adapt accordingly. Similarly, the regulatory agencies 
would likely alter the way they implement the definition of Level B 
harassment as more is learned about the specific types of activities 
that are likely to cause significant disruption or how various 
activities would cumulatively affect marine mammal behavioral patterns.
    Latitude would also be provided under the other proposed 
definitions as we gained additional insights into the types of 
disruptions that would have significant effects, which behaviors or 
activities are significant to marine mammal survival and well-being, or 
what constitutes a meaningful disruption of a biologically significant 
activity.
    15. Which would you describe--``feeding'' or ``foraging''--as more 
biologically significant in terms of behaviors of marine mammals that 
need protection through the incidental take permitting process?
    Response: The terms ``feeding'' and ``foraging'' are closely 
related and in some cases are used interchangeably. However, we suggest 
that ``foraging'' is the broader term and includes not only the act of 
``feeding'' but associated activities such as transiting to and from 
sites where prey may be found, carrying out of various behaviors 
related to searching for prey (e.g., dive patterns), and an overall 
``foraging'' strategy such as focusing on benthic- or bottom-associated 
prey (as do elephant seals), surface skimming to collect zooplankton 
(as do large baleen whales), and so on.
    The intent of all these behaviors is to achieve the same goal: the 
securing of sufficient energy and nutrition to maintain health and 
promote survival and reproduction. Foraging success may be 
significantly altered not only when feeding is disrupted, but also when 
associated activities (e.g., transiting to and from feeding sites) are 
affected. Because scientists are not yet able to determine the relative 
significance of each element of a foraging strategy, it is difficult to 
say with confidence how much or what kinds of disturbance may be 
tolerated. For that reason, protection of ``foraging-related 
behaviors'' rather than simply ``feeding'' appears to provide greater 
assurance that human activities will not cause disruption of 
biologically significant behavior. At the same time, identifying and 
understanding all behaviors associated with foraging is a more 
difficult task than identification of the act of feeding.
    16. The Administration's definition uses the term ``surfacing'' 
instead of ``breathing,'' which is in the current definition of 
harassment. Why was this change made?
    Response: Although some have equated these terms, they in fact are 
not equivalent. One of the key reasons that marine mammals surface is 
to breathe, but they may surface for a variety of other important 
reasons. The wording change proposed in the Administration bill 
addresses this distinction by using the more inclusive term.
    17. Why did the Administration use the term ``non-commercial'' in 
its amendments to section 118? What types of fishing was this language 
trying to capture?
    Response: While the term ``non-commercial'' captures the thrust of 
the Administration's proposal, the Administration bill does not in fact 
use that term. Rather, it uses the term ``listed fishery'' to mean all 
fisheries that qualify for inclusion in the list of fisheries as 
category I and II and those commercial fisheries listed as category III 
fisheries.
    As reflected in the Administration bill and the testimony presented 
by the Commission and others, there is a need to expand the coverage of 
section 118 to include all fisheries that frequently or occasionally 
take marine mammals. Originally, we had focused on adding recreational 
fisheries to the commercial fisheries currently included under the 
incidental take regime. However, the terms ``commercial'' and 
``recreational'' may not cover the full range of fisheries that may be 
of concern. For example, subsistence fishermen may not fall into either 
category. Thus, the term ``non-commercial'' or its equivalent is needed 
to ensure that all fisheries that result in frequent or occasional 
incidental mortality or serious injuries of marine mammals are covered 
under section 118, regardless of what is done with the catch.
    18. There have been comments about the cumulative effects of 
activities on marine mammals. What is our current state of knowledge on 
cumulative effects? Do we currently have the ability to determine how 
different activities cumulatively affect marine mammals? Is it possible 
for any marine mammal affected by different activities to have time to 
recover from the first effect prior to the second effect happening?
    Response: The well-being of individual marine mammals and marine 
mammal populations is affected by a variety of factors, both natural 
and anthropogenic. Animals that carry large contaminant burdens, for 
example, may be more susceptible to disease. Similarly, animals that 
are subject to competition for prey from fisheries may be required to 
spend more time foraging and therefore may be more vulnerable to 
predation. Considerable progress has been made in recognizing the 
potential for such cumulative effects on marine mammals and, to a 
limited extent, in modeling those effects. Less progress has been made 
in actually describing the relative roles of such factors in wild 
marine mammal populations. Investigating the effects of multiple 
factors may be seriously confounded because it may be difficult to 
assess the significance of individual factors, and those individual 
factors may interact synergistically or antagonistically. Concerted, 
long-term multi-factor research is needed to provide managers with the 
information needed to manage cumulative effects. In the absence of such 
information, scientists and managers are limited largely to educated 
speculation about such effects.
    The extent to which an animal or a population of marine mammals is 
affected by cumulative factors depends on the nature, timing, and 
persistence of those factors and their effects and the nature and 
persistence of the response of individual animals. When such factors 
are relatively short-lived and the response they elicit is 
correspondingly short-lived, it is more likely that affected animals 
will be able to recover from the effects of an initial factor prior to 
being challenged by the effects of a second factor.
    19. How can we manage for cumulative effects when we may not have 
scientific knowledge on how activities actually affect marine mammals? 
If we were to manage based on what we thought were the impacts, 
wouldn't that create havoc with the different industries and scientists 
that may have interactions with marine mammals?
    Response: In the three decades since the passage of the Marine 
Mammal Protection Act, considerable progress has been made in studying 
and conserving marine mammals. That progress includes a stronger 
science-based understanding of their natural history and their 
interactions with human activities. Where such progress has been made, 
it has been facilitated by careful identification of the problems 
affecting their conservation, development of adequate research programs 
to assess those problems and their effects, and implementation of 
management approaches that facilitate further research while minimizing 
risk by avoiding, minimizing, or mitigating the factors that may affect 
them. For example, observations that large numbers of animals were 
being killed incidentally by direct interactions with fisheries led to 
the development of observer and research programs, adjustments in 
fisheries management such as time-area closures and changes in fishing 
practices and gears, and the development of a stock assessment approach 
to put current levels of mortality and injury in perspective. We 
believe a similar approach is needed for addressing the potential 
effects of cumulative factors, i.e., a combination of careful detection 
and description of the problems, research to provide information needed 
to solve the problems, and cautious management to avoid, minimize, or 
mitigate potentially adverse effects.
    There is no doubt that such an approach will require adjustments 
from industries and, on occasion, scientists to ensure that the 
conservation goals of the Marine Mammal Protection Act are met. 
