[Senate Hearing 108-981]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-981

 
                      FUTURE OF THE MARINE MAMMAL 
                         PROTECTION ACT (MMPA)

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

                                HEARING

                               before the

           SUBCOMMITTEE ON OCEANS, FISHERIES, AND COAST GUARD

                                 of the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 16, 2003

                               __________

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

                                 ______

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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South 
CONRAD BURNS, Montana                    Carolina, Ranking
TRENT LOTT, Mississippi              DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas          JOHN D. ROCKEFELLER IV, West 
OLYMPIA J. SNOWE, Maine                  Virginia
SAM BROWNBACK, Kansas                JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon              JOHN B. BREAUX, Louisiana
PETER G. FITZGERALD, Illinois        BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada                  RON WYDEN, Oregon
GEORGE ALLEN, Virginia               BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire        BILL NELSON, Florida
                                     MARIA CANTWELL, Washington
                                     FRANK R. LAUTENBERG, New Jersey
      Jeanne Bumpus, Republican Staff Director and General Counsel
             Robert W. Chamberlin, Republican Chief Counsel
      Kevin D. Kayes, Democratic Staff Director and Chief Counsel
                Gregg Elias, Democratic General Counsel
                                 ------                                

           SUBCOMMITTEE ON OCEANS, FISHERIES, AND COAST GUARD

                   OLYMPIA J. SNOWE, Maine, Chairman
TED STEVENS, Alaska                  JOHN D. ROCKEFELLER IV, West 
TRENT LOTT, Mississippi                  Virginia, Ranking
KAY BAILEY HUTCHISON, Texas          ERNEST F. HOLLINGS, South Carolina
GORDON H. SMITH, Oregon              DANIEL K. INOUYE, Hawaii
JOHN E. SUNUNU, New Hampshire        JOHN B. BREAUX, Louisiana
                                     MARIA CANTWELL, Washington


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 16, 2003....................................     1
Statement of Senator Lautenberg..................................    33
    Prepared statement...........................................    35
Statement of Senator Snowe.......................................     1
Statement of Senator Stevens.....................................    23
    Prepared statement...........................................    28

                               Witnesses

Cottingham, David, Executive Director, Marine Mammal Commission..    18
    Prepared statement...........................................    20
Johnson, Charles (Tomungnique), Executive Director, Alaska Nanuuq 
  Commission, on behalf of the Indigenous Peoples Council on 
  Marine Mammals (IPCoMM)........................................    79
    Prepared statement...........................................    80
Jones, Marshall, Deputy Director, U.S. Fish and Wildlife Service, 
  U.S. Department of the Interior................................     8
    Prepared statement...........................................    10
Lent, Dr. Rebecca, Deputy Assistant Administrator for Fisheries, 
  National Marine Fisheries Service, National Oceanic and 
  Atmospheric Administration, U.S. Department of Commerce........     3
    Prepared statement...........................................     5
Moore, Jr., Vice Admiral Charles W., Deputy Chief of Naval 
  Operations for Fleet Readiness and Logistics, U.S. Navy........    13
    Prepared statement...........................................    14
Tyack, Peter L., Senior Scientist, Biology Department, Woods Hole 
  Oceanographic Institution......................................    65
    Prepared statement...........................................    67
West, RADM Richard D., USN, Retired; President, Consortium for 
  Oceanographic Research and Education...........................    40
    Prepared statement...........................................    43
Young, Nina M., Director, Marine Wildlife Conservation, The Ocean 
  Conservancy; on behalf of the following organizations: American 
  Cetacean Society, American Society for the Prevention of 
  Cruelty to Animals, Animal Protection Institute, Cetacean 
  Society International, Defenders of Wildlife, Friends of the 
  Sea Otter, Humane Society of the United States In Defense of 
  Animals, International Fund for Animal Welfare, International 
  Marine Mammal Project of Earth Island Institute, National 
  Environmental Trust, Natural Resources Defense Council, Ocean 
  Futures Society, Oceana, Polar Bears International, Sea Otter 
  Defense Initiative, Sierra Club, The Fund for Animals, The 
  Marine Mammal Center, The Whale Center of New England, Whale 
  and Dolphin Conservation Society...............................    47
    Prepared statement...........................................    49

                                Appendix

Alliance of Marine Mammal Parks and Aquariums, prepared statement    95
Castille, Colleen M., Secretary, Department of Community Affairs, 
  State of Florida, prepared statement...........................    90
Goss, Hon. Porter, prepared statement............................    89
Kerry, Hon. John F., U.S. Senator from Massachusetts, prepared 
  statement......................................................    89
Letter dated August 7, 2003 to Hon. John McCain, Chairman, Senate 
  Commerce Committee from David Phillips, Director, Earth Island 
  Institute......................................................    93
Letter dated May 29, 2003 to Hon. Olympia Snowe, Chairwoman and 
  Hon. John Kerry, Ranking Member, U.S. Senate Commerce, Science, 
  and Transportation Committee from Jean-Michel Cousteau, 
  President, Ocean Futures Society...............................    94
Response to written questions submitted to Dr. Rebecca Lent by:
    Hon. John F. Kerry...........................................   103
    Hon. Frank R. Lautenberg.....................................   117
    Hon. Olympia J. Snowe........................................    99
Response to written questions submitted by Hon. John F. Kerry to 
  Marshall Jones.................................................   118
Response to written questions submitted to VADM Charles W. Moore, 
  Jr. by:
    Hon. John F. Kerry...........................................   126
    Hon. Frank R. Lautenberg.....................................   132
    Hon. Olympia J. Snowe........................................   124
Response to written questions submitted by Hon. John F. Kerry to:
    David Cottingham.............................................   136
    Peter L. Tyack...............................................   151
    RADM Richard D. West.........................................   143
    Nina Young...................................................   144
Stewart, Terrance, City Manager, Cape Coral, Florida, prepared 
  statement......................................................    92


           FUTURE OF THE MARINE MAMMAL PROTECTION ACT (MMPA)

                              ----------                              


                        WEDNESDAY, JULY 16, 2003

                               U.S. Senate,
        Subcommittee on Oceans, Fisheries, and Coast Guard,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:32 a.m., in 
room SR-428A, Russell Senate Office Building, Hon. Olympia J. 
Snowe, Chairman of the Subcommittee, presiding.

          OPENING STATEMENT OF HON. OLYMPIA J. SNOWE, 
                    U.S. SENATOR FROM MAINE

    Senator Snowe. The hearing will come to order.
    Good morning, and I am pleased to welcome our two 
distinguished panels of expert witnesses and all members of the 
audience for our hearing today on the future of the Marine 
Mammal Protection Act. Although our first attempt to hold this 
hearing had to be postponed because of a series of 33 votes on 
the tax bill, I am very grateful to all of you for adjusting 
your schedules again to allow us to hold today's hearing. I 
really appreciate your presence here today.
    We are here to discuss the Marine Mammal Protection Act, 
the most comprehensive protection and conservation legislation 
in the world with respect to marine mammals. All of us share a 
common concern for this act and its role in protecting and 
conserving marine mammals. I am committed to seeing that the 
MMPA provides an effective means to achieving this goal. This 
issue is certainly one of the most important and the most 
challenging legislative issues before the Subcommittee of 
Oceans, Fisheries, and Coast Guard in the 108th Congress.
    The Marine Mammal Protection Act provides an important 
framework for conserving and protecting whales, dolphins, sea 
lions, walruses, manatees, polar bears, and other mammals that 
depend on the oceans. It was a product of society's great 
concern for preserving these animals during a time when the 
consequences of human activity threatened their existence, and 
it has certainly succeeded in reducing many negative human 
impacts and helping many species recover.
    Since this legislation was first enacted in 1972, however, 
these species continue to face new as well as old threats to 
their survival. For example, we have become increasingly aware 
of the potential impact of underwater noise, habitat 
alteration, and ship strikes. Instead of improving in the last 
20 years, these issues have persisted, in fact becoming more 
intense due to strict interpretation of the act in recent court 
cases.
    Recently many ocean activities that have been permitted in 
accordance with the MMPA, including scientific research, 
underwater mapping, and sonar testing, have been halted by 
lawsuits. Apparently the language in the act that guides the 
issuance of permits has been interpreted differently by 
different parties, with several courts ruling that some permits 
do not comply with the law. This indicates to me that the 
original language is losing its relevance to the ever-evolving 
ways our society depends upon and uses the oceans.
    Issuing and legally defending marine mammal permits are 
complicated by the general lack of scientific progress on these 
animals. Consider the state of our knowledge on ocean noise and 
marine mammals: the National Research Council published 
extensive reports on this topic in 1994, 2000, and 2003, and 
upon examination, one finds that scientists are struggling to 
answer the same questions now as they were 10 years ago. There 
is still tremendous uncertainty about the most basic 
information such as how much noise naturally occurs in the 
ocean.
    Clearly, we lack baseline and experimental data on noise 
and other environmental conditions, and we lack data that would 
tell us how mammals are affected by various environmental 
conditions. We simply do not know enough about the ecological 
relationships and conditions that are truly important for 
marine mammal survival. How can it be that so little progress 
has been made in the last decade? We need to examine very 
closely the issues surrounding the permitting and funding of 
research and other limiting factors that diminish scientists' 
ability to find the answers to these questions.
    I strongly believe in conservation based on sound science. 
As human reliance and demands on the ocean intensify, it 
becomes increasingly important to understand how and why our 
activities affect marine mammals. It is equally important to 
advance our understanding of marine mammals. It is equally 
important to understand their anatomy, physiology, and 
behavior, and role in the ecosystem if we are truly interested 
in sustaining these animals in their natural state. The 
advancement of science needs to be the cornerstone of any 
reauthorization of the Marine Mammal Protection Act, and I am 
looking forward to hearing the testimony that will be presented 
today on ways in which we can better facilitate marine mammal 
science throughout the act.
    How do we begin to tackle these complicated and challenging 
issues? The administration has proposed a reauthorization bill 
for the 108th Congress that addresses many of the issues that I 
have raised here today and threats that surround the marine 
mammal conservation. Its bill, along with many other relevant 
ideas, need proper Senate review. I am sure the 
Administration's views will be a focal point of today's 
discussion, but I am also eager to learn of other perspectives 
on how the act should be reauthorized.
    We will hear from two panels this morning, and I am pleased 
that so many essential stakeholder groups are being represented 
by such knowledgeable and committed leaders who will testify 
today. The first panel represents many of the governmental 
perspectives of those who need to implement and abide by the 
act. This panel consists of Dr. Rebecca Lent, Deputy Assistant 
Administrator for Regulatory Programs at the National Oceanic 
and Atmospheric Administration; Dr. Marshall Jones, Deputy 
Director of the U.S. Fish and Wildlife Service; Vice Admiral 
Charles Moore, Deputy Chief of Naval Operations for Fleet 
Readiness and Logistics with the U.S. Navy; and Mr. David 
Cottingham, Executive Director of the Marine Mammal Commission. 
I thank you for your dedication to these issues and for sharing 
your insightful testimony with us today.
    The second panel represents many of the nongovernmental 
interests and stakeholders that are all so essential in shaping 
and following the mandates of this Act. We have Rear Admiral 
Richard D. West, President of the Consortium for Oceanographic 
Research and Education; Ms. Nina Young, Director of the Marine 
Wildlife Conservation for The Ocean Conservancy; Dr. Peter 
Tyack, Senior Scientist at the Woods Hole Oceanographic 
Institution; and Mr. Charles Johnson, Executive Director of the 
Alaska Nanuuq Commission.
    I appreciate receiving all of your testimony here today and 
for appearing before this Subcommittee. I am looking forward to 
hearing what we can learn from each other and to discussing the 
complex factors that affect marine mammal conservation. By 
exploring these issues in the open with all concerned 
stakeholders, we can better understand how marine mammal 
protection can be made more effective in the upcoming 
reauthorization of this act. Once reauthorized, the act will 
ultimately be improved because of the input that will be 
provided here today and the days coming.
    Again, I want to thank you for being here today as we 
formally engage in this discussion and begin the process of 
reauthorization. I know there are many issues that we need to 
explore here today, so I really appreciate your participation 
in this process.
    Dr. Lent, let us begin with you. I would ask if you could 
summarize your statement within five minutes and your entire 
statement will be included in the record.

        STATEMENT OF DR. REBECCA LENT, DEPUTY ASSISTANT

          ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE

      FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC 
          ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

    Dr. Lent. Thank you, Madam Chair. As you noted in your 
opening statement, the MMPA is a very important piece of 
legislation that has guided us in marine conservation for over 
30 years. This act gives NOAA responsibility for conservation 
and management for over 140 stocks of marine mammals.
    Working with our Federal partners, we have come up over the 
past 3 years with a sound administration proposal to 
reauthorize the MMPA. This was transmitted to the Hill in 
February of this year. I am focusing my testimony today on 
elements of that new bill. We strongly support the provisions 
in this administration bill.
    First of all, the definition of harassment. The definition 
of harassment is a very important part of MMPA. We have had 
some difficulties with the interpretation of the current 
definition because, first of all, it is limited to acts that 
involve pursuit, torment, or annoyance. Second of all, the 
definition is too broad and does not give a clear threshold for 
what is harassment or not. And third, it does not give an 
adequate mechanism to address those activities that are 
intentionally directed at marine mammals. So our bill proposes 
revisions to the current definition that addresses each of 
these concerns.
    First of all, it eliminates that phrase of ``pursuit, 
torment, or annoyance.'' So it takes away that two-tiered 
standard. Second of all, it clarifies the definition so that we 
can focus on the harassment that really results in meaningful 
biological disturbance, and the third, the bill adds new 
language and it makes it explicit that activities that are 
directed at marine mammals and are likely to disturb them are 
considered harassment. So overall we feel that this new 
definition is going to help have a clearer standard and make 
sure we are getting meaningful protection by focusing on the 
activities that really have significant biological impacts on 
these animals.
    The second area has to do with marine mammal bycatch 
reduction initiatives. Incidental take of marine mammals in 
fishing operations remains very important source of mortality 
and injury to marine mammals. We propose in the administration 
bill to expand the section 118 bycatch reduction requirements 
to include those noncommercial fisheries that have frequent or 
occasional takes of marine mammals. This is important because 
sometimes in some of these fisheries, such as recreational 
fisheries, we have identical gear and it is deployed in the 
same fashion. However, we can only put observers under the MMPA 
on commercial fishing vessels. This way we can protect 
noncommercial fishermen from being prosecuted for incidental 
takes.
    Second of all, we have in the bill measures to help us 
explore new technologies, such as video information collection 
technologies, so that we can get more information on marine 
mammal bycatch.
    Also, it would direct the Secretary of Commerce to have 
mini-grant programs and other measures to encourage development 
of fishing gears and fishing methods to reduce interaction and 
injury with marine mammals.
    Fourth, the bill requires NOAA to include technical 
liaisons with expertise in commercial practices on the take 
reduction team.
    Other provisions include adding a definition of 
entanglement so that we can collect more information on these 
animals. As you noted, Madam Chair, we need more scientific 
information. If we can get entanglement as well as stranding 
agreements, then we can collect more information.
    We also want to increase the civil and criminal penalties 
for violations of the act. They have not changed since the 
original bill.
    We also want to make it illegal to interfere with an 
investigation or submit false information.
    The bill provides authorization to use authorities to 
reduce the occurrence of ship strikes on whales, a very big 
concern for right whales.
    We also would, in this administration proposal, explicitly 
prohibit the release of captive marine mammals without prior 
authorization.
    And we would reinstate the ban on traveling exhibits for 
cetaceans.
    The administration bill would also improve harvest co-
management provisions by allowing this before we reached 
depleted levels.
    The MMPA has been a sound model for marine mammal 
conservation and management policies. Reauthorization gives us 
a good opportunity to further strengthen conservation and 
recovery, as well as the science.
    This concludes my testimony. I look forward to your 
questions. Thank you.
    [The prepared statement of Dr. Lent follows:]

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

    Madame Chair and Members of the Subcommittee, I am Dr. Rebecca 
Lent, Deputy Assistant Administrator for Fisheries at the National 
Oceanic and Atmospheric Administration (NOAA). Thank you for inviting 
me to testify today on the reauthorization of the Marine Mammal 
Protection Act (MMPA).
    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 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 and I will focus my 
testimony today on various elements of that bill. Specifically, I will 
discuss improvements the bill makes to the definition of harassment, 
marine mammal bycatch reduction efforts, enforcement, and other 
important aspects of marine mammal conservation and management policy.

The Administration's MMPA Reauthorization Bill
Definition of Harassment
    The definition of harassment, a critical component of the ``take'' 
prohibition, which is also defined in the Act, has broad applicability 
throughout the MMPA. The current definition in the MMPA separates 
harassment into two levels. Level A harassment is defined as, ``any act 
of pursuit, torment, or annoyance which has the potential to injure a 
marine mammal or marine mammal stock in the wild.'' Level B harassment 
is defined as, ``any act of pursuit, torment, or annoyance which has 
the potential to disturb a marine mammal or marine mammal stock in the 
wild by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering.''
    NOAA has experienced difficulties with interpretation, 
implementation, and enforcement of the current MMPA harassment 
definition. First, the definition is limited to acts involving 
``pursuit, torment, or annoyance.'' Second, the definition is overly 
broad and does not provide a clear enough threshold for what activities 
do or do not constitute harassment. Third, the definition does not 
provide an adequate mechanism to address activities intentionally 
directed at individual or groups of marine mammals that disturb the 
animals. The Administration's MMPA reauthorization bill proposes 
revisions to the current definition that would address each of these 
concerns.
    Inappropriate Two-Tiered Standard: 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. Second, the agency must prove that the 
act has the potential either to injure or disturb a marine mammal. 
Thus, the current definition contains a difficult two-tiered standard 
that the agency must meet before it can prosecute anyone who takes a 
marine mammal by harassment. Amendments to the harassment definition in 
the Administration's MMPA bill will eliminate the phrase ``pursuit, 
torment, or annoyance.''
    Overly Broad: The current definition of harassment is both broad 
and ambiguous and, therefore, it fails 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. We are also concerned that the existing definition could 
result in unnecessary administrative burdens on the regulated 
community. One could argue, for instance, that any activity has the 
potential to disturb a marine mammal by causing disruption of 
behavioral patterns, from humans walking along a pier near a group of 
sea lions causing them to stop feeding and raise their heads, to 
driving a ship that causes a wake that dolphins choose to swim in. As 
interpreted by some courts, the current definition does not distinguish 
biologically significant, harmful events from activities that result in 
de minimis impacts on marine mammals.
    The lack of a clear threshold for harassment in the definition 
blurs the distinction between those activities that cause insignificant 
impacts and those that cause truly harmful impacts to marine mammals. 
This has negative consequences on marine mammals, NOAA, and the 
regulated community. First, activities that result in meaningful 
biological disturbance to marine mammals do not receive the degree of 
attention that they warrant. Second, NOAA Fisheries must devote 
resources to addressing activities and issues that result in 
biologically insignificant impacts on marine mammals. Third, the lack 
of clarity in the definition imposes unnecessary regulatory burdens on 
the regulated community, who are forced to apply for authorizations for 
often harmless activities to prevent potential legal consequences. The 
Administration's MMPA bill clarifies the definition of harassment to 
focus the agency and the regulated community on types of harassment 
that result in meaningful biological disturbance to marine mammals, 
rather than those acts that are not likely to have biologically 
significant impacts on marine mammals.
    Lack of Emphasis on Directed Impacts: The third tier of the 
harassment definition contained in the Administration's MMPA bill makes 
it explicit that activities that are likely to disturb marine mammals 
that are directed at individual or groups of marine mammals, such as 
closely approaching, touching, or swimming with dolphins in the wild, 
are considered harassment. Members of the public and commercial 
operators who intentionally interact with wild marine mammals either by 
boat, in the water, or on land disturb the natural behavior of the 
animals. They 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.
    Overall, NOAA feels the proposed definition of harassment contained 
the Administration's MMPA bill will apply a clearer standard of 
harassment to the entire regulatory community and result in more 
meaningful protections for marine mammals. Additionally, the proposed 
definition conceptually mirrors recommendations by the National 
Research Council (NRC) for regulations that are based on the potential 
for a biologically significant impact on marine mammals. In 2000, NRC 
pointed out flaws in the current definition of harassment, contending 
that since science is improving in terms of its ability to distinguish 
between activities that have significant negative effects and those 
that have insignificant effects on marine mammals, the harassment 
definition should be amended to reflect this. The harassment definition 
contained in the Administration's MMPA bill will achieve this goal of 
focusing on activities that will result or could result in significant 
biological impacts on marine mammals.

Marine Mammal Bycatch Reduction Initiatives
    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. The Administration bill 
contains several amendments to strengthen these provisions and marine 
mammal bycatch reduction efforts generally.
    First, the bill proposes to expand the MMPA's Section 118 marine 
mammal bycatch reduction requirements to non-commercial fisheries that 
have frequent or occasional takes of marine mammals. Non-commercial 
fisheries, including recreational fisheries, often use identical gear 
to commercial fishing gear and deploy it in the same manner as 
commercial fishermen. 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. The Administration bill 
amends Section 118 to enable NOAA Fisheries to monitor and address all 
important fishery-related sources of marine mammal bycatch. In 
addition, by including non-commercial fisheries under this regime, the 
Administration bill would provide a simpler mechanism than currently 
exists under the law to offer non-commercial fishermen that take marine 
mammals protection from prosecution for incidental takes.
    Second, the Administration bill 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. This is important due to the fact that observer 
programs are expensive and not always feasible.
    Third, the Administration bill directs the Secretary of Commerce, 
acting through NOAA Fisheries, to create opportunities, such as mini-
grant programs, to encourage development of fishing gears and methods 
that reduce marine mammal bycatch. The development of new gear and gear 
deployment technologies has already proven effective at reducing 
incidental takes. For example, the development of acoustic deterrent 
devices, called ``pingers,'' has helped reduce incidental takes of 
harbor porpoises in New England waters.
    Fourth, in the spirit of advancing fishing gear innovation, the 
Administration bill requires NOAA Fisheries to include technical 
liaisons with expertise in commercial fishing practices as members of 
take reduction teams (TRTs). These liaisons will work with TRT members 
on the latest advancements in gear technology that reduce marine mammal 
bycatch.

Enhancing Enforcement
    While several sections of the MMPA have been updated since the Act 
was first passed in 1972, some areas are extremely outdated. One such 
area is the penalties that may be imposed for violations of the MMPA. 
Currently, individuals who violate the MMPA are subject to civil 
penalties of up to $10,000 and criminal fines of up to $20,000. These 
penalties have 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.

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 due to ship strikes. 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.

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 NOAA Fisheries 
opportunities to save individual animals, as well as 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. The Administration 
bill 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. The bill would also specifically enable the Secretary to enter 
into agreements with individuals to respond to entangled marine mammals 
in addition to stranded marine mammals.

Harvest Management Agreements
    The 1994 MMPA amendments gave NOAA Fisheries and the FWS authority 
to enter into cooperative agreements with Alaska Native 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.

Release of Captive Marine Mammals
    The release of long-captive marine mammals without proper 
preparation and a sound scientific protocol is regarded by the 
scientific community as potentially harmful to both the animals 
released, as well as the wild populations they encounter. Fundamental 
questions remain as to the ability of marine mammals that have been 
held in captivity for extended periods 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. The Administration bill would 
explicitly prohibit the release of captive marine mammals without prior 
authorization, with limited exceptions.

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 Provisions
    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 to address enforcement 
difficulties and provide comprehensive clarification of circumstances 
in which not only the taking and import, but also the transport, 
purchase, sale, and export, of marine mammals is authorized.

Conclusion
    The MMPA has served as a sound model for marine mammal conservation 
and management policies and practices around the world. Reauthorization 
of the MMPA provides the opportunity to further strengthen the 
conservation and recovery of marine mammals. I look forward to working 
with Members of the Subcommittee, your staffs, and other interested 
members of the public to meet the challenges that face us in better 
protecting marine mammals, while balancing human needs 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 the Administration's MMPA reauthorization 
bill or any other related matters.

    Senator Snowe. Thank you, Dr. Lent.
    Mr. Jones? We will go right down the line.

         STATEMENT OF MARSHALL JONES, DEPUTY DIRECTOR,

                U.S. FISH AND WILDLIFE SERVICE,

                U.S. DEPARTMENT OF THE INTERIOR

    Mr. Jones. Thank you, Madam Chair. I appreciate having this 
opportunity to present testimony on the administration's 
proposal to reauthorize the Marine Mammal Protection Act of 
1972.
    I am Marshall Jones, the Deputy Director of the U.S. Fish 
and Wildlife Service. The Fish and Wildlife Service shares 
jurisdiction with NOAA Fisheries over marine mammals. 
Specifically we are responsible for polar bears, sea and marine 
otters, walruses, three species of manatees, and the dugong.
    The administration strongly supports the reauthorization of 
the Marine Mammal Protection Act. However, as noted in Rebecca 
Lent's testimony, we have identified several areas of the act 
where we think it would benefit from some well-considered 
changes. We look forward to working with you and the Members of 
the Committee to see these proposed amendments adopted during 
this session of Congress.
    There are four areas that I would like to very briefly 
highlight in my oral statement this morning.
    First, harvest management agreements. This, we believe, 
would be an important amendment to expand the authority of 
section 119 of the act to authorize harvest management 
agreements between the Secretaries of Interior or Commerce and 
Alaska Natives. These agreements would be designed to prevent 
the depletion of marine mammal stocks and would demonstrate the 
commitment of the Federal Government to continue to develop our 
partnership with Alaska Native organizations. This amendment 
would allow the regulation of subsistence take of marine 
mammals before species become depleted, providing substantial 
conservation benefits. These agreements would be developed 
using existing authorities already possessed by Alaska Native 
communities to enforce them, providing a new and meaningful 
role for Alaska Native organizations in conservation of marine 
mammals.
    The second area which I would like to highlight briefly is 
the collection of southern sea otter data and fishery 
interactions. Sea otters are incidentally taken in fishery 
operations, but we do not know the extent of this take. The 
administration's proposal includes an amendment that would 
enable NOAA Fisheries to include information concerning 
California sea otters in the list of fisheries published under 
section 118 and to provide this information to the Fish and 
Wildlife Service. This would help us assess impacts that 
commercial fisheries may be having on the threatened sea otter 
population in order to provide a more informed basis for 
recovery.
    The third area which I would like to mention is polar bear 
permits. This is a small amendment but it is one that I think 
fits under the category of good government. This amendment 
would streamline the permitting process and reduce the expense 
associated with publishing two notices for each application 
received to import a trophy of a polar bear taken in Canada 
before the enactment of the 1994 amendments or from populations 
of polar bears in Canada that are approved for trophy import.
    The fourth and final area which I would like to highlight 
is the definition of harassment. As Rebecca Lent has noted, the 
administration has proposed a revised definition of this term. 
This amendment would greatly improve the clarity of the 
definition by making it apply to any act as opposed to the 
current statutory definition which is limited to acts involving 
pursuit, torment, or annoyance. We believe these changes make 
the standard more clear and more enforceable.
    In conclusion, Madam Chair, I would like to thank you again 
for having this opportunity, and I want to emphasize our 
commitment to conserving and managing marine mammals by working 
closely and cooperatively with our partners in other Federal 
agencies, in conservation organizations, and especially with 
the Alaska Native community in order to further enhance the 
role of Alaska Natives in marine mammal conservation. We look 
forward to working with you and Members of the Committee during 
this session of Congress and we hope that we can achieve a 
successful conclusion.
    This concludes my remarks. I would be happy to answer any 
questions, Madam Chair.
    [The prepared statement of Mr. Jones follows:]

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

    Madam Chair and Members of the Subcommittee, thank you for the 
opportunity to provide the testimony of the Department of the Interior 
and the U.S. Fish and Wildlife Service on the Administration's proposal 
to reauthorize the Marine Mammal Protection Act (MMPA or Act) of 1972. 
I am Marshall Jones, Deputy Director of the U.S. Fish and Wildlife 
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 Fish and Wildlife 
Service (Service), protects and manages polar bears, sea and marine 
otters, walruses, three species of manatees, and the dugong.
    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 Service, NOAA 
Fisheries, the Marine Mammal Commission (Commission), our Alaska Native 
partners, and other Federal and non-governmental partners.
    We look forward to working with the Subcommittee in a dedicated 
effort to reauthorize the MMPA and enact these proposed amendments 
during this session of Congress. My testimony will discuss some of the 
key amendments proposed by the Administration.

Proposed Amendments
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 partnership with these 
organizations.
    The MMPA prohibits take (e.g., harass, hunt, capture or kill) 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. This 
exception presents the possibility that Native harvest of non-depleted 
stocks could reduce some of those stocks to depleted status.
    In fact, this situation has already occurred. Beluga whales in Cook 
Inlet declined dramatically in the mid-1990s due to over-harvest. The 
stock became depleted. Representatives of the Native community 
expressed their desire to develop a local management structure with 
Federal support for regulating harvest of marine mammal stocks. The 
intent would be to prevent such a situation--where stocks become 
depleted by harvest--from reoccurring.
    In response to the interest of the Native community in developing a 
harvest management structure, the responsible Federal agencies, 
including the Service, NOAA Fisheries, 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 authorities. 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 will rely on existing tribal 
authorities, rather than creating new Federal regulations.
    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 exception, 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.

Polar Bear Permits
    In 1994, Congress added a provision to the Act to allow for the 
issuance of permits authorizing the importation of polar bear trophies 
taken in sport-hunts in Canada if certain findings are made. The 1994 
amendments specified that applications for such permits did not require 
review by the Marine Mammal Commission, but retained the requirements 
for public notice prior to and after issuance or denial. The Service 
has processed on average 90 applications for polar bear permits 
annually for the past six years. Although notice of each application 
has been published in the Federal Register, no comments have been 
received.
    The proposed amendment to section 104(d) would streamline the 
permitting process and reduce the administrative expense associated 
with publishing two notices for each application to import a trophy of 
a polar bear taken before the enactment of the 1994 amendments or from 
an approved population. Since findings that allow for multiple imports 
were made after public comment, the approval of individual permits is 
largely a pro forma administrative process--an import is allowed if the 
particular bear was taken legally from an approved population. To 
ensure that the public continues to have current information on these 
types of permits, the proposed amendment requires the Service to make 
available, on a semiannual basis, a summary of all such permits issued 
or denied.

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.

Definition of Harassment
    The Administration has proposed a revised definition of the term 
``harassment,'' found in Section 3(18)(A) of the Act. This amendment 
would make the definition more enforceable by making it apply to ``any 
act,'' as opposed to the current statutory definition, which is limited 
to acts involving ``pursuit, torment, or annoyance.'' The 
Administration's proposed definition would provide greater notice and 
predictability to the regulated community by providing a clear 
threshold for what activities do or do not constitute harassment. The 
new language would define ``Level A harassment'' as ``any act'' (as 
opposed to acts of ``pursuit, torment, or annoyance'') that injures or 
has the significant potential to injure a marine mammal. ``Level B 
harassment'' would be defined to include ``any act'' that either 
disturbs or is likely to disturb a marine mammal's natural behavioral 
patterns to a point where the patterns are abandoned or significantly 
altered or is directed towards a specific individual or group and is 
likely to cause disturbance by disrupting natural behavior. We believe 
that these changes to the definition will not compromise conservation 
of marine mammals.

Conclusion
    Madam Chair, in closing, I would like to thank you once more for 
the opportunity to discuss the Administration's proposal to reauthorize 
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.
    Madam Chair, this concludes my remarks. I am happy to answer any 
questions that you or members of the Committee might have.

    Senator Snowe. Thank you, Mr. Jones.
    Admiral Moore?

        STATEMENT OF VICE ADMIRAL CHARLES W. MOORE, JR.,

          DEPUTY CHIEF OF NAVAL OPERATIONS FOR FLEET 
               READINESS AND LOGISTICS, U.S. NAVY

    Admiral Moore. Thank you, Senator Snowe, for this 
opportunity to testify before your Committee this morning.
    I am Vice Admiral Charles Moore. I am the Deputy Chief of 
Naval Operations for Fleet Readiness and Logistics. Prior to 
this assignment, I was the Commander of U.S. Naval Forces 
Central Command and the Commander of the United States Fifth 
Fleet in the Middle East for nearly 4 years, which concluded 
after we completed Operation Enduring Freedom.
    During Operation Enduring Freedom and most recently in 
Operation Iraqi Freedom, 90 percent of our force and their 
sustainment moved to the region by sea. This has been the way 
we have deployed our forces over many years. We have been 
successful in recent combat operations. Our potential 
adversaries around the world have studied us intently as they 
have seen this very capable United States military force 
deployed forward, and they are in the midst of developing quiet 
diesel submarines to interdict our U.S. military forces it 
deploys by sea.
    As we watch the media, we see C-5's and C-17's taking off. 
We do not see this tremendous force in the large strategic 
sealift ships that move over the vast ocean areas on the way to 
the objective area, in this case the Middle East. These quiet 
diesel submarines are designed and they are being employed to 
interdict U.S. military forces as they deploy overseas.
    In the event we sought to assert ourselves in the far 
western Pacific, for instance in a crisis in Korea or a crisis 
in the Strait of Taiwan, we would see North Korean submarines 
and potentially Chinese submarines thousands of miles from 
their coasts attempting to interdict our large sealift ships as 
they move forward.
    In the face of this threat, the United States Navy has been 
working for many years in our anti-submarine warfare 
capability. The technology is acoustic technology. It involves 
the use of sonar to detect, localize, and neutralize these 
threat submarines.
    In the mid-1990s, we developed a system called the low 
frequency active sonar. We spent $350 million developing the 
system. We invested $10 million in research to prepare our 
environmental impact statement and to prepare our application 
for a permit to operate the system under the Marine Mammal 
Protection Act. After a two-year period of waiting for a 
permit, about one year ago we were granted a permit, and on the 
day we were granted the permit, we were sued by the Natural 
Resources Defense Council. That case has been under legislation 
on the west coast in San Francisco since then.
    We understand that the judge will rule sometime in August. 
In her oral statements in the court, she has indicated she will 
likely rule in favor of the plaintiff and that our operations 
and our testing of low frequency active sonar may come to an 
end.
    In the process of this litigation, we were directed by the 
judge to consult with the plaintiffs so that we could continue 
our testing and training, and in these consultations we agreed 
to confine our testing and training to a small area in the 
western Pacific off the coast of Japan.
    So this lawsuit will come to an end in August, and we will 
see where we go with low frequency active sonar.
    I would tell you that it has been since World War II that 
we have faced this submarine threat. In World War II Nazi 
submarines sailed into the Chesapeake Bay and sunk ships off 
Baltimore. They stood off the City of Norfolk, Virginia and 
sunk ships. We lost tremendous shipping in the Pacific to 
Japanese submarines. And it was only our capability to build 
more ships than they could build torpedoes that enabled us to 
prevail in World War II. I can assure you this will not be the 
case in the future as we face this threat that will develop in 
the far western Pacific in the event we have to go to war in 
that part of the world.
    The United States Navy, in consultation with the Secretary 
of Defense and his staff, has submitted this change in the 
Marine Mammal Protection Act to define harassment in a way that 
will enable us to test and train with the low frequency active 
sonar. We seek to change the definition of harassment from one 
where our activities result in the mere potential to disturb 
marine mammals to a definition that would include our 
activities would produce significant biological effects on 
marine mammals. If we are able to get this change in the 
definition of harassment, we will have struck a very 
significant balance between our obligation to be good stewards 
of the environment, which we believe we are, and our obligation 
to provide national security and continue with our important 
testing and training operations and anti-submarine warfare.
    Thank you very much. I look forward to taking your 
questions.
    [The prepared statement of Admiral Moore follows:]

Prepared Statement of VADM Charles W. Moore, Jr., Deputy Chief of Naval 
        Operations for Fleet Readiness and Logistics, U.S. Navy

Introduction
    Chairman Snowe, Senator Kerry and Members of the Subcommittee, 
thank you for the opportunity to share the Navy's views regarding the 
Marine Mammal Protection Act and its effects on military readiness and 
training of our American Sailors as they prepare for combat. I 
appreciate your attention to this vital and timely topic, which is of 
great importance to national security and the environment.
    The high quality of training we provide to these Sailors is perhaps 
unseen, yet it is an essential element of their impressive level of 
combat readiness. Clearly, before our nation sends its most precious 
asset--its young men and women--into harms way, we must prepare them to 
fight, survive, and win. This demands the most realistic and 
comprehensive training we can provide.
    In the past two months, we have seen first hand, often in real 
time, the tangible results of high quality training. Indeed, as in 
Iraq, realistic, demanding training has proven key to survival in 
combat time and again. For example, data from World Wars I and II 
indicates that aviators who survived their first five combat 
engagements were likely to survive the war. Similarly, realistic 
training greatly increases our combat effectiveness. The ratio of enemy 
aircraft shot down by U.S. aircraft in Vietnam improved to 13-to-1 from 
less than 1-to-1 after the Navy established its Fighter Weapons School, 
popularly known as TOPGUN. More recent data shows aircrews that receive 
realistic training in the delivery of precision-guided munitions have 
twice the hit-to-miss ratio as those who do not receive such training.
    Similar training demands also exist at sea as our maritime forces 
prepare to meet and counter emerging threats. New ultra-quiet diesel-
electric submarines armed with deadly torpedoes and cruise missiles are 
proliferating widely. Technologies such as these could significantly 
threaten our Naval Forces around the world, in place to respond to a 
wide array of possible contingencies. To successfully defend against 
such threats, our Sailors must train realistically with the latest 
technology, including next-generation passive and active sonars.
    As we prepare today for the next conflict and look to the future, 
we should be concerned about the growing challenges in our ability to 
ensure our forces receive the necessary training with the weapon and 
sensor systems they will employ in combat. Training and testing on our 
ranges and at sea is increasingly constrained by encroachment that 
reduces the number of training days, detracts from training realism, 
causes temporary or permanent loss of range access, and drives up 
costs.
    Encroachment issues have increased significantly over the past 
three decades. Training areas that were originally located in isolated 
areas are today surrounded by recreational facilities and urban sprawl. 
They are constrained by state and federal environmental laws and 
regulations and cumbersome permitting processes which negatively impact 
our ability to train.