Nonetheless, the approach has been effective in certain specific 
circumstances and is likely to be effective for cumulative effects. 
There are, at present, successful mechanisms for limiting many forms of 
incidental take and for providing permits for research while ensuring 
that such research does not cause unacceptable impacts on marine 
mammals. Over time, we expect such an approach to be more successful if 
the burden of research into potential adverse effects is placed on 
those whose activities may lead to adverse effects. Because successful 
management regimes are in place to address incidental takes and the 
effects of research, we do not expect that management based on 
potential impacts will cause havoc for industries or scientists but 
rather will lead to more proactive, thoughtful research to enhance our 
conservation objectives.
    20. If we apply the precautionary approach to the level that some 
groups have suggested, how will marine mammal researchers be able to 
gather information on marine mammal physiology and the effects of human 
activities (such as sonars) on marine mammals?
    Response: The MMPA, since its inception, has included a moratorium 
on the taking and importation of marine mammals. The moratorium, 
however, is not absolute, and the taking of marine mammals is allowed 
or may be authorized for a variety of purposes. The showings that must 
be made to obtain an authorization to take marine mammals varies 
depending on the activity (and the value Congress has placed on it) and 
the level of risk it poses to marine mammals.
    Permits for purposes of scientific research are issued to 
applicants that demonstrate that the proposed taking is needed to 
further a bona fide scientific purpose. If lethal taking is involved, 
the applicant must demonstrate that a non-lethal method of conducting 
the research is not feasible. And, before lethal taking of a depleted 
marine mammal can be authorized, the applicant needs to demonstrate 
that the results of the research will directly benefit the species or 
stock or will fulfill a critically important research need. The Marine 
Mammal Commission does not believe that these are overly burdensome or 
unreasonable criteria.
    The Commission strongly supports the reasonable application of a 
precautionary approach regarding activities that affect marine mammal 
populations. This is a prudent and fundamental tenet of the Act. The 
Commission does not believe that application of that approach would 
preclude scientists from studying the effects of various activities on 
marine mammals. In fact, good science is critical to improving our 
understanding of how human activities may affect individual marine 
mammals and populations of marine mammals.
    The Commission carefully reviews all permit applications for 
scientific research and incidental harassment authorizations that the 
National Marine Fisheries Service and the Fish and Wildlife Service 
propose to issue. We scrutinize what applicants submit to determine 
whether the proposed research or activities meet the requirements of 
the Act as to its potential to expand knowledge about marine mammals or 
their habitats. The Commission also recommends that scientists 
undertake their research in the most humane ways possible and that 
federal permit-granting agencies coordinate activities of multiple 
researchers to reduce duplication of marine mammal exposure to 
interference.
    It should also be kept in mind that legal challenges to scientific 
research by environmental groups have focused more on whether the 
National Marine Fisheries Service satisfied the requirements of the 
National Environmental Policy Act (NEPA) than on the Marine Mammal 
Protection Act. The two cases that have successfully challenged MMPA 
scientific research permits (one challenging a permit to biopsy killer 
whales in Puget Sound and the other a more recent case challenging 
research associated with LFA sonar) both turned on the adequacy of NEPA 
compliance, rather than on MMPA considerations. In another recent case 
challenging seismic research not involving marine mammals, the 
researchers had not applied for a an incidental harassment 
authorization under the MMPA and had not prepared any NEPA analysis.
    The Commission is aware of no proposals being made that would 
change the MMPA requirements pertaining to permitting scientific 
research. Thus, permits would still be available to scientists seeking 
to conduct bona fide research to gather information on marine mammal 
physiology and on the effects of human activities on marine mammals. 
This could include research that might injure or even kill depleted 
marine mammals (e.g., research to establish the sound levels from 
sonars or other sources that pose physical threats to marine mammals), 
provided that a sufficient case were made as to how this would benefit 
the stock or fulfill a critically important research need.
    21. Should the MMPA be interpreted to protect each and every 
individual marine mammal or to protect marine mammal populations?
    Response: The Marine Mammal Protection Act creates broad 
prohibitions against ``taking'' individual marine mammals or 
congregations of marine mammals. People doing the taking can apply for 
and receive various types of authorizations to engage in specific 
activities that both directly and incidentally take individuals or 
groups of marine mammals.
    The Commission supports the approach currently in the statute. 
Unless you maintain the specific standard of prohibiting all takes, it 
will be virtually impossible to distinguish and codify when numerous 
individual takes will cumulatively add to potentially significant 
impacts on marine mammal populations.
    22. Should the Act be changed to accommodate concerns about 
increasing conflicts between non-endangered marine mammals and humans?
    Response: At the outset, it should be noted that the MMPA currently 
includes a mechanism for authorizing the taking of marine mammals in a 
variety of situations, including the reduction of burgeoning 
populations. The Act provides for waiving the moratorium on taking 
marine mammals if the species or stock is within its optimum 
sustainable population and will not be disadvantaged by the taking, and 
the taking is in accord with sound principles of resource conservation 
and will be consistent with the purposes and policies of the Act. The 
Act even anticipates that one reason for authorizing such taking is the 
overpopulation of a particular species or stock. Before authorizing 
taking for this reason, however, the Secretary is required to consider 
whether it would be more desirable to transplant animals to a location 
historically, but not currently, inhabited by the species or stock.
    It needs to be recognized that culling expanding populations will 
not necessarily solve the identified problems, particularly competition 
for fishery resources. This would be the case if marine mammal 
abundance and prey consumption are not linearly related. That is, 
feeding efficiency of individuals may decline as competition with con-
specifics increases. Thus, reducing a population by 50 percent will not 
necessarily reduce fish consumption by 50 percent. In fact, it may 
reduce consumption only marginally.
    In certain instances, the Commission could support amending the Act 
to provide additional mechanisms to address concerns with respect to 
conflicts between people and healthy marine mammal populations. The 
Commission would want to work with Congress to develop precautions to 
ensure that marine mammal populations remain stable and that federal 
agencies would continue to oversee marine mammal conservation and 
management unless management authority is returned to a state 
government pursuant to section 109. In such instances, the Commission 
would want to ensure that the state program meets similar standards.
    The Commission is pleased that some marine mammal populations have 
responded to protection afforded by the Act and increased to the point 
that they have reached their optimal sustainable population (OSP) level 
as defined in the Act. We believe that OSP would be a better management 
standard than whether a population qualifies for listing under the 
Endangered Species Act as endangered or threatened or has been 
identified as a candidate species.
Questions from The Honorable Frank Pallone, Jr.
Definition of harassment:
    Over the past year, Congress has been presented with several 
different options to re-define the definition of harassment. A new 
definition is being offered in H.R. 2693.
     Please compare the definition proposed in H.R. 2693 and 
discuss whether it compares positively or negatively to other proposed 
definitions.
    Response: Several different definitions of the term harassment have 
been proposed by various interests as the Marine Mammal Protection Act 
is being considered for reauthorization. All of them are based to one 
degree or another on the existing definition and the proposed changes 
suggested by a National Research Council panel that considered issues 
related to marine mammals and ocean noise. They differ primarily in 
four respects--the degree of likelihood that the covered activities 
will injure or disturb a marine mammal or marine mammal stock; the 
types of behaviors or activities that are explicitly covered; whether a 
significance threshold is established before disturbance or disruption 
of those activities would constitute harassment; and whether special 
provision is included to address activities directed at marine mammals. 
With respect to the first element, for example, there is a continuum in 
the proposals running the gamut from activities having any potential 
for disturbance to those that present a probability or likelihood that 
certain types of responses will be evoked, with several intermediate 
standards falling in between. These proposals reflect differing 
perceptions with respect to how inclusive we should be in order to 
protect marine mammals from any sort of disturbance versus how much we 
should seek to disencumber those who engage in activities that might 
have only minor effects on marine mammals from the requirements of the 
MMPA.
    The various definitions that have been considered are, by and 
large, permutations of these four elements. We believe that the 
Administration's proposed redefinition strikes a better balance of 
addressing these considerations than does the definition proposed in 
H.R. 2693.
    As noted in our testimony at the July 24 hearing, there are aspects 
of the harassment definition in H.R. 2693 that we believe may cause 
problems if enacted. For example, for an act to constitute Level A 
harassment under the introduced bill, there must be ``the probability'' 
that a marine mammal or marine mammal stock will be injured. The 
inclusion of this threshold suggests that it must be more likely than 
not that an injury will result from the particular action being 
considered. That is, if there is a 25 percent chance that a marine 
mammal will be injured by exposure to a particular stimulus, a one-time 
exposure would not necessarily be considered harassment, even though 
the risk of injury is substantial. As such, we recommend replacing the 
word ``probability'' in the Level A harassment definition with a more 
inclusive phrase such as ``significant potential,'' as used in the 
Administration's proposal.
    Like the existing definition of Level B harassment and that 
recommended by the Administration, the proposal in H.R. 2693 contains a 
list of behaviors that, if disrupted to the extent specified, would 
constitute harassment. We are concerned, however, that the list of 
specifically identified behaviors in the House bill does not include 
sheltering, which is an element of both the existing definition and the 
Administration's proposal. For example, the resting behavior of spinner 
dolphins in Hawaii in secluded, inshore areas clearly fits within the 
notion of sheltering. It is not as clear that such behavior would be 
encompassed by the terms ``care of young, predator avoidance, or 
defense,'' which are the closest associated terms under the proposed 
harassment definition in H.R. 2693. Further in this regard, we note 
that the terms ``care of young,'' ``predator avoidance,'' and 
``defense'' included in the proposed definition of Level B harassment 
are not very precise terms. Absent clarification, their inclusion in 
the definition may lead to implementation difficulties and, perhaps, 
litigation.
    In addition, as was pointed out at the July 24 hearing, any list of 
specifically identified behaviors in the definition should include 
surfacing or breathing. As reflected in the Administration bill, we 
prefer the term ``surfacing'' over ``breathing'' inasmuch as it is the 
more inclusive term. For unexplained reasons, neither term was included 
in the definitions set forth in H.R. 2693.
    We are also concerned about the ``potential to disturb'' threshold 
set forth in the second clause of the proposed harassment definition. 
The agencies that developed the Administration's proposed definition 
rejected this language as being overly broad, inasmuch as it would 
include even a very remote possibility that disturbance might occur. We 
believe that the standard included in the Administration proposal, 
``disturbs or is likely to disturb,'' provides a more appropriate 
delimitation concerning what activities should be covered under this 
part of the harassment definition.
    The Commission is pleased that the proposed definition in H.R. 2693 
recognizes the value of including a directed taking provision in the 
definition of Level B harassment, as recommended by the Administration. 
Absent this second prong, it would be much more difficult, if not 
impossible, for the regulatory agencies to bring enforcement cases in 
response to activities that traditionally have been considered 
harassment. Even in a case when a marine mammal had been intentionally 
pursued, the government, to prevail, would need to show not only that 
the animal was disturbed by the pursuit, but that the resulting 
disruption was somehow ``biologically significant.'' For example, is 
the disturbance that results from chasing a dolphin along a beach for a 
few hundred yards with a jet ski biologically significant? Arguably 
not. Nevertheless, it should be considered harassment.
    We are concerned, however, about the inclusion of the phase ``is 
likely to impact the individual'' in this second part of the Level B 
harassment definition (clause iii). It raises a possible defense in a 
traditional harassment case that, even though a marine mammal was 
clearly disturbed by the directed activities of the defendant, the 
disturbance somehow did not have any impact on the health or well-being 
of the animal. It may be that the intent of the provision is to include 
all directed activities that are likely to disrupt one of the listed 
marine mammal behaviors. If this is the case, it should be clarified, 
either in the statutory language or the accompanying legislative 
report.
    How will the proposed change to the definition of harassment affect 
scientific research and/or military readiness activities?
    Response: Without additional description of the terms used in the 
proposed definition of harassment, it remains unclear how they will 
affect scientific research, military readiness, or other activities. 
Currently, there is no unanimity as to how the various terms (e.g., 
biologically significant disruption and potential to disturb) would be 
interpreted. Although we can say that some of the activities that are 
considered to constitute harassment under the current definition will 
likely fall outside of the new definition, we cannot predict how 
extensive the differences will be. For example, some may argue that the 
testing of low-frequency sonar by the Navy would no longer be 
considered to be harassment while others are likely to argue that it 
would be under the definition included in H.R. 2693. Similarly, without 
additional guidance, either in the statutory provision itself, in 
report language or other legislative history, or through agency 
regulations and policy statements, it is difficult at this stage to 
predict exactly how the proposed changes in the definition would affect 
research activities.
    A further confounding issue is how cumulative impacts would be 
addressed under the any of the proposed definitions that have been put 
forward. Under the definition proposed in the House bill, for example, 
it is unclear how activities that individually would not be considered 
to cause biologically significant disruption but that collectively 
could have significant impacts would be treated. Would each activity be 
considered to constitute harassment? Would none? Or would only those 
activities beyond the critical point where the disruption becomes 
significant be considered harassment, and if so, how would that point 
be ascertained? The answers to these questions likely would profoundly 
affect what is and is not considered to be harassment.