Navy's Environmental Stewardship
    The Navy continues its commitment to good stewardship of the 
environment. Indeed, our culture reflects this, as the men and women 
manning our fleet were raised in a generation with a keen awareness of 
environmental issues. The Navy environmental budget request for FY2004 
totals $1.0 billion. This funding supports environmental compliance and 
conservation, pollution prevention, environmental research, the 
development of new technologies, and environmental cleanup at Active 
and Reserve bases. It is precisely as a result of this stewardship that 
military lands present favorable habitats for plants and wildlife, 
including many protected species. Ironically, our successful 
stewardship programs have helped increase the number of protected 
species on our ranges, which has resulted in less training capacity in 
some instances.
    Sustaining military readiness today has become increasingly 
difficult because, over time, a number of factors, including urban 
sprawl, regulations, litigation, and our own accommodations to demands 
from courts, regulatory agencies and special interest groups have 
cumulatively diminished the Navy's ability to effectively train and 
test systems. Among the greatest threats to proper military training 
are laws that include ambiguous provisions and cumbersome process 
requirements that result in unintended negative consequences, which 
inhibit realistic, timely, and comprehensive training. These laws, and 
the court decisions which have applied them, may result in curtailing 
the Navy's ability to train without harm to the environment As such we 
believe that military readiness requirements and environmental 
protection are out of balance.
    The Administration's Readiness and Range Preservation Initiative 
(RRPI) proposes modest amendments to several environmental laws, 
including the Marine Mammal Protection Act (MMPA), which will help 
restore the balance, meeting our national security needs, and 
maintaining good stewardship of the environment. I ask for your help to 
address the challenges of most concern to the Navy under the MMPA.

The Current Quiet Diesel Submarine Threat
    As we enter the 21st century, the global submarine threat is 
becoming increasingly more diverse, regional, and challenging. 
Published naval strategies and current operations of potential 
adversaries have demonstrated that the submarine is a centerpiece of 
their respective navies. Diesel submarines are deemed a cost-effective 
platform for the delivery of several types of weapons, including 
torpedoes, anti-ship cruise missiles, anti-ship mines, and nuclear 
weapons. In addition to the United States, Australia, Canada, and the 
United Kingdom, 41 other countries, including potential adversary 
nations such as North Korea and Iran, have modern quiet submarines and 
many are investing heavily in submarine technology. Of the 380 
submarines owned by these 41 countries, more than 300 are quiet diesel 
submarines.
    Submarine quieting technology continues to proliferate, making 
submarines, operating in their quietest mode, difficult to detect even 
with the most capable passive sonar. The inability to detect a hostile 
submarine at long-range--in other words, at a sufficient ``stand-off'' 
distance before it can launch a missile or a torpedo--is a critical 
vulnerability that puts ships and our Sailors at risk. The threat of a 
quiet diesel submarine, in certain circumstances, could deny access to 
vital operational areas to U.S. or coalition naval forces.
    Because of these threats, Navy identified the requirement to detect 
hostile submarines before they are close enough to use their weapons. 
This capability is particularly critical where there exists a 
concentration of forces at sea, as recently occurred in the Sea of 
Japan for exercise Foal Eagle, or as is planned in support of 
Operational and Contingency Plans in the vicinity of Northeast Asia. 
When it becomes necessary to place carrier battle groups or amphibious 
task forces in harms way, these valuable national assets, their 
supporting ships and their crews have to transit constricted bodies of 
water or straits. These limited areas provide the perfect opportunity 
for quiet diesel submarines to stalk our ships. A pre-positioned diesel 
submarine, conducting a quiet patrol on battery power, is extremely 
difficult to detect with passive sonar. The most promising system to 
counter this threat to Navy and national security is the Surveillance 
Towed Array Sensor System Low Frequency Active (SURTASS LFA) sonar 
system. To be effective, SURTASS LFA must be tested and evaluated for 
integration into the Fleet. It is not effective to be kept ``on the 
shelf'' in the event our forces need to use it in a real contingency.

Marine Mammal Protection Act
    For several years, Navy and leaders in the scientific and 
regulatory communities that predicted that certain ambiguities in the 
MMPA would likely lead to court ordered injunctions blocking critical 
at-sea training and testing. We are concerned that these ambiguities 
may negatively impact on Navy's ability to conduct training and testing 
exercises.
    In November 2002, a federal district judge in San Francisco 
presiding over a case brought by environmental groups alleging 
violation of the MMPA, National Environmental Policy Act (NEPA), and 
the Endangered Species Act (ESA) issued a court order that strictly 
limits employment of SURTASS LFA. This advanced system is designed to 
detect and track the growing number of quiet diesel submarines 
possessed by nations, which could threaten our vital national security. 
The court issued a preliminary injunction restricting Navy's deployment 
of SURTASS LFA in the western Pacific. Navy now finds the deployment 
and operation of one of our most important national security assets 
constrained by a Federal court as a result of litigation brought by 
environmental groups. Future testing and employment of SURTASS LFA is 
in jeopardy. The MMPA was originally enacted to protect whales from 
commercial exploitation and to prevent dolphins and other marine 
mammals from accidental death or injury during commercial fishing 
operations. It did not address military readiness concerns.
    As a result of the preliminary injunction issued by the federal 
district court, we have not been allowed to test and train with LFA in 
all of the waters in which it will need to be employed. The final 
hearing on the merits of this suit was held on June 30. The court has 
yet to issue its decision; nevertheless, the judge, speaking from the 
bench, expressed the same concerns over the provisions of the MMPA that 
she identified during the hearing on the preliminary injunction.
    In meeting its obligations under current environmental laws for 
deploying SURTASS LFA, the Navy undertook a comprehensive and 
exhaustive environmental planning and associated scientific research 
effort. Working cooperatively with the National Marine Fisheries 
Service (NMFS)--one of the two Federal regulatory agencies tasked with 
protection and preservation of marine mammals--the Navy completed an 
Environmental Impact Statement (EIS), developed mitigation measures for 
protecting the environment, and obtained all required authorizations 
pursuant to the MMPA and ESA. The scientific research and EIS involved 
extensive participation by independent scientists from a large number 
of laboratories and academic organizations. The Navy also undertook a 
wide-ranging effort to involve the public in the EIS process through 
public meetings and extensive outreach. Based on this effort, NMFS 
developed mitigation measures to reduce potential affects on marine 
mammals and, in light of those measures, concluded that the planned 
SURTASS LFA operations would have negligible impacts on marine mammals.
    Despite this effort, a Federal court issued an order constricting 
the limits of operation and precluding testing of a key system needed 
to address a clear, present, and future national security threat. 
Notably, there is no evidence of any negative impact on marine mammals 
in the single ocean area in which we are currently testing SURTASS LFA.
    Despite plaintiffs' failure to produce scientific evidence 
contradicting the independent scientific research that the LFA system 
could be operated with negligible harm to marine mammals, the court 
opined that Navy testing and training must be restricted. In reaching 
this conclusion, the court noted that under the definition of 
harassment, the phrase ``potential to disturb'' hinged on the word 
``potential'' and extended to individual animals. Quoting from the 
judge's opinion, ``In fact, by focusing on potential harassment, the 
statute appears to consider all the animals in a population to be 
harassed if there is the potential for the act to disturb the behavior 
patterns of the most sensitive individual in the group.'' (Emphasis 
added.) Interpreting the law this broadly could require authorization 
(permits) for harassment of potentially hundreds, if not thousands, of 
marine mammals based on the benign behavioral responses of one or two 
of the most sensitive animals.



    Highlighting how difficult it would be to apply the MMPA to 
worldwide military readiness activities under such a broad 
interpretation of harassment, the court pointed out that a separate 
provision of the MMPA limits permits for harassment to no more than a 
``small number'' of marine mammals. Overturning the regulatory agency's 
decades-old interpretation of the MMPA, the court also said that the 
``small number'' of animals affected cannot be defined in terms of 
whether there would be negligible impact on the species, but rather is 
an absolute number that must be determined to be ``small.'' The court's 
opinion underscores shortcomings in the MMPA that apply to any world-
wide military readiness activity, or any grouping of military training 
activities that might be submitted for an overall review of impact on 
the environment.
    SURTASS LFA is a critical part of anti-submarine warfare (ASW). The 
Chief of Naval Operations has stated that ASW is an essential and core 
capability of the Navy. Testing and training with LFA is essential to 
our future success. By way of comparison, during the Cold War we made 
every effort to search, detect, and track Soviet nuclear submarines. In 
so doing, we learned their habits, went to school on their operational 
procedures, and worked hard to stay ahead of them. Today the nature of 
the submarine threat has changed. The challenge is different. 
Nevertheless, the court-issued restriction on testing and training with 
LFA has severely limited our ability to prepare for this challenge. 
This court opinion also highlights the challenges posed by the current 
language of the MMPA.
    To address these issues, I ask for your consideration of the 
narrowly focused amendments to the MMPA's harassment definition and 
incidental take provisions proposed in the FY04 National Defense 
Authorization Act, which has now been transmitted by the President to 
Congress.

Summary
    We face numerous challenges and adversaries that threaten our way 
of life. The President has directed us to ``be ready'' to face this 
challenge. To fulfill this directive, we must conduct comprehensive and 
realistic combat training--providing our Sailors with the experience 
and proficiency to carry out their missions. This requires appropriate 
use of our training ranges and operating areas and testing weapon 
systems. The Navy has demonstrated stewardship of our natural 
resources. We will continue to promote the health of lands entrusted to 
our care. We recognize our responsibility to the Nation in both of 
these areas and seek your assistance in balancing these two 
requirements.
    I thank this Committee for your continued strong support of our 
Navy and ask for your favorable consideration of the MMPA provision 
contained in the DOD RRPI legislation. Passage of the RRPI provision 
will help the Naval services sustain military readiness today and in 
the future.




    Senator Snowe. Thank you, Admiral Moore.
    Mr. Cottingham?

   STATEMENT OF DAVID COTTINGHAM, EXECUTIVE DIRECTOR, MARINE 
                       MAMMAL COMMISSION

    Mr. Cottingham. Thank you, Madam Chairman. I am David 
Cottingham. I am the Executive Director of the Marine Mammal 
Commission, and we appreciate the opportunity to be here today. 
Ordinarily the Chairman of our Commission, John Reynolds, would 
be here testifying, but he is in Wainwright, Alaska doing field 
research where he said yesterday it was snowing and they had 
30-mile-an-hour winds. So I think he regrets that he cannot be 
here.
    As we observe the 30th anniversary of the passage of the 
Marine Mammal Protection Act, we want to take this opportunity 
to reflect on some of the successes. When the statute was first 
enacted, there were a large number of dolphins being taken in 
tuna nets. Those numbers have substantially reduced. Some of 
the stocks of large whales have greatly recovered in the 30 
years since then. We have made a lot of progress working with 
the other agencies here and those in State government on 
protecting and conserving marine mammal stocks under this act, 
as it was very forward thinking.
    Many of the research and conservation actions involving 
marine mammals presently occur in response to acute 
controversial conservation problems. We focus on these crises 
and, really, we miss the opportunity a lot of times to take a 
broad-based approach, an interdisciplinary and anticipatory 
approach to research and management.
    In two weeks, the Commission is convening a meeting in 
Portland, Oregon where we are bringing together a group of 
world renowned scientists to help us determine what some of the 
future projections on research and other scientific and 
management issues will be.
    Senator Snowe, you mentioned in your opening remarks some 
comments about ocean noise. This year in the appropriations 
bill Congress asked the Marine Mammal Commission to hold a 
series of international conferences on acoustic threats in the 
marine environment. I would like to report to you that we are 
well on our way to setting up those meetings. We are working 
with the U.S. Institute for Environmental Conflict Resolution 
in Tucson, also known as the Udall Center, to get some 
facilitators so that we can identify and work through those 
threats, identify some of the research priorities, and talk 
about what some of the appropriate mitigation measures are in 
light of some of the large uncertainties that we now have as 
pointed out in the National Research Council report.
    Ms. Lent and Mr. Jones have covered many of the topics that 
are in the administration bill. The Commission worked very 
closely with those agencies and others in the Government on 
that bill, so I do not think there is a need for me to go 
through point by point as they have done.
    I will comment on the harassment definition, as all the 
members have. We worked hard in the administration to come up 
with a definition that we thought would work and be effective 
for marine mammals. There are a lot of other definitions out 
there. I commend your staff on both the Democratic and 
Republican side for working with a variety of interests to find 
that right mix of words between meaningful disruptions and 
significant activities and biological behavior patterns. It is 
very difficult to come up precisely in legislation with what 
that might mean for a whale versus a manatee versus a seal. And 
the staff, both in the Senate and in the House, has been trying 
very hard to refine these things and come up with definitions 
that will work.
    Regardless of what definition you put in legislation, it 
will be up to the agencies to come up with some interpreting 
language and set those bars, and we think that is going to be 
very important as they do that, working with the staff as they 
go through to define that.
    The bill that the administration has put forward provides a 
number of clarifications. It touches on a lot of the points 
that these folks have already mentioned. We think, overall, it 
would be a great move forward and advance the cause of marine 
mammal conservation and management. We are happy and eager to 
work with you, your staffs, and other agencies as we go through 
this process. We look forward to it, and we will be happy to 
answer any questions you may have. Thank you.
    [The prepared statement of Mr. Cottingham follows:]

      Prepared Statement of David Cottingham, Executive Director, 
                        Marine Mammal Commission

    Thank you for providing the opportunity for the Marine Mammal 
Commission to share its views with the Committee regarding 
reauthorization of the Marine Mammal Protection Act. We recently 
observed the Act's 30th anniversary and took that opportunity to 
reflect on the statute's successes and the challenges that remain. 
Under the Marine Mammal Protection Act much has improved. Many marine 
mammal populations have grown significantly since passage of the Act, 
including some stocks of large whales that had been threatened by 
commercial whaling. Observed dolphin mortality associated with the 
eastern tropical Pacific tuna fishery has been reduced from hundreds of 
thousands per year to less than 2,000. Nevertheless, the depleted 
dolphin stocks used to locate schools of large tuna do not appear to be 
recovering as one would expect. Other species and stocks, such as 
northern right whales and Hawaiian monk seals remain critically 
endangered. New threats to marine mammals are emerging, such as 
retreating ice coverage in polar areas, which is having adverse effects 
on habitats used by Arctic species such as the polar bear. Other 
possible threats require further study, such as noise in the marine 
environment, that may be disrupting or interfering with vital marine 
mammal behaviors. The Commission is in the process of planning a series 
of international workshops on the effects of ocean noise to identify 
information gaps and the actions needed to help us better understand 
the nature and extent of the possible impacts and to identify needed 
management actions.
    In previous testimony concerning the Marine Mammal Protection Act, 
the Commission's Chairman has observed that most research and 
conservation actions involving marine mammals are taken in response to 
acute, often controversial conservation problems. Current legislation 
largely reflects this reactive approach to management. As we focus on 
past and emerging crises we may miss opportunities to develop a more 
broad-based, interdisciplinary, and anticipatory approach to research 
and management that could enable us to identify and act to address 
potential conservation problems before they become serious and 
controversial. Along these lines, the Commission is convening a meeting 
of international marine mammal experts this summer to identify 
comprehensive research needs and to map out a long-term strategy for 
pursuing such projects. I would be happy to discuss these and other 
efforts being carried out by the Commission in furtherance of its 
responsibilities under the Marine Mammal Protection Act during this 
hearing as time permits or at another time at the Members' convenience. 
I now turn to the immediate task at hand, providing you with our 
recommendations concerning reauthorization of the Act.
    The Marine Mammal Protection Act was last reauthorized in 1994, at 
which time Congress enacted significant amendments to the statute. 
While those amendments, for the most part, have improved operation of 
the Act, ten years of experience with implementing those provisions 
have uncovered certain problems that we and the other agencies charged 
with implementing the Act believe merit the Committee's attention 
during reauthorization. In large part, the recommended amendments 
included in the Administration's bill were developed to address those 
shortcomings. The Commission participated on an inter-agency working 
group to develop the Administration's proposal. Passage of the bill 
that we and the other agencies testifying before you today have 
developed will lead to more effective conservation of marine mammals. 
Although other, technical amendments have been proposed, the key issues 
addressed in the Administration bill are summarized below.
    The 1994 amendments added section 119 to the Act to encourage the 
National Marine Fisheries Service and the Fish and Wildlife Service to 
enter into cooperative agreements with Alaska Native organizations to 
conserve marine mammals, to provide co-management of subsistence use, 
and to authorize funding for activities under those agreements. The 
process has worked well, and cooperative agreements are in place with a 
number of Alaska Native organizations. The key shortcoming with the 
existing provision is that it does not provide a mechanism for true 
harvest management under which the parties can establish enforceable 
limits on the numbers of marine mammals that may be taken for 
subsistence and handicraft purposes or on the time and manner of 
taking. Having such authority would have allowed the resource agencies 
and Native leaders to implement responsible harvest management measures 
to stave off situations such as that that led to depletion of the Cook 
Inlet stock of beluga whales. As it was, the National Marine Fisheries 
Service and the majority of Native hunters had little recourse but to 
watch as a small group of hunters seeking financial gain overharvested 
the stock to the point of depletion. It was only after the Service 
designated the stock as depleted that it was able to establish 
mandatory limits on further taking by Alaska Natives. By that point, 
however, the population had been reduced to such low numbers that 
draconian measures were needed to bring about recovery of the stock--
restrictions that could have been avoided if effective management could 
have been implemented earlier. The Administration bill includes a 
proposal, worked out cooperatively with Alaska Native representatives, 
that would cure this statutory deficiency and minimize the risk that 
similar situations will arise in the future.
    The permit provisions of the Act were significantly revised in 
1994. The package of permit-related amendments enacted at that time 
added a new, generally applicable prohibition to the Act--a prohibition 
on exporting marine mammals. Being focused on permits, however, the 
amendments neglected to provide exceptions to authorize marine mammals, 
and marine mammal parts and products, to be exported in all cases where 
such exports previously had been allowed. In fact, the only exceptions 
included in the 1994 amendments pertained to exports for purposes of 
public display, scientific research, and species enhancement. 
Exceptions authorizing exports in other situations are needed, 
including for handicrafts made and sold by Alaska Natives, as part of 
cultural exchanges among Alaska Natives and Natives from other Arctic 
countries, under waivers of the moratorium, etc. The Administration 
bill takes a comprehensive approach to this problem by including 
specific authority not only for exports, but related transport, 
purchases, and sales.
    Although transfers of marine mammals currently are authorized for 
purposes of public display, scientific research, and enhancement to 
foreign facilities that meet requirements comparable to those 
applicable to U.S. facilities, no mechanism is in place for issuing 
permits to authorize a foreign applicant to take and export marine 
mammals directly. That is, sections 101(a)(1) and 104(a) of the Act 
refer only to permits authorizing the taking or importing of marine 
mammals, but not exports. The amendments set forth in the 
Administration bill would clarify that such permits can be issued to 
qualified applicants. We understand that some representatives of the 
public display community are concerned that the Administration bill 
would require facilities to obtain permits for exports where one is not 
required now. A close examination of the proposed amendments will 
reveal that this is not the case. Transfers from domestic facilities to 
foreign facilities that meet the Act's comparability requirements would 
still be allowed without a permit. However, under the Administration's 
proposal, issuance of an export permit in to a foreign applicant in the 
first instance would become an available option. That is, the proposed 
authority for issuing export permits would supplement, but not roll-
back, the 1994 permit amendments.
    One other problem created by the 1994 amendments related to exports 
pertains to the prohibition section of the Act. As originally enacted 
in 1972, the prohibition on transporting, purchasing, and selling 
marine mammals applied only if the animal had been taken in violation 
of the Act. Recognizing that this created untenable enforcement 
problems--for example, when the animal was originally taken for a 
permissible purpose, e.g., Native subsistence, but later transferred 
for an impermissible purpose--Congress amended the provision in 1981 to 
remove the linkage between the underlying taking and the subsequent, 
unauthorized act. For unexplained reasons, and perhaps inadvertently, 
when the export prohibition was added to section 102(a)(4) in 1994, the 
drafters reverted to the pre-1981 language. This has resurrected the 
enforcement difficulty that Congress recognized and originally fixed 
more than two decades ago. A similar amendment to fix the problem anew 
is needed now.
    Another key aspect of the 1994 permit amendments was clarifying 
that exclusive jurisdiction for most aspects of the maintenance of 
marine mammals in captivity rests with the Animal and Plant Health 
Inspection Service under the Animal Welfare Act. One result of this 
shift in agency jurisdiction was the nullification of a longstanding 
National Marine Fisheries Service policy against authorizing traveling 
cetacean exhibits. Although the Animal and Plant Health Inspection 
Service has recognized that such exhibits pose heightened risks to the 
animals involved, it does not believe that it has sufficient authority 
to prohibit them by regulation. Because of this, and the undue risks 
posed to dolphins and other cetaceans in transient facilities, the 
Commission and other agencies recommend that these exhibits be 
expressly precluded by statute.
    Another issue concerning captive marine mammals that merits 
Congressional attention is the release of long-term captive marine 
mammals. The release of these animals poses risks both to the animals 
being released and to the wild populations with which they come into 
contact. As such, releases should only be attempted when there has been 
sufficient training and health screening of the animals to be released 
and when an adequate monitoring program is in place. While releases 
arguably constitute harassment under the current definition of that 
term, there is a need for certainty that releases are prohibited absent 
specific authorization. In his regard, we note that the 
Administration's proposed release amendment would not apply to the 
return of stranded/rehabilitated animals or to temporary releases 
undertaken as part of the training or deployment of marine mammals as 
part of the Navy's marine mammal program.
    The centerpiece of the 1994 amendments was the adoption of a new 
regime to govern the incidental take of marine mammals by commercial 
fisheries. By focusing on whether or not the catch is sold, however, 
the amendments created a situation where certain ``recreational'' 
fishermen, who fish in the same areas as commercial fishermen, use 
identical or similar gear, and target the same species, are not covered 
under the regime simply because they choose to keep the fish for their 
own use. The Administration proposal would address this incongruity by 
expanding the current regime to include not only commercial fisheries, 
but recreational fisheries that take marine mammals frequently or 
occasionally (category I or II fisheries). In this way, these fishermen 
would be covered under the section 118 taking authorization and would 
be accountable for implementing take reduction measures and for meeting 
the reporting and other requirements applicable to their commercial 
counterparts. The Administration bill also includes proposed amendments 
to section 118 designed to improve the operation of the take reduction 
process.
    Another important change to the Marine Mammal Protection Act 
enacted in 1994 was the addition of a statutory definition of the term 
``harassment.'' That amendment was intended to bring greater certainty 
to determining what would and would not constitute a taking by 
harassment. However, that amendment has not had the desired result. 
Some argue that the definition is too narrow in that it requires an 
underlying ``act of pursuit, torment, or annoyance'' to constitute 
harassment. Others observe that the definition is too broad in that it 
arguably includes acts with any potential to disturb a marine mammal. 
The Administration proposal would address both of these concerns. 
First, it would expand the definition to clarify that it includes any 
act that has, or can be reasonably be expected to have, certain 
impacts. Second, the proposed definition would raise the threshold for 
Level B harassment to the point where disturbance would have to occur 
or be likely to occur. In addition, the Administration proposal 
contains a new subpart that would address activities directed at marine 
mammals (e.g., intentional pursuit or close approaches) that are likely 
to cause disturbance, regardless of whether the response is significant 
or not.
    There are also provisions of the Act apart from those amended in 
1994 that need to be revisited during the reauthorization process. For 
instance, certain provisions have not been updated to reflect changed 
circumstances since they were originally enacted 30 years ago. Foremost 
among these are the penalties and fines available under the Act, which 
have not been increased since originally enacted in 1972. The 
Administration proposal would bring the Marine Mammal Protection Act 
penalty provisions into parity with those under other natural resource 
statutes and reflect changed economic circumstances since the early 
1970s.
    Likewise we advocate updating a spending limit peculiar to the 
Marine Mammal Commission. Section 206(4) of the Act authorizes the 
Commission to secure the services of experts or consultants, but limits 
the amount that can be spent to $100 per day. That limit essentially 
precludes us from obtaining these types of services in today's economy. 
To address this problem, the Administration bill would eliminate the 
$100 limit and put the Commission on an equal footing with other 
Federal agencies when it comes to procuring such services.
    The Marine Mammal Commission also believes that there is a need to 
improve enforcement efforts under the Marine Mammal Protection Act. In 
this regard, the administration proposal would tighten the harassment 
definition to make cases based on directed taking easier to prove. The 
Administration bill would also allow the National Oceanic and 
Atmospheric Administration to retain fines collected for violations of 
the Act, which could be used to offset enforcement expenses. This is 
something that the Fish and Wildlife Service is currently authorized to 
do. In addition, the Administration bill would direct the National 
Marine Fisheries Service and the Fish and Wildlife Service to pursue 
cooperative agreements with State law enforcement agencies to improve 
local enforcement efforts under the Marine Mammal Protection Act.
    Another major challenge under the Marine Mammal Protection Act 
reflected in the Administration bill is securing the recovery of highly 
endangered species, such as the northern right whale. The North 
Atlantic stock, which numbers about 300 individuals, remains vulnerable 
to extinction due, in part, to ship strikes and entanglement. The 
Administration bill highlights the ship strike issue as one requiring 
priority attention. One of the difficulties impeding progress in 
addressing this source of mortality is a lack of agreement concerning 
the existing legal authorities that can be brought to bear on the 
issue. In this regard, the Marine Mammal Commission has just entered 
into a contract for an independent assessment of what can be done under 
current legislation and existing international agreements to address 
this problem.
    That concludes my testimony. I would be please to respond to any 
questions that you may have.

    Senator Snowe. Thank you, Mr. Cottingham.
    Would you like to make a statement, Senator Stevens?

                STATEMENT OF HON. TED STEVENS, 
                    U.S. SENATOR FROM ALASKA

    Senator Stevens. Madam Chairman, I would like to make a 
statement. I have to go back to the floor on appropriations.
    I am constrained to start out by saying to Mr. Cottingham I 
think our job is to fashion a statute that does not have to be 
interpreted by you or by the courts.
    Let me read to you what that judge said in California. In 
fact, by focusing on potential harassment, the statute appears 
to consider all the animals in a population to be harassed if 
there is a potential for the act to disturb the behavior of the 
most sensitive individual of the group of hundreds of thousands 
of mammals. The Navy needs to be stopped with its research if 
it is charged with harassing one individual.
    Yet, I put before the Committee today the story from the 
Washington Post about a group of orcas that consumed 700 harbor 
seals in a week. They are not charged with any harassment.
    [Laughter.]
    [The Washington Post article follows:]

    
    
    
    
    Senator Stevens. We will come up with a statute that 
defines harassment or I will oppose the bill. I think we have 
got to get very specific about it. I am really getting very 
tired of courts tying up whole units of our society because one 
judge thinks that somehow or other we have improperly written 
the statute. That is, in effect, what that judge said.
    I thank you, though, Madam Chairman, for holding this 
hearing today, and I want to introduce one of my constituents 
and an old friend who is the Executive Director of the Alaska 
commission that was established in 1994 to represent hunters in 
villages in northwest Alaska and the negotiation with Russia on 
the Polar Bear Treaty. The Polar Bear Treaty received a hearing 
at the Senate Foreign Relations Committee last month, and it is 
my hope the Senate will ratify the important management 
agreement that it contains before the August recess.
    I thank you very much, Charles, for coming back this far. 
He is from Nome incidentally, a little south of Wainwright, but 
Charles told me it was 82 in Anchorage yesterday. So maybe your 
people ought to come just a little further south from 
Wainwright. That is all.
    [Laughter.]
    Senator Stevens. I do hope that the Committee will reflect 
on this whole act. I remember when we had the moratorium in 
1972. It was just a moratorium, and suddenly we turned around 
and that moratorium became an act to prevent the taking of 
marine mammals. At that time, as you have said, Mr. Cottingham, 
there were nets that were intercepting a great many mammals, 
and we deplored those in Alaska, particularly the drift nets 
and a lot of other nets. As a matter of fact, the Alaskans were 
the ones who went to the U.N. to get the drift nets banned.
    But there were mammals then that were in danger of 
extinction because of taking--not because of harassment, but 
because of taking. We decided to help restore the reproductive 
capability of the mammals and protect them as we had the 
fisheries in the basic 200-mile limit bill.
    Unfortunately, the threat that comes now is this time-
consuming litigation from these extreme environmental groups. 
They are the people who are doing harassing now, and I think 
maybe we need a protection statute against extreme 
environmental litigation. Marine mammals cannot be managed 
properly when they are harassed by the courts because of this 
extreme litigation. It is so arduous now that scientists in 
Alaska are often denied to access the information they need to 
perform the research to protect and manage the mammals.
    I think NOAA has to look closely at its process for issuing 
research permits, to make sure that it properly considers the 
unique conditions in the environment where these mammals spend 
their time, particularly in areas like mine in the State of 
Alaska. There is a very small window of reasonable weather when 
the research can be conducted, but somehow or other the courts 
and those who administer the act put unreasonable restrictions 
on research in the period of time when it would be most 
convenient and most effective.
    I do believe the administration's proposal and the new 
section, Madam Chairman, will allow the Departments of Commerce 
and Interior to enter into harvest management agreements with 
our Alaska Native tribes in order to conserve both depleted and 
non-depleted stocks of marine mammals is a good amendment. It 
would authorize Alaska Natives to design and implement and 
enforce management plans within the Marine Mammal Protection 
Act. There is merit to these management agreements because we 
can develop plans to deal with the stocks that are not depleted 
and prevent them from becoming depleted.
    I do want to point out had we had such an agreement in 
place before the dramatic decline of the beluga whales in the 
Cook Inlet, we could have managed those properly. The Alaska 
Native Commission already has proven success in co-management 
of marine mammals, and I urge you to listen to my friend, 
Charlie Johnson, when he appears before us.
    I am speeding through my statement here. It is a long one, 
Madam Chair. I hope you will put the whole statement in the 
record.
    Senator Snowe. Without objection, so ordered.
    Senator Stevens. This past December the National Academies 
found that diminished food supply is not the cause of the 
decline of the Steller's sea lion. I asked the academy to 
scrutinize the theory that was presented as part of the law 
that was passed in the Congress to secure better science on the 
cause of the sea lion decline. I believe that better science 
and better research will show that fishing is not the cause for 
the decline in sea mammals in any area that we have because we 
have already had the act to protect those that were being 
harvested and were being impacted so heavily by fishing in the 
past.
    Now, the National Academy of Science study notes the 
greatest threat to the weakened population of sea lions is from 
the impact of predators such as the killer whale and the 
overall oceanic and climatic shift in the north Pacific. The 
good news is that the National Marine Fisheries Service 
released results from an aerial survey that showed for the 
first time in 2 decades an overall increase of 5.5 percent in 
the sea lion population. I think that is because we used common 
sense and good science in dealing with the sea lion, and 
charges were made that the fishing community in my State was 
responsible for the decline of the sea lion.
    The focus and funding given to the Steller's sea lion 
research was critical I think in beginning to understand this 
complex species and what can be done to correct this trend.
    Harbor seals and sea otters are next in the marine mammal 
weakened population area in my judgment. As I pointed out 
before, I do hope everyone will look at that story from the 
Washington Post. We were out of town when it was published, 
Madam Chairman, but I call it to your attention and everyone's 
attention. 700 seals by this one pod of killer whales, and then 
they went back to the South Pacific.
    I really think Congress needs to address the marine mammal 
issues in general as we addressed the Steller's sea lion issue. 
Good science. Give us the research and give us the capability 
to deal with them and protect them. But do not start this 
business of extending a statute so that an accidental bumping 
into one mammal is harassing a population of hundreds of 
thousands of mammals.
    I think this extension by the courts is something that has 
just got to stop, and I am particularly worried about the Navy 
because if you are not familiar with what the Admiral was 
talking about, about the increasing threat to the United States 
in the future from these submarines we cannot detect, then you 
better wake up. I just cannot believe, Madam Chairman, that we 
will leave to the courts or, with due respect, leave to anyone 
in an executive position the power to define what we should 
define. If we want to prevent harassment, we should define what 
it means, and it does not mean the simple bumping into one of 
hundreds of mammals should lead to an injunction against an 
action like developing a new system to protect our country.
    I assure you, Admiral, we will watch this very carefully, 
and those of us who do handle defense matters are going to 
become extremely concerned if the Congress will not address 
this issue and give you the freedom you need while at the same 
time giving us the tools to protect those mammals that might be 
endangered by real action that could cause their death or 
injury.
    I am rushing on because I know I am late and I have taken 
too much time already, Madam Chairman.
    The thing that bothers me is this is just another example 
of an action we took quickly to prevent one portion of an 
industry from harming a portion of the sea mammal population, 
and the moratorium worked. But Congress made it a permanent act 
and did it in such a rush that it did not really define what it 
meant when it talked about harassment. Now, I think we have got 
the time now to do that and I urge you and urge our staffs to 
work on it because I assure you I mean what I say. I will 
oppose the bill unless we find a way to define harassment so it 
will be understandable by the courts, by the administration, 
and by everyone that must join us in protecting the ocean 
mammals.
    Do not misunderstand me. Charlie Johnson will tell you, 
many of our people are sustained by ocean mammals. Many of them 
actually even worship ocean mammals. So we are not people who 
are in any way going to be associated with activity that would 
harm them. We want to protect them, but we want to protect them 
with common sense legislation that everybody can understand.
    Thank you very much.
    [The prepared statement of Senator Stevens follows:]

    Prepared Statement of Hon. Ted Stevens, U.S. Senator from Alaska

    Thank you, Chairwoman Snowe, for holding this hearing on the Marine 
Mammal Protection Act. I would like to recognize one of the witnesses 
on the second panel from the State of Alaska, Charles Johnson, 
Executive Director of the Alaska Nanuuq Commission, which was 
established in 1994 to represent hunters and villages in North and 
Northwest Alaska in the negotiation of the U.S./Russia Polar Bear 
Treaty. The Polar Bear Treaty received a hearing in the Senate Foreign 
Relations committee last month and it is my hope that the Senate can 
ratify this important management agreement before the August recess. 
Charles, thank you for traveling all the way from Nome, Alaska to be 
here today. Your testimony and perspectives on whether the Marine 
Mammal Protection Act is working effectively will be important for this 
Committee to fully understand.
    When the Marine Mammal Protection Act became law in 1972 it 
followed a moratorium on the taking of marine mammals. The Act was 
passed to protect certain marine mammals that are in danger of 
extinction or depletion; help restore the reproduction capability of 
mammals if they fall below their optimum sustainable level; and achieve 
a better understanding of the ecology and population dynamics of marine 
mammals.
    However, like many of our marine resource laws, the threat of 
costly, time-consuming environmental litigation hangs over this Act 
like a black cloud. Marine mammals cannot properly be managed because 
researchers are not permitted to go near them. The permitting process 
is so arduous that scientists in Alaska are often times denied or are 
significantly delayed in acquiring permits needed to perform research 
to protect and manage the species. NOAA needs to look closely at it's 
process for issuing research permits to make sure that it properly 
considers the unique environments that exist in areas like Alaska. We 
have a small window of reasonable weather when research can be 
conducted.
    The Administration's proposed bill adds a new section (119A) that 
allows the Departments of Commerce and the Interior to enter into 
harvest management agreements with Alaska Native tribes in order to 
conserve both depleted and non-depleted stocks of marine mammals. The 
provision would authorize Alaska Natives to design, implement and 
enforce management plans within the MMPA.
    There is merit in allowing harvest management agreements to be 
developed for non-depleted stocks of marine mammals. However the Alaska 
marine mammal commissions currently authorized in the Act are the best 
organizations to receive this authority, not the 227 tribes now 
recognized in Alaska. Had a pre-depletion co-management agreement been 
in effect in Cook Inlet, we could have likely avoided the dramatic 
decline that led to a depleted listing for that family of Beluga 
whales.
    Alaska's Native commissions already have proven success in the co-
management of marine mammals. The Nanuuq Commission's work on the polar 
bear, the Alaska Native Harbor Seal Commission, the Alaska Sea Otter 
and Steller Sea Lion Commission, the Eskimo Walrus Commission, the 
Alaska Beluga Committee, and the Alaska Eskimo Whaling Commission all 
work well with their respective Federal agencies on the management and 
study of marine mammals throughout Alaska. The co-management agreements 
under the MMPA should remain with the various Alaska marine mammal 
commissions.
    This past December, the National Academies found that diminished 
food supply is not the cause of decline for Steller Sea Lions in 
Alaska. I asked the Academy to scrutinize this theory as part of the 
law Congress passed to secure better science on the causes for Sea Lion 
decline. I believed that better science and research would show that 
fishing was not the cause of this decline. The National Academy of 
Sciences study noted the greatest threat to the weakened population of 
sea lions was likely from impacts such as killer whale attacks and the 
overall oceanic and climatic shift in the North Pacific. However, the 
good news is the National Marine Fisheries Service released results 
from an aerial survey that showed for the first time in two decades an 
over-all increase of 5.5 percent in the Steller Sea Lion population 
from 2001-2002.
    The focus and funding that was given to Steller Sea Lion research 
was critical to beginning to understand why this complex species is 
declining and what can be done to correct this trend. Harbor seals and 
sea otters are potentially the next marine mammals to experience 
weakened population trends similar to Steller Sea lions. A recent 
Washington Post article reported that eleven killer whales consumed 
about half the harbor seals in Hood Canal in Puget Sound, roughly 700 
seals, in eight weeks. I hope the Steller Sea Lion crisis reminded us 
that predation of other creatures of the seas often has much to do with 
a species decline than man's actions. Congress should address the 
Harbor Seal issue in this Act before the environmental industry attacks 
our fishermen with their next debilitating lawsuit.