     Are there specific activities that might fall outside 
this definition?
    Response: Although there no doubt are some such activities, we are 
unable to identify them with any certainty because of the ambiguities 
inherent in all of the definitions currently under consideration. For 
example, some have suggested that a pinniped turning its head, of even 
fleeing into the water temporarily from its haul-out site, in response 
to a passing boat would fall outside of the definition. However, if 
that boat were only one of many that passed the location prompting such 
a response, they could cumulatively cause significant disruptions, even 
causing the animal to abandon preferred habitat.
    The definition for Level A (potential to injure) harassment 
proposed in H.R. 2693 requires that an activity have ``the probability 
to injure'' a marine mammal. It seems to me that this change would 
require a higher burden of proof for a given activity's likelihood of 
causing harm.
     Do you feel that this change would make the definition of 
harassment less protective of marine mammals?
    Response: Yes. As reflected in our testimony at the July 24 
hearing, the Commission believes that the probability standard used in 
the definition of Level A harassment establishes too high of a 
threshold for defining what constitutes taking by injury. In this 
regard, the common understanding of the term ``probability,'' absent 
any modifier (e.g., a 10 percent probability), is that something is 
more likely than not to happen. When addressing possible injuries to 
marine mammals and marine mammal populations, this is not a very 
protective standard.
     Does the word ``probability'' have a clear and commonly 
understood legal definition? What is the distinction from 
``potential''?
    Response: The word ``probability'' has a common dictionary 
definition as something that is probable--i.e., it is more likely than 
not to occur. The word also has a meaning in a statistical sense to 
mean the likelihood with which something will happen, e.g., there is a 
30 percent chance that it will rain tomorrow. Absent some indication 
that we intend it to mean a lower likelihood in the particular 
instance, however, it is generally interpreted to mean more than a 50 
percent likelihood.
    ``Potential,'' on the other hand, is a much more inclusive term. It 
is generally defined to mean something that is capable of happening, 
even something with a very low probability of occurrence.
    As noted above, there is a continuum of terms that could be used to 
describe the level of certainty that is being incorporated into the 
harassment definition. A possible progression from most inclusive to 
that requiring the highest level of probability would be as follows: 
possible, potential, significant potential, plausible, probable/likely, 
highly likely, certain. We believe that using the terms on the extreme 
ends would result in a definition that is either overly inclusive or 
too restrictive.
     Would the addition of a modifier that explains the 
relative probability of injury (such as 20%, 50%, 90%) be helpful in 
clarifying the intent of the word ``probability''?
    Response: As discussed above, the common understanding of the word 
``probability'' absent any such modifier is that something is more 
likely than not to occur. Such a standard, in the Commission's view, is 
not protective enough, particularly when we are addressing injuries to 
marine mammals and marine mammal populations. This being the case, it 
would help to clarify the intent of Congress if more specific guidance 
concerning the degree of probability were included in the definition. 
Nevertheless, we recommend against including a specific numerical 
standard in the statute itself. It would create a level of specificity 
that, at least in some cases, would likely be beyond the resolution 
that available science and data could provide. Thus, in all but the 
most clear-cut cases, litigation could result as to whether the 
probability were above or below the statutory threshold. Recognizing 
the limitations of available science, a qualitative, rather than a 
quantitative, standard would be preferable. We continue to believe, 
however, that there needs to be clear guidance and general 
understanding as to how such a qualitative standard is to be 
interpreted and implemented.
    The proposed change to the definition of Level B harassment would 
require that an activity cause a ``biologically significant 
disruption'' of activities including, but not limited to, migration, 
breeding, care of young, predator avoidance, defense, or feeding. In 
contrast, the definition proposed earlier by the NRC would require that 
an activity cause a ``disruption to biologically significant'' 
activities.
     Is this inversion of words important? Why?
    Response: Clearly, the inversion of these words is important. What 
we should be striving for is the inclusion in the definition of those 
responses and effects that have some biological significance, either at 
the individual or population level. There nevertheless needs to be a 
recognition that predicting what activities will result in biologically 
significant effects, or even in determining whether a particular 
response is biologically significant, may be difficult. Making such 
determinations when marine mammals are exposed to multiple activities 
that may not individually result in biologically significant 
disruption, but which cumulatively exceed that threshold, will likely 
be even more difficult. The definition needs to be broad enough to 
include such situations.
    While less ideal in the theoretical sense, a definition based on 
the disruption of biologically significant activities would likely be 
easier to implement. That is, once these important activities are 
identified, the only determination to make is whether such an activity 
were being disrupted--there would be no value judgment to make as to 
whether or not the disruption were biologically significant. Because of 
this, however, the definition in some cases is likely to be overly 
broad by including de minimis disruption of important behaviors.
    It seems to me that it would be easier to define a disruption to a 
biologically significant activity than it would be to determine what 
constitutes a biologically significant disruption to that activity.
     If this is true, would the proposed change in the 
definition make it less protective of marine mammals?
    Response: As discussed above, it likely would be easier to identify 
a disruption of a biologically significant activity than to determine 
what constitutes a biologically significant disruption. This does not 
necessarily make the definition more protective, however. This would 
depend on what behaviors were identified as being biologically 
significant and on how biologically significant disruptions were 
defined and identified.
    How would the change in the definition of Level B (potential to 
injure) harassment affect scientific permitting?
    Response: Under either the Administration's proposed definition or 
the one included in H.R. 2693, there should be few, if any, changes 
with respect to scientific research permits issued under section 
104(c)(3) of the MMPA. Although certain activities may no longer fit 
within the first prong of the proposed Level B definitions, which has a 
significance threshold, they would continue to be covered under the 
second, directed activities prong. Research that involves taking only 
by Level B harassment would continue to be covered under the 
streamlined procedures of the general authorization established under 
the 1994 amendments. Researchers would still be required to demonstrate 
that their activities constituted bona fide scientific research. 
Activities directed at marine mammals listed as endangered or 
threatened, even if they would result only in taking by Level B 
harassment, would remain subject to the full permit requirements of the 
Endangered Species Act.
    Activities that have potential to injure (or, under the 
Administration's proposal, a significant potential to injure) would 
constitute Level A harassment and would remain subject to the full 
permitting requirements of the MMPA.