    Senator Snowe. Thank you very much, Chairman Stevens, for 
your excellent statement. I appreciate your comments and your 
input.
    Mr. Cottingham, you want to address something?
    Mr. Cottingham. Senator, if I may. I think the 
administration bill does exactly what you are saying and it 
talks about a better definition exactly like you are saying. So 
it is not for individual----
    Senator Stevens. Well, I look forward to working with you, 
I am sure.
    [Laughter.]
    Senator Snowe. Well, let us follow up on some of the issues 
that Senator Stevens has raised and ones that are of concern in 
terms of the ambiguity in these definitions of harassment. I 
think the real question is whether or not we can reconcile the 
differences in terms of the different perspectives on this 
issue. I am also concerned about whether or not this language, 
as proposed by the administration, will add to the ambiguity or 
is this going to be clarifying, less than clarifying, or are we 
elevating the threshold, because I think it gets back to the 
purpose of the act.
    I agree with Senator Stevens that we have to find a way to 
address these issues, particularly because of the impact as 
well on the Navy. Obviously, we are trying to develop a common 
sense approach to this issue. As a result of the lawsuits and 
court injunctions, we are finding difficulty with the current 
definitions. On the other hand, I do not want to create 
unintended consequences by changing the definitions only to 
invite other issues and problems.
    It all does get back to the fact that we lack the research 
and the science on which to predicate our decisions. I think 
that that truly is regrettable that we missed an opportunity 
during this last decade to make the kind of investments in 
research so that we have a better understanding of the impact 
of noise on our marine mammals so that we could better 
ascertain exactly what we need to be doing in guiding this 
legislation.
    But we are here today and the question is we have to make 
these investments. Some of the recommendations made by the 
National Research Council make a great deal of sense. For 
example, they recommend a lead agency for this type of 
research. What is your response to that, Dr. Lent? Do you think 
that is a good idea? And which agency would assume that 
leadership on research? Because I think, frankly, we have to 
provide leadership on this issue.
    If we do not have the information by which to design these 
statutes, it does create serious problems. Obviously, it has in 
this instance. So it is very difficult to put one foot ahead of 
the other when you do not have that type of information. So we 
are out here grappling with this problem and we are really 
uncertain of the magnitude and the extent of the impact of 
noise on our marine mammals as we find different ways to define 
harassment.
    Dr. Lent. Madam Chair, we have not had discussions about 
which agency would take the lead. I am sure we could work with 
our partners to determine what is the most effective way in 
terms of taking a lead. I agree that the administration 
proposal does clarify the definition of harassment. It makes it 
a lot less broad. Right now, arguably, if you walk down the 
beach and a seal turns its head to look at you, you are 
harassing. We want to zero in on those activities where it is 
pretty clear you are having a significant biological impact on 
the animals.
    I want to stress also that we are certainly no strangers to 
litigation at NOAA Fisheries. We have 100 active lawsuits not 
just on marine mammals. One of the areas where we need to focus 
is not just the definition of harassment, but making sure we 
are following the appropriate processes. Under the Endangered 
Species Act, which some of these mammals do fall under, we have 
to make sure we are doing the appropriate section 7 
consultations.
    Also we have to do better NEPA analysis. In some cases we 
have lost just on a procedural matter. We want to make sure we 
are doing good NEPA not just as a matter of process but also as 
a matter of substance, making sure we are looking in particular 
at cumulative impacts.
    Admiral Moore. Senator Snowe, could I comment?
    Senator Snowe. You may, Admiral.
    Admiral Moore. In the Navy, for low frequency active sonar, 
as I have mentioned, we have invested $10 million in research, 
and since then we have been continuing to invest in the 
neighborhood of $7 million to $8 million a year. We believe we 
invest more in marine mammal research than anybody else in the 
United States.
    Our recommendation for the changing of the definition of 
harassment was based in large part on that research in that 
these significant changes in behavior are measurable based on 
the data that we have collected in our research. The research 
was done by Cornell University and Woods Hole and concluded 
that the low frequency active sonar would not result in 
significant biological effects on marine mammals. So we believe 
in the Navy that the current definition, as we have put forward 
in this legislation, is based on scientific research and is 
supportable by the scientific data that we have collected and 
will continue to develop over time.
    Senator Snowe. We are going to hear about concerns about 
using the word ``significant'' because it could be viewed as 
ambiguous or vague or undefinable. So I do not know if it is 
going to be a question of semantics or how the courts will 
interpret it. I would be interested in knowing the basis for 
this language that somehow it would be more discernable in the 
eyes of the court as to what the impact is precisely on marine 
mammals. Obviously we are making some changes by adding 
``significant,'' and deleting reference to ``pursuit, torment, 
or annoyance.''
    Admiral Moore. What we have said, Madam Chair, is that 
significant changes in behavior would be those behaviors such 
as migration, breeding, and feeding. These are behaviors that 
we can observe in some detail and measure. Based upon the 
knowledge that we have gained in our research on our own 
systems, then we can take the data we have collected on 
research of the mammals, use the data we have on our own 
systems, and can make a fairly precise determination, not 
totally precise, but a fairly precise determination, as to what 
we believe the effect will be.
    Senator Snowe. You mentioned one experience this morning 
with the Navy. How many instances can you cite in which the 
language in this act has prevented deploying low frequency 
active sonar?
    Admiral Moore. Well, low frequency active sonar would be a 
case in and of itself. We have developed the system. We 
attempted to get the permit, and we are now limited in testing 
and training to this area out western Pacific.
    Senator Snowe. To one area?
    Admiral Moore. The most significant other case, our little 
warfare development capability was a broad range of systems 
that we were trying to bring forward. Because of the definition 
of harassment, we went through a lawsuit there and we took 
significant mitigation actions to be able to continue working 
in that area. But those would be the two most significant.
    Of course, they are both at sea and clearly these systems 
are underwater warfare systems. They involve the use of sonar 
in the water and that is where this definition of harassment 
will impact us. As we take forward systems and capabilities 
that we are going to use underwater, then this definition of 
harassment will have a significant effect on us if we do not 
change it.
    Senator Snowe. How was confining it to the area that you 
just mentioned affected the Navy's readiness? How does it 
affect the Navy's potential for readiness? Does it in this 
instance?
    Admiral Moore. Yes, ma'am. Readiness, of course, connotes 
the future. Ready for what? Ready for what might happen in the 
future. And this is why I mentioned this example of we have 
done a great job in our recent conflicts, Enduring Freedom and 
Iraqi Freedom, but in those we did not face an underwater 
threat. We did not face an adversary that possessed submarines. 
Those that we see in the future, those that are of most concern 
to us now, as I mentioned, in the western Pacific, both of 
those potential conflicts--those adversaries or potential 
adversaries possess significant underwater warfare capability 
in the form of submarines. It is their top priority defense 
project. It is where they are making investments more than in 
any other area because they know that this capability is what 
they need to interdict this U.S. force as it deploys forward.
    So this is why we have brought it forward as a readiness 
issue. This is our number one concern, at least in the United 
States Navy. Our number one readiness issue is our ability to 
deal with this threat as it continues to develop in the future, 
whenever that day will come.
    I will just summarize my answer to say that low frequency 
active sonar capability is absolutely critical to our ability 
to deal with this threat in the future. So it is a significant 
readiness degrader.
    Senator Snowe. Mr. Cottingham, do you agree entirely with 
this definition?
    Mr. Cottingham. As I said, I think the definition in the 
administration bill is a good one. We have worked hard on it. I 
do not think it is the only one. I think when you compare that 
to the National Research Council or others, certainly there are 
others out there that we could accomplish and perhaps clarify 
even more. That is what I was commending your staff here, for 
trying to work through these. I think the second part of the 
definition, which is ii, for harassment directed at things is 
also a very important part of this. Yes, ma'am.
    Senator Snowe. Well, I think the real question is are we 
elevating the threshold so high that it exposes marine mammals 
to certain risk. I think that is a real question here. How high 
should that threshold be or how low it should be in terms of 
this definition and what is critical to their survival and 
reproduction? Do we leave it at that? Or is it just minor 
changes in behavior? I think that is the real issue here in 
terms of how we clarify what the definition should be and what 
the effect would be on marine mammals. What are we saying is 
allowable and inconsequential?
    Mr. Cottingham. I think Dr. Lent was getting at that. What 
the administration has done and what others have been working 
through is trying to define that as to what disruptions of--is 
it behavioral patterns? Is it biologically significant 
activities? These are things that a variety of people are 
working on. The administration has proffered this definition. 
The National Academy's was a meaningful disruption of 
biologically significant activities instead of a disruption of 
natural behavioral patterns. We are going to have to work very 
hard to clarify that. That is what I was actually trying to get 
at in my comment. If the definition were either of these in 
statute, the report language that you put together explaining 
exactly what you mean on these things is going to be critical 
to the interpretation of this so we can avoid the situation 
that Senator Stevens was talking about. I was not trying to 
provoke an argument with him.
    [Laughter.]
    Senator Snowe. Oh, no. Well, you are depending on Congress 
to be clarifying? That will be interesting.
    [Laughter.]
    Mr. Cottingham. If you can clarify what you mean in 
disrupting natural behaviors, it will help us and the agencies 
define that. I do not know that it would avoid, but it could 
potentially avoid some of the conflicts that Senator Stevens 
was talking about.
    Senator Snowe. Mr. Jones, I gather you are comfortable with 
this proposed definitional change. Do you think it will make it 
easier to implement the act and do we still make gains on the 
conservation side?
    Mr. Jones. I do, Madam Chair. The problems that we are 
talking about today have been less of an issue for the Fish and 
Wildlife Service for the species that we are responsible for. 
Nevertheless, we all worked together and we do believe that the 
definition in the administration bill is one which gets away 
from one of the problems in the current law where you have to 
look at the intent of the person involved and focuses instead 
on what the effects are and then establishes the threshold and 
the kinds of effects which would be harmful which should be 
prohibited.
    I understand that there are other proposals for other 
definitions and perhaps there are some that would accomplish 
the same thing. But we were comfortable that the language that 
we put forward would work for all marine mammals, whether it is 
those that are the responsibility of NOAA Fisheries or the 
species that the Fish and Wildlife Service is responsible for. 
We do think it would be more clear to the regulated public so 
they would know what is and is not prohibited and then more 
clear to us so that our law enforcement agents would know when 
a situation has reached the point where we should look at a 
prosecution and we hope would also give the courts the kind of 
clarity they need so they would not feel that they have to step 
in to interpret the law.
    Senator Snowe. Thank you.
    Senator Lautenberg?

            STATEMENT OF HON. FRANK R. LAUTENBERG, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Lautenberg. Thank you, Madam Chairman. I will spare 
the Committee the time necessary for an opening statement, but 
just say that I am concerned that we protect our ability to 
defend ourselves. Admiral, I did not have quite the hash marks 
and medals you have on your chest in my 3 years as Corporal in 
the Army. But I wanted to defend our country as best I could, 
and sometimes I think it was best if I stayed out of the way.
    [Laughter.]
    Senator Lautenberg. But I was there in Europe during that 
war.
    I do not want to impair the Navy's capacity to be ready, to 
be prepared. But where would we be if the problems of 
extinction, endangerment, et cetera continue to deplete the 
mammal population in the sea? So I think that there are 
legitimate questions to be asked about this policy. We know 
that there were many marine mammals formerly on brink of 
extinction 30 years ago that recovered and they are thriving, 
but even so, the MMPA has not been entirely successful. The 
Marine Mammal Center reports that a number of dead whales and 
certain other species that are washing ashore in the Pacific 
Ocean is on the increase, and this trend is very disturbing.
    So I just want to mention a couple things that I noted, and 
that is the administration's interest in exempting the DOD from 
any marine mammal protection. I had an amendment on the floor 
of the Senate during the defense authorization bill to prevent 
the DOD from utilizing a similar exemption from the Endangered 
Species Act, and it passed with a roll call vote. Even though 
these were military emplacements, military bases, the 
endangered species law was there to protect those species and 
to make sure that we did not interfere with the military's 
readiness planning or training. So it passed. Believe me, there 
was plenty of debate about that. The Senate is now on record 
against these type of exemptions, and unless they truly impair 
our ability to train and learn and research, I think that we 
have to protect these species that inhabit our world.
    The reality is that the Department of Defense has a 
relatively poor record, as I see it, for obtaining permits for 
its takings, another way of saying killing or harming marine 
mammals. But when it has bothered to seek such permits, as I 
understand it, the Navy has never been denied a permit. Do you 
know whether that is true or not, sir?
    Admiral Moore. When we apply for a permit, we have to enter 
into consultations with our regulators and we frequently in 
almost every case have to undertake mitigation measures to be 
able to gain the permit. So, yes, indeed, we have been granted 
permits, but only after we have undertaken, in many cases, 
debilitating mitigation measures that have served to--I will 
use the phrase--dumb down our training and in many instances to 
the point where we canceled our request for the permit. It was 
not worth the effort to spend the money to accomplish the 
training. So yes, we have been given permits, but only after we 
undertook significant mitigation measures.
    Senator Lautenberg. Is it fair to say that occasionally the 
DOD has just gone ahead and done what they felt they had to 
without obtaining a permit?
    Admiral Moore. No, I would disagree with that, Senator. I 
will give you an example.
    Senator Lautenberg. Well, there is a question, Admiral, 
when the DOD dropped live ordnance into the Gulf of Maine along 
the migratory path of the endangered right whale, the National 
Marine Fisheries Service did not even require that DOD obtain a 
permit. So there is latitude to do these things when our 
defense interests are so significant that we take some risk 
with the mammal population.
    Admiral Moore. We have been undertaking for the last 18 
months a consultation with the National Marine Fisheries 
Service on all military operations in the Gulf of Maine. I 
think the incident you might be referring to with the live 
ordnance involving a whale--the necropsy on the whale concluded 
that the whale did not die as a result of impacts of the 
training activity that was going on in the Gulf of Maine. In 
the last 18 months, on all operations in the Gulf of Maine, we 
are consulting with our regulators.
    Senator Lautenberg. Dr. Lent, I do not know whether I heard 
you correctly. Did you suggest as an example that even a glance 
between a human and a marine mammal might be considered 
harassment? Is it that trivial that we define these things? I 
mean, a look between two humans usually gets further 
negotiation.
    [Laughter.]
    Senator Lautenberg. But in this case could it be so silly 
as to say that that is harassment?
    Dr. Lent. Senator, that is indeed our concern that the 
current definition is too broad. That is why we want to narrow 
that down to those activities that really have a significant 
impact.
    Senator Lautenberg. Yes, OK, but looking is not a good 
example of what constitutes harassment.
    In terms of the definition of what we are trying to do in 
amending this statute, this rule is to make it more refined so 
that it does not prevent people from taking responsible action. 
I think, Mr. Jones, you said that it might be measuring the 
intent of a person. But how about separating the intent from 
negligence? Is that also a concern? We want to make sure that 
people are not negligent. I know the Navy, especially with the 
investments we are making in protecting our country and society 
at large--we have got some pretty rigid rules on how this 
equipment operates. So if it is negligence, that is usually a 
punishable offense. If a commander of a ship is negligent in 
his responsibility--he is not on the bridge at the right time, 
et cetera. So do you include negligence----
    Mr. Jones. Senator, negligence would certainly be a factor 
in the enforcement of any law. I again have to distinguish 
because for us in the Fish and Wildlife Service, since court 
interpretations have not been the issue, and since for the 
species for which we are responsible, we do not have any 
significant level of controversy with military training, so for 
us the issue is more enforceability by law enforcement agents. 
We believe that the definition in the administration proposal 
will make it much more clear both for the public and for the 
agents who are responsible for enforcing the law and not try to 
read what is in the mind of the individual. Negligence is 
certainly always an issue. I would agree with you, Senator.
    Senator Lautenberg. I noted your comment about intent.
    Madam Chairman, I would ask that my full statement be 
included in the record and that I be permitted to just close 
with a very short comment and that questions in writing be able 
to be submitted.
    Senator Snowe. Without objection, so ordered.
    [The prepared statement of Senator Lautenberg follows:]

            Prepared Statement of Hon. Frank R. Lautenberg, 
                      U.S. Senator from New Jersey

    Madame Chairman, I thank you for convening today's hearing on the 
Marine Mammal Protection Act (MMPA).
    For the most part this Act has been successful in conserving many 
marine mammal species. Marine mammals that were on the brink of 
extinction 30 years ago have recovered and are thriving in our oceans.
    But the MMPA hasn't been entirely successful. The Marine Mammal 
Center reports that the number of dead gray whales washing ashore along 
the North Pacific coast is increasing, with 269 reported along North 
America and Mexico in 1999.
    In 2000, more dead gray whales washed ashore near the San Francisco 
Bay than had in previous years and various whale and sea lion species 
are in decline. This is trend is very disturbing.
    I have many concerns, with the implementation and enforcement of 
the MMPA, and with the Administration's proposal for changing it.
    My first concern is that the Administration is proposing to exempt 
the Department of Defense (DOD) from many marine mammal protections.
    I also find this request perplexing. The Department of Defense has 
a record of failing to obtain permits for its ``takings.'' And when it 
has bothered to seek such permits, DOD has never been denied.
    No DOD training or readiness exercise has ever been prevented 
because the National Marine Fisheries Service or a Fish and Wildlife 
Service refused to issue a permit for a marine mammal ``taking.''
    The National Marine Fisheries Service didn't even require the 
Department of Defense to obtain a permit when it dropped live ordinance 
into the Gulf of Maine--along the migratory path of the Right Whale.
    And I'll tell you something, the American people strongly oppose 
these exemptions.
    A Zogby poll released just a few weeks ago--just as our war in Iraq 
was ending--reported the same results as an identical poll taken in 
2002. More than four out of five voters--84 percent--say that the 
government should have to follow the same environmental laws as 
everyone else.
    Our society has never sanctioned a double standard--and it should 
not start doing so now.
    The second concern I have is that the Administration would also 
limit the oversight role of Congress. That strikes me as a bit mistake.
    As a matter of fact, I am considering asking the General Accounting 
Office to review the government's implementation and enforcement of the 
ban on ``takes'' under the MMPA, and whether the implementation and 
enforcement have been consistent, balanced, and afforded the 
protections originally envisioned for this Act.
    Why, for instance, have only six ``Take Reduction Teams'' been 
established in 9 years? Not only has NMFS and FSW failed to adequately 
assess the health of certain marine species, but from what I've read, 
the entire permitting process is broken.
    It's too bureaucratic, it's too slow and it's too inconsistent. One 
of the tenets of our society is the even-handed application of law. I 
don't see that happening here.
    My view is that rather than water down the Marine Mammal Protection 
Act--if you'll excuse the pun Madam Chair--we must strengthen it.
    I'd like to hear from the Administration's witnesses on what 
justification they can offer as to why we should reduce our current 
level of protection for marine mammals.
    I want to understand, are we failing to properly enforce the 
provisions of the Marine Mammal Protection Act? How many marine mammals 
are being caught and killed each year in commercial fisheries? Which 
fisheries are most impacted?
    There is also increasing concern about the role of ocean noise, 
including the new low frequency sonar technology used by the Navy. We 
must learn much more about the impacts of this sonar on marine mammals.
    The definition of harassment has also been questioned. This 
definition is fundamental to the Marine Mammal Protection Act and must 
be clear, consistent and adequately protective.
    Yet, the Administration's proposed definition of harassment appears 
to ``raise the bar'' so high that ``takings'' permits would not be 
sought until the damage has already been done.
    That is not the way to protect marine mammals.
    Researchers are becoming increasingly concerned about the effects 
of shipping noise on marine mammals. I would like to hear if the 
Administration has any proposals that will address this issue.
    I look forward to hearing from our witnesses. I know they have 
sound advice to offer on these and other topics.
    Thank you, Madame Chairman.

    Senator Lautenberg. I would say that we live in an age--and 
I do not want to lecture or preach here, but the reality is 
that we cannot live without defending ourselves. We have seen 
that. I for one am supportive of investing in our defense and 
making sure that our service people are treated fairly, that 
they are not over-extended in terms of time away from home, 
job, family, you name it, to make sure that we are amply 
populated with the people that we need to do the job. But I 
also am one of those who believes that the environment that 
nature gave us is one that has to be protected, and the ecology 
of that environment has to be seriously reviewed to ensure we 
do not damage it.
    I was up in Alaska right after the grounding of the Exxon 
Valdez. I was then Chairman of the Subcommittee on Coast Guard 
Appropriations. I got up there in a hurry and it was one of the 
most beautiful places I had ever seen. I had not spent any time 
in Alaska. I had a chance to meet some of the native 
population. But I saw what happened to that population of fish 
and marine mammals and saw people from our Fish and Wildlife 
Service and others caressing and brushing off the oil and the 
slime that resulted from that spill to try and save those. I do 
not think that population has ever been fully restored.
    I know that Exxon never paid the punitive damages that were 
assessed. I think it started out at more than $5 billion, and 
they keep on deferring. They have not yet paid a dime and that 
is a long time ago.
    So I think without being too much of a romantic here, I 
would like to believe that we can defend ourselves physically 
and--forgive the reference--spiritually and morally as well as 
we look at those animals and the wildlife and the quality of 
the air and the water, protecting that at the same time as we 
protect ourselves from terrorists or those who would do us 
harm. Admiral, I know you believe that because otherwise you 
would not be in the position that you are in.
    So thank you, Madam Chairman. I appreciate it.
    Senator Snowe. Thank you, Senator Lautenberg, for your 
comments and for your participation here today.
    Clearly, it is a vexing issue. In thinking about how we are 
going to approach this and potentially changing definitions, I 
also think that it has to be commensurate with our investments 
in research. I think it is very troubling that we have reached 
this point and we really have no definitive data on which to 
base these decisions. We are talking about a 5-year 
reauthorization. Obviously, this has not been reauthorized 
since 1999 for a variety of reasons. Nevertheless, here we are 
today thinking about reauthorization, and changing the 
definitions for better or for worse. It is hard to say. We 
recognize that there is a problem. Obviously, we do not want to 
impede our readiness in any way and make the permitting process 
so arduous that it is virtually impossible to participate 
without anticipating a court action.
    But the fact is we do not have any new data, and that is 
troubling to me. Does anybody have any definitive data, for 
example, on the low frequency active sonar? Is there anything 
definitive with respect to that? In looking at the National 
Research Council's recommendations which are based on the 
progress since 1994, I find it pretty disheartening. There 
really is virtually negligible research that has been done 
which makes it difficult for us to make sure that we are 
pursuing the right approach. This is something that we have to 
take into consideration as we approach the issue of changing 
definitions.
    Now, what activities will be exempted from permitting under 
these new definitions? Will there be any? What activities would 
be affected or not affected?
    Dr. Lent. Thank you, Madam Chair. I think the important 
thing is that the permitting process, particularly for the 
scientific research, should be as easy or in fact easier for 
that scientific community. In fact, more of the science type of 
activities will fall into the Level B harassment so they can do 
their work with general authorization.
    I want to note as well that we have a number of studies 
underway on acoustic effects on marine mammals. You are correct 
that we do not have the definitive word on it, but the agency 
remains confident that we had sufficient information to issue 
the final rule and the permit associated with SURTASS and we 
are defending that case in court.
    Senator Snowe. Would the permitting process not be much 
easier if we had more scientific research on which to make 
decisions?
    Dr. Lent. Senator, it is always better to have more 
research.
    Senator Snowe. Well, we do not really have any. You could 
not be arguing that we have research that is substantial in 
this whole area.
    Dr. Lent. Where we do not have sufficient information, we 
do have to put extra safeguards in place, such as twice the 
distance that we feel is safe. Yes, with additional scientific 
information, we can do a better job on the permitting process. 
We will have that information on hand. We do not have to do as 
much studies and providing background information before we can 
issue the permit.
    Admiral Moore. Senator, if I could comment.
    Senator Snowe. Admiral.
    Admiral Moore. We made a significant investment in research 
specific to the low frequency active sonar. We have a larger 
body of research ongoing in marine mammals at large. But for 
low frequency active sonar, because we knew it would be 
controversial and to prepare our environmental impact 
statement, we did this significant body of research. We asked 
outsiders to do the research, Cornell and Woods Hole. You would 
have to ask the individuals who conducted the research, but 
reports have been made to me that they were inclined in the 
beginning to believe that low frequency active sonar would be 
injurious. At the end of the research, they concluded 
objectively that it would not.
    We sent our environmental impact statement forward. We were 
informed by everyone who reviewed it that it was the highest 
quality environmental impact statement they had ever observed. 
I think our data, our research, although I would agree with you 
we need to continue, as we are in the Navy, but it is fairly 
significant and it is fairly compelling research that underpins 
this new definition of harassment.
    Of course, you mentioned what activities will be exempted. 
We will not be exempted from any activities. We do not seek to 
be exempted. We seek this change in definition of harassment 
such that if in our consultations with our regulators, it was 
concluded that the activity would not constitute harassment, 
then we could conduct the activity without a permit. That does 
not mean that we will not consult. That does not mean that we 
are operating outside MMPA. If we had decided to conduct 
operations that were considered to be harassment, then 
obviously we would file for a permit if we felt compelled to 
continue that operation for some sort of national security 
reason. But we do not seek in any way to be exempted.
    Senator Snowe. Would the Navy be seeking a permit for low 
frequency active sonar under this new definition?
    Admiral Moore. Yes, we would.
    Senator Snowe. Would you be required to?
    Admiral Moore. I think that the answer is probably yes. My 
personal view is that there are operations with the low 
frequency active sonar, based on the research that we have 
done, that would clearly not constitute harassment or we would 
have enough information to conclude in consultation that in no 
way would be conducting harassment and therefore would not need 
a permit. But my sense is, since we have already been down this 
road, we have already been granted a permit, we already have a 
large body of information, I do not see us routinely not asking 
for a permit.
    Senator Snowe. Dr. Lent, do you have examples of activities 
that would not require a permit under this new definition?
    Dr. Lent. As the Admiral pointed out, certain activities 
under the new definition where we know it is not going to 
significantly impact their behavior. I will have to get back to 
you on specific examples.
    Senator Snowe. I would appreciate it. I think the Committee 
would as well as we consider these potential changes.
    Yes, Mr. Cottingham?
    Mr. Cottingham. Madam Chair, thank you. We have focused a 
lot of this discussion on the definition of harassment. Before 
the National Marine Fisheries Service can issue an incidental 
take authorization, which is part of what the Navy did--they 
were not going out to take marine mammals to harass them 
intentionally; it was part of an unintentional thing--there are 
some other criteria that also apply. One, the National Marine 
Fisheries Service must make a negligible impact finding so that 
even if the animals are being harassed, is it having a 
negligible impact on that stock. There are requirements in the 
statute about limited geographic areas and small numbers. All 
of these portions were things that were challenged in the 
litigation.
    I was actually at the National Marine Fisheries Service 
when we issued that permit, so I was part of that process 
before I changed jobs. And we knew about all of these 
challenges. We and the Navy were well aware that these were 
criteria in the statute that we would have to meet, and the 
agency thought they had done a good job meeting the limited 
geographic area, the small numbers, and the negligible impact. 
All of those standards have been challenged.
    And then you get into the whole thing Dr. Lent referred to 
a minute ago. Before they can issue a permit, they have to do 
an analysis under the National Environmental Policy Act and 
they have to do a consultation under the Endangered Species 
Act.
    So just changing this definition of harassment is not 
simply going to solve all of the Navy's problems or the 
National Marine Fisheries Service's problems. There are a 
number of statutes, as all of these come together, that the 
agencies are charged with implementing all of them, and it is 
how they all fit together at that apex that the agencies are 
struggling with.
    Senator Snowe. I appreciate that. That obviously is another 
issue in terms of whether or not there are small numbers. I 
have proposed a change that says it has the smallest negligible 
impact on the population, but I noticed the administration has 
not made any proposal on this issue. Is there a reason?
    Dr. Lent. Not that I know of. I will have to get back to 
you if there is a reason.
    Senator may I add a quick P.S. to this discussion? The most 
important thing to point out here is that we have been working 
very closely with the Navy. It has been pretty much a new era 
over the past couple of years. We meet regularly. We have work 
teams and contact points. I think the important thing is we are 
communicating back and forth, working on this bill, working on 
specific activities, and doing a much better job of 
collaboration.
    Senator Snowe. Mr. Cottingham?
    Mr. Cottingham. Senator, let me add to that. When the 
administration was developing its bill, it predated some of 
this litigation, so it did not address the small numbers or 
limited geographic areas. I believe that the Defense Department 
readiness bill--that is pretty close to the right name of it. 
The Defense Department bill--you can address that.
    Admiral Moore. It is the Readiness Range Preservation 
Initiative is what we have gone forward with, and it does 
address all of those issues currently in its current language.
    Senator Snowe. Thank you. I appreciate your participation 
here this morning, and hopefully we can begin to resolve some 
of these issues as we move forward with the reauthorization. We 
will be following up on some of the issues that have been 
raised now and in the future and with the subsequent panel that 
will be providing testimony here this morning. I appreciate 
your taking the time to be here and thank you.
    I will now call forward the second panel: Rear Admiral 
Richard West, Ms. Nina Young, Dr. Peter Tyack, and Mr. Charles 
Johnson.
    Admiral West, let us begin with you. I will include your 
full statements in the record. So I would ask you to summarize 
your testimony within 5 minutes. Thank you.

        STATEMENT OF RADM RICHARD D. WEST, USN, RETIRED;

 PRESIDENT, CONSORTIUM FOR OCEANOGRAPHIC RESEARCH AND EDUCATION

    Admiral West. Thank you, Madam Chair. I am Rear Admiral 
Dick West, President of the Consortium for Oceanographic 
Research and Education, commonly known as CORE. Thank you for 
the opportunity to provide our views on the Marine Mammal 
Protection Act as it relates to ocean science.
    Today the ocean science community faces a major challenge, 
the potential of increased litigation promulgated ostensibly 
under the guidelines of MMPA and other environmental laws. Some 
of these cases have blocked important acoustic research 
projects and threatened use of sound at sea.
    I would like to cover four points.
    First, CORE supports changes to the MMPA recommended by the 
National Research Council to clarify and strengthen the role 
and conduct of science related to marine mammals.
    Second, an expanded research program is needed to reduce 
the current high levels of scientific uncertainty concerning 
ocean noise levels and their effects on marine mammals.
    Third, a timely and predictable administrative process must 
be established for marine scientists to obtain MMPA permits and 
authorizations.
    Fourth, we must invest in outreach and education programs 
to address the current confusion regarding potential effects of 
sound on marine mammal populations.
    At-sea research is the primary mission for our member 
institutions. The ocean is large and unfortunately opaque to 
conventional observing techniques used in the atmosphere. Light 
and radio waves travel only tens of meters before being 
scattered and absorbed in the ocean's saltwater.
    Fortunately, the ocean is largely transparent to sound. 
Oceanographers depend on acoustic techniques to assess fish 
stocks, map the sea floor, communicate with underwater 
instrumentation, profile ocean currents, image the interior of 
the earth, and measure large-scale ocean temperature 
variability potentially associated with climate change. The 
same is true of shippers, oil and gas developers, fishermen, 
and our military.
    Unfortunately, MMPA's ambiguous language, interacting with 
other statutes, has led to successful legal challenges for two 
scientific expeditions and the Federal agencies supporting 
them. The Government's inability to sustain its interpretation 
of the law in court is giving rise to a potential for major 
delays and significantly increased costs for researchers, 
sometimes at more expense than the cost of the experiment 
itself. It is also scaring off young researchers from 
conducting much-needed ocean research and beginning our next 
generation of ocean scientists.
    We would like to propose a number of steps, both 
legislative and administrative, that could be taken to address 
the current situation.
    The NRC has convened three panels in 1994, 2000, and 2003, 
providing useful guidance on how the MMPA could be modified to 
ensure necessary uses of sound at sea while maintaining 
protections for marine mammals.
    One recommendation is to change the MMPA definition of the 
term ``harassment.'' Recognizing that it does not make sense to 
regulate minor changes in behavior having no adverse impact, 
all three NRC committees recommend that the definition of Level 
B harassment should be modified to focus on biologically 
significant disruption of behavior that is critical to survival 
and reproduction. CORE supports this modification.
    While the administration's proposed changes to the MMPA are 
similar to those proposed by the NRC, CORE has two concerns 
with their proposal. First, the new language added a new 
criterion for acts directed toward a specific individual, 
group, or stock of marine mammals, increasing the MMPA's 
complexity. In addition, the terms ``abandoned or significantly 
altered'' in the proposed revisions are not scientifically 
meaningful, leading to further ambiguity and confusion.
    Another key NRC recommendation is to remove the term 
``small numbers'' from the MMPA section dealing with the 
authorization of incidental taking. Under current law, species 
or stock must also be negligibly impacted by the authorized 
activity, setting up a dual criteria. CORE supports this NRC 
clarification.
    We are roughly familiar with the effect of varying sound 
frequency only on approximately 11 of the more than 70 
identified marine mammal species in our oceans. For the others, 
we have insufficient data to provide firm answers on the levels 
and characteristics of the sound that may or may not cause 
biological harm. Increasing our scientific understanding would 
assist in clarifying and streamlining the MMPA permit and 
authorization process, as well as allowing researchers to 
include effective mitigation measures in their experimental 
plans.
    We believe that an enhanced, independent, peer-reviewed 
research program on the effects of underwater sound on marine 
mammals is essential. It should be broadly based with 
participation from all the affected agencies. The National 
Oceanographic Partnership Program offers a potential mechanism 
to bring these entities together in a process that provides 
both coordination and scientific independence.
    The complex and lengthy permitting process under the MMPA 
has become a major impediment to conducting ocean research 
hindering even the science to better understand effects of 
human-generated sound on marine mammals. Scientists now face 
lengthy delays and significant additional expense that threaten 
their ability to conduct research at sea. The ocean science 
community is urgently in need of a timely and predictable 
permitting process.
    CORE has initiated an open communication process with the 
Federal funding agencies and with regulatory and oversight 
responsibilities like NOAA Fisheries and the Marine Mammal 
Commission. We recognize that the administrative changes may 
require agencies to make investments in both time and dollars, 
but we are optimistic that with the support of this Committee 
and by working together, substantial progress can be made on 
this national problem.
    An alarming discovery for this current marine issue is the 
widespread public confusion and lack of knowledge regarding the 
effects on marine mammals. Many public reports do not 
accurately explain the link between marine sonar use and whale 
and dolphin strandings. The result is the misconception that 
any sound level in our oceans is harmful. It is not. The marine 
science community must develop a public education outreach 
program to better inform the press, environmental organizations 
and this Nation's general population.
    In conclusion, Madam Chair, this is no longer a single 
agency, a single institution, or a single science at sea 
problem. It is a national problem that needs a comprehensive 
national plan. The national plan is central to the preservation 
of our oceans and those who live in it.
    Thank you, and I will stand by for your questions.
    [The prepared statement of Mr. West follows:]

 Prepared Statement of RADM Richard D. West, USN, Retired, President, 
          Consortium for Oceanographic Research and Education

    Madame Chair and distinguished members of the Committee, I am Rear 
Admiral Dick West, President of the Consortium for Oceanographic 
Research and Education or CORE. Thank you for the opportunity to 
provide our views on the Marine Mammal Protection Act (MMPA) 
reauthorization as it relates to ocean science.
    As you may know, CORE is composed of 73 members, representing our 
Nation's top oceanographic institutions, laboratories and aquaria. 
Since 1994, CORE has established a leading role in ocean research, 
education issues and the development of marine science policy. CORE 
provides the ocean science community with a coordinated voice for 
promoting and discussing research, education and policy issues with the 
government and the public.
    For almost thirty years, the primary role for marine scientists 
with respect to marine mammals has been to expand our understanding of 
these ocean animals and their role in the marine ecosystem. Scientists 
from all areas of oceanography conduct their activities in compliance 
with the MMPA, applying for and receiving permits when necessary. In 
addition, scientists regularly volunteer their time and expertise to 
conservation, serving on advisory panels for the Marine Mammal 
Commission and the National Marine Fisheries Service (NOAA Fisheries). 
Now, however, the ocean science community faces a major challenge--the 
increasing tendency toward litigation ostensibly pursued under the 
guidelines of the MMPA and other environmental laws. Some of these 
cases have blocked important acoustic research projects and threaten 
the use of sound in the sea for oceanographic work in general. The 
present situation is disruptive, very expensive, and has the potential 
to block science programs, discouraging student oceanographers and 
undermining the credibility of and support for critical ocean research.
    In my testimony, today, I would like to cover four major points. 
First, CORE supports changes to the MMPA recommended by the National 
Research Council (NRC) to clarify and strengthen the role and conduct 
of science related to marine mammals. Second, an expanded research 
program is needed to reduce the current high levels of scientific 
uncertainty concerning ocean noise levels and their effects on marine 
mammals. Third, a timely and predictable administrative process must be 
established for marine scientists to obtain MMPA permits and 
authorizations and ensure compliance with applicable legal 
requirements. Fourth, we must invest in outreach and education to 
address the current public confusion regarding the potential effects of 
sound on marine mammal populations.

Ocean Noise and Marine Mammals
    The conduct of at-sea research is central to the mission and way of 
life for most of our member institutions. The ocean is, in large part, 
opaque to conventional observing techniques used for the atmosphere. 
Electromagnetic radiation, such as light and radio waves, travel only a 
few hundred meters at most before being absorbed. For this reason, 
conventional observing practices using radar and other EM methods are 
largely ineffective for seeing into and through the deep ocean.
    Fortunately, the ocean is largely transparent to sound. It is no 
accident that whales, dolphins, and seals use sound to communicate, 
navigate and sense their environment. Oceanographers similarly depend 
on acoustic techniques to assess fish stocks, map the sea floor, image 
the interior of the Earth, communicate with underwater instrumentation, 
profile ocean currents and measure large-scale ocean temperature 
variability that is potentially associated with climate change. The 
same is true of shippers, oil and gas developers, fishermen, and our 
military. All use methods that generate sound in the ocean. In fact, 
the most recent NRC report estimates that noise levels from human-
related activities throughout the oceans will double every ten years, 
largely due to shipping, if current economic and growth trends 
continue.
    It is appropriate to be concerned about the effect of sound on 
marine mammals, and the ocean research community shares the 
apprehension of many other groups. Limiting our ability to address the 
problem, however, is the fact that we are only roughly familiar with 
the effect of varying sound frequencies on eleven of the more than 70 
identified marine mammal species. For the others, we have insufficient 
data to provide firm answers on the levels and characteristics of sound 
that might cause harm.
    The MMPA, of course, prohibits any taking, including harassment, of 
marine mammals without a scientific permit, exemption or authorization. 
Under the existing law, two levels of harassment are defined and the 
definition of Level B harassment is those actions that have ``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 NRC notes that this language has been interpreted 
very conservatively at times to mean that any detectable change in 
behavior constitutes harassment. In addition, this ambiguous language 
may trigger questions about the need for permit applicants to meet 
additional requirements under other environmental statues. The 
statutory interplay has led to successful legal challenges of two 
scientific expeditions and the Federal agencies supporting them. The 
government's inability to sustain its less stringent and more practical 
interpretation of the law in court is giving rise to the potential for 
major delays and significantly increased costs for researchers.
    Unfortunately, as more work is done to understand the varying 
effect of sound on marine mammals, the already litigious climate could 
grow worse. Scientists currently are developing more sophisticated 
methods of detecting changes in behavior in marine mammals in the 
field, such as telemetry, that allow them to document minor and brief 
reactions at lower and lower levels of human-made sound. As these 
observation techniques improve, and as more research is conducted on 
the effects of sound on marine mammals, we will be better positioned to 
observe even minor changes and this may inadvertently provide the basis 
for preventing researchers from carrying out the needed work. The 
difficulty, expense, and delay in getting the associated permits could 
grow and the potential for litigation increase. While marine scientists 
share as a goal the need to understand and through that understanding, 
protect the marine mammals, they are becoming increasingly concerned 
that the MMPA has become an impediment to such research and could 
actually be contributing to the decline of these animals.
    So how do we, as a nation, balance the need to conduct research in 
critical areas like global climate change, marine resource assessment 
and earthquake hazards and forecasting with the need to protect marine 
mammals? We would like to propose a number of steps, both legislative 
and administrative, that could be taken to address the current 
situation. While there is no ``quick fix,'' CORE is confident that, 
with your assistance and in partnership with the Federal ocean 
agencies, substantial progress can be achieved.