    Other types of research (e.g., seismic surveys) not directed at 
marine mammals but that might incidentally take marine mammals by Level 
B harassment would require an incidental taking authorization under 
section 101(a)(5) of the Act. It is possible that some activities that 
currently require such an authorization would no longer be considered 
harassment under the new definition and hence would not require an 
authorization.
    Are there activities, such as ``sheltering'' or ``resting,'' that 
are missing from the list of ``migration, breeding, care of young, 
etc.''? If so, which behaviors are missing and why are they important 
to explicitly mention in the proposed definition?
    Response: There are two significant omissions from the list of 
activities specifically identified in the definition of Level B 
harassment included in H.R. 2693. The first one is ``sheltering.'' 
Although sheltering may be important for predator avoidance or care of 
young, which are included activities under the introduced bill, it also 
has other facets, such as resting. Absent the opportunity to rest in 
these areas undisturbed, the animals may abandon certain locations or 
may be adversely affected through increased stress levels.
    The second omission is ``surfacing,'' which the Administration bill 
uses as a more inclusive substitute for ``breathing'' (the most closely 
associated term included under the existing definition). Obviously, the 
ability of marine mammals to surface when and where necessary to 
breathe, associate with conspecifics, etc., is important to their 
health and well-being.
    Would this revised definition still allow for the consideration of 
the cumulative negative impact on an individual or population of marine 
mammals?
    Response: As discussed in the response to question 2, it remains 
unclear how cumulative impacts would be treated under the proposed 
harassment definitions. From the Commission's perspective, it is 
critical that the definition and/or its legislative history not only 
clearly indicate that the cumulative impacts of various activities will 
be factored into determining what constitutes harassment but also 
provide direction as to how such determinations should be made. For 
example, will each activity that contributes to what cumulatively 
results in significant disruption of important activities be considered 
harassment? If not, clear guidance needs to be provided as to which 
activities would be considered harassment and which ones would not, and 
how those distinctions would be drawn.
    If the consideration of small numbers and geographic area were to 
be eliminated, how would this affect the ability to determine the 
potential negative impact for an activity?
    Response: The key finding for issuing an incidental taking 
authorization under section 101(a)(5) of the MMPA is whether the taking 
will have a negligible impact on the affected species and stocks. This 
would not change under the proposed amendments. Although it is true 
that the ``small numbers'' and ``specified geographic region'' 
requirements provide additional mechanisms for helping to ensure that 
the scope of an activity is limited, and therefore more likely to have 
only negligible effects, this should not be necessary, provided that 
findings of negligibility are well justified in other contexts.
    Has NOAA Fisheries or USFWS contemplated regulating truly 
incidental activities that have little if any direct effect on marine 
mammals, such as boat wakes?
    Response: The Commission is unaware of any plans by either the NMFS 
or the FWS to regulate or prosecute those whose activities have only de 
minimis incidental effects on marine mammals. This would not be a wise 
use of limited agency resources. Nevertheless, as discussed elsewhere, 
there may be instances when seemingly trivial or benign types of 
disturbance may be so ubiquitous that they merit greater concern.
Permitting for Scientific Research:
    It is clear to me from the testimony that we have heard today that 
the permitting process for scientific research is still problematic for 
many scientists, but I am still not clear on the root cause of the 
problem.
     Is the permitting process severely limited by a lack of 
resources and staff?
    Response: Lack of resources and staff likely contribute to some 
permit processing delays. Other factors also may be involved, such as 
the submission of an incomplete application or a poorly described or 
inadequately justified research proposal. More often, difficulties 
encountered with the issuance of scientific research permits stems not 
from the requirements of the MMPA but from those of related statutes 
such as NEPA and the Endangered Species Act. Making the additional 
assessments under the Endangered Species Act, conducting section 7 
consultations, and preparing environmental impact statements or 
assessments no doubt slow down the process in certain instances.
     Would the development of a classification system 
identifying specific activities and their associated risk to marine 
mammals be a more useful approach to expedite consideration of 
different types of activities on a more programmatic basis?
    Response: The 1994 amendments to the Marine Mammal Protection Act 
added a general authorization, with streamlined procedures, for 
scientific research involving taking only by Level B harassment. Thus, 
one form of classification system currently exists. The general 
authorization could be expanded to include other categories of 
research, or separate authorization systems for certain categories of 
activities could be designed. Using the general authorization as a 
template, the applicant would still be required to demonstrate that the 
proposed activities constituted bona fide research. Thus, case-by-case 
consideration would be necessary. Also, if taking by other than Level B 
harassment would be involved (i.e., if there is the potential to injure 
or kill animals, or animals will be captured) greater scrutiny, 
including an opportunity for public review and comment, would probably 
be warranted.
    As noted above, some of the delay involved in processing scientific 
research permits is attributable to the requirements of other statutes 
such as the National Environmental Policy Act. Therefore, an additional 
streamlining measure that could be taken would be the preparation of 
programmatic analyses to meet the requirements of NEPA to identify 
activities that would have no significant impacts or from which 
individual environmental assessments could be tiered.
    If endangered or threatened species will be taken, additional time 
may be needed to comply with the requirements of the Endangered Species 
Act. Heightened scrutiny is probably warranted when invasive research 
is being conducted on such species. However, there may be ways to 
streamline the authorization process, akin to the general authorization 
under the MMPA, when only low-level impacts are expected. This would 
require a statutory change.
Take Reduction Teams:
    1. A new World Wildlife Fund study released in June conducted by 
American and Scottish biologists suggests that accidental capture or 
``bycatch'' by the fishing industry may be the biggest immediate threat 
the survival of some marine mammals, especially large whales. This 
study analyzed bycatch mortality affecting 125 marine mammal 
populations over the period of 1990-1999. The study estimates that 1000 
whales, dolphins, and porpoises drown every day. Annually, 
approximately 308,000 marine mammals die unintentionally.
     In light of this information, what conclusions can be 
drawn about the effectiveness of the Section 118 take reduction team 
process?
     Should specific types of fishing gear be permanently 
retired due to their associated level of bycatch?
     Should a robust program be established to dedicate 
adequate resources and technical assistance to promote ``marine mammal 
safe'' fishing gear?
    Response: The section 118 take reduction team process has been 
effective for addressing fisheries bycatch of marine mammals in U.S. 
waters. The study described pertained to fisheries worldwide. Although 
large numbers of marine mammals have died incidentally in U.S. 
fisheries, corrective actions have been taken that have effectively 
reduced the number of animals killed or seriously injured. At present, 
there are relatively few marine mammal populations in U.S. waters for 
which incidental mortality and serious injury exceed potential 
biological removal levels. Six take reduction teams have been convened 
to address remaining problems. The degree of success achieved by these 
teams has varied, but the process provides a useful means of bringing 
together representatives of all stakeholder groups. At present, we 
believe that U.S. efforts to reduce marine mammal bycatch have been 
generally successful. Although refinements in the management process 
are still needed, the take reduction team process should remain an 
important element of that process.