Amending the MMPA Harassment Definition and Incidental Take 
        Authorizations
    Responding to growing public awareness and concern over the impacts 
of ocean noise on marine mammals, the NRC has convened three expert 
panels over the last ten years to examine related issues. Their 
recommendations are contained in the following 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.

    Their recommendations provide useful guidance on how the MMPA could 
be modified to ensure necessary uses of sound in the sea, while 
maintaining protections for marine mammals. They also provide extensive 
recommendations for future research on ocean noise and marine mammals.
    One of the recommendations is to change the MMPA definition of the 
term ``harassment.'' The 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.'' The NRC goes on to suggest 
that Level B harassment be redefined as an action with ``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.'' All three NRC committees 
were in agreement that the definition of Level B harassment should be 
modified to focus on biologically significant disruption of behavior 
that is critical to survival and reproduction. CORE supports such a 
modification.
    The Administration bill to reauthorize the MMPA also proposes to 
amend the definition of harassment. While the bill's changes are 
similar to those proposed by the NRC, CORE has two concerns with the 
Administration proposal as it currently is drafted. First, the 
Administration proposal actually would increase the complexity of the 
harassment definition, adding a separate new criterion for acts 
``directed toward a specific individual, group, or stock of marine 
mammals . . .'' Given the MMPA's already overwhelming intricacy, this 
substantial addition to one of the law's central definitions is not 
likely to simplify its implementation, particularly as it applies to 
scientific research. In addition, the terms ``abandoned or 
significantly altered'' in the proposed revisions are not 
scientifically meaningful, leading to further ambiguity and confusion 
that would likely be resolved in varying and unpredictable ways in 
different courts around the country. These issues will be discussed in 
greater detail in Dr. Peter Tyack's testimony.
    Another key NRC recommendation is to remove the term, ``small 
numbers'' from MMPA section 101 provisions that deal with the 
authorization of incidental takings. CORE supports this clarification. 
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.

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. Perhaps the 
greatest challenge in addressing this issue is our current, very 
limited scientific understanding. One point on which scientist, 
managers, environmentalists and marine operators all agree is the 
critical need to improve what we know about the effects of sound in the 
ocean on the behavior and health of marine mammals. 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 precautionary 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.
    In its reports, the NRC makes it clear that the current 
understanding of the effects of underwater sound on marine mammals 
needs to be improved. Funding and scientific leadership in this area to 
date has come from the United States Navy. This is particularly 
interesting, given the current controversy over the use of low 
frequency sonar. 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.
    We believe that an enhanced research program on the effects of 
underwater sound on marine mammals is needed. This program needs to 
include, but should not be limited to, work on----

   Global animal distribution and abundance

   Hearing capabilities of rare and large marine mammals

   Global ocean sound budget

   Relationship of human activities to noise

   Responses of marine animals to sounds

   Detection of marine mammals

   Monitoring of ocean noise over the long term

    It is important that this program be independent and peer-reviewed. 
It should be broadly based, with participation from other 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 is also quite likely. 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, we request that you consider 
authorization of such a program.

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 science 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. 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 NOAA Fisheries. 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.
    In recent months, CORE has initiated an open communication process 
with the Federal funding agencies and those with regulatory and 
oversight responsibilities like NOAA Fisheries and the Marine Mammal 
Commission. While we are still in the process of assessing options, all 
the participants in this dialog recognize the legitimate concerns of 
the ocean research community and have expressed a clear willingness to 
work with us in developing a constructive solution. We acknowledge that 
administrative changes may require agencies to make substantial 
investments in both time and dollars, but are optimistic that by 
working together substantial progress can be made.
    While the need for legislative changes will become clearer as we 
work our way through this process, we anticipate that other changes to 
the MMPA may be necessary to facilitate establishment of a more 
effective system for permitting or authorizing scientific research that 
could impact marine mammals. One option may be to broaden the 
relatively streamlined permit procedure for scientific 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 must use 
procedures for an incidental take or other type of authorization. These 
procedures are time consuming and burdensome at best and the NRC (1994) 
has recommended that the definition of research for which scientific 
permits can be issued be broadened to include a wider range of research 
activities.
    Although such a change could 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 a area that has great potential for new discoveries and large 
information deficits. CORE requests 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.''
    Another goal of any legislative or administrative reforms should be 
to integrate the requirements of NEPA and the Endangered Species Act to 
ensure that once the researcher goes through the process, he or she is 
in compliance with all applicable laws. As Dr. Tyack can attest, this 
problem has become much worse in the past year when procedural errors 
under NEPA led a judge to halt important conservation biology research. 
In this case, even though Federal regulators and scientific experts 
agreed that this experiment was harmless and was urgently needed to 
protect whales, the judge ruled that the environmental analysis was not 
adequate. If even harmless projects require extensive environmental 
assessments or environmental impact statements, the regulatory burden 
for marine mammal research will continue to impede acquisition of 
information critically needed to protect marine mammals. This is 
particularly troublesome since some of these projects are needed to 
assess or develop mitigation measures for activities that currently are 
unregulated, such as commercial shipping.
    Oceanographers and other marine operators use underwater sound 
routinely 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. CORE requests agency 
guidance or a legislative mechanism to clarify how the MMPA applies to 
a wide variety of routine sound sources. Such a clarification should 
provide user groups with clear direction that differentiates conditions 
of use that trigger MMPA requirements and those for which no permit or 
authorization would be required.

Public Outreach and Education
    One major contributor to the current controversy is public 
confusion regarding the effects of sound on marine mammal populations. 
Many of the stories in press reports do not accurately explain the link 
between marine sonar use and whale and dolphin strandings. The result 
is the misconception that any sound level is harmful--flying in the 
face of scientific understanding.
    The marine science community must develop a public education and 
outreach program to provide better information to the press, 
environmental organizations, and the general public about the critical 
need to maintain basic ocean research utilizing acoustic tools. We ask 
your support to achieve this goal.

Conclusion
    Madam Chair and members of the Committee, we sincerely appreciate 
your attention to this difficult and complex issue. The application of 
the MMPA in the increasingly complex and crowded ocean environment is 
fraught with difficult, and sometimes emotional, issues. However, I am 
convinced that working with the Congress, our Federal partners and the 
other ocean organizations we can make real progress to create a 
permitting environment that is more predictable and efficient, while 
continuing to protect marine mammals.
    Thank you, and I look forward to your questions.

    Senator Snowe. Thank you.
    Dr. Young.

          STATEMENT OF NINA M. YOUNG, DIRECTOR, MARINE

         WILDLIFE CONSERVATION, THE OCEAN CONSERVANCY;

           ON BEHALF OF THE FOLLOWING ORGANIZATIONS:

          AMERICAN CETACEAN SOCIETY, AMERICAN SOCIETY

           FOR THE PREVENTION OF CRUELTY TO ANIMALS,

         ANIMAL PROTECTION INSTITUTE, CETACEAN SOCIETY

      INTERNATIONAL, DEFENDERS OF WILDLIFE, FRIENDS OF THE

       SEA OTTER, HUMANE SOCIETY OF THE UNITED STATES IN

       DEFENSE OF ANIMALS, INTERNATIONAL FUND FOR ANIMAL

        WELFARE, INTERNATIONAL MARINE MAMMAL PROJECT OF

         EARTH ISLAND INSTITUTE, NATIONAL ENVIRONMENTAL

        TRUST, NATURAL RESOURCES DEFENSE COUNCIL, OCEAN

      FUTURES SOCIETY, OCEANA, POLAR BEARS INTERNATIONAL,

      SEA OTTER DEFENSE INITIATIVE, SIERRA CLUB, THE FUND

        FOR ANIMALS, THE MARINE MAMMAL CENTER, THE WHALE

 CENTER OF NEW ENGLAND, WHALE AND DOLPHIN CONSERVATION SOCIETY

    Dr. Young. Thank you, Madam Chair, for the opportunity to 
testify before you today. My name is Nina Young and I am the 
Director of Marine Wildlife Conservation for The Ocean 
Conservancy, and my testimony today is on behalf of 22 
organizations that comprise the Marine Mammal Protection 
Coalition.
    The MMPA is our Nation's leading instrument for the 
conservation and recovery of marine mammals, and as you noted, 
Madam Chair, the threats facing these marine mammals are 
becoming more complex. During the last reauthorization, 
Congress amended the act, bringing it closer to achieving its 
goal of recovering marine mammal populations.
    In our view, the problems stem not from the act itself, but 
from the agency's failure to fully implement and effectively 
fund this particular program. The program has suffered from a 
chronic lack of resources that has hindered scientific research 
that is needed to implement many of the permit processes that 
we have spoken about thus far this morning.
    In our written testimony, we provide a section-by-section 
comment on the administration bill and offer additional 
recommendations that we would believe would improve the act. We 
believe that any MMPA reauthorization bill must safeguard the 
zero mortality rate goal, strengthen the penalty enforcement 
provisions to deter violations, make surgical improvements to 
the scientific permitting process, devise and implement a 
research plan to guide the safe testing of non-lethal deterrent 
devices, include non-commercial fishing gear that has the 
potential to take marine mammals, provide for observer fees to 
increase observer coverage, expand the authority to allow the 
Secretary to authorize a take reduction team for fishery 
interactions involving prey-related issues, and increase the 
authorized appropriation levels overall, especially for 
sections 117, 118, and title IV.
    The Subcommittee should also consider amendments that would 
authorize the Marine Mammal Commission to identify and assess 
the magnitude of emerging and existing threats to marine 
mammals and to provide a research plan to fill and identify 
these data gaps, provide recommendations for regulatory or 
statutory changes to the MMPA that would mitigate such threats.
    The Ocean Conservancy is opposed to the administration's 
definition of harassment and the Department of Defense's 
proposals to modify the MMPA's definition of harassment, amend 
its incidental take authorization process, and create a 
separate broad categorical exemption for its activities. The 
proposed changes would severely undermine the precautionary 
nature of the act, remove key conservation elements, and 
significantly raise the threshold that would trigger any 
agency's obligation to secure an authorization to conduct 
activities that have the potential harm marine mammals. As a 
result, many activities would either be exempt outright or 
could evade the act's requirements.
    The coalition has provided to the Committee its preferred 
alternative to the harassment definition that is more along the 
lines of the NRC definition. We believe the small numbers and 
geographical region provisions should be retained and the 
definition of these terms further refined by Congress or the 
agency.
    The record does not support the need for the amendments 
that the Department of Defense is seeking. It has applied for 
over 20 incidental take authorizations or harassment 
authorizations and has never been denied such authorizations. 
In our opinion, the Department of Defense has failed to 
demonstrate that irreconcilable conflicts exist within the MMPA 
to merit such comprehensive amendments. We believe that advance 
planning, clear guidance, and a more formal consultation 
process with the regulatory agency would be a more effective 
remedy.
    Recently the scientific community has raised the concerns 
that the current regulatory process discourages research and 
has in some cases stopped research altogether. The two cases 
most cited include the National Science Foundation use of 
seismic air guns to undertake geological research and, as I am 
sure you will hear from Dr. Tyack, a case involving a series of 
permits issued by the National Marine Fisheries Service for his 
scientific research.
    In the case of the NSF research, NSF never applied for an 
incidental take permit under the MMPA, nor did it complete an 
environmental assessment or environmental impact statement 
under the National Environmental Policy Act. And Dr. Tyack's 
permits were challenged under NEPA for failure to perform the 
required analysis of environmental impact, not the MMPA.
    Although we understand the adverse reactions that these 
decisions have engendered within the scientific community, we 
are ourselves not opposed to scientific research but recognize 
the need for it. The problem has less to do with the definition 
of harassment and more to do with problems within the 
permitting and regulatory process and compliance with other 
statutes. Again, we believe that this points up the need for 
improvements within the permitting and regulatory process, 
guidance to scientists, as you heard from the Admiral, outreach 
to the environmental community, and better compliance with NEPA 
through the development of programmatic environmental impact 
statements.
    The Ocean Conservancy believes that the Marine Mammal 
Protection Act has made significant progress in conserving 
marine mammals. We support a reauthorization process during 
which all stakeholders can work together to develop creative 
and collaborative approaches to demonstrated problems. We look 
forward to working with the Subcommittee to devise constructive 
alternative approaches that will result in a progressive 
reauthorization bill for this keystone law.
    I will be happy to answer any questions. Thank you.
    [The prepared statement of Dr. Young follows:]

    Prepared Statement of Nina M. Young, Director, Marine Wildlife 
    Conservation, The Ocean Conservancy; on behalf of the following 
  organizations: American Cetacean Society, American Society for the 
Prevention of Cruelty to Animals, Animal Protection Institute, Cetacean 
Society International, Defenders of Wildlife, Friends of the Sea Otter, 
      Humane Society of the United States In Defense of Animals, 
  International Fund for Animal Welfare, International Marine Mammal 
   Project of Earth Island Institute, National Environmental Trust, 
                                Natural 
 Resources Defense Council, Ocean Futures Society, Oceana, Polar Bears 
International, Sea Otter Defense Initiative, Sierra Club, The Fund for 
  Animals, The Marine Mammal Center, The Whale Center of New England, 
                 Whale and Dolphin Conservation Society
    Madam Chairwoman and Members of the Subcommittee, thank you for the 
opportunity to present our views on the Marine Mammal Protection Act. 
My name is Nina M. Young; I am the Director of Marine Wildlife 
Conservation for The Ocean Conservancy.

I. Summary Statement
    The Ocean Conservancy (formerly the Center for Marine Conservation) 
played a leadership role in the development of the 1994 amendments to 
the Marine Mammal Protection Act (MMPA or Act), especially those 
governing the incidental take of marine mammals in commercial 
fisheries. The Ocean Conservancy believes that with the sweeping 
changes made in 1994, Congress refined the Act and brought it closer 
toward achieving its goal of recovering marine mammal populations. The 
MMPA is an international model for effective conservation and 
protection of marine mammals. In our view, problems with the MMPA often 
stem not from the Act itself, but from the agencies' failure to 
implement the Act fully and effectively, compounded by a chronic lack 
of resources for effective implementation.
    During this reauthorization, we urge the Subcommittee to seize the 
opportunity to craft a truly visionary reauthorization bill that will 
tackle the emerging threats to marine mammal conservation. The problems 
facing marine mammals are becoming more complex. They encompass 
competition with commercial fisheries, habitat degradation associated 
with sound production and pollution, natural phenomena such as climatic 
regime shifts, and long-term chronic threats such as global climate 
change. The MMPA must evolve from merely looking at marine mammal stock 
structure and abundance to assessing marine mammal and ecosystem 
health. Tools that already exist in the MMPA such as Title IV (Marine 
Mammal Health Stranding and Response) must be enhanced to establish a 
dedicated research program encompassing marine mammal health and the 
threats posed by contaminants and noise.
    Any reauthorization bill must not only preserve but also build on 
the gains that were made in 1994. In our view, an effective 
reauthorization bill will: prevent the weakening of the definition of 
harassment; safeguard the zero mortality rate goal; strengthen the MMPA 
penalty and enforcement provisions to deter violations of the Act; 
improve the implementation of the take reduction team process; expand 
authority under Section 118 (16 U.S.C. Sec. 1387) to allow the 
Secretary to authorize take reduction teams for fishery interactions 
involving prey related issues and human related threats (i.e., ship 
strikes); strengthen the Act's co-management provisions to allow co-
management of non-depleted species/stocks; increase the authorized 
appropriation levels for the Act overall, but in particular for the 
health and stranding response provisions; and devise and implement a 
research plan to develop safe non-lethal deterrents to prevent marine 
mammals from interacting with fishers' gear and catch.
    In the course of reviewing the MMPA through the reauthorization 
process, we urge the Subcommittee to take a good, objective look at 
claims made by the Department of Defense that the MMPA is having a 
deleterious effect on military training and readiness. The Department 
of Defense proposes to modify the MMPA's definition of harassment, 
amend its incidental take authorization process, and create a separate 
broad categorical exemption for its activities. The proposed changes in 
the definition of harassment and changes in the incidental take 
authorization process for military readiness would severely undermine 
the precautionary nature of the Act, remove key conservation elements 
that restrict the scope of the incidental take to small numbers of 
marine mammals within a geographic region, and significantly raise the 
threshold that triggers the Department of Defense's obligation to 
secure authorization to conduct activities that have the potential to 
harass marine mammals.
    The proposed definition and incidental take authorization 
amendments would not only increase injuries and deaths of marine 
mammals, but also diminish transparency, result in a loss of scientific 
research and mitigation measures, require Federal agencies to make 
difficult, if not impossible, scientific judgments about whether a 
given activity is subject to the Act's permitting and mitigation 
requirements, and impair enforcement of the Act. The end result would 
be that many military readiness activities would either be exempt 
outright or could evade the Act's requirements by relying upon the 
uncertainty and ambiguity created by this new language. The problems 
caused by the Department of Defense's proposed change to the definition 
of harassment become an even greater concern and threat to marine 
mammals if the Administration extends this definition change to all 
stakeholders as proposed in the Administration bill.
    Since 1994, when the MMPA was last amended, the Department of 
Defense has applied for over twenty incidental take and harassment 
authorizations. None of these applications has been denied, and in 
general they all have been issued within the expected timeframes. The 
Department of Defense has failed to show that the existing incidental 
take process is overly burdensome, let alone that the proposed 
statutory changes are needed. To the contrary, it appears that the 
program is functioning much as Congress intended. Rather than amend the 
statute, we believe that improved coordination and advanced planning 
may be the most expedient way to achieve both marine mammal 
conservation and improve efficiency in the issuance of permits for 
military readiness activities.
    The proposed exemption for national defense effectively creates an 
escape clause which allows the Defense Department to bypass the 
incidental take permitting process altogether. Moreover, this exemption 
is not limited to the incidental take permitting process. As written, 
it authorizes the Secretary of Defense to exempt ``any action or 
category of actions undertaken by the Department of Defense or its 
components from compliance with any requirement'' of the MMPA for 
reasons of national defense for a potentially unlimited number of 
successive two-year periods. Again, despite numerous Congressional 
hearings, the Department of Defense has failed to demonstrate that an 
irreconcilable conflict exists within the incidental take authorization 
or other provisions of the MMPA, or that the flexibility currently 
provided under the Armed Forces Code is insufficient to merit such a 
comprehensive and wide-ranging exemption--one that could render the 
MMPA's conservation goals and mandates virtually meaningless.
    Our comments are organized as follows: first, we provide our 
section-by-section comments on the Administration bill. Next, we 
provide additional recommendation for changes to the statute to further 
marine mammal protection and conservation. Finally, we address the 
problems with the Department of Defense's proposed amendments to the 
definition of ``harassment,'' the incidental take provisions, and the 
proposed addition of an exemption for national defense. Before I begin, 
however, I would like to emphasize that as the MMPA reauthorization 
debate proceeds, The Ocean Conservancy would welcome the opportunity to 
engage in a multi-stakeholder process to resolve concerns with the 
Administration bill and the Department of Defense's proposal, and to 
develop a non-controversial and forward thinking reauthorization bill. 
We believe this type of inclusive process would in the long run provide 
the greatest benefits to the resource and the Nation.

II. Detailed Comments on the Administration Bill
Title I: Authorization of Appropriations
Department of Commerce
    The Ocean Conservancy encourages the Subcommittee to further 
increase the authorized appropriation levels for both the Department of 
Commerce and the Department of Interior, to enhance implementation of 
the MMPA through improved marine mammal stock assessments and health-
related research, increased staff resources to process scientific and 
small take permits, finalize regulations to implement take reduction 
plans within the time-frame stipulated in the Act and oversee the 
implementation of such plans, comply with the mandates of Title IV 
(Marine Mammal Health and Stranding Response Program), and increase 
observer coverage of Category I and II fisheries.
    The Ocean Conservancy believes that the authorization level for the 
Department of Commerce to carry out the implementation of Sections 117 
and 118 (16 U.S.C. Sec. Sec. 1386-87) is woefully inadequate. For 
example, Section 117 calls for the National Marine Fisheries Service 
(NMFS) and the Fish and Wildlife Service (FWS) to produce stock 
assessment reports that include a description of the stock's geographic 
range, a minimum population estimate, current population trends, 
current and maximum net productivity rates, optimum sustainable 
population levels and allowable removal levels, and estimates of annual 
human-caused mortality and serious injury through interactions with 
commercial fisheries and subsistence hunters. The data in these reports 
are used to evaluate the progress of each fishery towards achieving its 
goal of zero mortality and serious injury. NMFS has defined a total of 
145 cetacean and pinniped stocks in United States waters: 60 stocks in 
the Atlantic Ocean and Gulf of Mexico; 54 along the Pacific Coast of 
the continental United States and Hawaii; and 31 in Alaska and the 
North Pacific.
    Accurate abundance estimates and stock identifications are 
essential to determine trends and population size relative to the 
optimum sustainable population level, and to calculate the potential 
biological removal (PBR) level. These are also necessary to ensure that 
individual stocks are not subjected to intolerable levels of take. 
Abundance is estimated from counts conducted during aerial or shipboard 
surveys, and from photo-identification data combined with mark-
recapture technology. The most obvious consequence of uncertainty 
regarding stock abundance or structure is that PBR levels, which are a 
direct function of stock abundance, become uncertain as does the 
tolerance of a marine mammal stock to human-caused mortality. If PBR 
levels are overestimated, then the stock may be exposed to unknown and 
excessive levels of risk from human-caused mortality. If PBR levels are 
underestimated, then fishers and fisheries may be unduly restrained by 
unnecessary regulations. The risk of excessive take from a single stock 
can be exacerbated when multiple stocks are being managed but the 
characteristics of each stock (abundance, take levels) cannot be 
accurately determined. NMFS desperately needs to either undertake and/
or update marine mammal stock assessments in the Gulf of Mexico, the 
Atlantic Ocean and the Pacific Ocean (around the Hawaiian Islands). 
Similarly, FWS stock assessments for Alaskan marine mammal stocks under 
its jurisdiction (polar bear, walruses, and sea otters) must also be 
updated.
    In addition, monitoring of commercial fisheries is sorely lacking, 
as are estimates of incidental take for these fisheries. The MMPA's 
management framework can only be effectively implemented if incidental 
take levels are measured accurately and precisely to determine if, 
where, and when takes are occurring. A take reduction team can 
recommend effective measures that will reduce the number of takes only 
if incidental take levels can be reliably estimated. Therefore, 
reliable estimates of incidental take are fundamental to identifying 
the problem/interaction, devising mitigation measures, and obtaining 
feedback regarding the efficacy of those measures. Currently, 
observation or monitoring of some fisheries that interact with marine 
mammals is either absent altogether or insufficient to allow even 
minimal estimates of incidental take. A chronic problem for fisheries 
that are observed is that the data do not provide the precision needed 
to estimate incidental take levels with statistical confidence 
sufficient to detect a real change in the take rate. NMFS must be 
provided the funds to increase the level of observer coverage in 
fisheries that interact with marine mammals to derive statistically 
reliable estimates of incidental take.
    NMFS must also continue to fund established take reduction teams 
until they achieve their goals under the MMPA. Additionally, NMFS 
should convene several other take reduction teams, including a 
reconstituted Atlantic Offshore Take Reduction Team. The table below, 
from NMFS' website, provides a breakdown of cost for the various stages 
of a take reduction team process. Based on this information, the agency 
is spending approximately $5 million per year on take reduction teams. 
Most of the teams are in the monitoring and follow-up stage, with the 
exception of the Bottlenose Dolphin Take Reduction Team, which 
submitted its consensus plan in April 2003. Therefore, we recommend 
that the Subcommittee increase the annual authorization for the 
Department of Commerce for Sections 117 and 118 to $35,000,000.

                   Generalized Take Reduction Process

                                                            Cost (not
      Stage             Element             Time         including  NMFS
                                                            salaries)

Pre-team data      Abundance surveys  1-3 surveys       $350K per survey
 collection
                   Mortality          3 years of        $850K per year
                    estimates          observer          per
                                      coverage          fishery
                   Stock structure    1-3 surveys       $350K per survey
                    data
                   Fishery
                    characteristics
                    data
                   Contracting        2-2 \1/2\ years
Active TRT         Hiring             (if mortality is  $500K (4-5
                    facilitator        >PBR, teams       meetings)
                                       have 6 months
                                       to submit plan
                                       to NMFS once
                                       team is
                                       convened)
                   Assembling team
                   Meetings/travel
                    costs
                   Proposed rule      6 months          Staff resources
                                       (legally is 60
                                       days)
TRP Development    Final rule         6 months          Staff resources
 and                                   (legally is 90
 Implementation                        days including
                                       public comment
                                       period)
TRP Monitoring     Mortality          3-5 years of      $850K per year
 and TRT Follow-    estimates          observer          per
 up                                   coverage          fishery
                   Reconvening teams  As necessary      $100K per
                                                         meeting



Department of Interior
    The Department of Interior implements the MMPA for polar bears, sea 
otters, walrus, and manatees. The Ocean Conservancy is requesting an 
authorization of $11,800,000 to improve research and conservation 
efforts for these species. The FWS is badly in need of revised stock 
assessments for manatees, walrus, and polar bears, ongoing trend data 
for declining northern sea otters, and a comprehensive health 
assessment of southern sea otters.

Marine Mammal Commission
    The Marine Mammal Commission (MMC) plays a vital oversight role in 
the implementation of the MMPA. The MMC is best suited to evaluate 
emerging threats to marine mammals and offer mitigation strategies. As 
an independent body it can provide valuable guidance on measures to 
conserve marine mammals not only to wildlife agencies but also to other 
interest groups that interact with or incidentally take marine mammals. 
Over the last several years that role has been severely constrained due 
to insufficient funds. We recommend that the authorization for the MMC 
be increased to 3,400,000.

Title II: Native Alaskan Harvest Management Agreements
Subsistence Hunting of Marine Mammals--Management of Strategic Stocks
    The management history of the subsistence harvest of beluga whales 
in Cook Inlet illustrates the need for proactive Federal intervention 
and management to avoid a marine mammal species becoming eligible for 
listing as depleted under the MMPA. The purpose of the definition of 
``strategic'' marine mammal stocks in Section 3(19), 16 U.S.C. 
Sec. 1362(19), is to identify unsustainable levels of take so that 
appropriate action can be taken to avoid listing that stock as depleted 
under the MMPA or as threatened or endangered under the ESA. While The 
Ocean Conservancy does not oppose subsistence use, we believe that in 
cases where marine mammal stocks are designated as strategic, the 
Federal government should be given the discretion to intervene and work 
with Native communities to monitor and regulate harvests to ensure the 
long-term health of the stock and sustainable subsistence harvests. 
Therefore, we propose that Section 101(b), 16 U.S.C. Sec. 1371(b), be 
amended to allow the Secretary to prescribe regulations governing the 
taking of members of a strategic stock by Native communities.

Co-Management of Strategic and Depleted Stocks
    While The Ocean Conservancy does not oppose subsistence hunting 
when conducted in a sustainable manner, we believe that future co-
management agreements should generally be limited to stocks that are 
not strategic or depleted. We support co-management of all non-
strategic stocks as long as the co-management agreement considers take 
throughout the entire range of the stock, includes all Alaskan Natives 
that engage in subsistence use of that particular marine mammal stock 
within the area covered by the agreement, provides that any harvest of 
a stock covered by the agreement is sustainable and designed to protect 
the stock from becoming depleted or strategic, and contains effective 
provisions for monitoring and enforcement. A co-management agreement 
should also provide for review and revocation of the agreement, tie 
violations of the agreement to the penalty provisions of the Act, and 
provide grants for research, monitoring, and enforcement of the 
agreement.
    Before a co-management agreement is finalized, or final 
implementing rules or regulations are published, the public must be 
afforded an opportunity for notice and comment. We do not believe that 
the Secretary should be required to consult with Alaska Native Tribes 
and Tribally Authorized Organizations on depletion determinations under 
section 3(1)(A) or to provide them with an advance copy of draft 
proposed regulations under section 101(b)(3). The consultation 
provision under section 3(1)(A) currently only applies to MMC and its 
Committee of Scientific Advisors on Marine Mammals; section 101(b)(3) 
of the Act already provides adequate opportunity for notice and hearing 
by interested members of the public. We do not oppose the 
Administration's provisions for cooperative enforcement, authorizations 
of appropriations, and sovereign authorities/disclaimer.
    The Ocean Conservancy looks forward to working with Alaska Native 
Tribes and Tribally Authorized Organizations on this Title.

Title III: Cultural Exchange and Export
    The Ocean Conservancy supports the intent of this provision in the 
Administration bill to clarify and amend the relevant provisions in the 
Act to identify those instances when export, transport, sale, or 
purchase of a marine mammal or marine mammal product is, or may be, 
authorized. We are concerned, however, that as drafted these provisions 
may not achieve their purpose.

Title IV: Fisheries Interactions
    Because the Marine Mammal Protection Coalition is not taking a 
collective position on Sec. 401. Tuna-Dolphin Provisions in the 
Administration bill, our comments will be restricted to the fishery 
interaction provisions. The Subcommittee should anticipate that 
individual organizations may provide their position on the 
Administration bill's Sec. 401. Tuna-Dolphin Provisions.

Sec. 402. Fishery Interaction Provisions
    We generally support the amendments in the Administration bill; 
however, the bill is not sufficiently comprehensive in its approach to 
improving Section 118 (16 U.S.C. Sec. 1387). The Subcommittee should 
seize this opportunity to refine this section to address problems that 
have arisen related to fishers obtaining the required authorization, 
placement of observers, and the need for funding observer coverage. The 
Ocean Conservancy offers the following additional suggestions.
    Registration and Authorization: The MMPA currently requires vessels 
engaging in Category I and II commercial fisheries to register with the 
Secretary to receive authorization to engage in the lawful incidental 
taking of marine mammals in that fishery. The MMPA provides the 
Secretary with the authority to place observers on commercial vessels 
engaging in Category I and II fisheries, and vessels that have received 
authorization to engage in these fisheries are obligated to take 
observers on board. The Ocean Conservancy supports the Administration's 
effort to clarify these issues in its bill, by adding a new clause (v) 
to section 118(c)(3)(A).
    During several take reduction team negotiations, NMFS has remarked 
on instances where vessel owners have refused to allow observers on 
their vessels without adverse consequences. NMFS Enforcement has 
indicated that its efforts to enforce the Act are constrained because 
NOAA's Office of General Counsel has narrowly interpreted the term 
``engaged in a fishery'' under Section 118(c)(3)(C) to mean engaged in 
the fishery on the day that a refusal to take an observer occurs. The 
MMPA should be amended to clarify the obligations of vessel owners in 
Category I and II fisheries to carry observers if so requested and to 
provide NMFS with the explicit authority to punish violations of the 
observer requirements. If the problem is related to the term ``engaged 
in a fishery'' then the Act should also be amended to define the term 
to facilitate enforcement.
    The Subcommittee should consider strengthening the incentives for 
fishers to register under this section by allowing NMFS to seek 
forfeiture of the catch and to assess a substantial fine against the 
vessel for any fishing operations conducted in the absence of the 
required authorization. This could be done by amending section 
118(c)(3)(C) or the penalty and forfeiture provisions under section 105 
and 106. In any case, the fine currently stipulated in the Act for 
failure to display or carry evidence of an authorization is not a 
sufficient deterrent to noncompliance.
    Monitoring Incidental Takes: Nearly every take reduction team 
recommends increased observer coverage. Funds for monitoring programs 
have been limited; generally, only fisheries experiencing frequent 
interactions with marine mammals have received priority for observer 
program coverage. Former NMFS Assistant Administrator Penny Dalton 
noted in her June 29, 1999, testimony before the House Resources 
Committee that: ``Funds for monitoring programs have been limited; 
therefore, only fisheries experiencing frequent interactions with 
marine mammals have generally received priority for observer program 
coverage. In 1997, approximately 1/5 of the U.S. fisheries having 
frequent or occasional interactions with marine mammals were observed 
for these interactions. These large gaps in our knowledge of fisheries' 
impacts to marine mammal stocks make it difficult to develop 
appropriate management measures.'' In most cases, shortfalls in program 
funding often result in diminished observer coverage. Consequently, The 
Ocean Conservancy strongly believes that the Secretary should have the 
discretion to assess fees, as needed, to initiate and implement an 
observer program, particularly for those fisheries that request such a 
program.
    Take Reduction Plans: The Administration bill proposes an amendment 
to eliminate the requirement that a take reduction plan be developed 
for each strategic stock that interacts with a Category I or II 
fishery. The rationale behind this amendment is that some stocks are 
considered ``strategic'' solely because they are listed as threatened 
or endangered under the Endangered Species Act--not because of high 
fishery-related mortality. The proposed amendment would eliminate the 
requirement that a take reduction plan be developed for those strategic 
stocks for which the Secretary determines, after notice and comment, 
that the fishery-related mortality and serious injury is having a 
negligible impact on that stock. While we agree that this amendment 
will allow the agency to focus limited resources, this goal may be 
achieved through an amendment that sets priorities for take reduction 
plans rather than providing the Secretary with the discretion to 
eliminate take reduction plans entirely for some strategic stocks.
    The take reduction team and plan offers the Secretary with the 
ability not only to reduce fishery-related mortality and serious 
injury, but also potentially diminish deleterious effects to marine 
mammal stocks from competition for prey with commercial fisheries. We 
urge the Subcommittee to consider an amendment to Section 118(f) that 
would provide the Secretary with the discretion to develop and 
implement a plan designed to assist in the recovery or prevent the 
depletion of any marine mammal stock for which the Secretary 
determines, after notice and opportunity for public comment, that 
competition between a commercial fishery and that marine mammal stock 
for a stock of fish that constitute the marine mammal stock's prey is 
having or is likely to have an adverse impact on the marine mammal 
stock. Such an approach would conserve the fishery, the marine mammal 
stock, and the prey species, through integrated research, conservation, 
and mitigation with regard to fishery management.
    We support the Administration's proposed amendment to require that 
a technical liaison with commercial fishing expertise be assigned to 
the take reduction team to enhance communication among team members 
about possible modifications to fishing practices and gear. We also 
recommend that the Subcommittee consider an amendment to require the 
participation of representatives from the office of General Counsel of 
the National Oceanic and Atmospheric Administration, the National 
Marine Fisheries Service having responsibilities related to fisheries 
science and law enforcement, and the appropriate National Marine 
Fisheries Service Regional Administrator. These individuals are crucial 
to advise the team on the likelihood that the proposed measures can be 
easily translated into regulatory language, enforced, are not in 
conflict with other fishery management measures, and will be supported 
by the agency.
    We support the amendment in the Administration bill that provides 
the Secretary the discretion to reconvene or consult with the take 
reduction team to solicit comments on the proposed regulations and any 
proposed changes to the draft plan during the public review and comment 
period.

Sec. 403. Expansion of Fisheries Included in the Incidental Take 
        Program/Sec. 404. Conforming Amendments to the Expansion of 
        Fisheries Included in the 
        Incidental Take Program
    Some non-commercial fisheries use gear similar or identical to 
commercial fishing gear and, as a result, are taking marine mammals at 
rates potentially equal to or greater than rates of incidental bycatch 
in commercial fisheries. However, according to NMFS, there are 
currently no mechanisms within the MMPA to monitor, track, or mitigate 
this take. As a matter of equity, and for purposes of effective marine 
mammal conservation, non-commercial fisheries that employ gear similar 
to commercial fishing gear and that have the same potential to take 
marine mammals should not be exempt from the Act. Therefore, The Ocean 
Conservancy supports the Administration's proposed amendments to 
include these fisheries under the provisions of Section 118.

Sec. 405. Striking of Section 114/Sec. 406. Conforming Amendments to 
        the Striking of Section 114
    Given that Section 118 is fully functional, there is no longer any 
need for the interim exemption for commercial fisheries provided for in 
Section 114 (16 U.S.C. Sec. 1383a). Therefore, Section 114 should be 
repealed and the necessary technical and conforming amendments made to 
other provisions in the Act.

Sec. 407. Gulf of Maine Harbor Porpoise
    The purpose of this subsection was to allow the Secretary to 
expedite the preparation of a stock assessment for the Gulf of Maine 
stock of harbor porpoise and to delay the date by which the incidental 
mortality and serious injury of this stock was reduced below its 
potential biological removal level. These dates have passed and the 
take reduction plan (through a combination of fishery management 
closures, restrictions, and pinger requirements) has met its goal of 
reducing the incidental mortality and serious injury of this stock 
below its potential biological removal level and is approaching the 
zero mortality rate goal. Therefore we support the elimination of this 
section.

Sec. 408. California Sea Otter Fishery Interactions
    The Administration bill also proposes to include southern sea 
otters in the section 118 incidental take program for purposes of 
listing fisheries that are involved in sea otter interactions and for 
determinations regarding monitoring. Currently, the MMPA excludes 
southern sea otters from section 118 because of the species' extreme 
vulnerability to incidental take and the existence of freestanding 
requirements that govern incidental take, as set forth in Public Law 
No. 99-625, establishing the so-called zonal management program. The 
requirements of Public Law No. 99-625 prohibit all incidental take of 
sea otters, except within the narrowly defined translocation zone.
    The proposed amendment would be of no real benefit to southern sea 
otters. Under current law, incidental take is prohibited throughout 
most of the species' range, and there is no reason to classify the 
involved fisheries. Including sea otters for this purpose could be the 
basis for arguments that incidental take should be authorized under 
section 118, a result which would be detrimental to the species and 
contrary to existing law. FWS is currently conducting a review of the 
failure of the zonal management program under Public Law No. 99-625. 
Upon the conclusion of that review, it would be appropriate to consider 
whether to include southern sea otters in any aspect of the section 118 
program.

Sec. 409. Alternative Observer Program
    This amendment directs the Secretary to explore the use of new 
technologies for alternative monitoring of fisheries. We fully support 
this amendment, as the absence or extremely low level of observer 
coverage continues to be a major obstacle in devising and evaluating 
mitigation strategies to reduce the incidental mortality and serious 
injury of marine mammals in commercial fisheries. Alternatives or 
remote monitoring systems that allow for expanded coverage or improved 
data collection will advance the take reduction team's ability to craft 
effective bycatch reduction measures.

Title V: Other Amendments
Sec. 501. 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. The Administration bill proposes to change this 
public notification process to a semiannual summary of all such permits 
issued or denied. The Ocean Conservancy opposes this provision, as it 
would establish a blanket exemption to the notice and comment 
requirement and institute a dangerous precedent under which permits 
could be issued or denied without much-needed public scrutiny. The 
public comment process surrounding the issuance of a permit to import 
polar bear parts is needed to provide public oversight to verify that a 
permit is tied to tagging that clearly demonstrates when, and from what 
stock, the polar bear was taken. Rather than weakening the public 
comment process, FWS should work to ensure that these provisions are 
effectively enforced and do not result in illegal take or a negative 
change in the status of stocks that are currently depleted.

Sec. 502. Captive Release Prohibition
    This section amends section 102 of the Act to clarify that subject 
to certain limited exceptions, the MMPA expressly prohibits any person 
from releasing a captive marine mammal unless specifically authorized 
to do so under a permit issued pursuant to sections 104(c), or 109(h). 
The Ocean Conservancy supports the Administration's proposed amendment. 
We are sensitive to the potential harm that might result, in the 
absence of mandatory precautionary measures established as conditions 
of a captive release permit, to the animals released and to wild 
populations they encounter, through disease transmission, inappropriate 
genetic exchanges, and disruption of critical behavior patterns and 
social structures in wild populations. We support this provision but 
believe that the Administration's proposal would benefit from language 
that clarifies that the prohibition applies to any person subject to 
the jurisdiction of the United States and to any marine mammal 
maintained in captivity at a facility in the United States or on the 
high seas.

Sec. 503. Penalties
    The Ocean Conservancy believes that Section 105, the civil and 
criminal penalty provisions of the Act (16 U.S.C. Sec. 1375), should be 
updated to reflect current economic realities. The existing penalty 
schedule, enacted thirty years ago and unchanged since enactment, sets 
penalties that are low enough to be viewed by some violators as an 
acceptable cost of doing business, thus undermining effective 
enforcement. We support the Administration's proposal to amend Section 
105 of the Act to authorize the Secretary to impose a civil penalty of 
up to $50,000 for each violation, and a fine of up to $100,000 for each 
criminal violation. The penalty for failure to display or carry 
evidence of an authorization, currently set at a maximum of $100, also 
needs to be increased to $5,000.

Sec. 504. Vessel Fines and Cargo Forfeiture
    To increase compliance with the MMPA by ensuring that penalties 
will deter future violations of the statute, we support the 
Administration's proposed amendment to Section 106 (16 U.S.C. 
Sec. 1376), to authorize the Secretary to impose a civil penalty of up 
to $50,000 against vessels used to take marine mammals and vessels that 
fish in violation of the provisions of section 118 of the Act. We also 
support amendments to section 106 that allow for the seizure and 
forfeiture of a vessel's cargo for fishing in violation of the 
provisions of section 118.

Sec. 505. Marine Mammal Commission Administration
    We support this provision. The per diem rate in the Act is too low. 
Consequently, this provision precludes the MMC from securing the 
services of most experts and consultants. By removing this restriction, 
the MMC will be brought under the government-wide rules for the payment 
of experts and consultants.

Sec. 506. Enforcement
    This section would amend section 107(b) by requiring the Secretary 
to take steps to enter into cooperative enforcement agreements with 
states. We support this provision as it will likely provide more local 
enforcement of MMPA provisions.

Sec. 507. Interference with Investigations and Authorized Activities
    The MMPA currently contains no specific prohibition against 
activities that undermine the effective implementation and enforcement 
of the Act. Individuals who refuse to permit boardings, who interfere 
with inspections or observers, or who intentionally submit false 
information may not be subject to prosecution under the MMPA, as such 
activities are not specifically prohibited. To address this long-
standing deficiency within the MMPA, we support the Administration's 
proposed changes but believe that they could be strengthened by 
including provision similar to those currently found in the Magnuson-
Stevens Fishery Conservation and Management Act (16 U.S.C. Sec. 1857) 
that include specific language related to observer harassment and 
interference and the submission of false information.

Sec. 508. Authorizations for Marine Mammal Health and Stranding 
        Response
    The Marine Mammal Health and Stranding Response Program under Title 
IV (16 U.S.C. Sec. Sec. 1421-21(h)) should retain its own separate 
authorization provision. See 16 U.S.C. Sec. 1421(g). Title IV is 
critical to the recovery and health of marine mammal populations. To 
date, the Marine Mammal Health and Stranding Response Program has 
greatly improved the response to routine strandings of marine mammals 
and unusual mortality events. Nevertheless, unexplained die-offs of 
marine mammals have continued on almost an annual basis along the 
United States coastline, and the wildlife agencies' response to these 
die-offs has been hampered by a lack of funding. Without adequate 
funding, the agencies cannot be proactive, develop a strong marine 
mammal health assessment program, support volunteer stranding networks, 
or develop accurate baseline information on stranding rates, 
contaminants, disease, and other factors related to detecting and 
determining causes of unusual mortality events. Furthermore, the lack 
of funds hinders these agencies' ability to fully develop and implement 
contingency programs to respond to die-offs or oil spills, and 
subsequently determine the cause of these die-offs that are potential 
indicators of the health of the marine environment.
    The Administration's proposal is insufficient. An unusual mortality 
event could deplete the proposed $125,000 in just tissue sample 
analysis alone. We recommend that the Subcommittee provide a separate 
$2,000,000 annual authorization to NMFS for Title IV other than 
sections 405 and 407, a $2,000,000 annual authorization for carrying 
out section 407, and a specific annual authorization of $750,000 to the 
Marine Mammal Unusual Mortality Event Fund.

Sec. 509. Stranding and Entanglement Response/Sec. 510 Entanglement 
        Definition
    Each year, an ever-greater 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. Disentanglement has proven an effective mitigation 
measure for humpback whales, northern fur seals, California sea lions, 
and Hawaiian monk seals, and has proven to be significant to the 
survival of the North Atlantic right whale. These efforts promote the 
conservation and recovery of these species and should continue as a 
matter of priority. To improve efforts to monitor and respond to 
entanglement threats to marine mammals, The Ocean Conservancy supports 
the Administration's proposed amendments to Title IV, 16 U.S.C. 
Sec. Sec. 1421-1421h, to expand the requirements in this title to 
include entanglement situations and to define the term entanglement. We 
recommend that section 402(b)(3), 16 U.S.C. Sec. 1421(a)(b)(3), also be 
amended to require the Secretary to collect, update, and analyze such 
information on entanglements, not just strandings.

Sec. 511. Unusual Mortality Event Funding
    We support the proposed amendment in the Administration bill to 
expand the sources of funding available to the Marine Mammal Unusual 
Mortality Event Fund. The current language in the MMPA limits the 
Secretary's ability to allocate funds appropriated generally for the 
purposes of implementing the MMPA; removing this limitation will 
facilitate NMFS's response to unusual mortality events. We recommend, 
however, that the proposed language be amended to clarify that the Fund 
does not include all amounts appropriated to the Secretary under this 
Act but only so much of those funds as the Secretary deems necessary 
and appropriate.
    In 1994, Title IV, Marine Mammal Health and Stranding Response, was 
amended to allow funds from the Unusual Mortality Event Fund to be used 
for the care and maintenance of marine mammals seized under section 
104(c)(2)(D) (16 U.S.C. Sec. 1374(c)(2)(D)). The Marine Mammal Unusual 
Mortality Event Working Group opposes the use of these funds for this 
purpose, as does The Ocean Conservancy. This situation could rapidly 
deplete funds that are needed to respond to unusual mortality events. 
The need for funds to provide for the care and maintenance of seized 
marine mammals should be addressed in either the Animal Welfare Act or 
in another provision of the MMPA. Furthermore, potential contributors 
to the fund might be deterred by this provision due to the controversy 
surrounding marine mammals in captivity. The Ocean Conservancy 
recommends that this provision in Section 405(b)(1)(A)(iii), 16 U.S.C. 
Sec. 1421d (b)(1)(A)(iii), be deleted.

Sec. 512. Marine Mammal Research Grants
    The Ocean Conservancy supports the Administration's proposed 
amendments to Section 110 which authorizes the Secretary of Commerce 
and the Secretary of Interior to provide grants or other forms of 
financial assistance for research relevant to the protection and 
conservation of marine mammals and the ecosystems on which they depend. 
We believe that the shift to funding research that would target 
ecosystem-level problems is in keeping with the emerging threats to 
marine mammals that appear more symptomatic of ecosystem-based 
problems. We believe, however, that the Subcommittee should include a 
specific authorization for this section.

Sec. 513. Traveling Exhibits/Sec. 514 Definition of Traveling Exhibits
    This section would amend Section 102 to prohibit traveling exhibits 
of cetaceans. Because of the stress associated with frequent transport 
and subsequent acclimation periods, we support this amendment but 
believe that it should be extended to all marine mammals. We also 
support the proposed definition of traveling exhibits.

Sec. 515. Definition of Harassment
    We will analyze the impacts of this proposed definition later in 
our testimony when we address the Defense Department's amendments.

Sec. 516. Fisheries Gear Development
    The incidental take of marine mammals in the course of commercial 
fishing operations remains a major source of marine mammal mortality 
and serious injury. New gear technologies must be developed to reduce 
entanglements while still allowing fisheries to continue. The 
Administration's proposed amendments to section 111 would call on the 
Secretary to launch a new gear development and evaluation effort, 
establish a voluntary gear buy-back program, enhance coordination with 
other nations, and create a new mini-grant program to foster small 
scale gear development projects. We support these amendments, as we 
believe that gear research and buy-back programs are promising 
strategies for reducing marine mammal bycatch in commercial fisheries.

Sec. 517. Ship Strikes of Whales
    The Administration's proposed amendment would direct the Secretary 
of Commerce to use existing authorities under the MMPA to reduce the 
occurrence of ship strikes. Ship strikes constitute 50 percent of all 
human-related mortality for North Atlantic right whales. Merely 
directing the Secretary of Commerce to use existing authority within 
the MMPA will do virtually nothing to eliminate this threat. We propose 
that the Subcommittee consider an amendment to this section that would 
call upon the Secretary to develop and implement a ship strike 
reduction plan, the goal of which would be to reduce, within in five 
years of implementation, the mortality and serious injury of North 
Atlantic right whales caused by ship strikes to level approaching zero. 
The proposed amendment would be patterned after the take reduction team 
and plan provisions under section 118.

Sec. 518. Use of Fines
    The Ocean Conservancy agrees that NMFS should be authorized to use 
any fines and penalties collected for violations of the MMPA for 
enforcement expenses and in the administration of its activities for 
the protection and conservation of marine mammals under its 
jurisdiction. We recommend that this provision be further amended to 
make these funds available to the Secretary without further 
appropriation.

III. Amendments Not Considered in the Administration Bill
New Amendments on Deterrence of Marine Mammals
    Although Section 104(a)(4)(B) (16 U.S.C. Sec. 1371(a)(4)(B)) 
requires the Secretary to publish a list of guidelines for safely 
deterring marine mammals, the Secretary has failed, to date, to comply 
with this provision. Both The Ocean Conservancy and the fishing 
industry continue to be extremely frustrated by the lack of 
statutorily-required guidelines for non-lethal deterrents. Because NMFS 
cannot enforce guidelines, The Ocean Conservancy recommends that the 
statute be amended to require NMFS to promulgate regulations that 
delineate and mandate the use of acceptable methods of safely deterring 
marine mammals, including threatened and endangered marine mammals, 
with penalties prescribed for using non-approved methods. The proposed 
amendment should also establish a process whereby parties may petition 
to have additional methods of non-lethal deterrence reviewed and 
approved by the Secretary. The burden of proof to demonstrate that the 
proposed non-lethal deterrence method is safe and effective would be on 
the proponent of the method.

Research on Nonlethal Removal and Control of Pinnipeds
    Pinnipeds have never been the primary cause of a salmonid decline, 
nor has it been scientifically demonstrated that they have been a 
primary factor in the delayed recovery of a depressed salmonid species. 
Studies show that salmonids make up only a small percentage of pinniped 
diets, and that habitat loss is a primary factor in salmonid decline. 
Nonetheless, in 1994, the environmental community, the fishing 
industry, and Congress provided NMFS with the tools in Section 120 of 
the MMPA to address the issue of pinniped predation on threatened and 
endangered salmonid stocks.
    Sections 109 and 120 (16 U.S.C. Sec. Sec. 1379, 1389) offer 
effective and precautionary approaches to protecting pinnipeds, 
salmonid fishery stocks, biodiversity, and human health and welfare. 
Consequently, there is no need to amend the MMPA to allow a blanket 
authorization for the intentional lethal removal of pinnipeds by state 
and Federal resource agencies. Nor do we believe that such a blanket 
authorization would be acceptable to the public.
    Non-lethal deterrents hold the most promise to resolve the problems 
of ``nuisance'' animals and should be the first line of defense. NMFS 
has failed, however, to publish final guidelines on acceptable non-
lethal deterrents. NMFS has also failed to give sufficient priority to 
dedicated research into the development of safe and effective non-
lethal deterrents. Development of such deterrents will aid in reducing 
not only predation on threatened and endangered salmonid stocks, but 
also other conflicts between pinnipeds and humans.
    The Ocean Conservancy encourages the Subcommittee to consider an 
amendment to provide for research into non-lethal removal and control 
of nuisance pinnipeds. We recommend that such an amendment contain the 
following elements: (1) require the Secretary to develop a research 
plan to guide research on the non-lethal removal, deterrence and 
control of nuisance pinnipeds; (2) ensure that the research, 
development, and testing of safe, non-lethal removal, deterrence and 
control methods shall provide for the humane taking of marine mammals 
by harassment, as defined by Section 3(18)(A)(ii) of the MMPA; (3) 
include a broad cross-section of organizations and individuals, such as 
the conservation community, and representatives of the commercial and 
recreational fishing industries, in the development of the research 
program; (4) require the Secretary to report annually on the results of 
this research to Congress, and make the report available to the public 
for review and comment; and (5) authorize appropriations and new 
authority for the Secretary to accept contributions to carry out this 
section.

Cumulative Takes
    The Ocean Conservancy is concerned that applicants may be using the 
streamlined mechanism for authorizing incidental takes by harassment 
for a period of up to one year to avoid the assessment of the 
cumulative impacts of such activities over time. Applicants may segment 
long-term activities into one-year intervals, seeking a separate 
authorization for each, or may seek separate authorizations for each of 
several similar or related activities. By themselves, these activities 
may have only negligible impacts, but may be of significant detriment 
when viewed cumulatively. Therefore, we recommend that Section 
101(a)(5)(D)(i) be amended to ensure authorized activities have a 
negligible impact, taking into account cumulative impacts of related 
activities in the authorized period as well as in subsequent years.

Emerging Threats to Marine Mammals
    The threats to marine mammals are more growing complicated. 
Anthropogenic sound, climatic regime shifts, and persistent pollutants 
do not lend themselves to simple mitigation strategies. Nevertheless, 
these are threats that must be researched and mitigation strategies 
devised to conserve and recover marine mammals. The Marine Mammal 
Commission should be directed to produce a report to Congress on 
emerging threats to marine mammals. The report would identify and 
assess the magnitude of emerging and existing threats to marine mammal 
stocks; evaluate the health of marine mammal stocks in the wild, and 
correlate that information with data on physical, chemical, and 
biological environmental parameters; identify data gaps and provide a 
research plan to fill such gaps; and provide recommendations for 
regulations or statutory changes to the MMPA to mitigate such threats. 
The report would also identify actions necessary to conserve marine 
mammals, meeting the goals of the MMPA in a proactive and constructive 
manner. We believe this is a perfect role for the MMC.

IV. Department of Defense Proposed Modifications to the MMPA
    The Department of Defense is seeking to amend the MMPA's definition 
of harassment, create a separate incidental take authorization process 
for military readiness activities, and institute a broad exemption for 
national defense.

Background
    Congress sought to achieve broad protection for marine mammals by 
establishing a moratorium on their importation and ``take.'' Take is 
defined by statute as any act ``to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture or kill any marine mammal'' 16 U.S.C. 
Sec. 1362(13). The MMPA allows the relevant Secretary to grant 
exceptions to the take prohibitions, by issuing either a ``small take 
permit'' or ``incidental harassment authorization'' if the best 
available scientific evidence reveals that such take would have only a 
negligible impact on a specific marine mammal population.
    Specifically, Section 101(a)(5)(A), 16 U.S.C. Sec. 1371(a)(5)(A), 
of the MMPA authorizes the Secretary to permit the taking of small 
numbers of marine mammals incidental to activities other than 
commercial fishing (covered by other provisions of the Act) within a 
specified geographical region when, after notice and opportunity for 
public comment, the responsible regulatory agency (NMFS or FWS) 
determines, inter alia that the taking would have negligible effects on 
the affected species or population, and promulgates regulations setting 
forth permissible methods of taking and requirements for monitoring and 
reporting. It generally takes the agency 240 days or more to promulgate 
regulations. In addition, Section 101(a)(5)(D), 16 U.S.C. 
Sec. 1371(a)(5)(D), provides a more streamlined mechanism for obtaining 
small take authorizations when the taking will be by incidental 
harassment only. Under this provision, the Secretary is required to 
publish in the Federal Register a proposed incidental harassment 
authorization within 45 days after receipt of an application. Following 
a 30-day public comment period, the Secretary has 45 days to issue or 
deny the requested authorization.
    The exemptions for incidental take are wedded to the definition of 
``harassment'' since the definition establishes the regulatory 
threshold to allow the applicant to make an initial assessment whether 
a small take or an incidental harassment authorization is needed. The 
definition describes a range of impacts that the regulatory agencies 
must assess during the authorization process to determine whether to 
authorize the activity. In 1994, Congress amended the MMPA to 
differentiate between two general types of harassment: Level A, having 
the potential to cause physical injury and Level B, having the 
potential to impact behavior of marine mammals in the wild. The 
definition is as follows:

    (18)(A) The term ``harassment'' means any act of pursuit, torment, 
        or annoyance which--

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

      (ii) has the potential to disturb a marine mammal or marine 
            mammal stock in the wild by causing disruption of 
            behavioral patterns, including, but not limited to, 
            migration, breathing, nursing, breeding, feeding, or 
            sheltering.

    (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).

Proposed New Definition
    The Department of Defense claims that the definitions of Level A 
and Level B harassment added to the MMPA in 1994 are overly broad and 
somewhat ambiguous. In an attempt to resolve this perceived problem, 
the Department of Defense has proposed the following definition:

        For purposes of military readiness activities, the term 
        `harassment' means any act which--

        (i) injures or has the significant potential to injure a marine 
        mammal or marine mammal stock in the wild; or

        (ii)(I) disturbs or is likely to disturb a marine mammal or 
        marine mammal stock in the wild by causing disruption of 
        natural behavioral patterns, including, but not limited to, 
        migration, surfacing, nursing, breeding, feeding, or sheltering 
        to a point where such behavioral patterns are abandoned or 
        significantly altered; or

        (II) 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.

    The Administration bill would extend this definition to all user 
groups.

Problems with the Proposed Definition
    The most salient effect of this language is to raise the threshold 
of regulatory action. For Level A harassment, the proposed definition 
would shift from ``has the potential to injure'' to ``injures or has 
the significant potential to injure.'' For Level B harassment, 
``potential to disturb'' would become ``disturbs or is likely to 
disturb;'' and an addition would be made to the language governing 
behavioral disruptions, requiring that ``natural'' behaviors be 
``abandoned or significantly altered.'' (emphasis added).\1\
---------------------------------------------------------------------------
    \1\ The third subparagraph, which establishes a somewhat more 
conservative standard for behavioral impacts, would apply only to 
activities that are directed toward a specific individual, group, or 
stock of marine mammals, not to activities that take marine mammals 
incidental to their operation. This provision would not cover any of 
the activities for which the DOD has sought small take permits or 
incidental harassment authorizations under the MMPA.
---------------------------------------------------------------------------
    This new language would introduce new uncertainty into the Act. 
Adding the term ``significant'' to the definition would take the Act 
into a scientific and policy arena that is beset by ambiguity. 
Currently, the state of marine mammal science will not yield a clear, 
practical definition of ``significant potential'' or of ``significantly 
altered;'' indeed, these terms are likely to generate more scientific 
questions than answers.
    The term ``potential'' is clear and requires no further evaluation 
of the significance of an activity's likelihood to injure or disturb. 
It is protective of the species, requiring only the disruption of basic 
biological functions or behavioral patterns such as migration, 
breathing, nursing, breeding, feeding, or sheltering--impacts that are 
reasonably verifiable--rather than significant alteration of these 
biologically important behaviors, to trigger the Act's prohibitions. 
Moreover, because the definition references ``disruptions in behavioral 
patterns,'' it is clear that it does not encompass any and all 
behavioral modifications.
    The DOD and the Administration bills also add a new requirement to 
Level B harassment that natural behavioral patterns be disrupted to the 
point where such behavioral patterns are abandoned. Requiring the 
abandonment of critical biological behaviors for an action to 
constitute harassment violates the precautionary goals of the Act and 
sound scientific conservation principles. In addition, what constitutes 
``abandonment'' of behavioral patterns under the proposed new 
definition of Level B harassment will vary according to species, 
gender, time scale, and the nature of the behavior itself. The proposed 
amendment offers no basis to determine what constitutes abandonment of 
behavioral patterns.
    Taken together, these changes would have a debilitating effect on 
enforcement. Under the terms of the Act, an applicant would have 
initial authority to decide whether its activities have the 
``significant potential to injure'' marine mammals or are likely to 
``significantly alter'' marine mammal behavior. A great many activities 
could simply evade the Act's requirements by the Defense Department, or 
other applicants, relying upon the uncertainty and ambiguity in this 
new language and not seeking authorization in the first place. For the 
public or NMFS to enforce the Act in these circumstances would be 
difficult.
    The practical outcome is that many more marine mammals would be 
harmed by not only military activities, but other activities, such as 
oil and gas exploration that incidentally take marine mammals. 
Potentially injurious activities that were once assessed, monitored, 
and mitigated under the Act would no longer enter the permit process. 
NMFS could not ensure that the impacts of such activities on 
populations or stocks would be negligible. In addition, small take 
permit and incidental harassment authorization mitigation measures and 
monitoring requirements that have been effective in protecting marine 
mammal populations and resulted in critical information on the impacts 
of a particular activity would be lost. Overall, the result of these 
changes is likely to be more injury and death of marine mammals, less 
mitigation and monitoring of impacts, less transparency for the public 
and the regulatory agencies, and even more controversy and debate.

Department of Defense Mischaracterizations of Issues Related to the 
        Definition of Harassment
    In his written testimony before the Subcommittee on Readiness of 
the House Armed Services Committee, Deputy Under Secretary of Defense, 
Raymond F. Dubois, Jr. stated that: ``The new definition, as we 
requested last year, reflects the position of the National Research 
Council (NRC) and focuses on minimizing injury and biologically 
significant disruptions to behavior critical to survival and 
reproduction.''
    The NRC convened a panel on marine mammals and low frequency sound 
that, among other things, looked at the MMPA's definition of harassment 
(National Research Council 2000). However, the NRC recommendations 
differ substantially from the Defense Department's proposed amendment. 
First, the NRC panel proposed no modifications to the definition of 
``Level A'' or injurious harassment. Second, the NRC retained the 
current standard of probability in the definition for ``Level B'' 
harassment, by including the phrase ``has the potential to disturb a 
marine mammal . . .'' Third, the NRC did not raise the threshold for 
the disruption of natural behaviors in Level B harassment to the 
Department of Defense's level of ``abandonment or significantly 
altered.'' \2\
---------------------------------------------------------------------------
    \2\ The definition proposed by the NRC, while more conservative 
than that proposed by the Department of Defense, introduces two new 
terms: ``meaningful'' and ``biologically significant.'' The MMC noted 
in its testimony before the House Resources Committee in 2001 that:

    ``. . . However, when assessing activities that cause behavioral 
modification, we often cannot distinguish between those activities that 
will have significant, long-term effects and those that will not . . . 
Until we have the capability to distinguish reliably between what is 
and is not significant, or what will or will not have long-term 
consequences, the Commission believes that it would be ill-advised to 
adopt a definition that excludes consideration of short-term impacts 
entirely.''
---------------------------------------------------------------------------
    In its testimony, the Defense Department, to bolster its assertion 
that the definition of harassment is flawed and must be changed, cites 
two examples of recent Federal district court cases where scientific 
research was stopped due to concerns about acoustic impacts to marine 
mammals. Deputy Assistant Secretary of the Navy, Wayne Arny, before the 
Subcommittee on Readiness of the House Armed Services Committee, 
stated:

        In one case, the court enjoined seismic air gun research on 
        geological fault lines conducted by the National Science 
        Foundation off the coast of Mexico based on the court's concern 
        that the research may be harming marine mammals in violation of 
        the ESA and NEPA. In another case a court enjoined a Navy 
        funded research project by the Woods Hole Oceanographic 
        Institute designed to study the effectiveness of a high 
        frequency detection sonar (similar to a commercial fish finder) 
        in detecting migrating Grey Whales off the coast of California. 
        The court's order stopped research on the development of a 
        promising mitigation measure to avoid harming marine mammals 
        from acoustic sources.

    In the case of the National Science Foundation's (NSF) use of 
seismic airguns to undertake geological research, NSF never even 
applied for an incidental take authorization under the MMPA. In 
addition, the project was funded and implemented without completing an 
Environmental Assessment or Environmental Impact Statement under the 
National Environmental Policy Act (NEPA). The Woods Hole case involved 
a series of permits issued by NMFS for scientific research pursuant to 
section 104 of the MMPA. Moreover, the challenge to these permits was 
brought under NEPA for failure to perform the required analysis of 
environmental impacts, not the MMPA. Although we understand the adverse 
reactions that these decisions have engendered within the scientific 
community, these cases have little or no bearing on the sweeping 
statutory changes to the MMPA sought by the Department of Defense.

Proposed Changes to the MMPA's Small Take and Incidental Harassment 
        Provisions
    The Department of Defense proposes to create a separate incidental 
take authorization process for military readiness activities. While 
similar to the existing small take and incidental harassment 
authorizations in Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA 
respectively, the proposed process eliminates key conservation elements 
that restrict the scope of the incidental take to small numbers of 
marine mammals while engaging in a specified activity within a 
specified geographic region.

Deletion of Requirement That Incidental Take Authorization Be Limited 
        to Small Numbers of Marine Mammals of a Species or Population 
        Stock
    Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA allow the 
Secretary to authorize the incidental take of only ``small numbers of 
marine mammals of a species or population.'' Although in restricting 
the take to ``small numbers'' of marine mammals the Committee 
acknowledged that it was unable to offer a more precise formulation 
because the concept was not capable of being expressed in absolute 
numerical limits; it made clear its intent that the taking should be 
infrequent, unavoidable, or accidental. H.R. Rep. No. 228, 97th Cong., 
1st Sess. 19 (1981). Therefore, it is obvious that the incidental take 
authorization is not intended to provide the Department of Defense with 
the ability to take unlimited numbers of marine mammals. In addition, 
the Committee noted that this requirement is separate and distinct from 
the required finding that the taking of small numbers of marine mammals 
will have a negligible impact on such species or stock. Id.
    The requirement that incidental take under these provisions be 
limited to ``small numbers of marine mammals of a species or population 
stock'' is an important and independent requirement that should 
continue to apply to all persons, including the Department of Defense. 
Deleting this requirement would allow increased and potentially 
unsustainable levels of injury or harassment. Although it is true that 
the bill retains the requirement that the Secretary find that the 
incidental taking have a negligible impact on the species or stock, 
these impacts are difficult to analyze, especially for marine mammal 
stocks for which little is known about their abundance or biology. 
Without the ``small number'' limitation, it may be difficult to 
evaluate the effects of injury or harassment on annual rates of 
recruitment and thereby establish sufficiently stringent quantitative 
standards for negligible impact; this creates the risk that adverse, 
possibly irreversible impacts will occur before they can be assessed. 
The additional requirement in the existing law, that the take be 
restricted to small numbers of marine mammals, ensures that that the 
biological consequence of that take will not hinder a marine mammal 
population's ability to grow or recover.

Deletion of Requirement That Activities Take Place Within a Specified 
        Geographical Region
    Congress amended the MMPA in order to ensure that the specified 
activity and the specified region are narrowly identified so that the 
anticipated effect would be substantially similar. H.R. Rep. No. 228, 
97th Cong., 1st Sess. 19 (1981). NMFS defines specified geographical 
region as ``an area within which a specified activity is conducted and 
that has certain bio-geographic characteristics.'' C.F.R. Sec. 216.103. 
The Defense Department's proposal would strike this requirement--
despite its importance to environmental assessment under the Act, and 
its consonance with sound management of marine mammals.
    Restricting the activities to a specified region is in keeping with 
the requirements that the incidental taking must have a negligible 
impact on a stock of marine mammals and ensure that the taking has the 
least practicable adverse impact on its habitat. NMFS criteria for 
stocks states that stocks should be defined on the smallest divisible 
unit approaching that of the area of take unless there exists evidence 
of smaller subdivisions provided by ecology, life-history, morphology, 
and genetics data. (NMFS 1995 and 1997). In combination with the 
``small numbers'' limitation discussed previously, this fine-scale 
approach to defining stocks provides an effective conservation and 
management strategy for restricting take geographically and numerically 
to prevent depletion of marine mammal populations and for prescribing 
mitigation that is appropriately tailored and scaled.
    In addition, geographic regions themselves serve different 
biological purposes for marine mammal stocks. Some areas are vital to 
foraging, others are migratory corridors, and still others are vital to 
breeding, calving, and reproduction. The biological significance of a 
particular habitat or region is critical for determining whether the 
taking will have a negligible impact on the population of marine 
mammals and result in the least practicable adverse impact on its 
habitat.
    Removing the requirement that the incidental take be restricted to 
a specified geographic region is contrary to effective conservation and 
management practices that limit take to narrowly defined marine mammal 
stocks on a restricted geographic basis to avoid depletion. It also 
jeopardizes the MMPA's goals of habitat conservation as it undermines 
effective consideration of the biological role or significance of the 
habitat to that marine mammal stock.

The Department of Defense Has Not Made a Compelling Case That These 
        Statutory Changes Are Needed--Incidental Take Permits Are 
        Routinely Granted on a Timely Basis
    Since 1994, when the current definition of ``harassment'' was 
adopted, the Department of Defense has submitted six applications for 
small take authorizations and sixteen under its ``incidental harassment 
authorizations,'' one of which was subsequently withdrawn. As Assistant 
Administrator William Hogarth noted in his testimony before the 
Committee on Armed Services in March, 2002, no application for either a 
small take or incidental harassment authorization submitted by the 
Defense Department has ever been denied.
    From the period 1994 to present, the Defense Department sought six 
small take authorizations. For four of these applications, it took an 
average of just over fifteen months from application date to the 
effective date of authorization. As noted above, decisions on small 
take applications can take from 6-12 months to promulgate regulations 
and issue the Letter of Authorization. Fifteen months barely falls 
outside of that range.
    In only two cases, applications to take marine mammals incidental 
to shock testing of the USS Seawolf and the deployment of the SURTASS 
LFA, the decision process took approximately three years. This was due 
to a myriad of factors, unique to these applications, including their 
scope, complexity, number of public comments received, and time 
required to comply with NEPA.
    Similarly, the incidental harassment authorizations averaged just 
over four months from application to effective date of authorization, 
only slightly longer than the statutory mandate of 120 days. In light 
of this information, the Department of Defense has not shown either 
that it is unable to comply with the existing permitting requirements 
or that the length of the existing incidental take process is 
burdensome. To the contrary, it appears that the program is functioning 
much as Congress intended.

Opportunities Exist to Improve Implementation of the Act 
        Administratively
    The Defense Department's proposal to create a separate incidental 
take exemption process for military readiness activities would 
introduce substantial ambiguity and would eliminate critical elements 
from the authorization process. Rather than pursue dramatic legislative 
change, the need for which has not been demonstrated, we believe that 
the Department should look to non-legislative alternatives to further 
streamline the administrative process. In this context, Assistant 
Administrator Hogarth, in his March 2002 testimony, stated:

        Our ability to be efficient stems in large part from our 
        ability to discuss activities with our Navy counterparts in 
        advance, and with an understanding of the overall activities 
        and needs of the program. With respect to our regulatory 
        program, our limited staff is directly related to our ability 
        to meet the increasing demands by Navy and other agencies. 
        However, to the extent the Navy and other action agencies can 
        plan sufficiently far in advance of activities and provide us 
        with adequate time to work with them at the earliest possible 
        stages, the implications of the permit process should be 
        minor.\3\
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    \3\ Available at this time in transcript form from www.house.gov/
hasc/openingstatements
andpressreleases/107thcongress/02-03-14hogarth.html.

    The Department of Defense and NMFS are about to sign a Memorandum 
of Understanding that would further improve the authorization process. 
Based on these statements, and our own knowledge of how the current 
program functions, we believe there are a number of ways to 
administratively improve its implementation to address the concerns of 
the Department of Defense, without amending the statute or undermining 
its conservation objectives. We believe that this approach is the most 
expedient way to achieve both marine mammal conservation and to improve 
efficiency in the issuance of permits for military readiness 
activities. As a first step, we urge NMFS to undertake a programmatic 
review of the incidental take authorization program as a means to 
improve efficiency and meet the goals and mandates of the MMPA.

Proposed Exemptions of Actions Necessary for National Defense
    Finally, the Department of Defense has proposed to add a new 
subsection 1371(e), Exemptions Of Action Necessary For National 
Defense, which would authorize the Secretary of Defense to exempt any 
action or category of actions undertaken by the Department of Defense 
from compliance with any requirement of the MMPA if the Secretary 
determines it is necessary for national defense. The exemption is for a 
period of two years with the possibility of unlimited additional 
exemptions, each two years in duration. The effect of this provision is 
to create an escape clause that allows the Defense Department to bypass 
the incidental take permitting process entirely. Moreover, this 
exemption would apply broadly to any requirement of the MMPA for any 
action or category of actions undertaken by the Defense Department 
which the Secretary determines are necessary for national defense.
    We believe this exemption is excessively broad for four reasons. 
First, it would vest authority to grant an exemption entirely in the 
Secretary of Defense. Second, the exemption applies to ``any action or 
category of actions undertaken by the Department of Defense or its 
components,'' and so is not limited to individual activities, 
technologies, or exercises, allowing in theory for a sweeping 
application of this provision. Third, the exemption confers immunity 
from ``compliance with any requirement'' of the MMPA. Fourth, the 
Secretary of Defense can avail himself/herself of endless renewals of 
the exemption. Even more fundamentally, we believe the Department of 
Defense has failed to demonstrate an irreconcilable conflict exists 
within the incidental take authorization or any other provision of the 
MMPA that would merit such an exemption--one that would render the 
MMPA's conservation goals and mandates virtually meaningless.
    The Department of Defense has flexibility under the Armed Forces 
Code, 10 U.S.C. Sec. 2014, to seek special accommodation and relief 
from any agency action that, in its determination, would have a 
``significant adverse effect on the military readiness of any of the 
armed forces or a critical component thereof.'' If the accommodations 
it seeks are not forthcoming and an agreement is not reached directly 
with the head of the Executive agency concerned, it may take its case 
directly to the President. These provisions have never been invoked 
with regard to the MMPA, presumably because the Department's requests 
for authorization under the Act have never been denied and because any 
mitigation required by the agency was judged not to have a significant 
adverse effect on readiness. The Department of Defense has not 
demonstrated that either the flexibility to seek special accommodation 
and relief under the Armed Forces Code is insufficient or that the 
broad exemptions it now seeks are warranted.

V. Conclusion
    The Ocean Conservancy believes that the MMPA has made significant 
progress in conserving marine mammals and that the statute is at a 
unique stage in its evolution. Congress can, and should, use this 
opportunity to craft narrowly focused amendments to improve the 
implementation and enforcement of the current Act, as well as to adopt 
new provisions that will begin to address the emerging threats to 
marine mammals.
    Our groups support the military's efforts to protect national 
security and are sensitive to the issue of military readiness. We do 
not believe, however, that the Defense Department has demonstrated that 
the dramatic changes proposed are necessary or that it has utilized the 
administrative remedies available to it under existing law. The 
Department of Defense's proposals to modify the MMPA's definition of 
harassment, create a separate incidental take authorization process for 
military readiness activities, and create a broad exemption to the 
MMPA, threaten to severely undermine the precautionary nature of the 
Act and lead to significantly increased harm to marine mammal 
populations.
    We support a process, in the context of MMPA reauthorization, in 
which all stakeholders can work together to develop creative and 
collaborative approaches to demonstrated problems. We hope this 
Subcommittee will allow us the opportunity to work constructively on 
alternative approaches with all of the affected agencies and 
organizations to try and address the concerns of all interest groups 
and ultimately draft a progressive reauthorization bill for this 
keystone conservation law. We look forward to participating in this 
effort.

    Senator Snowe. Thank you very much, Dr. Young.
    Dr. Tyack?

         STATEMENT OF PETER L. TYACK, SENIOR SCIENTIST,

    BIOLOGY DEPARTMENT, WOODS HOLE OCEANOGRAPHIC INSTITUTION

    Dr. Tyack. Thank you. Madam Chair and distinguished Members 
of the Committee, my name is Peter Tyack. I am a biologist at 
the Woods Hole Oceanographic Institution and I thank you for 
the opportunity to testify.
    I was a member of two committees of the National Research 
Council on marine mammals and ocean noise.
    I would like to start by pointing out that an important 
suggestion for changes to the MMPA argues for authorizing 
incidental taking of marine mammals in the same way for all 
activities, allocating regulatory effort to situations most 
likely to risk adverse impacts. Currently we are very far from 
this goal. Today's MMPA has wildly different criteria for 
authorizing different activities, allowing some fisheries to 
kill animals with no requirement beyond reporting, while having 
no procedure available for other activities to authorize more 
than a few insignificant harassment takes. I would ask all 
Members of this Committee to stop and consider whether our 
national priorities should put marine mammals more at risk for 
commercial fishing than for oceanographic research, the search 
for domestic sources of petroleum, or the ability to protect 
ourselves from enemy submarines.
    In spite of the many serious threats facing marine mammals, 
a primary regulatory effort under the MMPA has targeted the 
very scientific research designed to understand and protect 
these animals. Regulatory delays block research designed to 
protect marine mammals from unregulated threats. Let me 
illustrate with an example from a leader in efforts to protect 
right whales.
    Scott Kraus has been waiting 23 months for a renewal of his 
permit to conduct conservation research while NMFS tries to 
finish environmental analyses under NEPA. I want to point out 
that theme again. While he waits, at least 10 right whales have 
entangled in fishing gear and 6 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 worked like fish finders 
have recently been developed to harmlessly detect whales. 
Before these whale finders can responsibly be used to protect 
whales, we need to know how well they detect whales at sea. A 
study I developed to do this 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 environmental assessments or impact 
statements for each activity that may be permitted. It 
typically takes several months at about $100,000 to produce an 
environmental assessment and up to $1 million and 1 to 2 years 
to produce an environmental impact statement. Unless the 
regulatory environment changes dramatically, it will cost as 
much to permit critically needed research as to conduct the 
research itself. The NMFS Permit Division 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 has swelled 
from 3 months to 6 months to 23 months and counting. These 
delays kill critical research projects. I urge Congress to 
follow the recommendations of the NRC and set deadlines of 3 to 
4 months for issuing a permit for scientific research.
    Congress is now evaluating new proposals for special 
exemptions to the MMPA. Clearly there are problems with the 
act, but I believe that we need one incidental take 
authorization process for all activities, allocating regulatory 
effort to situations most likely to risk adverse impacts to 
marine mammals.
    The MMPA needs a de minimis standard for harassment takes. 
All seafaring activities should consult with NMFS to determine 
whether they take marine mammals under this standard, and if 
so, what the impact is. The MMPA needs a general authorization 
for incidental takes with a minimal impact.
    With regard to suggested changes for existing incidental 
take authorizations, I support removing the conditions of small 
numbers and specified geographical region as long as a sharp 
focus is maintained on the issue of negligible impact.
    However, as a biologist who has studied the behavior of 
marine mammals for more than 25 years, I cannot support the new 
administration definition for Level B harassment. I find the 
addition of the word ``abandoned'' particularly confusing. An 
air-breathing mammal that abandons surfacing is not harassed. 
It is dead. I urge the Senate to consider using the definition 
of Level B harassment suggested by the NRC as an alternative to 
the confusing administration definition, or at the very least 
the term ``abandoned'' should be deleted and the phrase 
``significantly altered'' should be defined to parallel the NRC 
term ``biologically significant.''
    Thank you very much for your attention.
    [The prepared statement of Dr. Tyack follows:]

    Prepared Statement of Peter L. Tyack, Senior Scientist, Biology 
            Department, Woods Hole Oceanographic Institution

    Madame 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 reauthorization of 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 
regulation of harassment takes under the MMPA, especially those for 
scientific research and incidental takes resulting from exposure to 
manmade noise.