    The study described indicated that the vast majority of marine 
mammals killed incidentally in fisheries are captured in gillnets. 
There is no doubt that gillnets are problematic in that they are non-
specific with regard to their catch. This indicates that efforts are 
needed to modify them or the manner in which they are used if efforts 
to reduce bycatch are to be successful. In the past, other gear types 
also have resulted in large numbers of marine mammal deaths, but those 
gear types and the manner in which they are deployed have been 
successfully modified to reduce take levels. Similar efforts are needed 
for gillnets.
Zero Mortality Rate Goal:
    Robert Zuanich testified that the marine mammals hold a loftier 
status than all other animals in the ocean. Wasn't this at least, in 
part, the goal of the protective approach of the MMPA?
    The ZMRG codifies this placement of marine mammals in the ocean by 
stating that anything above a zero rate mortality and injury rate is 
unacceptable. Although clearly intractable, this principle sets a high 
bar and a principle for how humans interact with marine mammals.
     Can you comment on whether the zero mortality rate goal 
should be retained? What is its relation to the precautionary 
philosophy of the MMPA?
    Response: The MMPA recognized that--``marine mammals have proven 
themselves to be resources of great international significance, 
esthetic and recreational as well as economic, and it is the sense of 
Congress that they should be protected and encouraged to develop to the 
greatest extent feasible commensurate with sound policies of resource 
management and that the primary objective of their management should be 
to maintain the health and stability of the marine ecosystem. Whenever 
consistent with this primary objective, it should be the goal to obtain 
an optimum sustainable population keeping in mind the carrying capacity 
of the habitat.''
    Therefore, the primary objective of the Act is to ``maintain the 
health and stability of the marine ecosystem,'' which is composed of 
multiple forms of marine life. Only when consistent with this objective 
are marine mammals to be maintained at optimum population levels. Even 
then, it needs to be recognized that the optimum level for each stock 
is defined as a range from its maximum net productivity level to the 
carrying capacity of its ecosystem. Thus, the goal with respect to 
marine mammals is to maintain stocks at ``healthy'' levels, not 
necessarily maximal levels. As such, it is not clear that marine 
mammals are given a ``loftier'' status than other forms of marine life.
    Nevertheless, the zero mortality rate goal set a relatively high 
standard with regard to the reduction of marine mammal mortality and 
serious injury incidental to commercial fisheries. (It is not 
applicable to other types of taking or to taking in other contexts.) We 
believe, however, that, because it is described as a ``goal'' of the 
Act and because the requirement is to approach this goal, there is a 
recognition that this standard may not be possible to achieve in all 
cases. That achieving this goal is not absolute is reflected in the 
take reduction plan requirements of section 118 of the MMPA. While the 
long-term goal of such plans is to reduce incidental mortality and 
serious injury to insignificant levels approaching a zero mortality and 
serious injury rate, the plans are also to take into account the 
economics of the involved fisheries and the technological limitations 
for achieving the goal. Viewed in this way, the zero mortality rate 
goal is not intractable but simply requires continued vigilance to 
reduce mortality and serious injury to the greatest extent possible, 
keeping in mind competing economic and technological factors. When 
viewed in this light, we believe that a more appropriate 
characterization of the rationale behind the ZMRG is a belief that, 
even when removals from a stock incidental to commercial fishing 
operations can be tolerated at the population level, everything that 
reasonably can be done to reduce the mortality and serious injury of 
individual marine mammals should be done.
    The zero mortality rate goal is consistent with a precautionary 
approach to the extent that it provides a level of insurance against 
unknown sources of human-related mortality and serious injury. 
Management of marine mammals requires judgments about their status and 
tolerance for human-related mortality. Some of these judgments will 
underestimate the significance of human-related mortality and, under 
such circumstances, successful efforts to approach a zero mortality and 
serious injury rate will provide a buffer against adverse levels of 
impact. In that sense, the admonition to approach a zero mortality and 
serious injury rate is consistent with and fosters a precautionary 
approach to marine mammal management.
Threats to Marine Mammals:
    1. There seem to be many emerging threats to marine mammals that 
were not considered 25 years ago when the original act was written.
     Do you think it would be helpful for the Marine Mammal 
Commission to report on the magnitude of emerging and existing threats 
to marine mammals?
     Is it practical to believe that we can address these 
threats, and if so, what threats should be priorities for action?
     This might include identifying data gaps, coming up with 
research plans and evaluating the health of marine mammal stocks in the 
wild as relates to other environmental parameters.
     Would such an undertaking be within the scope and purview 
of the MMC?
    Response: In its testimony before various Congressional committees 
over the past few years, the Marine Mammal Commission has noted the 
importance of a proactive, anticipatory approach to research and 
conservation of living marine resources, including marine mammals. By 
using such an approach, managers can not only reach more effective 
conservation decisions that balance the needs of people with protection 
of resources, but can also make cost-effective decisions before the 
onset of crises or litigation. Therefore, with Congressional support, 
the Commission organized and held a consultation entitled ``Future 
Directions in Marine Mammal Research'' on 4-7 August 2003 in Portland, 
Oregon. The consultation involved 54 scientists and other experts from 
six countries, who were charged with the following tasks:
     review the status and trends of various anthropogenic and 
natural threats to marine mammals;
     articulate comprehensive research recommendations to 
further our understanding of such threats and methods to mitigate them; 
and
     encourage new, creative, interdisciplinary approaches for 
resolving current and future issues related to conservation of marine 
mammals and their environment.
    To facilitate discussions at the consultation, the Commission 
contracted for several background documents that would summarize the 
status of important ongoing or future-oriented issues that could 
compromise effective conservation of marine mammals. The issues 
considered by the documents and the participants included, but were not 
limited to the following:
     infectious diseases,
     underwater sound levels and types,
     chemical contamination,
     harmful algal blooms,
     dead (anoxic/hypoxic) zones,
     effects of expanding populations of some pinnipeds,
     bycatch, depredation and other direct interactions with 
fisheries,
     indirect effects (e.g., competition) with fisheries,
     habitat transformation,
     environmental change,
     effects of human population growth,
     how to define appropriate conservation units in the face 
of scientific uncertainty, and
     how to better develop regulatory standards and decision 
rules for management.
    We expect to have the initial report of the consultation ready 
shortly. This will be followed with a more detailed report, which we 
plan to have available a few months later. In addition, we are 
exploring ways to publish a peer-reviewed version of the background 
documents prepared for the consultation. Such a publication is 
anticipated in a year or two.
    The Commission appreciates the support of Congress as it endeavors 
to take this and other proactive steps to facilitate marine mammal 
conservation. Participants at the future directions meeting viewed the 
consultation to be a great success. The Commission is anxious to 
provide a summary to Congress soon.
     Has the MMC ever investigated the growing incidence of 
ship strikes? Would the MMC support a mandate to convene a panel to 
recommend steps to reduce ship strikes and report to Congress in 2 
years?
    Response: In 1999 the Commission asked a member of its staff to 
organize and carry out a review aimed at compiling and evaluating 
available information on collisions between ships and whales. The 
result was a paper published in early January 2001 (attached) in Marine 
Mammal Science. To date, this is the most comprehensive summary and 
evaluation of information available on the subject.
    At present we do not believe that convening a panel to recommend 
steps to reduce ship strikes is necessary. By far the most pressing 
need with regard to this issue concerns collisions with North Atlantic 
right whales. A report putting forth recommendations to mitigate 
collisions with right whales was completed in the late summer of 2001 
and provided to the National Marine Fisheries Service at that time. The 
report, entitled ``Recommended Measures to Reduce Ship Strikes of North 
Atlantic Right Whales'' by Bruce Russell, was prepared under the 
auspices of two regional right whale recovery plan implementation teams 
with funding provided largely by the National Marine Fisheries Service 
and the International Fund for Animal Welfare with some seed money 
provided by the Marine Mammal Commission. In our view, that report 
provides a good set of recommended actions and solid basis for 
developing regulatory and non-regulatory management actions. We do not 
believe a panel would be necessary at this time to review those 
recommendations or develop a new set recommendations. The National 
Marine Fisheries Service has been developing a proposed management 
program based on that report. What is most important now is for the 
Service to move ahead expeditiously with the process of developing and 
implementing those actions.
     Should there be a similar directed program on ocean noise 
that would be mandated under the MMC or another program such as the 
National Oceanographic Partnership Program?
    Response: In response to a congressional directive to the 
Commission enacted in March 2003, the Commission is organizing a series 
of meetings to bring together representatives of the environmental 
community, ocean industries that produce sound in the marine 
environment, the academic community, and key federal management 
agencies to review and identify priority research and management needs 
bearing on the effects of anthropogenic sound on marine mammals. The 
Commission has recently completed the process for contracting with a 
professional facilitation team to convene those meetings, and we expect 
the first of three or four meetings to be held early in 2004. As 
research priorities are examined during the course of this policy 
dialogue, we expect that the need for developing a directed program on 
ocean noise will be considered. At this time, the Commission has not 
formed an opinion on how best to proceed with regard to such a directed 
program. We believe it would be appropriate to await results of the 
impending policy dialogue before making recommendations on such an 
important issue.
Captive Animal Welfare:
    The 1994 changes to the Marine Mammal Protection Act gave APHIS the 
authority for captive marine mammal welfare inspections.
     Has APHIS demonstrated requisite expertise and ability to 
inspect and oversee marine mammals in captivity?
    Response: APHIS inspections are conducted by veterinarians on a 
regional basis. These inspections cover a broad range of facilities and 
species. As such, many of the inspectors, although trained 
veterinarians, are not marine mammal specialists. Because marine 
mammals are unlike the other animals covered under the Animal Welfare 
Act, all of which are terrestrial animals, the Marine Mammal Commission 
in 1995 recommended that APHIS develop a core group of veterinarians, 
with specialized training, to conduct all inspections of marine mammal 
facilities. APHIS declined to adopt this recommendation, opting instead 
to hold periodic training sessions to familiarize its general corps of 
inspectors with legislation, regulations, and issues specific to marine 
mammals. While this is an improvement, APHIS does not employ marine 
mammal specialists to inspect marine mammal facilities.
    Marine mammal specialists are important when the applicable 
standards are imprecise, requiring the inspector to judge the health, 
comfort, and well-being of the animals. For example, under the 
applicable standards, there is no clear-cut demarcation of what 
constitutes the acceptable temperature ranges for maintaining the 
various species of marine mammals. Rather, the standards require only 
that air and water temperatures be maintained within a range that does 
not adversely affect a marine mammal's health or comfort. Without 
specialized knowledge about the life histories of marine mammals, 
possible signs of compromised health or discomfort, or the literature 
related to the veterinary medicine and husbandry of marine mammals, an 
inspector may not be well situated make these and other similar 
determinations. The problems with having such subjective standards are 
highlighted by the recent events surrounding the maintenance of polar 
bears at a facility in Puerto Rico, a situation in which there were 
decidedly different views on the health status of the animals and the 
stress placed on them by exposure to temperatures well in excess of 
those normally encountered by the species.
     How many inspectors does APHIS deploy to inspect display 
facilities?
    Response: The Commission understands that APHIS has 100 field 
inspector positions and is planning to add several more in the coming 
fiscal year. We also understand that, in addition to its field 
inspectors, APHIS has additional staff, including nine supervisory 
animal care specialists, at its regional offices and headquarters.
     To your knowledge, has APHIS promulgated marine mammal-
specific care standards for captive marine mammals? And have such 
standards been provided to the public?
    Response: APHIS established standards for the humane handling, 
care, treatment, and transportation of marine mammals under the Animal 
Welfare Act in 1979. These are codified at 9 C.F.R. Sec. 3.100 et seq. 
As such, the standards are available to the public. Although the 
standards were amended slightly in the mid-1980s, they have not been 
comprehensively revised to reflect advances in veterinary science and 
animal husbandry in the past 25 years. For this reason, the Marine 
Mammal Commission, beginning in 1990, recommended that APHIS along with 
the National Marine Fisheries Service, the Fish and Wildlife Service, 
and the Commission work cooperatively to review and update the 
standards. Ultimately, APHIS decided to revise the standards using 
negotiated rulemaking. A final rule amending certain portions of the 
marine mammal standards was published in 2001. However, only the less 
contentious portions of the standards were revised. APHIS decided to 
consider amendments to the remaining parts using traditional notice and 
comment procedures. APHIS originally indicated that it would publish a 
proposed rule by mid-2000. Instead, however, APHIS published an advance 
notice of proposed rulemaking in 2002, soliciting additional input on 
the remaining parts, including (1) whether maximum temperature ranges 
for air and water should be established for each species; (2) whether 
noise thresholds should be established for each species; (3) what 
criteria should be considered when determining space requirements for 
each species; (4) whether the average adult lengths used to determine 
space requirements under the existing regulations should be revised; 
(5) whether minimum water depths should be established for each 
species; (6) whether minimum width or longest straight line swimming 
distance is more important; (7) whether there are other interactive 
activities not identified by the Service in its notice; and (8) how 
interactive activities should be regulated. Thus, although there has 
been some progress, it has been 13 years since APHIS initially 
committed to updating its marine mammal standards, and we have yet to 
see a proposed rule to amend the most important sections.