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.

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 percent 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.
    Congress speaks through the MMPA to give commercial fisheries a 
special exemption with much more scope to harass marine mammals than 
other activities such as conservation research, naval exercises, or oil 
exploration. This is in effect a statement of national priorities, 
ranking activities for which the United States is most willing to risk 
the well being of marine mammals. I would ask all members of this 
Committee to stop and think whether commercial fishing should 
automatically rank as a higher national priority than scientific 
research, the search for domestic sources of petroleum, or the ability 
to protect our Nation from enemy submarines.
    During the past several years, there have been efforts to address 
the very real problems with the MMPA by developing new exemptions for 
specific activities such as military readiness. I do not think that 
complicating the Act by creating yet another special exemption 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 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 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.
    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. While fisheries are 
regulated for lethal takes under section 118 of the MMPA, no other 
activity is included in these regulations. If a fishing vessel casts 
nets that may entangle and kill marine mammals, the vessel is 
regulated. If the fishery takes enough marine mammals to threaten a 
population, the fishery may be shut down. Every time a ship speeds 
through right whale habitat, there is a low but real chance the ship 
may strike and kill a whale, speeding 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.
    Regulation and enforcement of harassment takes is even worse than 
lethal takes. The senior enforcement attorney for one of the NMFS 
regions reported to the Marine Mammal Commission last year that his 
region will not prosecute cases of level B harassment for companies 
that take tourists to swim with wild dolphins. This growing industry 
based upon intentional harassment thus can count on freedom from 
prosecution of its violations of the MMPA, and indeed can openly 
advertise their business based upon illegal taking. On the other hand, 
marine mammal biologists are required to wait half a year or more for 
permits covering the slightest possibility that their research may 
disrupt the behavior of marine mammals. Once they receive a permit, the 
permitting process itself may trigger litigation that can block 
urgently needed conservation research.
    The National Academy (2000) report on Marine Mammals and Low-
frequency Noise disagreed with the strategy of special exemptions for 
specific activities that cannot operate under the current restrictions 
of the MMPA, but rather argued for creating a comprehensive regulatory 
structure for all activities that might take marine mammals.

        The Committee also suggests that activities that are currently 
        unregulated, but which are major sources of sound in the ocean 
        (e.g., commercial shipping) be brought into the regulatory 
        framework of the MMPA. Such a change should increase protection 
        of marine mammals by providing a comprehensive regulatory 
        regime for acoustic impacts on marine mammals, eliminating what 
        amounts to an exemption on regulation of commercial sound 
        producers and the current and historic focus on marine mammal 
        science, oceanography and Navy activities. (p. 72)

    This change would be all the more effective if it was not limited 
to acoustic impacts, but included all sources of takes including 
harassment into an integrated workable regulatory structure.
    I urge the Commerce Committee to resist adding special exemptions 
to the MMPA for specific activities, but instead to consider 
modifications that require all potential takes to be accounted for. 
These modifications should separate activities into those with remote 
likelihood, moderate, or high probability for incidental takes with a 
potential for adverse impacts to populations of marine mammals. This 
broadening of regulation would require a streamlined authorization 
procedure, with simple general authorizations for activities thought to 
have negligible impact, and more careful regulation of activities that 
threaten populations of marine mammals. Given the history of regulation 
under the MMPA, Congress may have to require the regulatory agencies to 
direct regulation and enforcement to those activities posing the 
highest risk, and to streamline regulation of those activities that 
pose lower risks.

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. It is ironic that, far from exempting research 
from an effective prohibition, the permitting process restricts for 
researchers, activities that are unregulated for other users. For 
example, a scientist playing back the sounds of a tanker to monitor 
responses of whales requires a permit to cover any ``takes'' for 
animals whose behavior has changed, while the thousands of tankers 
entering U.S. ports are unregulated. This is particularly ironic since 
the first warning about effects of noise on marine mammals concerned 
the risk that increased shipping noise might significantly reduce the 
range over which whales could communicate, a warning issued in 1972, 
the year the MMPA was enacted. Not only can the shipping industry 
ignore the likely disruption of behavior caused by noise, but even the 
lethal ``impacts'' caused when a vessel collides with a whale are 
completely unregulated. Nothing we have learned in the following 
decades has reduced scientific concern, yet in spite of three decades 
of warnings, NMFS has only just started to take the first steps to 
protect whales from the risks posed by vessel traffic.
    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. In addition, the judge in a recent court case regarding the 
permitting process ruled that all acoustic research on marine mammals 
is controversial. This led him to rule that a 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 May 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 21 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 we 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 we 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. 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. 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 to help resolve 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. Recent 
litigation has highlighted the importance of adequate NEPA analysis in 
order to issue legally defensible permits. 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 the permit. 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, although there 
is considerable overlap between the permitting process under MMPA and 
the environmental analyses under NEPA. Given how similar the two 
processes are, perhaps Congress could specify the categorical exclusion 
of these permits under the MMPA. Otherwise, the MMPA or regulations 
might specify programmatic environmental analyses of specific research 
procedures, such as aerial or vessel survey, tagging, biopsy sampling, 
sound playback, etc. As I discuss later in my testimony, these kinds of 
programmatic environmental analyses are urgently needed for setting 
regulatory priorities not just for research, but for all incidental 
harassment.
    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. This additional workload must be achieved 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.
    Ironically, it appears that the more serious the conservation 
problem addressed by a research project, the more likely the project is 
to be attacked by extremists and delayed or cancelled. One side effect 
of the permit process is that it personalizes a project in the name of 
a scientist. When a ship hits and kills a whale, when dolphins die in 
fishing nets, when a sea turtle is killed in an underwater explosion, 
the impact is no-fault and impersonal. But when a scientist applies 
personally for a permit to help solve these problems, he or she is 
front and center in a very public process. This makes the scientist an 
all too easy target for uninformed emotional attacks against the bigger 
problem. The ``Tyack permit'' is the subject of misinformation in 
websites from Australia to the U.K.
    Some animal rights groups have specialized in attacking biological 
research; it has become all too easy for less scrupulous groups to move 
from attacking suffering and pain induced by experiments in captive 
animals, to raise funds by misrepresenting research directed at helping 
to protect wild animals from serious threats. Activists have actually 
tried to sabotage some conservation biology projects with threats of 
violence and destruction of property. It may reduce the attractiveness 
of these cynical ad hominem attacks if research institutions or 
consortia were to apply for general authorizations for different kinds 
of research, much as other activities that may ``take'' marine mammals 
are authorized.\1\
---------------------------------------------------------------------------
    \1\ A problem with the language of the MMPA involves the use of the 
word ``take'' to cover the potential for an activity to cause slight 
and temporary changes in behavior. In this age of the Internet, it is 
quite easy for people all over the world to hear of a permit allowing 
thousands of ``takes'' of marine mammals. It is difficult for people 
from many countries to find it credible that the U.S. would regulate 
the potential for any change in behavior, so it can easily appear that 
this permit allows ``taking'' in the normal English sense, which sounds 
quite drastic. I urge the language of the permitting process be changed 
to use ``take'' for lethal take, ``injury'' for level A harassment, and 
``disrupt'' or ``disruption'' for level B harassment.
---------------------------------------------------------------------------
    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 U.S. 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 problems I 
face as a scientist involve 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.

Suggested unified procedure for authorizing incidental takes under 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 each special interest powerful enough to get the 
attention of Congress. 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 such 
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.'' Furthermore, if Congress restricts this 
year's solution to military readiness, next year they will be likely to 
have to respond to similar needs of 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. These processes should be designed 
to focus regulatory effort on situations of potential adverse impacts 
while minimizing the regulatory burden for activities with negligible 
effect. If a streamlined and more inclusive authorization process were 
accompanied by better monitoring and reporting requirements, then we 
would be in a much better position to identify and devote scarce 
regulatory resources to situations where marine mammals are most at 
risk from human activities.
    Please allow me to sketch an outline of such an approach based upon 
suggestions from the 1994 and 2000 NRC reports on Marine Mammals and 
Low-frequency Sound. These reports approve of the amendments to the 
MMPA that were adopted in 1994 regarding taking of marine mammals 
incidental to commercial fishing. The incidental take provisions of the 
MMPA for commercial fisheries require determination of whether the 
incidental mortality and serious injury from commercial fisheries will 
or will not have a negligible impact on marine mammal stocks. Fisheries 
are categorized as to whether they have frequent, occasional, or remote 
likelihood of causing mortality or serious injury, and each fishery 
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.
    This regime for regulating fishery takes that may kill animals has 
been quite successful in highlighting situations where populations are 
threatened by fishing. 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 reports highlight two flaws in this approach: the 
regime ignores effects of harassment, and is not systematically 
organized to include takes such as vessel collision, explosions, etc.
    The effect of MMPA section 118 has been to exempt fisheries from 
the prohibition on harassing marine mammals. The solution to this 
problem and to the imbalance in regulation of harassment is to develop 
a process to tier all sea-faring activities into categories for 
potential harassment takes of negligible impact, possible impact, and 
high 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 impact. This kind of environmental assessment is already required 
under NEPA and many recent court cases have shown that NMFS and sea-
faring activities must conduct additional environmental assessments. 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. There should be a simple streamlined 
process for authorizing low impact activities, with increased 
regulation scaling with increased probability of impact. A general 
authorization process is essential for activities that may affect the 
behavior of 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. I urge Congress to require a consultation process to 
allow 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 regime for regulating lethal takes or serious injury under 
section 118 of the MMPA has a flaw that may prove fatal to marine 
mammal populations, like 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. 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 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 vessels strike and kill a whale for example, should this be 
subtracted from the PBR? Or should these non-fishing activities be 
incorporated into a process for allocating takes? A similar situation 
may hold with beaked whales. About 10 beaked whales were regularly 
killed off the U.S. Atlantic EEZ in a pelagic drift gill net fishery. 
This was listed as a strategic stock because of uncertainty about the 
stock size relative to fishery-related mortality. This fishery has now 
been permanently closed. However, a correlation has recently been found 
between beaked whale strandings and naval maneuvers involving active 
sonars. The 2002 NMFS Stock Assessment for these beaked whales states 
``This is a strategic stock because of uncertainty regarding stock size 
and evidence of human induced mortality and serious injury associated 
with acoustic activities.'' 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.
    The process for general authorizations of user groups could be 
similar for harassment or lethal takes. I suggest that different user 
groups that may take marine mammals could either voluntarily form 
together or be designated by NMFS. The list of user groups must include 
all activities that may take marine mammals. Either the user groups or 
NMFS should be required to prepare a Programmatic Environmental Impact 
Statement, an Environmental Assessment, or some simpler form of 
analysis depending upon NEPA criteria, including whether takes, 
including harassment takes, were anticipated to be frequent, 
occasional, or occur with a remote likelihood. After this stage, some 
activities might be judged so low risk that they could apply under a 
general authorization with simple reporting requirements. For 
activities where the takes are judged to have the potential for higher 
impact, each user group could apply for incidental take authorization 
similar to those currently in the MMPA, or to that used now by 
commercial fisheries, but including takes by harassment. Each user in a 
high impact activity would be required to evaluate the potential impact 
of each use, taking into account the animals in the specific areas and 
seasons of operation. All users should be required to report any takes, 
including level A or B harassment takes, with strict requirements for 
prompt and complete reporting. 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.
    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. 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 takes conservatively in terms 
of demographic effects on growth, survival or reproduction. This is 
currently a challenging scientific problem, but the correct wording 
would stimulate the appropriate science, while focusing attention on 
the critical issue of keeping marine mammal populations healthy. The 
criteria do need to acknowledge our ignorance of the scope of 
harassment, 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.
    As I discuss more fully in the last section of my testimony, the 
best way to do this is to define harassment in terms of biological 
significance of the take. For the purposes of initiating a regime to 
regulate harassment takes before we know the precise effect of an 
activity on the population, NMFS could start by requiring complete and 
accurate reporting of all potential takes, including any disruption of 
behavior. The inclusion of any disruption of behavior should not be 
interpreted to signify that all of these constitute ``takes'' under the 
MMPA. Rather, accurate reporting of behavioral disruption could be used 
to help identify what exposures pose a risk of adverse impact.
    Ultimately a demographic accounting of harassment takes would 
require population modeling that relates the dosage of exposure to 
harassment 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 exposures of marine mammals to 
harassment. Some mechanism to improve the accuracy of reporting and 
estimating harassment takes must be added to the regime. The PBR 
process has forced NMFS to sharpen its stock assessments for marine 
mammals, including summarizing all known lethal takes. 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 the data needed to regulate 
harassment in terms of biological significance of impacts to 
populations. As in the terms of permits for scientific research, the 
user should report any observed disruption of behavior, but the 
regulations should be clear that not all of these will ultimately be 
considered ``takes'' by harassment. A timely reporting requirement may 
also make it easier to prosecute cases of intentional harassment, as 
failure to report would violate the terms of the authorization.
    This kind of program would allow NMFS to identify situations where

   A stock was at risk from a particularly high number of 
        takes.

   An area or activity caused a high number of takes for a 
        variety of species.

   There were particular hot spots of takes.

   The 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.

Suggested rewording of incidental take authorization for effects of 
        noise
    While I believe there is an opportunity to improve the MMPA by 
reducing the maze of take authorizations, this may not be possible to 
achieve this year. If Congress cannot achieve a common mechanism for 
authorizing incidental takes, I would advocate simple changes to the 
existing incidental take authorizations in sections 101.a.5.A and 
101.a.5.D that I believe would make them appropriate for regulating 
acoustic impacts. 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 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, the 
requirements of the incidental take authorizations would be 
incompatible with the NEPA requirement to consider all possible uses of 
a system. Many sound sources are 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 urge the Senate to change the wording of the incidental take 
provisions of the MMPA to remove the conditions of small numbers and 
specified geographical region. 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 HR 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 percent 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 
percent reduction in foraging rates in a majority of the population, or 
caused animals to be 50 percent 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.
    If the Senate chooses to base harassment on the Administration 
definition, I urge that the definition drop the confusing use of the 
term ``abandon,'' and that it define ``significantly altered'' in terms 
that parallel the usage of biological significance by the NRC.
    I am also very concerned that the harassment definition proposed by 
the Administration retains the problematic old harassment definition 
for activities directed at marine mammals. This will retain the 
problematic definition for 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 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 people to 
take them 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 there are problems with the definition of harassment, the 
solution is to reword the definition so that it can be used for all 
activities. 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:

        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 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 and may require an 
additional definition of ``meaningful disruption'' to fit legal and 
legislative requirements. In particular, 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, it should be done so in a way that makes 
biological sense and that corrects the need for a negligible impact 
standard. I do not think that the changes proposed by the 
Administration and in HR 1835 for the definition of harassment succeed 
in this task. I urge the Senate to consider using the definition of 
harassment suggested by the National Research Council in any amendments 
to the MMPA.

Conclusion
    Madam 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. However, 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.

    Senator Snowe. Thank you.
    Mr. Johnson.

          STATEMENT OF CHARLES JOHNSON (TOMUNGNIQUE),

         EXECUTIVE DIRECTOR, ALASKA NANUUQ COMMISSION,

 ON BEHALF OF THE INDIGENOUS PEOPLES COUNCIL ON MARINE MAMMALS 
                            (IPCoMM)

    Mr. Johnson. Thank you, Madam Chair. My real name is 
Tomungnique. I am the Executive Director of the Alaska Nanuuq 
Commission, but I am also here representing the Indigenous 
Peoples Council on Marine Mammals which was formed in 1994 to 
fight for co-management of marine mammals which coastal native 
people of Alaska depend heavily for subsistence.
    IPCoMM also serves as a subcommittee for the Alaska 
Federation of Natives. Our dependence on marine mammals is more 
than food and the making of handicrafts. It is cultural, 
spiritual, and essential to our well-being. In 1994 when we 
first formed IPCoMM, we had a somewhat adversarial relationship 
with the management agencies. However, that has changed into a 
cooperative relationship as we have learned to trust each 
other.
    During the last 2 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 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 regulations of the administration bill 
as reflected in a resolution passed in the 2002 Alaska 
Federation of Natives convention.
    The language in the administration bill also recognizes the 
political reality that Alaska Natives live in, but at the same 
time constrains disclaimer language that is intended to neither 
add to nor take away from or change that political situation. 
We have developed efficient statewide organizations for the co-
management of marine mammals for subsistence purposes. We 
recognize that single village agreements for co-management is 
unrealistic and we have developed our own broad representative 
commissions.
    From the Alaska Nanuuq Commission perspective, we would 
like to see a reorganization of the management of those species 
that Alaska Natives use for subsistence purposes. It makes no 
sense for seals to be managed by NMFS when polar bears are 
managed by Fish and Wildlife. NMFS has stated that co-
management is not one of their priorities because they are 
constantly dealing with crisis situations. Seals, in particular 
ice seals, which make up 90 to 95 percent 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 the U.S. Fish and Wildlife Service 
where co-management would be more efficient. At our last 
meeting on July 10, IPCoMM also took this position that they 
would like to see a move of ice seal and harbor seal management 
to the Service.
    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 a very simple and streamlined 
process.
    Alaska Natives have also developed a trust with the major 
environmental organizations who support our efforts to conserve 
our marine mammal 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 two provisions 
that we feel are necessary. One would allow Alaska Natives to 
culturally exchange marine mammal products with native peoples 
of Canada, Greenland, and Russia, as we have traditionally 
done. 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 this language back in. In 
particular, this will affect polar bear management.
    Also missing in the administration language is the ban on 
the use of aircraft while hunting and the ban on the sale of 
gallbladders. We feel that these prohibitions are necessary for 
the conservation of marine mammals, in particular polar bears.
    We thank you for this opportunity to make this statement.
    [The prepared statement of Mr. Johnson follows:]

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

    Madame Chair, 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. 
However you can call me Charles Johnson, which I am called in English.
    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 descendents 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 percent 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.
    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.

    Senator Snowe. Mr. Johnson, were those prohibitions removed 
from statute, concerning the use of aircraft and gallbladders?
    Mr. Johnson. They were not removed. They were not in the 
statute.
    Senator Snowe. They were not in the statute.
    Mr. Johnson. They are, however, in the language of the 
Polar Bear Treaty that we have negotiated with Russia. But the 
treaty only covers the polar bears in the Bering and Chukchi 
Seas and not in the Beaufort Sea. So we would like to see that 
language in the MMPA so it would be consistent all across 
Alaska.
    Senator Snowe. You made a recommendation that one agency 
should manage all the species.
    Mr. Johnson. In particular, we would like to see ice seals 
and harbor seals moved to Fish and Wildlife because these are 
the primary species that we use for subsistence. But, however, 
for the Nanuuq Commission purposes, ice seals are the major 
diet for polar bears, and from our perspective, it does not 
make sense for them to be managed by another agency.
    Senator Snowe. I appreciate that. I thank you. We will look 
into those issues as well.
    On the whole definition, again, these are difficult issues 
in terms of are we improving upon the definition or creating 
more problems. Now, you heard from the earlier panel, and those 
who seem to think that this is moving in the right direction by 
substantially changing the current legal definitions.
    Do you think that if we had invested more money into 
research and allowed the scientific research to go forward, 
that we would have a better understanding of the impact of 
noise on marine mammals? For example, especially when it comes 
to low frequency active sonar, would these definitions be less 
troubling, or would they continue to be troubling or vexing in 
the permitting process? I know, Dr. Young, you feel that it is 
more the permitting procedures rather than the definition, but 
you heard the testimony of the earlier panel. Some of those who 
are testifying with you recognize there should be some changes 
in the definitions. But if we had adequate research, an 
adequate scientific data base, do you think we would be in a 
better position today with these definitions or would it still 
require some change?
    Dr. Young. I think if we had adequate research, we would be 
in a better position. One of the questions that you asked 
earlier was should it reside with an agency to undertake that 
research. I think, Senator, one of the bills that you 
introduced several years ago, which was the Whale Conservation 
Fund, which recognized that there needed to be greater research 
for right whales and allowed the research to take place through 
the National Fish and Wildlife Federation administering funds 
and then that money could be disbursed through a competitive 
granting process--I think that is exactly the type of thing 
that we need to do, is to bring all the various sources of 
funding that may be out there and available for research under 
some type of agency or foundation or such that then can have a 
competitive granting process that has some oversight by a 
number of individuals that evaluate the grant. I think that is 
exactly what we need to do to improve the process in terms of 
scientific research.
    We need to do a lot to improve the permitting process in 
general. As we have seen, as Dr. Tyack has said, it has 
increased from 3 months to 6 months to 23 months. We need 
better guidance for the applicants. We need better outreach. We 
need a more streamlined permitting process which may be both a 
combination of improvements within the process or surgical 
improvements within the statute related to the scientific 
permitting process.
    But it stands to reason if we change the definition and we 
do not make the necessary changes to improve the 
implementation, then we are right back where we started where 
the scientists are unable to get their permits. So we need to 
look at both parts in conjunction because just changing the 
definition of harassment is not going to be sufficient.
    As far as the definition of harassment, we are sympathetic 
to the problems that are associated with any act of torment, 
pursuit, annoyance. We understand that that creates a 
difficulty for enforcement and we support the change to the 
definition in the administration bill that refers to any act. 
But we believe that the Level B definition of harassment that 
the agency has put forward is problematic exactly for the 
reasons that Dr. Tyack said. To raise it to the level of 
abandonment is absurd. So that is why we believe that something 
along the lines of the NRC definition is more in keeping with 
the scientifically sound approach.
    People can agree on what are biologically significant 
behaviors that you want to regulate and want to avoid changes 
or modification to those behaviors. Where we will probably end 
up debating is whether those behaviors are meaningfully 
disrupted, significantly altered because then that is a 
judgment call that is far more of a judgment call than people 
saying, yes, we recognize that migration, breeding, nursing are 
all biologically significant behaviors.
    So again, something along the lines of the NRC definition 
we believe is more in keeping with the scientific 
recommendations that the NRC put forward. They are sound, 
scientific recommendations.
    And then last, Senator, we believe that the directed 
provisions that are in the third part of the administration's 
proposal are not necessarily necessary if you include the 
definition or change the definition to mean any act and then 
pick up an NRC type definition, that that would be encompassed 
in there. We are sympathetic to what the agency was trying to 
achieve with that provision. We believe that directed acts such 
as feeding and swimming with animals in the wild should be 
prohibited and regulated to some extent in controlled 
situations. But we believe that the best approach would be to 
do it in a manner different than what they have proposed.
    Senator Snowe. Dr. Tyack, do you think the lack of 
scientific research and investments in research has impeded our 
ability in terms of the permitting process? Would it be 
improved substantially? How much do we need to do or make for 
investments, and how long would it take to get really 
certifiable data on which we could predicate some of these 
decisions?
    Dr. Tyack. I do feel that the depth of ignorance was 
significantly worse 10, 15, 20 years ago. In fact, the Marine 
Mammal Commission issued a report on the issue of harassment 
around 1991, which specifically stated that any detectable 
change in behavior had in practice been determined to be 
harassment. That was because our techniques to study behavior 
were so weak that the idea was that if you saw anything, it 
probably was significant. Now we have much more sensitive tools 
for studying the behavior of animals and inferring their 
significance, and that is part of what raises this issue now 
for requiring the change in the definition. So I think that the 
current motion in the science has in part triggered the change.
    I think that there are two areas that need significant 
effort. One is the connection between exposure to incidental 
effects like sound or chemical compounds that may be toxic and 
their effects on animals, just like toxicologists do. This 
needs to be freed from the obsession of is any exposure going 
to cause such an impact that you have to control it rigidly 
because that is what is blocking the science right now.
    I think it is important to establish knowing our ignorance, 
a de minimis standard, to allow the research to do a better job 
at establishing exposure to the physiological or behavioral 
reaction of an individual and, equally important, the 
connection between that response in the individual and the 
effects on populations. That area, the link between effects on 
individuals and effects on populations, we perhaps know even 
less about.
    I think one area that would be very useful for Congress to 
look at is framing terms now that recognize our ignorance but 
set the appropriate scientific criteria so that the science can 
match it. There has been amazing progress in the past 5 to 10 
years, blocked primarily by regulatory and legal problems, not 
technical or practical issues of going to sea. I think that if 
Congress succeeded in setting the correct scientific goals for 
protecting individuals and populations and the science were 
freed from some of these regulatory and legal obstacles, it 
would make very rapid progress.
    Senator Snowe. Admiral West, do you believe that the 
potential change in definitions should be more consistent with 
the National Research Council than the administration's?
    Admiral West. That is correct. We were concerned about 
addition of a couple of terms that may have made a little more 
ambiguity in the definition which is part of our problem now I 
think.
    Senator Snowe. So do you think that the administration's is 
more ambiguous?
    Admiral West. The two areas that I think we specifically 
mentioned were the directed species and the abandonment that 
Peter talked about. It would be very hard to define and some 
more hoops to jump through that causes some of the ambiguity 
that we have right now.
    Senator Snowe. Dr. Tyack, you were referring to the idea of 
requiring all marine activities to be governed by the act. 
Could you give us some ideas? Are you talking about shipping? 
Are you talking about those type of activities? Are you talking 
about non-commercial fishermen?
    Dr. Tyack. Yes. My general feeling is that right now the 
overwhelming majority of takes are ignored and nonregulated, 
and the regulatory structure is so awkward and so difficult 
that neither the regulators nor the industry want to touch 
coming under the act. I think this is an important fact to 
recognize about the real world at sea right now. I think that 
if there were a combination of a requirement for every 
seafaring activity that might be taking animals to do a 
consultation with some kind of programmatic environmental 
assessment, along with a general authorization, so that if you 
are having negligible impact, that you have an authorization 
and you do not have the delays of permitting or the 
unpredictable threats of lawsuit, that that combination would 
be very helpful.
    I think it also would be important for the congressional 
language to require the agencies to target their regulatory 
effort not to the easy problems but to the cases where human 
activities actually are causing adverse impacts on marine 
mammals.
    Senator Snowe. Admiral West, you heard Admiral Moore speak 
earlier, that the Navy had invested money in research, 
especially in developing the mitigation plan. Do you think that 
there has been adequate research done on the issue of low 
frequency active sonar? I would like the others on the panel to 
comment as well. Is there sufficient data to date that would 
identify any effects of this activity on marine mammals?
    Admiral West. I cannot speak specifically to the LFA 
because I have not had access to that particular data. I know 
that there is data within the Navy on lots of marine acoustic 
experiments.
    I can say as a general statement, though, that we do not 
have enough data. I think all the decisions we make in this 
particular area need to be based on scientific data. It may 
take some while to do that, but I think we owe it not only to 
our country but to the marine mammals to do that.
    There is a lot of data in the Navy. There is a lot of data 
outside the Navy. There is data in industry. I think if we had 
some mechanism to bring it all together and collate it, it 
would be a good start.
    Senator Snowe. Dr. Young? You heard Admiral Moore and we 
know the difficulties the Navy has encountered in implementing 
its program. Ultimately you are right, that they received the 
permits, but it has been such a difficult process. It has the 
net effect of denying them the permit in many ways. So the 
question is how can we address this issue and accommodate its 
interests? This is important especially because it addresses 
our national readiness and our ability to do what we need to do 
with respect to detecting submarines.
    Dr. Young. I think the problem that we face is this 
particular issue of the impacts of acoustics on marine mammals 
relatively little is known. It is still in its infancy, so to 
speak. There are only a few experts in the area, Dr. Tyack 
being one of them. And we really do not know the impacts on the 
various species of marine mammals. In some cases we are still 
learning how marine mammals hear, what frequencies they hear 
at, what are they sensitive to, what levels, what sound levels. 
So it is very difficult for us to establish mitigation measures 
that are going to be protective of marine mammals that still 
allow military readiness activities to go forward. It gets 
right back again to the need for additional research.
    I will let Dr. Tyack speak to the LFA, but we know that 
there are certain species, for example, like Dall's porpoise, 
harbor porpoise, beaked whales, that are susceptible under 
certain conditions to other forms of sonar, and we need to have 
the consultation process, the permitting process, and the 
mitigation measures, and the science all in line to be 
protective of the animals while still allowing these forms of 
acoustic sonars to go forward.
    Senator Snowe. Under the current circumstance for the Navy, 
what would you recommend? If we were just to adopt the status 
quo essentially on the definitions with some minor alterations, 
what then would the Navy do? It is a problem.
    Dr. Young. Right. I think we need to continue the research, 
but we also need to revise mitigation measures that are 
effective. The research arguably on LFA was on a limited number 
of baleen whales and then I think one of the problems was we 
jumped from a limited use, not necessarily under real use 
scenarios, to let us use it throughout all the oceans of the 
world, a number of ships. Arguably that made a number of 
organizations uncomfortable and it brought about the lawsuit.
    What we need to do is continue the science very 
aggressively but also have mitigation measures that err on the 
side the precaution especially in those cases where you may not 
have studied the effects of LFA on a particular species of 
marine mammals.
    Senator Snowe. I recall that the Admiral said that they had 
spent $10 million in one permitting process for environmental 
research to develop their mitigation plan. So I just think that 
we have to discern what is going to be the best approach to 
make this the very best approach for the conservation of our 
marine mammals, but at the same time making compatible uses 
that are important to this country and to those individual 
sectors. That is the problem here. I think it needs to be 
fixed. The question is to what extent so that we do not create 
other unforeseeable problems down the road. Our frustration 
with the lack of research essentially does not allow us to 
design changes in this legislation with confidence. That is the 
problem.
    Dr. Tyack.
    Dr. Tyack. If I may briefly discuss this. I was one of the 
scientists who, when I first heard about the low frequency 
active sonar system, was particularly concerned about 
behavioral impacts. The limited data that we had from oil 
industry noises on low frequency baleen whales suggested that 
in some settings they tried to avoid exposures at levels that 
were so low they would have been hundreds of miles away from 
where the sonar operated. And I and several other scientists 
and people from the National Marine Fisheries Service discussed 
these kinds of issues with the Navy, and the Navy called a halt 
to their operation of the sonar and made the ship available for 
a year of research. I was one of the scientists who was 
involved in this research project.
    We held workshops to select the animals. You obviously in a 
year can only choose a few of the more than 100 marine mammals 
in only a few settings. In these workshops, the consensus was 
to focus on low frequency specialists like baleen whales 
because they are the ones that use the frequencies and are most 
sensitive to the frequencies this particular sonar uses. That 
is the main thing that is different about this sonar from all 
the other ones. It is not louder. It does not have very 
different signals otherwise. It has low frequency which carries 
a long way in the ocean. So the issue was what was the effect 
over large distances.
    And we selected three different settings, feeding infant 
blue whales, migrating grey whales, and singing humpbacks on 
the breeding grounds, both because these were the settings we 
best understood and could do a quick study, but also things 
like the migrating grey whales was one of the toughest 
situations there was. That was a case where grey whales showed 
this kind of avoidance response to quite low levels of oil 
industry sounds.
    The results of this study showed that in cases, for 
example, when the sonar was operated very close to shore in the 
migration corridor of the grey whales, you got pretty much the 
same response. But when it was moved off shore where the Navy 
has proposed to operate it, this response pretty much went 
away. And in cases like singing humpbacks, there were some 
cases where they seemed to stop singing but only for tens of 
minutes, something that is within the normal range of their 
behavior.
    So from our perspective as scientists, given the 
restriction on operating the sonar off shore, and given the 
kind of changes we saw with humpbacks and what we knew of their 
normal behavior, we felt they did not come across as highly 
significant, show-stopping disruptions of behavior under the 
current language. However, in the recent court case, I think 
the judge has come to another conclusion.
    So I think that would make one issue that we see here is 
the Navy did almost as much as you can imagine. They stopped 
using the system. They sponsored a very, very strong research 
program in the current setting. I think it is probably the 
largest research program any of us marine mammalogists have 
been involved in. It may not be a large logistic program for 
the Navy, but for marine mammal research, this was an extremely 
large program.
    Then the results were used in close consultation with NMFS 
in order to come up with predictions between particularly what 
kind of exposure leads to a take by harassment. This was quite 
conservative where we did not know where something was 
happening. There was quite a strongly ramping-up expectation of 
prediction of this kind of take. And even with that model, the 
total numbers of animals that came out of the model were not 
sufficient to cause NMFS as a regulatory agency to say it had a 
significant impact.
    However, again, it bounced up against the small numbers 
criterion that in this conservative risk criterion, if it 
predicted you might have hundreds of dolphins within a large 
population taken, that to the judge was not a small number.
    So I think that my personal take is that an NRC-like 
definition of harassment and modifying the incidental take 
authorizations to not have small numbers or carefully define it 
to mean negligible impact and being very careful about the 
definition of specified geographical area, those three things 
were the roadblocks legally for doing what I consider sort of a 
test case of the way one should go about looking at the impact 
where there are warning flags.
    Senator Snowe. I appreciate that. That is very helpful and 
I will certainly take some of those issues into consideration 
as well as that example. I appreciate that very much.
    Mr. Johnson, I just want to ask you, are there any changes 
in the administration's definition that either help or hinder 
your commission members and subsistence use?
    Mr. Johnson. Well, we have been aware of the seismic 
testing that the oil industry has done and the whaling folks 
have expressed some deep concern about the effects that that 
has had on migrating whales. We have not been working on that 
particular issue in the administration bill where we have been 
concentrating primarily on the harvest management regulations.
    Senator Snowe. I appreciate that. If you have any 
additional comments on it, I hope you will inform the Committee 
as well.
    Mr. Johnson. Yes. I will send in some additional comments.
    Senator Snowe. I appreciate that.
    I thank all of you. I wish I had more time to discuss these 
issues. I will be working and following up with many of you on 
some of the issues you raised. I really do appreciate it. It 
has been very thoughtful testimony and very important and 
crucial as we go forward to see how best we can proceed on some 
of these key issues. So again, I thank you.
    The hearing stands adjourned.
    [Whereupon, at 11:34 a.m., the hearing was adjourned.]

                            A P P E N D I X

               Prepared Statement of Hon. John F. Kerry, 
                    U.S. Senator from Massachusetts

    Madame Chairwoman, thank you for holding this important hearing on 
the Marine Mammal Protection Act (MMPA), an Act that is in need of our 
attention. The MMPA provides the cornerstone for protection of marine 
mammals in the U.S., and is a model for other countries.
    The MMPA celebrated its 30th anniversary last year. Prior to its 
enactment, many species of marine mammals were on the brink of 
extinction. Commercial whaling was still commonplace in 1972 and an 
estimated 400,000 dolphins a year were being killed in the Eastern 
tropical tuna fishery. The MMPA addressed these and other threats to 
marine mammals, and since its enactment, many species have recovered. 
However, there is still more work to be done. The Act has not yet been 
fully implemented, and not all marine species are at the healthy levels 
the Act called for 30 years ago. I am particularly familiar with the 
example of the North Atlantic right whales, one of the most endangered 
species of marine mammals in the world, with a population of 
approximately 300 individuals.
    In addition, a wide variety of stakeholders have raised concerns 
with respect to the effective application of the MMPA, highlighting the 
need for possible changes to the Act. The Department of Defense (DOD) 
has raised concerns with respect to the impact of the MMPA on military 
readiness, and I take their concerns very seriously. DOD has proposed 
changes to core aspects of the statute, including the current 
definition of ``harassment'' for ``takings'' of marine mammals under 
the MMPA. We need to consider these concerns and proposals carefully, 
and examine what changes to the MMPA might be warranted, without 
weakening the MMPA, nor compromising our military preparedness. I for 
one believe that we can have the strongest military force in the world 
and the best conservation laws of any country.
    Many stakeholders, particularly members of the scientific 
community, have also highlighted the need for improvements to the 
permitting process. These issues must be addressed comprehensively 
through improvements to MMPA implementation, and perhaps through 
targeted changes to the statute, not just for some but for all 
stakeholders, to assure that such changes are comprehensive and 
effective.
    While I acknowledge the need for changes and clarifications in the 
MMPA and its regulations, I am wary of undermining this well-
established Act. This has been a very effective tool in marine 
conservation and management and I look forward to working with my 
colleagues on the Committee and with others to seek improvements in a 
thoughtful and well-informed manner.
                                 ______
                                 
                 Prepared Statement of Hon. Porter Goss

    Good morning, Madame Chairwoman and members of the Subcommittee. I 
appreciate the opportunity to appear before you today as you begin your 
consideration of the reauthorization of the Marine Mammal Protection 
Act.
    I have devoted much of my public life to marine conservation--as 
have many of you. I continue to hold the conservation of our shoreline 
areas and our marine environment as a compelling public trust. It is in 
this light that I appear here today and offer my recommendations. The 
MMPA is not working as it should in Florida, and it needs fixing. As 
you proceed with reauthorization, I urge you to take a hard look at our 
experience, extract the lessons from it, and make the necessary changes 
to improve the statutory machinery.
    A major issue in Florida is the continued conservation of the 
Florida manatee, which is protected by both the Endangered Species Act 
and the Marine Mammal Protection Act. Recent events in Florida 
concerning manatee protection are at best a mixed blessing. On the 
positive side, the considerable and sustained efforts by the Florida 
Fish and Wildlife Conservation Commission (FFWLCC) and local 
jurisdictions to establish comprehensive manatee protection plans 
appear to be working well. Manatee deaths or injuries from boating-
related activities are decreasing dramatically.
    On the negative side, on-going litigation and the various Federal 
rulemakings resulting from it are a source of continuing major 
problems. The recent efforts by the FWS to enact incidental take 
authorization stopped in a complete dead end street, whereby the 
Service was unable to conclude that such an authorization would satisfy 
the extremely strict requirements of the MMPA that the activities 
authorized by the rule would have no effect on manatee populations 
whatsoever.
    More recently, the FWS has proposed enactment of sweeping new speed 
zones in SW Florida in the Caloosahatchee River that are overbroad in 
their reach. While some new speed zones are probably needed, they 
should be implemented in coordination with the extensive scientific and 
technical work of the FFWLCC now underway that is evaluating the need 
for new speed zones throughout the area. Decisions on the federal speed 
zones should not made without the benefit of this evaluation.
    What we have learned over the last several years as a result of 
these activities is:

   First, the scope of authority under the MMPA to authorize 
        incidental take of marine mammals by rulemaking is subject to 
        standards that are extremely strict and far too inflexible. The 
        Act needs to be changed to introduce the ability for local 
        solutions to be crafted, along the lines allowed under the ESA.

   Second, the overlap of the MMPA and the ESA is causing 
        confusion and impeding progress. Presently the MMPA is the far 
        stricter of the two statutes, and the application of the MMPA 
        take prohibitions renders the section 7 consultation process 
        under the ESA very difficult. Typical consultations under the 
        ESA anticipate some level of incidental take and authorize it 
        by way of incidental take statements in biological opinions. In 
        the absence of a rulemaking under the MMPA, these incidental 
        take statements have no effect. Hence, the MMPA trumps one of 
        the major tools under the ESA to allow otherwise permissible 
        activities to proceed.

   Third, the conservation efforts under both statutes must 
        stimulate a better opportunity for state and local entities to 
        enact conservation initiatives in lieu of Federal controls. The 
        State of Florida has done and is doing far more on-the-ground 
        conservation for the Florida manatee than the FWS. The Service 
        simply will not ever have the resources to devote to the issue 
        that the state is able and willing to bring to bear. In this 
        circumstance, both statutes must provide effective and 
        meaningful opportunities for states to assume primary 
        responsibility for the conservation mission without the 
        redundancy or the bureaucratic baggage of the very cumbersome 
        federal permitting regimes. They do not currently provide that 
        opportunity.

    I recognize that this Subcommittee does not have primary 
jurisdiction over the ESA or the activities of the FWS. However, it 
does have plenary authority over the MMPA, and as you take up the issue 
of reauthorization with the Senate Environment Committee, I wish to 
encourage you to take a very hard look at these issues.
    My staff and I stand ready to review what has happened in Florida 
and how we think the reauthorization process can achieve some real 
improvements in the operation of an important marine environmental 
protection statute. Thank you again for the opportunity to begin this 
dialogue with you.
                                 ______
                                 
  Prepared Statement of Colleen M. Castille, Secretary, Department of 
                  Community Affairs, State of Florida

    Thank you for providing the State of Florida, Department of 
Community Affairs (Department) the opportunity to provide comments on 
the reauthorization of the Marine Mammal Protection Act (MMPA or the 
``Act''). My responsibilities as Secretary of the Department of 
Community Affairs and experience as Florida Governor Jeb Bush's lead 
staff person on manatee protection issues afford me a unique 
perspective. Part of my responsibilities includes the continued review 
of the Act and the implementation and enforcement methods used by the 
U.S. Fish and Wildlife Service. The State of Florida appreciates the 
efforts of the U.S. Fish and Wildlife Service to protect manatees and 
supports the reauthorization of the MMPA, but with needed corrections 
and adjustments. These are necessary to address the fact that the MMPA, 
with regard to manatees, is duplicative and its interpretation and 
implementation have been problematic in Florida.
    The MMPA is duplicative of the protections afforded the manatee 
under the Endangered Species Act (ESA), the Florida Endangered and 
Threatened Species Act, and, most importantly, the Florida Manatee 
Sanctuary Act. Under the Florida Manatee Sanctuary Act, Florida has 
created extensive manatee protection zones. Moreover, the ESA, with its 
recovery plans, is specifically designed to protect species such as the 
manatee and to authorize incidental take when necessary to allow 
otherwise lawful activities, such as boating, to take place under 
proper regulation. Instead of attempting to use portions of the ESA to 
implement sections of the MMPA, consideration should be given to 
exempting any marine mammal species from the incidental take 
requirements of the MMPA, if such species is listed under the 
Endangered Species Act and has a Recovery Plan. In such circumstances, 
the incidental take provisions of the Endangered Species Act would 
govern.
    The MMPA establishes a moratorium, with certain exceptions, on the 
taking of marine mammals in U.S. waters by any person and by U.S. 
citizens in international waters. As currently drafted the MMPA can be 
interpreted to provide for a complete moratorium on docks, boat access 
facilities and other water related activities. In fact, as acknowledged 
in the Record of Decision, issued by the U.S. Fish and Wildlife 
Service, North Florida Field Office, regarding the revocation of 
proposed rulemaking (67 Federal Register 69078-69104, November 14, 
2002) for the incidental, unintentional take of small numbers of 
Florida manatees, ``[t]o date, there is no authorization for the 
incidental, unintentional death, injury, or harassment of Florida 
manatees caused by these otherwise legal activities [i.e., operation of 
watercraft and watercraft access facilities]. Thus, there is a need to 
examine the issue of take of Florida manatees and determine whether the 
incidental, unintentional take of manatees may be authorized.'' The 
suggestion of the need to examine the issue of takes in Florida is 
based upon the historic assumption of a rational nexus between the 
permitting of docks and boat access facilities and manatee mortality. 
However, this historic assumption is not based in fact.
    The State of Florida articulated its concerns about the proposed 
incidental take rule and worked in collaboration with the U.S. Fish and 
Wildlife Service and numerous stakeholders to resolve its concerns 
through a conflict resolution process. We commend the U.S. Fish and 
Wildlife Service for its willingness to continue to work with the State 
of Florida on this important issue. Additionally, the State of Florida 
is committed to the safety and future of manatees and will continue to 
work with its Federal partners in ensuring the success of the manatee 
population. We recommend a similar conflict resolution process be used 
to develop consensus regarding the proposed reauthorization of the 
MMPA.
    In addition to the protections afforded above, through the growth 
management process, the state provides incentives for the use of boat 
facility siting plans. These plans, which must include provisions 
addressing manatee protection, are adopted into the county or municipal 
comprehensive plan--the local blueprint for growth. Further, over the 
past 3 years, the State of Florida has invested $4.5 million for 
manatee protection resulting in 75 more full-time enforcement officers. 
In total, twenty-two percent of the inshore waters of our state's most 
manatee-significant counties have now been designated as manatee 
protection zones. These efforts have been the most successful in 
reducing manatee deaths due to watercraft. The state's manatee 
population count has increased from a low of 750 in 1974 to 3,113 in 
2003.
    Further, the state, in conjunction with our Federal partners, 
continues to explore additional methods to protect the manatee. 
Efforts, such as winter-photo identification in the Ft. Myers and Tampa 
Bay areas and expanded photo-identification in southwest Florida, will 
aid in determining adult survival rate analyses. Methods to identify 
and quantify the proportion of females and calves in the waters of 
southwest Florida also should be explored. Creating an individual-based 
spatial simulation model to quantify the relative risk of alternatives, 
such as different speed zone arrangements or seasonal variations in 
manatee behavior and boating patters, will be extremely useful in 
exploring the effectiveness of management actions. Such measures, in 
conjunction with the protections afforded through the ESA, are more 
favorable to the future protection of the manatee than that afforded 
through the current interpretation and implementation of the MMPA.
    The State of Florida is in a somewhat unique position in that there 
is an estimated 834,000 registered boaters supporting the Florida 
Marine Industry, which, in the year 2000, had a total statewide 
economic value of approximately $14 billion. The recreation and boating 
industry provides direct and indirect employment that equates to 
approximately 180,000 jobs in the state. It is anticipated that these 
figures will continue to grow as a direct result of the increase in 
population and the resulting growth of the state as a whole. Most 
importantly, boating is a healthy family activity that strengthens the 
fabric of families.
    The uncertainty over whether incidental or unintentional takes will 
be allowed has the potential of having a deleterious effect on the 
state's economy--for example, the U.S. Fish and Wildlife Service 
estimated a 37 percent reduction in the number of permits for docks and 
boat access facilities as a result of its proposed incidental take 
rule. Assuming a concomitant reduction in the marine industry in 
Florida would result in a loss of $5.2 billion and 67,000 jobs. 
Additional losses would occur as a result of reduced property values. 
This is especially so in the southern portion of the State. More 
directly, any specific limitation that would result in an automatic 
moratorium on future activity could have a catastrophic impact to the 
State's marine industry and the economic value associated therewith. 
Deferring manatee protection regulations to the ESA would help 
eliminate the duplication and other concerns associated with the MMPA.
    Again, thank you for the opportunity to provide comments on the 
reauthorization of the MMPA. If I can be of further assistance, I would 
be happy to answer any questions you may have on the Administration's 
MMPA reauthorization bill or any other related matters.
                                 ______
                                 
         Prepared Statement of Terrance Stewart, City Manager, 
                          Cape Coral, Florida

    On behalf of the City of Cape Coral, Florida, I appreciate the 
opportunity to provide for the record a statement for consideration by 
the Committee concerning the reauthorization of the Marine Mammal 
Protection Act. My name is Terrance Stewart and I am the City Manager 
for the City of Cape Coral.
    Manatee protection is an important issue to the State of Florida, 
but is especially important to the City of Cape Coral. Our experiences 
in dealing with a series of new manatee protective actions being taken 
by the Federal government have resulted in some suggestions we would 
like to offer the Committee as it considers reauthorizing the Marine 
Mammal Protection Act.
    Cape Coral is located on a large peninsula in Southwestern Florida. 
The City is bordered by the Caloosahatchee River on the east and 
Matlacha Pass on the west. The City is built on 400 miles of 
freshwater, estuarine, and marine canals. The City is, quite literally, 
built around open and available access to coastal waterways. Our 
property values, our economic base, and our ability to continue growing 
as a city that can provide waterfront living to people of moderate 
means all depend on the City's unique waterfront access.
    Because of the City's dependence on the marine environment, we are 
especially concerned about the protection of the manatee population 
that enjoys many of the waters that are so important to the City. We 
have enacted speed zone regulations, posted and maintain over 90 signs 
in our canals on protective requirements, conducted education sessions 
for boaters, formed a cooperative law enforcement unit, supported 
volunteer patrols, and recently doubled our city's marine law 
enforcement staff, to name a few of the efforts we have undertaken.
    We have shown our commitment to manatee protection in both word and 
deed. We have increased the amount of city funds to manatee protection 
even in current times of shrinking city budgets. And our efforts have 
been successful. There have been no manatee deaths in the 
Caloosahatchee River by watercraft for more than eight months.
    Manatee protection is a Florida issue. It is a prime example of 
where the President's emphasis on ``cooperative conservation'' can and 
should be implemented. Fundamental principles of federalism support a 
cooperative approach to designing solutions to decisions that have 
major environmental and economic consequences. We urge the Committee to 
amend the Marine Mammal Protection Act to require greater consultation 
and coordination with state and local manatee protection efforts.
    Let me give you a few examples of why we believe greater reliance 
on a cooperative approach to conservation measures makes sense:

   First, the U.S. Fish and Wildlife Service (``FWS'') recently 
        proposed new speed zones on the Caloosahatchee River, our 
        primary access to the coastal waterways of Florida. But the 
        Florida Fish and Wildlife Conservation Commission last year 
        completed a scientific study of manatees in this area and 
        recommended in November that no change be made to the speed 
        zones.

   In addition, the state has underway another study of the 
        need for additional speed zones in Lee County, the county in 
        which the City is located. This study is due to be completed in 
        the Fall of 2003. But the Federal Government will be proposing 
        its own new speed zone rules by July 31.

   Finally, working cooperatively with state and local 
        officials would have avoided the Federal speed zone rule being 
        proposed without acknowledging that a major new bridge had been 
        built over the Caloosahatchee River.

    Uncoordinated efforts lead to confusing and ineffective solutions. 
Greater coordination and consultation can make the best use of 
resources and develop greater support for the steps being taken.
    I would also urge the reauthorization process to consider carefully 
the overlapping jurisdiction for manatees under the Endangered Species 
Act and the Marine Mammal Protection Act. I do not pretend to be an 
expert in either act. What I do know, however, is that the complexity 
of the laws and their interactions have resulted in significant delays 
in required governmental actions that are important to the economic 
future of the City of Cape Coral.
    Hundreds of citizens in Cape Coral and in Lee County have been 
waiting for as much as two years for answers to dock construction 
applications. Dock construction is central to the water access that 
defines the economic base of our community. Permit applications were 
submitted to the Army Corps of Engineers, which in turn sent these 
applications to the FWS for consultation. At that point the process 
came to a complete halt even though Congress specifically included 
deadlines for agency action. Answers are supposed to be provided within 
90 days, or with the permission of the applicant, 150 days.
    The reasons for this delay are, I am certain, numerous. But one of 
the major factors is the overlap between the Endangered Species Act and 
the Marine Mammal Protection Act and the differing provisions of the 
two statutes. These delays are not merely inconveniences to those who 
wish to build docks and other marine facilities. These dock 
applications are the lynchpin of the marine industry that is the 
economic foundation of the City of Cape Coral. Each day's delay 
threatens another dock builder, boat retailer, and the many other 
businesses that depend on an active marine-based community. People are 
losing their businesses and their jobs.
    I do not pretend to know what needs to be done to simplify and 
improve the overlapping laws that are intended to achieve protection of 
this important marine mammal. What I do know is that the current 
situation is counterproductive, causing substantial harm to the 
citizens and businesses of Cape CoraL I urge you, as a part of your 
reauthorization of the MMPA to examine carefully the overlap between 
the two statutes and to consider appropriate changes.
    I would be happy to answer any questions you or your staff may have 
and I appreciate this opportunity to submit a statement for your 
consideration.
                                 ______
                                 
                                     Earth Island Institute
                                  San Francisco, CA, August 7, 2003
Hon. John McCain, Chairman,
Senate Commerce Committee,
Washington, DC.

FOR THE RECORD: Reauthorization of the Marine Mammal Protection Act.

Dear Chairman McCain:

    On behalf of the International Marine Mammal Project of Earth 
Island Institute, Defenders of Wildlife, International Wildlife 
Coalition, Sierra Club, Humane Society of the U.S., American Society 
for the Prevention of Cruelty to Animals (ASPCA), and the Society for 
Animal Protective Legislation, we would like to provide the following 
additional comments on reauthorization of the Marine Mammal Protection 
Act (MMPA). We request our comments be added to the record of the 
Subcommittee's deliberations.
    We oppose the proposal by the Bush Administration to weaken the 
provisions in 1997's International Dolphin Conservation Program Act 
that specify that Sundown Sets cannot begin after one-half hour BEFORE 
sunset in the Eastern Tropical Pacific tuna fishery.
    The Bush Administration proposes to change the Sundown Set 
provision to one-half hour AFTER sunset, providing tuna fishermen with 
an additional hour of potential fishing.
    However, the National Marine Fisheries Service has stated that 
Sundown Sets, wherein tuna nets are deployed deliberately on schools of 
dolphins at the end of the day, as light is fading, cause dolphin 
mortality three to four times higher than regular net sets on dolphins 
during daylight hours.
    Furthermore, the late Dr. Kenneth Norris of the University of 
California Santa Cruz stated, in his book Dolphin Days (1991), that he 
served in the early 1980s on a scientific committee for the National 
Marine Fisheries Service which originally proposed that Sundown Sets 
end one-half hour BEFORE sunset. It was due to tuna industry pressure, 
not science, Dr. Norris writes, that Congress originally set the timing 
of Sundown Sets back one hour to one-half hour AFTER sunset.
    Since the Sundown Set provision was revamped by Congress in 1997 
back to t9e original form recommended by Dr. Norris and his fellow 
scientists, the Bush Administration wishes to turn back the clock on 
dolphin protection, and actually promulgated a Rule arbitrarily 
changing the clear Congressional language on Sundown Sets. This matter 
is in litigation with several of our organizations involved in opposing 
this arbitrary effort to lengthen the fishing day at the expense of 
dolphins by the Administration.
    Thank you for your consideration of our views in this matter.
            Sincerely yours,
                                            David Phillips,
                                                          Director.
Cc Senator Olympia Snowe
Senator John Kerry
Senator Barbara Boxer
                                 ______
                                 
               Jean-Michel Cousteau's Ocean Futures Society
                                                       May 29, 2003
Hon. Olympia Snowe, Chairwoman,
Hon. John Kerry, Ranking Member,
U.S. Senate Commerce, Science, and Transportation Committee,
Subcommittee on Oceans, Atmosphere and Fisheries.
Washington, DC.

Via Facsimile: 202 228 2339

Dear Chairwoman Snowe and Senator Kerry:

    I thank you for holding a hearing on the reauthorization of the 
Marine Mammal Protection Act this Congress, and ask that you accept my 
comments in the form of this letter for the record. I write on my 
behalf as an ocean explorer and advocate, and on behalf of the members 
of my organization Jean-Michel Cousteau's Ocean Futures Society--a 
group that is deeply concerned about protecting the world ocean.
    As you and the members of the Subcommittee review the Marine Mammal 
Protection Act, we would like to emphasize the continued importance of 
further refining such a powerful and effective statute. Since 
originally passed in 1972 and through subsequent amendments, the Marine 
Mammal Protection Act continues to protect America's most adored and 
charismatic wildlife-our diverse populations of marine mammals. The Act 
has also become a formidable international model for effective 
conservation and protection of marine mammals, a fitting tribute to one 
of the world's leaders in marine resource conservation.
    We applaud the Administration's initiative in several areas of the 
proposed bill to amend the Marine Mammal Protection Act (MMPA); most 
notably the increase in authorized appropriation levels for both the 
Departments of Commerce and Interior to enhance MMPA implementation.
    In addition, we generally support the fishery interactions 
provisions found in Title IV Section 402, and the expansion language 
(Title IV, Section 403) to include non-commercial fisheries in the 
incidental take permit program. We would like the subcommittee to 
emphasize the need for increased observer coverage in order to truly 
understand marine mammal-human interaction, and hence we support 
increased funding for the observer program. To this end, we appreciate 
the language that authorizes the development of alternate observer 
system programs, and also the Title V Section 516 directive for 
fisheries gear development to decrease marine mammal interaction with 
commercial and non commercial fisheries.
    We also support the Administration's proposed amendment to section 
102 of the Act, dealing with captive release prohibition (Title V 
Section 502), however, the proposal would benefit from language that 
clarifies that the prohibition applies to any person subject to the 
jurisdiction of the United States and to any marine mammal maintained 
in captivity at a facility in the United States or on the high seas.
    Included in Title V of the Administration bill are various 
authorizations dealing with health and stranding response, as well as 
stranding and entanglement response, and unusual mortality event 
funding; there are also specific suggestions for (Title V, Section 512) 
Marine Mammal Research Grants. As a dedicated producer of environmental 
education films, I would like the Subcommittee to consider the 
importance of funding public education and outreach on strandings and 
entanglement-given the often dramatic and highly charged atmosphere 
surrounding such events, adequate education and outreach to the public 
are vital for both marine mammals and the Federal Agency charged with 
ameliorating the situation.
    Finally, and perhaps most importantly, we are very concerned by 
changes to the definition of ``harassment,'' and by a proposal that 
would allow the Department of Defense to grant itself a categorical 
exemption to the Marine Mammal Protection Act. We believe the 
definition of harassment as determined in the 1994 reauthorization is 
sound, and should not be weakened as proposed by the Administration. 
The use of the term ``significant'' only further obfuscates the issue, 
and will undoubtedly lead to drawn out battles over the robust nature 
of the data in question.
    The U.S. military has all the power it needs in times of emergency 
to achieve its mission, and does not need a separate incidental take 
permit process or an exemption due to national safety concerns. 
Military readiness has not been impacted by the current implementation 
of marine mammal protection laws. The Department of Defense routinely 
makes use of year-long authorizations for projects that require 
exemptions from the moratorium on taking of marine mammals. The agency 
responsible for granting the permits (usually the National Marine 
Fisheries Service) has a streamlined mechanism in place which sets a 
process in motion that cannot exceed 120 days. Further, although it has 
never been invoked with regard to the MMPA, the Department of Defense 
currently has the authority and flexibility to seek special 
accommodation and relief from any decision that would have an adverse 
impact on military readiness.
            Respectfully yours,
                                      Jean-Michel Cousteau,
                                                         President.
                                 ______
                                 
       Prepared Statement of the Alliance of Marine Mammal Parks 
                             and Aquariums

    The Alliance of Marine Mammal Parks and Aquariums (``Alliance'') is 
an international association of marine life parks, aquariums, zoos, 
research facilities, and professional organizations dedicated to the 
highest standards of care for marine mammals and to their conservation 
in the wild through public education, scientific study, and wildlife 
presentations. Collectively, the members of the Alliance represent the 
greatest body of experience and knowledge with respect to marine mammal 
care and husbandry.
    Almost ten years ago, this Committee worked closely with the 
Alliance to create a fair regulatory regime for the public display of 
marine mammals under the Marine Mammal Protection Act (``MMPA''). The 
goal was to end duplicative government oversight, reduce the enormous 
time spent on needless paperwork requirements, ascertain that education 
programs meet professional standards, and simplify transport and export 
procedures. The 1994 Amendments were intended to accomplish these goals 
and assure the continued well-being of the magnificent animals in our 
facilities.
    Notwithstanding the goals of the 1994 Amendments, in the last 
decade, the National Marine Fisheries Service (``NMFS'') has produced 
``interim guidelines'' and proposed regulations that ignore the 
Amendments and resurrect most of the costly and duplicative programs 
and requirements Congress rejected in 1994. NMFS' proposed MMPA 
amendments (known as the ``Administration Bill'') provide a new 
legislative foundation for the agency's interim guidelines and proposed 
regulations, which would have the effect of creating a legislative 
structure that would enable NMFS to revert to its pre-1994 regulatory 
regime. The Alliance has previously commented on the many problems 
associated with NMFS' proposed regulations, problems which will be 
resurrected by NMFS' proposed legislation. We are attaching a copy of 
those comments for ease of reference.
    The 1994 MMPA amendments, as they affect public display facilities, 
were, in large part, Congress' response to NMFS' 1993 plan to 
``simplify'' the existing five pages of regulations with a 263 page 
proposal. Not only would this proposal have needlessly complicated 
aspects of marine mammal conservation and management such as public 
display and breeding, but an Arthur D. Little study showed that this 
``simplification'' would cost approximately $32.2 million over five 
years. After reviewing NMFS' proposal, Congress determined it was 
inconsistent with Congressional intent and with the Act. In enacting 
the 1994 Amendments, Congress rejected the burdensome approach proposed 
by NMFS and clarified the authority of the Secretary of Commerce and 
the Secretary of the Interior.
    To place NMFS' 2003 legislative proposal into context, it may be 
helpful to review the 1994 Amendments. Those Amendments authorized the 
taking or importation of marine mammals for public display by a person: 
(1) offering a program for education or conservation based on 
professionally recognized standards, (2) registered or holding a 
license under the Animal Welfare Act, and (3) maintaining facilities 
that are open to the public. 16 U.S.C. Sec. 1374(c)(2)(A). The 1994 
Amendments then provided that a person granted a permit there under 
would have ``the right, without obtaining any additional permit or 
authorization'' to take, import, purchase, offer to purchase, possess, 
or transport the marine mammal that is the subject of the permit; and 
to sell, export, or otherwise transfer possession of the marine mammal. 
16 U.S.C. Sec. 1374(c)(2)(B). The receiving person would have the same 
rights. 16 U.S.C. Sec. 1374(c)(2)(C). The 1994 Amendments also made it 
clear that the authority to establish care and maintenance standards 
for marine mammals rests solely with the Department of Agriculture, 
thus ending the bureaucratic overlap and costs associated with NMFS' 
view that the MMPA authorized it to establish a separate set of care 
and maintenance standards.
    The legislative proposal that NMFS has now sent to Congress, the 
Administration Bill, reverses the 1994 Amendments. The proposed 
amendments:

  1.  eliminate the restriction in current law that the Secretary may 
        only require permits for the taking or importation of marine 
        mammals, and expands the Secretary's authority to also require 
        a permit or other authorization for export or transport. See 
        generally Sec. 302(a) and (b) of the Administration Bill; and

  2.  open the door for a specific ``public display'' permit which in 
        turn raises the potential for NMFS to regulate the care and 
        maintenance of marine mammals in zoological ``public display'' 
        settings--the exact opposite result intended by the 1994 
        Amendments under which the Animal Plant Health Inspection 
        Service within the Department of Agriculture is exclusively 
        responsible for captive marine mammals.

    The above proposed expansion of NMFS' jurisdiction is exacerbated 
by NMFS' further proposal to allow it to promulgate regulations 
encompassing the ``export, transport, purchase, or sale of a marine 
mammal or a marine mammal product.'' See Sec. 303 of the Administration 
Bill. All this is reminiscent of, and attempts to reinstate, the 
extensive regulatory system Congress rejected in 1994 in which even 
negotiations to sell or purchase marine mammals which are owned by 
public display facilities might need NMFS' blessing.
    The Administration Bill also includes a section (Sec. 513) that 
would ban ``traveling exhibits.'' This provision is unnecessary in that 
it addresses a non-existent situation in the U.S. Moreover, it 
duplicates APHIS' existing regulatory authority.
    There is merit to Sec. 510 of the Administration Bill which extends 
the stranding provisions of the MMPA to include entanglement. Indeed, 
entanglement is properly viewed as another form of stranding. The 
effect of the amendment would be to authorize NMFS to enter into 
agreements to allow assistance to both stranded and entangled animals.
    Likewise, the Alliance supports Sec. 515 of the Administration Bill 
which amends the definition of ``harassment.'' The Alliance agrees this 
change would improve the enforceability of the harassment prohibition 
without compromising conservation measures.
    The Alliance has long argued that NMFS' implementation of the 1994 
Amendments, through its interim guidelines, flaunts Congressional 
intent and can only be rectified by clarifying amendments to the MMPA. 
The first such amendment the Alliance recommends addresses the export 
of marine mammals. The MMPA currently provides that exports may occur 
without additional authorization from NMFS provided the receiving 
facility meets standards comparable to those for U.S. facilities.
    Unfortunately, NMFS has applied these provisions to prohibit 
exports unless the foreign government signs a letter of comity binding 
that government and the foreign facility to meeting the precise 
requirements of the MMPA as interpreted by NMFS. The U.S. Fish and 
Wildlife Service (``FWS'') also employs NMFS' comity requirements.
    Through these requirements, NMFS effectively has repealed the 
MMPA's comparability standard and replaced it with its own mandate. 
Notwithstanding the fact that the courts have held that the MMPA does 
not apply outside U.S. jurisdiction and although Congress has said that 
the receiving facility need only meet comparability standards, NMFS has 
insisted that no export can occur without a letter of comity binding 
the foreign nation and its facilities to compliance with the MMPA and 
NMFS' regulations. In some instances, the agency has required that the 
country have laws similar to the Animal Welfare Act and the MMPA.
    Under NMFS' interpretation of its authority, if a marine mammal is 
to be transferred from a U.S. public display facility to a public 
display facility in Canada in 2003, NMFS can block the export unless 
Canada signs an agreement stating the Canadian facility will meet each 
of NMFS' regulatory requirements. Curious issues arise when the MMPA 
requirements applicable to U.S. facilities are suddenly treated as if 
they are a binding international treaty. For example, in the above 
illustration, if the Canadian facility does not continue to meet NMFS' 
regulatory conditions, the letter of comity acts as NMFS' authority to 
order seizure of the animals. If the Canadian facility continues to 
meet the regulatory requirements but, in 2013, decides to transfer the 
animal to a public display facility in Spain, the Canadian facility 
must ensure that the Spanish facility also meets NMFS' regulatory 
requirements, including that NMFS receive a fifteen day advance notice 
of the transport from Canada to Spain and that the facilities in both 
countries provide NMFS with complete inventory reports. And if the 
animal at the Spanish facility gives birth five years later, the 
Spanish facility must notify NMFS. And if the progeny is transferred to 
a public display facility in Denmark ten years thereafter, the Spanish 
facility is to ensure the Danish facility meets NMFS regulatory 
requirements, including that NMFS receive a fifteen day advance notice 
of transport and that both facilities provide NMFS with complete 
inventory reports. And, if fifteen years from now, now forty years 
after the original 2003 export from the U.S., the marine mammal 
originally transferred, now in a Spanish facility dies, NMFS is to 
receive a notice of that event. If the progeny, now in Denmark, dies in 
2063, sixty years after the parent left the United States, NMFS is 
still to receive notification, including the cause of death.
    Not surprisingly, foreign governments are reluctant to agree to 
subordinate their national sovereignty to the U.S. MMPA and to NMFS' 
regulations and enforcement decisions. In an unusual exercise of logic, 
NMFS justifies its position by first recognizing that it has no 
authority to apply the MMPA outside of the U.S. and then arguing that 
because it has no such authority, NMFS must have letters of comity to 
give it that authority.
    In addition to these legal issues, there are several practical 
policy problems with securing a letter of comity. As already noted, 
NMFS' policy infuriates foreign governments. For example, in a letter 
to NMFS dated May 14, 1996, the director of the Department of 
Agriculture and Fisheries of Bermuda stated in response to NMFS' demand 
for a letter of comity that ``[t]he [G]overnment of Bermuda does not 
have the authority to segregate its regulatory duties over persons in 
Bermuda to any other Government or Governmental agency. In short, the 
Government of Bermuda cannot issue a letter of comity to NMFS.''
    Recognizing this reality, NMFS often abandons its own policy. Thus, 
after NMFS successfully offends a foreign nation by demanding that it 
subordinate its national sovereignty to NMFS, and after forcing U.S. 
facilities to incur enormous transactional costs, NMFS often settles 
for a ``letter of comity'' which does not even comply with its own 
policy. In one case, the foreign government refused to sign a letter of 
comity and NMFS accepted a letter from the foreign facility saying that 
it would give comity to NMFS' regulations. The situation with FWS is 
the same. In one case, FWS deemed a letter from the mayor of the town 
as an appropriate letter of comity. The Alliance is unaware of any 
nation in which the mayor of a city has the authority to bind the 
national government.
    There are other significant policy reasons for Congress to prohibit 
NMFS from insisting on these letters of comity. First, the policy has 
broad ramifications for marine mammal breeding programs and for the 
animal exchanges which are necessary for international species 
management. Institutions in foreign nations that object to letters of 
comity and to U.S. infringement on their sovereignty will be unable to 
participate in these important programs to the detriment of the animals 
and the maintenance of the genetic diversity.
    Second, before issuing CITES permits, FWS, which administers CITES, 
requires NMFS' concurrence with respect to CITES listed marine mammal 
species under NMFS' jurisdiction. NMFS will not provide that 
concurrence without a letter of comity. The net effect is that persons 
are precluded from receiving CITES permits because of NMFS insistence 
on letters of comity.
    Third, when NMFS relents and accepts something less than a letter 
of comity, it does so only after the United States and the foreign 
public display facilities have expended huge amounts of time or money 
attempting to bridge the gap between NMFS and the foreign government. 
These excessive transactional costs are wholly unnecessary. In one 
case, the export of eight sea lions was delayed for months, and 
involved at least three government agencies and numerous government 
officials, during which the owner of the sea lions had to address 
unfounded accusations about a simple transport overseas.
    Finally, there is no precedent for letters of comity. No other law 
or regulation for any other species of wildlife provides that foreign 
facilities are subject to U.S. law and shall be treated as if they are 
U.S. facilities following the exportation of the animal. Even under the 
Endangered Species Act, once an export is approved and occurs, U.S. 
jurisdiction ends.
    The reality is that NMFS continues to ignore the law, the courts, 
and the Congress with adverse consequences for stranded marine mammals, 
responsible animal management, and international breeding programs. 
This issue must be addressed in any MMPA reauthorization.
    Congress should also clarify the statutory requirements relating to 
the inventory of marine mammals held at public display facilities. 
First, Congress should clarify that this is an inventory of facilities 
subject to NMFS jurisdiction, not an inventory of facilities that NMFS 
would like to have subject to its jurisdiction through letters of 
comity. Second, this is an inventory of living marine mammals. 
Stillborn animals, or animals not surviving birth, need not be included 
in the inventory. Finally, the inventory can, and should, be updated on 
an annual basis as was the case prior to passage of the 1994 
amendments. Currently, NMFS requires that there be multiple forms 
submitted, each providing the exact same information, every time there 
is a change in an animal's status.
    Last year, Alliance members helped save the lives of hundreds of 
stranded dolphins, whales, manatees, seals, and sea lions found sick, 
injured, or orphaned on beaches and shorelines around the world. 
Efforts to recover and study stranded marine mammals are broadly 
recognized as a major asset in the conservation of these animals in the 
wild, as well as being an important humanitarian practice. Stranded 
marine mammals are a significant source of information on the natural 
history, health, and status of wild populations. The ability to attach 
tracking devices to rehabilitated stranded animals has afforded 
important glimpses into their worlds and behaviors in the oceans' 
depths. Government agencies often request Alliance members to care for 
stranded endangered animals that cannot be released as a result of 
illness, injury or age. In doing so, Alliance members accept the 
financial burden of keeping these animals healthy and well cared for 
the remainder of their lives. For endangered species, NMFS and FWS are 
then requiring the facility to go through a time-consuming and costly 
permitting process for animals housed at government request. Congress 
should clarify that government agencies have the ability to place 
endangered stranded marine mammals that are not releasable in public 
display facilities without requiring additional, needless permitting.
    In summary, Congress agreed in 1994 that export permits where not 
needed, but NMFS instituted letters of comity. Congress additionally 
agreed that transport permits also were not needed and recommended a 
simple, 15-day notice of transport, but NMFS now requires six forms 
every time an animal is moved. Congress never changed the requirement 
for an annual inventory report to a daily inventory report, but NMFS, 
without notice, simply stopped circulating an inventory once a year for 
updating. The burdensome, time-consuming six forms now function as the 
update to the inventory on a day-to-day basis.
    The Alliance has brought the above concerns before Committee and 
Congressional staff each year in expectation that reauthorization of 
the MMPA would occur. However, a careful review of NMFS' 2003 
recommended amendments to the MMPA in the Administration Bill have 
exposed a number of additional issues of concern. The Alliance is 
presently considering how to address these problems within the context 
of the MMPA reauthorization.
    There is no more appropriate time to remind Congress why it 
exempted marine life parks, aquariums, and zoos from the moratorium on 
the collection of marine mammals when the Marine Mammal Protection Act 
was passed in 1972. The collective, global efforts of Alliance members 
have had stunning results in educating the public about the need to 
conserve marine mammals; funding important research that benefits not 
only the animals in facility collections but also those in the wild; 
and helping to save the lives of thousands of stranded dolphins, 
whales, manatees, seals, and sea lions found sick, injured, or orphaned 
on beaches and shorelines around the world.
    Almost everyone (97 percent) who participated in a 1998 Roper 
Starch opinion poll at Alliance member facilities said their experience 
with living marine mammals had a positive impact on their appreciation 
and knowledge of the animals. In fact, two-thirds of the visitors said 
their experience with living marine mammals had a ``great deal'' of 
impact on their appreciation and knowledge of the marine mammals. The 
impact was even greater in those facilities where the park visitors 
actually had an opportunity to personally interact with the marine 
mammals.
    These findings mirror a 1995 Roper Starch poll which found that 92 
percent of the public believes that marine life parks are essential in 
teaching the public about marine mammals and giving them opportunities 
to learn, which they would not have otherwise. More than 3 in 4 people 
acknowledged that having marine mammals on public display is helpful to 
nature and the environment because it enables people to see and learn 
about these animals.
    The marine mammals in Alliance facilities are well-loved, live as 
long or longer than their counterparts in the world's oceans, and 
receive state-of-the-art care. The Alliance's Accreditation Program, 
and the Standards and Guidelines on which accreditation is based, 
demonstrate the commitment of all Alliance members to optimize the 
psychological and physical health and environmental conditions of all 
marine mammals in the care of these zoological institutions, as well as 
to maximize the educational and scientific efforts of the public 
display community.
    Alliance education standards, for example, have been published in 
the Federal Register by NMFS and are recognized worldwide as excellent 
``professional standards'' on which to base marine mammal educational 
programs. Additionally, these standards are among those that serve as 
the basis for one of the three criteria U.S. facilities must meet to 
display animals under the MMPA. Non-U.S. institutions wishing to import 
marine mammals from the U.S. must also meet professional education 
standards.
    As a recent article in the ``Outlook'' section of the Washington 
Post stated: ``More Americans go to zoos every year than go to all 
professional football, basketball, hockey and major league baseball 
games combined. . . . The reason people go to zoos is to see the 
animals up close. . . .'' Alliance members focus the power and 
popularity of their live marine mammals on providing guests an 
awareness of the need to preserve these wonderful marine mammals.
    The Alliance appreciates the opportunity to present this testimony 
and looks forward to working with the Subcommittee in developing 
appropriate amendments to the MMPA.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                            Dr. Rebecca Lent

    Question 1. Ocean Noise and Research--The 2000 NRC report on Marine 
Mammals and Low-Frequency Sonar and other underwater sounds illustrates 
the great need for further research in this area, and it says, 
specifically, that NMFS has supported very little research aimed at 
determining the potential effects of man-made sound on marine mammals. 
The report further recommends that ``mission agencies with 
responsibilities related to marine mammals (such as NOAA) should 
provide increased funding for marine mammal research and improve the 
ways that research is identified, funded and conducted.'' The NRC's 
2003 report on this topic lists dozens of specific research initiatives 
that still need to be undertaken. Their lead recommendation is, in 
fact, to have a single Federal agency take a leadership role on this 
research.
    (a) Does NOAA agree with the research findings and recommendations 
in the 2000 and 2003 reports, including their lead recommendation to 
have a single Federal agency take the lead on this research? If so, 
should that agency be NOAA, the Navy, the Marine Mammal Commission, or 
some other agency?

    (b) Since the noise research issue does not seem to be fully 
addressed in the administration's proposed bill, exactly what is NOAA 
doing to better assess, understand, and regulate the impacts of low 
frequency sonar and other man-made underwater noise on marine mammals, 
as recommended by the NRC?

    (c) Would it be productive to have more of NOAA's marine mammal 
research conducted by the external academic community? If so, should 
such activities be awarded through a competitive process or through 
directed grants to institutions?