     Is there any oversight or reporting requirements for 
APHIS in the discharge of this responsibility? Should APHIS be required 
to report annually to Congress?
    Response: Up until December 1999, when the Federal Reports 
Elimination and Sunset Act of 1995 took effect, APHIS was required to 
submit an annual report on its activities under the Animal Welfare Act 
concerning all animals (the report is not specific to marine mammals) 
regulated under the Act. Specifically, the Act required that ``[n]ot 
later than March of each year, the Secretary [of Agriculture] shall 
submit to the President of the Senate and the Speaker of the House of 
Representatives a comprehensive and detailed written report with 
respect to--(1) the identification of all research facilities, 
exhibitors, and other persons and establishments licensed by the 
Secretary under section 3 and section 12 of this Act; (2) the nature 
and place of all investigations and inspections conducted by the 
Secretary under section 16 of this Act, and all reports received by the 
Secretary under section 13 of this Act; (3) recommendations for 
legislation to improve the administration of this Act or any provision 
thereof; and (4) recommendations and conclusions concerning the 
aircraft environment as it relates to the carriage of live animals in 
air transportation.'' The Commission understands that APHIS is 
currently exploring different mechanisms for continuing to provide such 
information to Congress, stakeholders, and the public.
    With enactment of the 1994 MMPA amendments, responsibility for 
virtually all matters related to the care and maintenance of marine 
mammals was placed under the sole jurisdiction of APHIS under the 
Animal Welfare Act. This vests primary oversight for such matters in 
Congress to the Agriculture committees, which may not have much 
expertise or focus on marine mammal issues. Thus, the Commission 
believes that it is important for the committees with primary 
jurisdiction for marine mammal issues to continue to monitor actions 
taken under the Animal Welfare Act as they relate to this specialized 
group of animals.
     The public display community has complained that NOAA 
Fisheries deliberately misinterpreted the intent of Congress in 1994 in 
its promulgation of regulations regarding permits allowing the 
transport and exchange of captive marine mammals.
     Is this complaint valid?
    Response: Although the Marine Mammal Commission did not agree with 
much of the discussion in the proposed rule regarding exports of marine 
mammals for purposes of public display, we do not believe that the NMFS 
``deliberately misinterpreted'' the intent of Congress in passing the 
1994 amendments to the MMPA. In this regard, several of the provisions 
of section 104 of the Act that pertain to exports are unclear, and some 
are internally inconsistent. A full discussion of these provisions, the 
possible interpretations, and the Commission's recommended 
reconciliation of conflicting provisions are provided in the discussion 
on pages 2 through 8 of the Commission's 3 April 2002 letter (attached) 
commenting on the Service's public display rule.
    We also call your attention to the observation made by the 
Commission on page 8 of that letter suggesting that other schemes for 
authorizing exports of marine mammals to foreign facilities may be more 
workable than the current one and the recommendation that the Service 
work with the interested parties to design a system that (1) achieves 
the goal of providing reasonable assurance that marine mammals exported 
from the United States will be well cared for throughout the duration 
of their maintenance in captivity, (2) more realistically reflects the 
ability of the Service and other U.S. agencies to identify and correct 
problems at foreign facilities, and (3) does not establish unnecessary 
barriers to the exchange of marine mammals among qualified facilities.
Captive release prohibition:
    H.R. 2693 includes a prohibition on releasing captive marine 
mammals into the wild.
     Considering the very limited space available to care for 
stranded marine mammals, could such a change create a situation where 
animals are held in captivity permanently regardless of their health 
and survival?
    Response: No. The captive release provision included as section 502 
of the Administration bill is not absolute. For example, it would not 
apply to rescued and rehabilitated marine mammals captured and 
maintained under the authority of section 109(h) of the Act. It would 
only apply to the release of long-term captive marine mammals, which 
present special problems associated with their ability to adapt 
successfully to life in the wild and pose possible threats to wild 
populations. Thus, it is only those rehabilitated marine mammals that 
do not meet the release criteria developed by the NMFS that would not 
qualify for release.
    As for marine mammals being maintained in captivity under other 
authorities (e.g., a public display permit), release would still be 
possible. It would, however, require authorization under a scientific 
research or species enhancement permit that presumably would be 
conditioned to ensure that the animal had been properly prepared for 
return to the wild and that monitoring would be adequate to track the 
fate of the animal.
     Would this provision affect NOAA Fisheries' release of 
the five pilot whales that were stranded on April 18, 2003?
    Response: The provision would not be applicable to the five pilot 
whales, which were rescued and recently released under the authority of 
section 109(h).
     Does this provision require a US, citizen to apply for a 
NOAA Fisheries permit to release a marine mammal in other countries' 
EEZ (would this apply to Keiko's release in Norway)?
    Response: Although not explicit on the face of the proposed 
amendment, applicable law provides that, absent some specific 
indication of Congressional intent to the contrary, U.S. statutes are 
not given extraterritorial applicability. Thus, there is no reason to 
believe that, unless Congress provides otherwise, this prohibition 
would be applicable to the release of marine mammals outside of waters 
subject to U.S. jurisdiction. This being said, the situation with 
respect to Keiko is more complicated. Keiko was imported into the 
United States and maintained in captivity under a U.S. public display 
permit. That permit required that, before release of the animal to the 
wild could be attempted, a scientific research permit governing the 
release had to be obtained. This permit was issued prior to enactment 
of the 1994 MMPA amendments, which made several changes to the Act's 
permit provisions. It is unclear whether the permit conditions 
concerning the release of Keiko remain applicable in light of those 
amendments and the subsequent export of the whale to Iceland and 
Norway. If they remain in force, the facility maintaining Keiko may 
have a continuing obligation to obtain a scientific research permit 
authorizing the release irrespective of the proposed captive release 
prohibition.

                                   - 