    (d) What are the major obstacles to advancing research on marine 
mammals and noise? What legislative action would be needed on this 
topic, if any?
    Answer. (a) NOAA Fisheries generally agrees with the 
recommendations and findings in the 2000 and 2003 reports, but has 
concerns about the recommendation regarding assigning a single Federal 
agency with lead responsibility for research. Each agency that 
currently funds research (Navy, MMS, NSF, USGS, NOAA Fisheries, etc.) 
has its own mandate related to noise, and prioritizes its research 
needs based on its mission responsibilities. Although a single agency 
could take the lead on all research, it would be unclear how one agency 
could address the various agencies' needs and ensure that the science 
conducted supports the specific management and mission responsibilities 
of the agencies. It would be feasible for one agency to coordinate 
among the research efforts so as to identify gaps and avoid 
redundancies. Of the existing agencies, NOAA Fisheries would be the 
best suited to coordinate and track research needs on all sources of 
human sound because it has regulatory authority to monitor and protect 
marine mammal populations.
    (b) To better assess and regulate the effects of noise on marine 
mammals, NOAA Fisheries is developing draft Acoustic Guidelines, which 
will undergo NEPA review. These guidelines, similar to OSHA standards 
for humans, will provide guidance to the regulated community and the 
public on noise exposure of marine mammals. These guidelines are 
currently undergoing internal review prior to peer review. In 
association with these guidelines, the NOAA Fisheries' Acoustics Team 
has proposed a full program of research that responds to the NRC's 
recommendations on (1) the global monitoring of ocean noise, (2) the 
creation of a single database to house all available data on ocean 
noise, and (3) research on the effects of noise on marine mammals.
    (c) NOAA Fisheries presently spends less than $200,000 annually on 
research. To date, all of it has been directed to academic 
institutions. Even with increased funding, a significant portion would 
go to directed grants or contracts to the academic community, either 
for deployment of monitoring stations or research on the effects of 
noise. Much of the research needed is very specialized and can only be 
conducted by a few laboratories. We have begun to develop additional 
expertise within NOAA that could be expanded to address specific 
management needs.
    (d) One major obstacle is the lack of research infrastructure in 
this field. Few researchers are trained in the special techniques 
needed for marine mammal hearing research, and new researchers have not 
entered this field. Only three laboratories in the U.S. have captive 
marine mammals to study for noise exposure. None of them has the 
facility to study hearing or noise effects in large whales. In general, 
NOAA Fisheries sees no legislative changes that are needed on this 
subject at the present time. However, congressional interest on this 
international conservation challenge is welcomed. NOAA Fisheries would 
like to work with the Committee on ways to prioritize research in this 
area.

    Question 2. Harassment Definition--I understand from your written 
testimony that NOAA has experienced difficulties with interpretation, 
implementation, and enforcement of the current MMPA harassment 
definition. The administration MMPA bill proposes a new definition. How 
will NOAA's proposed definitions change what activities do and do not 
need a permit? Please give me some examples of activities that need 
permits now that would not need permits under the proposed NOAA 
definitions, as well as activities that do not need permits now that 
would need permits.
    Answer. The Administration's MMPA reauthorization bill proposes 
amendments to section 3(18) to clarify in Level A and B harassment (as 
defined in section 3(18)(A) and section 3(18)(B)(i)) that those 
activities that would likely result in biologically significant, 
harmful effects on marine mammals would constitute harassment while 
those that have the potential for de minimus effects on marine mammals 
would not. The proposed definition also clarifies by adding proposed 
section 3(18)(B)(ii) that those activities directed at marine mammals 
in the wild that are likely to disturb them would constitute 
harassment. All activities would continue to be evaluated on a case-by-
case basis to determine whether or not they would constitute harassment 
and require authorization.
    The Administration's proposed definition of harassment, consistent 
with similar legislative proposals from the previous administration, 
would clarify that activities that could have very minor incidental 
behavioral effects on marine mammals might not require an incidental 
take authorization, depending on circumstances such as duration of the 
activity and the location of its occurrence. Examples of activities for 
which we have issued authorizations over the last 10 years that would 
likely not need a permit under the new definition include non-explosive 
dock construction or repairs; removal of oil storage tanks; minor 
maintenance dredging; repairs to coastal walls; installing a floating 
dock; and oceanographic research using low intensity acoustic sources.
    We do not foresee that there are activities that do not now need 
permits that would need them under the new definition. For example, 
some directed research that currently requires a permit because it has 
the ``potential to injure'' (current definition of Level A harassment) 
might not meet the threshold of ``significant potential to injure'' (as 
defined in the proposed harassment definition) and would instead 
qualify for a Letter of Confirmation under the General Authorization 
(GA). The GA is a streamlined process for authorizing research 
activities involving only Level B harassment, such as photo-
identification, behavioral observations, and vessel and aerial 
population surveys. Currently, the GA does not apply to intrusive 
research, which has an inherent potential to injure. However, under the 
proposed definition, there might be a change in type of authorization 
needed. Some intrusive procedures that can be shown not to injure or 
not to have the significant potential to injure a marine mammal, may 
qualify under the GA instead of requiring a research permit. For 
incidental activities, some may not reach the significant potential to 
injure standard and would fall under Level B, going from the incidental 
take authorization process under MMPA section 101(a)(5)(A) to the more 
streamlined process for incidental harassment authorization under MMPA 
section 101(a)(5)(D).

    Question 3. DOD Exemption from the MMPA--The House version of the 
National Defense Authorization Act proposes giving the Department of 
Defense the ability to exempt themselves from ``compliance with any 
requirement of the [MMPA], if the Secretary determines that it is 
necessary for national defense.'' Although NOAA does not seek this DOD 
exemption in their proposed bill, from NOAA's perspective, how would 
such an exemption, if invoked, likely affect whale conservation efforts 
and related social conflicts? Considering these possible impacts, would 
the benefits of this exemption outweigh the costs?
    Answer. We note that this provision was enacted in the National 
Defense Authorization bill.
    If invoked, this provision could result in reduced protections for 
marine mammals. Given that such an exemption has never been invoked by 
the Secretary of Defense, NOAA cannot reasonably predict the costs and 
benefits of a possible use of the exemption. A similar exemption is 
provided in the Endangered Species Act (ESA) for national security 
reasons. Such an exemption to the MMPA would, therefore, be in line 
with exemptions to protections for threatened and endangered species 
when the Secretary of Defense deems it necessary for national defense. 
NOAA Fisheries supports such an exemption that would only be exercised 
in extraordinary situations for reasons of national defense, and in 
which DOD would first be required to confer with the Secretary of 
Commerce about the rationale for an exemption.

    Question 4. Small Numbers Definition--Many groups, including the 
Navy, the Consortium for Oceanographic Research and Education, and much 
of the scientific community has recommend deleting the term ``small 
number'' from the incidental take language. Even the National Research 
Council, in their 2000 report, said ``it would be desirable to remove 
the phrase `small number' from [the] MMPA'' (P. 71). Still, this is not 
a change that the administration is proposing in its bill.
    (A) Why has the administration, contrary to the advice of the NRC 
in 2000, decided to keep the phrase ``small numbers'' unchanged in its 
proposed bill? What are the benefits of keeping the phrase, and what 
are the costs of deleting it?
    Answer. Beginning in 1999, NOAA Fisheries worked closely with the 
Department of Defense, the Department of the Interior, the Marine 
Mammal Commission, and other entities to develop an administration MMPA 
reauthorization proposal. NOAA Fisheries (and the other agencies) did 
not then propose removing the term ``small numbers'' from the statute 
because the agency had not encountered any difficulties with its 
regulatory definition (a joint regulation with the USFWS), which has 
been in effect for more than twenty years (47 FR 21248, May 18, 1982). 
That regulation defines small numbers as ``a portion of a marine mammal 
species or stock whose taking would have a negligible impact on that 
species or stock.'' Like Congress, NOAA Fisheries recognized that the 
concept of small numbers is not capable of being expressed in absolute 
numerical limits. Rather, the agency deemed it necessary to link the 
definition of small numbers to a biologically meaningful concept, i.e., 
impacts of an activity on the affected species and stocks. Therefore, 
this definition considers the impact of an activity on the reproduction 
and survival of the affected marine mammal species or stocks.
    The Administration's MMPA reauthorization proposal was transmitted 
to Congress in February 2003, a date that preceded the U.S. District 
Court's August 2003 final decision, which found that the regulatory 
definition is contrary to law.
    NOAA Fisheries does not believe that retaining the phrase in the 
statute has any benefits. This is because the agency must still make a 
determination that the activity will have no more than a negligible 
impact on affected species or stocks. The regulations define 
``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.'' From a resource management 
perspective, this is the crucial determination for incidental take 
authorizations, not whether the number taken is absolutely or even 
relatively small. The cost of retaining the phrase is that it is 
unnecessary from the perspective of sound resource management 
principles and it creates another regulatory hurdle that the agency 
must overcome and subsequently defend in litigation.
    Another important consideration is that the term small numbers, if 
it must be defined in quantitative terms rather than being linked to 
population level impacts, could lead to the illogical result that as 
marine mammal populations improve and increase in abundance, it 
increases the possibility that NOAA Fisheries may have to deny an 
incidental take application solely on the basis that the numbers of 
takes are not small. This scenario would be particularly possible where 
the takes anticipated are Level B harassment, such that a negligible 
impact determination can be made despite the relatively large numbers 
of take.

    (B) If we were to maintain a sharp focus on the ``negligible 
impact'' standard, would that provide enough protection for marine 
mammals, thereby making the phrase ``small numbers'' standard 
unnecessary?
    Answer. NOAA Fisheries believes that focusing on the negligible 
impact standard provides the necessary protection for marine mammals, 
and in practice that is already the case. Because the MMPA and its 
legislative history give no substantive guidance on the meaning of 
small numbers--except to say the concept cannot be expressed in 
absolute terms--NOAA Fisheries considers small numbers in relative 
terms, meaning that the authorized taking must be limited to that which 
has a small (negligible) impact on the affected species or stocks of 
marine mammals. Since a robust population (such as California sea 
lions) could easily sustain the take of more individuals than a small, 
declining population (such as North Atlantic right whales or Hawaiian 
monk seals), the determination of small numbers could vary widely 
depending on the stock in question and type of take (e.g., harassment 
vs. mortality), making it difficult to establish one definition that 
applies in all situations. For both, the negligible impact 
determination is the governing principle. Neither the Administration's 
MMPA reauthorization proposal nor the National Defense Authorization 
bill eliminates the negligible impact determination; therefore, neither 
would affect this aspect of NOAA's incidental take authorization 
process. Thus, determinations that an activity would have only a 
negligible impact on affected marine mammal stock(s) provide sufficient 
protection for marine mammals.

    Question 5. Scientific Permits--According to many marine mammal 
scientists, the procedure for issuing permits for the taking of marine 
mammals, especially those that are endangered or threatened, is time 
consuming and complex. While some, including the NRC, recommend 
streamlining the multiple permit processes (e.g., MMPA, NEPA, etc.), it 
appears that the administration's bill does not address any such 
changes. Still, we need to better understand if and how this can be 
improved. Why did the administration lose the case resulting in the 
court injunction of Dr. Tyack's research? Even though his case was 
based on a NEPA permit, what overall changes is NOAA making to better 
deal with similar scientific research permit issues in the future?
    Answer. In the case of Dr. Tyack's research permit, the court 
determined that NOAA Fisheries should not have categorically excluded 
the action from the requirement to prepare an EA or EIS.
    The Administration did not propose any changes to the MMPA 
regarding scientific research permits because NOAA Fisheries does not 
feel any statutory changes to the MMPA permitting process are needed at 
this time. The perceived delays are experienced by a small minority of 
applicants and are primarily related to the capacity to complete 
complex environmental analyses required under NEPA and ESA for permit 
issuance with available resources. To clarify, no permits are 
specifically required or issued under NEPA, but NOAA Fisheries must 
comply with NEPA requirements for environmental analyses and public 
disclosure in issuing MMPA and ESA permits.
    The MMPA provides for, and NOAA Fisheries Office of Protected 
Resources currently offers, a streamlined authorization process. For 
research activities not related to ESA-listed species that have the 
potential to disturb but not injure a marine mammal or marine mammal 
stock in the wild (Level B harassment), the General Authorization is an 
expedited (30-day) process for researchers to obtain authorization for 
scientific research on marine mammals. For those activities that have 
the potential to injure a marine mammal or marine mammal stock (Level A 
harassment), researchers can obtain a Scientific Research Permit. For 
proposed research activities that do not involve ESA-listed species or 
do not require separate NEPA analyses, the expected timeline for a 
Scientific Research Permit is 90 days. When research is on threatened 
or endangered marine mammals, NOAA Fisheries Office of Protected 
Resources issues a joint MMPA/ESA permit, rather than two separate 
permits. In addition, all required NEPA and ESA analyses are done 
concurrently within the permit process to the maximum extent possible. 
To process these more complex requests for permits dealing with ESA-
listed species and requiring separate NEPA analyses, an additional 135 
days (in addition to 90 days) is needed for consultations under the 
ESA.
    In 2001, 88 percent of the scientific research applications for 
activities directed at ESA-listed species were processed in less than 
the 225 day time frame. The 12 percent that were over 225 days resulted 
from complex analysis in connection with the biological opinion. Sixty 
percent of the applications for non-ESA listed species were completed 
in less than 90 days. For the 40 percent of the applications processed 
in greater than 90 days, in most cases the delay was the result of 
incomplete information provide by the applicant. In some cases it took 
the applicant 275 days to provide us with the proper information.
    To further streamline the permit process, NOAA Fisheries Office of 
Protected Resources is preparing programmatic NEPA documents and ESA 
analyses on various research activities. Therefore, many future permit 
applications will have a reduced processing time. We are also preparing 
new application instructions to assist applicants with the process. 
Having all of the required information provided electronically should 
further expedite application processing, as well as maintain a high 
level of applicant involvement in the process.

    Question 6. Right Whales Issues--To date, it seems like most of 
NOAA's and the Take Reduction Team's attention on reducing right whale 
mortality has focused on reducing fishing gear entanglements. This is 
certainly important, but it's important for NOAA to devote attention to 
ship strikes, the other leading cause of right whale mortality. What 
are the tools, authorities, and funding that NOAA needs to combat the 
ship strike problem? Are these necessary elements now in place, or do 
they need to be provided to NOAA?
    Answer. Indeed, available data suggest that ship strikes account 
for more right whale mortalities than entanglements in fishing gear or 
any other human-related activity. More than 50 percent of confirmed 
right whale mortalities have been attributed to ship strikes, and there 
is clear evidence that this impact is one of the principal causes of 
the slowed recovery in this population. The areas where right whales 
occur lie in or are adjacent to major shipping corridors on the U.S. 
eastern and southeastern Canadian coasts, and the carcasses of most 
whales struck by ships have been recovered in or near major shipping 
lanes.
    NOAA Fisheries recognizes that this is a complex problem requiring 
additional, more pro-active measures than those currently in place, and 
that more attention to the problem worldwide is needed. The agency's 
ongoing program over the last decade to reduce ship strikes to right 
whales includes: 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.
    The Mandatory Ship Reporting System (MSR) went into place in 1999. 
This was the first step in understanding more specifically the ship 
strike problem. It has taken 2 years to collect the data to understand 
areas for improvement. 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 established an 
Interagency Working Group on the Reduction of Ship Strikes to Right 
Whales to aid in the Strategy's implementation and enforcement. 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.
    We look forward to working with Members of Congress on support for 
and implementation of this Strategy.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John F. Kerry to 
                            Dr. Rebecca Lent

    Question 1. Harassment Definition--Three of the witnesses appearing 
today raise concerns with the Administration's proposal to only require 
an incidental take authorization for harassment under the MMPA if the 
activity can be shown to lead to ``abandonment'' or to ``significantly 
alter'' a natural behavior. Given our lack of knowledge about the 
likely impacts of various activities on marine mammals, won't it be 
impossible to know in some cases at the time an activity is proposed 
whether such activity would ``cause disruption of natural behavioral 
patterns'', such as migration, ``to a point where such behavioral 
patterns are abandoned or significantly altered''?
    Answer. The question underscores the limitations inherent in the 
current definition, as well as in any proposed definition. The fact is 
that we have to make decisions on impacts of various activities even 
though we are limited in our knowledge of marine mammal behavior. We do 
know that when an activity causes disruption of a natural behavioral 
pattern to a point where the behavioral pattern is abandoned, either 
temporarily or permanently, or to a point where the behavioral pattern 
is significantly altered, then the activity has risen to the level of 
harassment. These effects can be measured, monitored, and mitigated. 
The Administration's proposal clarifies that harassment means 
biologically significant, harmful changes to behavior patterns rather 
than the remotest potential to disturb.

    Question 2. Since even a momentary abandonment of sheltering a 
young calf from a killer whale attack could be lethal, wouldn't the use 
of this term in some cases raise Level B harassment to impacts that are 
the equivalent of non-harassment lethal takes?
    Answer. Such a scenario presumes that the cause of the adult 
whale's disturbance did not similarly affect the killer whale, that the 
killer whale was already in close proximity to the adult whale and its 
calf, and that the female's maternal instinct to protect her young from 
this already detected predator was somehow compromised by the 
disturbance. Almost all second level impacts due to a marine mammal 
being disturbed cannot be predicted and are, therefore, too speculative 
for analyzing whether an activity will result in taking a marine 
mammal. However, if we determined that an activity is likely to 
incidentally cause death, as in the example, then the activity would 
require authorization under section 101(a)(5)(A) rather than the more 
streamlined process for incidental harassment authorization under MMPA 
section 101(a)(5)(D).

    Question 3. Isn't it the case that many activities that have the 
potential for serious impacts on marine mammals simply go unregulated?
    Answer. NOAA Fisheries has been regulating the impacts of human 
activities on marine mammals to the extent that the MMPA provides NOAA 
Fisheries with regulatory authority, and within the constraints of the 
current definition of harassment. Generally, it is incumbent upon 
applicants to seek authorization under MMPA section 101(a)(5)(A) or 
101(a)(5)(D) if the applicant thinks his or her proposed activity will 
constitute a certain level of harassment. NOAA Fisheries works with 
agencies and members of the public to educate them about the 
authorization requirements under Section 101 of the MMPA. But, it is 
possible that applicants are not always seeking authorization for some 
activities that constitute harassment. Once NOAA Fisheries becomes 
aware that an activity (other than commercial fishing) might result in 
incidental take of marine mammals it works with the applicant proposing 
the activity to ensure that takings, if negligible, are authorized 
under section 101(a)(5)(A) or 101(a)(5)(D) of the MMPA. Often this 
involves establishing mitigation measures to ensure that a proposed 
activity will have a negligible impact on marine mammals.

    Question 4. The House passed a DOD authorization bill without the 
third prong of the Administration's proposed definition, aimed at 
activities ``directed at'' marine mammals. Do you have any concerns 
with dropping this part of the definition, and if so, why?
    Answer. Yes. The Administration's bill for MMPA reauthorization 
included this language to address activities such as chasing or 
touching marine mammals in the wild 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. By including the third prong of the harassment 
definition, the administration bill seeks 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. 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.

    Question 5. Your written testimony states that NMFS devotes 
resources to addressing biologically insignificant impacts, and that 
the statute could now be interpreted to prohibit activities such as 
``humans walking along a pier near a group of sea lions causing them to 
stop feeding and raise their heads.'' Has NMFS ever issued a permit for 
walking on a pier, or for similar activities? Has it ever enforced 
against a failure to seek such a permit?
    Answer. NOAA Fisheries has never issued an incidental harassment 
authorization for a single individual walking on a pier. We provided 
this scenario as an example of the types of activities that the 
Administration bill's proposed definition of harassment seeks to 
clarify are not harassment. The agency is also not aware of an 
enforcement action against an individual that has not sought an 
authorization for walking along a pier and causing sea lions to raise 
their heads and stop feeding. However, a similar activity that results 
in the ``flushing'' of a large number of marine mammals into the water, 
causing them to abandon their feeding, might constitute harassment and 
might be subject to enforcement action.

    Question 6. Question: Has NMFS actually been sued for failing to 
prohibit activities such as walking on a pier, or for dolphins swimming 
in the wake of a boat? Has any court decision stopped a project on this 
basis?
    Answer. To the best of our knowledge, NOAA Fisheries has not been 
sued for failing to prohibit these activities nor has a project been 
stopped on this basis. This does not mean that those challenges cannot 
be brought in the future.

    Question 7. Why hasn't NMFS clarified the current standard through 
regulation in terms of the types of activities that would rise to the 
level of concern?
    Answer. NOAA Fisheries has promulgated regulations in order to 
clarify the current harassment standard. For example, NOAA Fisheries 
promulgated regulations to prohibit the feeding of wild marine mammals 
under Department of Commerce jurisdiction, approaches of closer than 
100 yards to humpback whales in Hawaii and Alaska, and approaches 
closer than 500 yards to North Atlantic right whales. NOAA Fisheries 
issued an Advance Notice of Proposed Rulemaking (ANPR) in January 2002 
(67 FR 4379) seeking the public's input on what measures, if any, we 
should take to further address the issue of harassment from human 
activities that seek to interact with or elicit a response from wild 
marine mammals. However, within the broad framework and terms in the 
current statutory language, the agency is limited in how much we can 
clarify in regulations.

    Question 8. Your written testimony states that ``As interpreted by 
some courts, the current definition does not distinguish biologically 
significant, harmful events from activities that result in de minimis 
impacts on marine mammals.'' What lawsuits are you referring to? Isn't 
it the case that the only court to have actually dealt with the issue, 
the Northern District of California in the LFA case, found that NMFS 
did have discretion under the current definition to distinguish between 
de minimis and actual disruptions of behavioral patterns?
    Answer. Although the Northern District of California found in favor 
of NOAA Fisheries' interpretation of the definition of harassment, this 
is the only court decision on the subject of which we are aware. At 
this time, neither party to this case has made a final decision as to 
whether to appeal the decision, and this recent opinion of one district 
court would not preclude anyone from making a similar argument in other 
courts and contexts.

    Question 9. NMFS approved the Navy's request for an incidental take 
authorization for the LFA-sonar program. A number of mitigation 
measures were included. Could you describe some of the more important 
mitigation measures included in the NMFS authorization for the LFA-
sonar program?
    Answer. While there are several mitigation measures to protect 
marine mammals and other marine life, two are predominant. First, in 
order to eliminate to the extent practicable the potential for injury 
to marine mammals from the LFA source, the Navy designed and had 
constructed an active high-frequency sonar system that is capable of 
detecting marine mammals to about 2 km (1.25 land miles) from the 
source. This distance is significantly greater than the distance in 
which scientific information indicates marine mammals would be injured. 
Under the regulations, if the LFA sonar is operating when the high 
frequency sonar detects a mammal within 2 km buffer zone, the Navy must 
terminate LFA sonar operations immediately. LFA sonar transmissions may 
not resume until at least 15 minutes after all marine mammals have left 
the area and there are no further detections of such animals within 2 
km of the LFA vessel. A court injunction ensures that these mitigation 
measures apply as well to sea turtles and other marine species.
    Second, to reduce the incidental harassment of marine mammals to 
the lowest level practicable, NOAA Fisheries requires that the Navy to 
limit LFA sonar transmissions to no more than 180 dB within 12 nm of 
any coastline (including offshore islands), within any offshore area 
designated as biologically important for marine mammals, and within the 
offshore boundaries of national marine sanctuaries that extend beyond 
12 nm from the coast, all of which are areas where marine mammals are 
generally more abundant.

    Question 10. Do you believe the incidental take process for this 
authorization worked, overall, given the complexity and scope of the 
new technology?
    Answer. Yes. NOAA Fisheries worked closely with the Navy over a 
number of years to evaluate impacts on marine mammals from operation of 
this new sonar. The evaluation involved scientific research, developing 
and applying new models to estimate effects, developing new mitigation 
measures and requirements, etc. The process resulted in a sensible 
approach to testing new marine technologies. Previous to LFA sonar, no 
other activity has required the investment of such a significant amount 
of resources to assess and mitigate impacts to marine mammals.

    Question 11. Does DOD come to NMFS and FWS to seek authorizations 
for all of its activities? Isn't it the case that training exercises in 
the Gulf of Maine, in right whale habitat, were conducted without any 
authorization? And was the recent use of sonar by the Navy in Haro 
Strait conducted under an authorization?
    Answer. We would not expect DOD to request authorizations for all 
their activities, but only for those that are anticipated to result in 
the take of marine mammals. The Navy did not request an authorization 
for training exercises in the Gulf of Maine nor for their activities in 
Haro Strait. We are unaware of any marine mammal takes by injury or 
harassment incidental to training in the Gulf of Maine. NOAA Fisheries 
is continuing necropsy studies on the harbor porpoise that stranded in 
Haro Strait to determine the cause of the mortality.

    Question 12. If DOD were to decide, pursuant to the proposed new 
definition, that it did not need to come to NMFS for an authorization, 
does that mean that NMFS would have no role in developing any 
mitigation measures for such activities?
    Answer. This is currently the case for all agencies. It is 
incumbent upon the action agency or individual to initially determine 
whether to seek an authorization since NOAA Fisheries cannot know all 
the planned activities. If an agency determines that its activity will 
not meet the harassment threshold, then they will not seek an 
authorization and therefore NOAA Fisheries would have no role in 
developing mitigation, unless otherwise requested by the agency.

    Question 13. At last year's House Armed Services Committee hearing 
on environmental issues, Dr. Hogarth testified that ``to the extent the 
Navy and other action agencies can plan sufficiently far in advance of 
activities and provide us with adequate time to work them at the 
earliest possible stages, the implications of the permit process should 
be minor.'' What steps have been taken in the past twelve months to 
increase your resources and initiate more advanced planning to foster a 
more efficient permit application and review process?
    Answer. At this time we have three FTEs and two contract employees 
working on the issuance of incidental take authorizations (for 
activities other than commercial fisheries) and the closely related 
subject of acoustic noise impacts on marine mammals. At the time of 
last year's hearing, there were only two FTEs handling that work 
(although we were actively recruiting for additional staff at that 
time). We have hired two additional biologists to work on consultation 
under ESA Section 7. We have also continued to foster a close working 
relationship with various DOD components so that NOAA's program staff 
are involved in early planning under the National Environmental Policy 
Act (NEPA). We are currently working with a number of DOD components 
including the Navy, the Army, and the Air Force as they complete 
various NEPA analyses and Section 7 consultations to ensure the impacts 
of future proposed activities on marine mammals are adequately 
assessed.

    Question 14. If the Administration's proposed definition of 
harassment were to be adopted, would an activity such as LFA-sonar 
still constitute harassment?
    Answer. For most foreseeable circumstances, yes.
DOD Provisions: Impacts from Use of Mid-range Sonar
    Question 15. Would the use of the mid-range sonar in the Haro 
Strait be likely to require an authorization under the Administration's 
proposed new definition of harassment?
    Answer. Based on information we have regarding mid-frequency sonar 
and impacts on marine mammals, NOAA Fisheries encourages prospective 
applicants intending to use mid-frequency sonar in the marine 
environment to contact our agency to help them determine whether an 
incidental take authorization or changes in their operating procedures 
are advisable given the specifics of their activity. This applies to 
the Haro Strait situation under both the current definition and the 
proposed new definition of harassment.

    Question 16. Had the Navy sought an authorization from NMFS under 
MMPA for this activity?
    Answer. No, the Navy had not sought an authorization for this 
activity under the MMPA.

    Question 17. Did the Navy have an authorization from NMFS under 
MMPA for the use of mid-range sonar in the Bahamas? In the Canaries? 
For dropping live ordnance in the Gulf of Maine? If not, what is NMFS 
doing to enforce the MMPA?
    Answer. The Navy did not apply for incidental take authorizations 
for any of the listed activities. NOAA Fisheries will continue to work 
with the Navy, which has the responsibility either to ensure that its 
activities do not take marine mammals or to seek an authorization for 
the taking of marine mammals. Based on the investigation of strandings 
of beaked whales in the Bahamas and with input from NOAA Fisheries, the 
Navy agreed that it would change its operating procedures for use of 
sonar in areas where oceanographic features and sensitive marine mammal 
species may result in harassment of marine mammals. NOAA Fisheries is 
unaware of any takes occurring due to Navy training in the Gulf of 
Maine. NOAA Fisheries is strongly committed to continue working with 
the Navy to help it comply with the Marine Mammal Protection Act.

    Question 18. What other Navy activities that have the potential to 
disrupt natural behaviors of a marine mammal or marine mammal stock in 
the wild--the current statutory standard--for which Navy has not sought 
an incidental take authorization under the MMPA?
    Answer. This question is more appropriately addressed to the 
Department of the Navy since NOAA Fisheries is unaware of many of the 
activities undertaken by the Navy.
DOD Provisions: Deletion of ``Small numbers,'' ``Specified Geographical 
        Area''
    Question 19. Could you explain how the ``specified geographical 
area'' standard is currently applied? Could it be applied to an 
activity like LFA-sonar, which could potentially be used anywhere in 
the globe?
    Answer. ``Specified geographical region'' is defined in regulations 
as ``an area within which a specified activity is conducted and that 
has certain biogeographic characteristics.'' There is no requirement 
that the area be small. For all incidental take applications prior to 
the Navy's application for SURTASS LFA sonar, incidental take 
authorizations were for single, discrete projects fixed in either 
location or time, so the limits of the term ``specified geographic 
region'' were never tested. However, NOAA Fisheries believes that this 
standard can and does apply to the Navy's current SURTASS LFA 
activities as they were described in the Navy's application and 
accompanying EIS.
    NOAA Fisheries issued regulations governing its incidental take 
authorizations for SURTASS LFA. Through the rulemaking process, NOAA 
Fisheries ultimately identified, based on published scientific 
literature, a biogeographic system comprised of 15 biomes and 54 
provinces (with subprovinces) therein. Although the LFA sonar system 
could theoretically operate in much of the world's oceans, under the 
regulations it would still be used within the geographic areas 
specified, and not outside of them. Furthermore, the rulemaking 
contemplated take incidental to operations of only two ships, which, 
because of their number and the speed at which they travel, are 
significantly limited as to the number of geographic regions in which 
they can operate. Moreover, the Navy is required to obtain annual 
letters of authorization (LOAs) for each ship, and those annual LOAs 
specifically limit each vessel to operating in the few areas requested 
by the Navy in its LOA application.
    The U.S. District Court in NRDC v. Evans (SURTASS LFA case) ruled 
that the specified geographic regions identified in NOAA Fisheries' 
final regulations were not arbitrary and capricious, provided that the 
agency takes the additional step of carving out locations within those 
regions, during particular seasons, where known high concentrations of 
marine mammal activities would otherwise render the effects on marine 
mammals throughout the region very disparate. However, the Court also 
found that NOAA Fisheries regulations as written do not limit the 
Navy's operations to a specified geographic region, and therefore 
violated the MMPA. The Court ordered that the regulations must 
authorize the Navy to operate in only a limited number of geographical 
regions at any given time.

Scientific Permitting Issues--There is a lot of discussion concerning 
        the need to fix the permitting process.
    Question 20. Is the process at fault or do these cases highlight 
the need for a higher level of awareness from those seeking and issuing 
the permits?
    Answer. NOAA Fisheries does not believe there is a problem with the 
MMPA process for issuance of scientific research permits. However, 
there is a general lack of understanding among the research community 
about the complexity of the permit process, especially for research 
that may affect threatened or endangered species and requires 
consultation under the ESA. There is also a lack of knowledge about the 
requirements for environmental analyses under NEPA and, perhaps, some 
unrealistic expectations about how quickly such complex analyses can be 
completed, particularly given the limited human and fiscal resources 
within the Office of Protected Resources. To raise the level of 
awareness among those seeking permits, the Permits Division has 
conducted workshops and seminars at professional conferences to explain 
the permitting process to our constituents. These outreach activities 
have been well received and worthwhile.

    Question 21. What aspects of the permitting process are being or 
could be changed to improve this situation?
    Answer. In a number of cases, permit processing has been delayed 
because applicants supplied insufficient information on their proposed 
research, resulting in an incomplete application. When applicants have 
to be contacted for additional information needed to complete their 
application, processing time is increased. The Permits Division is 
preparing new instructions for applicants seeking scientific research 
permits that will make more explicit the information needed to 
determine whether the proposed activity complies with the MMPA and to 
enable the agency to conduct environmental analyses as required under 
NEPA and, where applicable, the ESA. NOAA Fisheries is also developing 
an online application system that would allow researchers to apply 
electronically, as well as view the status of their application 
throughout the application process. In addition, to help applicants 
prepare more complete applications, the Permits Division has been 
conducting education and outreach about scientific research permits to 
facilitate the process.

    Question 22. How many FTEs does your agency have for processing 
authorization requests under the MMPA? How would increased staffing 
help expedite this process thus addressing some of the concerns raised 
by the scientific community and the Navy?
    Answer. The Permits Division has nine FTEs, all of whom are 
dedicated to processing applications for permits under the MMPA and 
ESA. This includes processing applications for scientific research or 
enhancement permits for all marine mammals under NOAA Fisheries' 
jurisdiction, requests for Letters of Confirmation (LOC) under the 
General Authorization (GA) for scientific research that may result in 
only Level B harassment, applications for commercial/educational 
photography permits, applications for import of marine mammals for 
public display and collection from the wild, and applications for 
permits for scientific research or enhancement on shortnose sturgeon, 
smalltooth sawfish, white abalone, and six species of sea turtles. As 
part of processing permit applications, Permits Division staff prepare 
any analyses required under NEPA and draft analyses of effects for 
consultations under Section 7 of the ESA. The staff also spend 
considerable time communicating with permit holders, issuing additional 
amendments and authorizations under the permits, reviewing and 
analyzing permit annual reports, maintaining permit-related information 
on the website, and conducting general education and outreach (as time 
and funding allow). In addition to duties directly related to 
processing permits, staff must also respond to controlled 
correspondences and requests for information under FOIA, including a 
large number of requests for information maintained in NOAA Fisheries' 
inventory of marine mammals held at public display facilities.
    The Permits Division currently receives about 80 applications per 
year for research and enhancement permits or permit modifications and 
amendments, and 10 requests per year for LOCs under the GA, in addition 
to more than 60 requests per year for various other permits and 
authorizations under the MMPA and ESA. In the past eight months, 
Permits Division staff have prepared about 40 NEPA documents related to 
issuance of research and enhancement permits. Having additional 
resources to dedicate to the complex NEPA and ESA analyses, which we 
have requested in the President's budget, would facilitate the more 
routine aspects of processing permit applications and authorizations 
and allow more complex applications to be issued in a more timely 
manner. In addition, more programmatic NEPA and ESA analyses could be 
completed as appropriate to streamline analyses for some complex 
applications resulting in issuance in a more timely manner.
    NOAA Fisheries has two full-time employees and one full-time 
contractor currently completing incidental take authorizations. Two of 
these positions were recently filled; they have already helped 
significantly with expediting review of applications for incidental 
take authorizations. On average, program staff analyze and process 17 
incidental harassment authorizations and two major Letters of 
Authorization per year. We have one FTE and one contractor providing 
technical advice on ocean noise. NOAA Fisheries has six ESA section 7 
biologists to conduct analysis on these authorizations, among the 60+ 
consultations they carry out each year for a range of Federal 
activities, some extremely complex.

    Question 23. Are most of the applications processed within the 
statutory time frame?
    Answer. Most requests for Letters of Confirmation under the General 
Authorization (for Level B harassment-related research on non-ESA 
listed marine mammals) are processed within the 30-days allowed. The 
majority of other applications for MMPA scientific research, public 
display or commercial/educational photography permits are also 
processed within 90 days, including a mandatory 30-day public comment 
period. The MMPA allows 30 days from the close of the public comment 
period for issuance or denial of a scientific research permit under 
MMPA. However, when ESA-listed species are involved, Section 7 of the 
ESA allows 135 days for consultation and preparation of a Biological 
Opinion. These joint MMPA/ESA permit applications also require more 
extensive NEPA analysis.
    The same can be said of processing incidental take authorizations 
under the MMPA. Where analyses under ESA Section 7 and NEPA are 
required, it is difficult to meet the statutory deadline of 120 days 
for incidental harassment authorizations.

    Question 24. How will requirements under NEPA be integrated with 
those of MMPA, and will the interaction between these two statutes lead 
to any difficulties in getting authorization requests processed in a 
timely manner?
    Answer. NEPA requirements are already integrated into the MMPA 
permit process in regulations and NOAA Administrative Orders (NAO) 
applicable to permit applications and issuance. For most applications, 
this ``interaction'' of statutes does not result in any delays in 
getting a permit. Pursuant to NAO 216-6, most permits for scientific 
research on marine mammals are categorically excluded from the 
requirement to prepare an EA or EIS. However, when the research will 
adversely affect an endangered species, when the potential risks or 
environmental impacts are uncertain or unknown, where there may be 
cumulative significant impacts, or where the impacts on the environment 
are controversial, preparation of an EA or EIS is required. Depending 
on the complexity of the analyses and the nature of any controversy, as 
well as staff workload and office resources, preparation of an EA/EIS 
can substantially extend the processing time for a research permit 
application.

    Question 25. Could general authorizations be one approach? How 
would that work?
    Answer. General Authorizations are in effect for scientific 
research and they work well. We wish to reiterate that there is not a 
problem with the MMPA scientific research permitting process but rather 
with applications that require more extensive analysis under the ESA 
and NEPA.
Enforcement
    Question 26. Is it accurate that you have not been enforcing the 
MMPA provisions against intentional interactions with marine mammals by 
individuals? Why not?
    Answer. NOAA has successfully enforced against violations for human 
activities involving feeding or that cause observable injuries to 
marine mammals in the wild. For example, NOAA has been relatively 
successful in prosecuting violations involving observable injury of 
marine mammals, such as a recent case involving the shooting of a sea 
lion with an arrow. In the past, we have successfully prosecuted a 
commercial tour operator found to be feeding wild dolphins.
    Activities such as swimming with, touching or petting marine 
mammals in the wild have been more difficult to regulate and prosecute. 
Deleting ``pursuit, torment, or annoyance'' and adding the proposed new 
second tier of the definition of ``Level B harassment'' makes explicit 
that activities directed at individual or groups of marine mammals are 
considered harassment if they are likely to disturb the animals. This 
will greatly improve the ability to enforce against harassment 
violations by individuals or organizations who approach marine mammals 
too closely or engage in inappropriate activities such a s swimming 
with, chasing or touching the animals.

    Question 27. Please give examples of activities, such as the ``swim 
with the wild dolphin'' programs, of which NMFS is aware, and why the 
MMPA ban on takes has not been enforced against such programs.
    Answer. As previously explained, NOAA has been relatively 
successful in prosecuting violations involving observable injury of 
marine mammals, such as a recent case involving the shooting of a sea 
lion with an arrow. Activities such as swimming with marine mammals in 
the wild have been more difficult to regulate and prosecute because of 
the impediment to establish that acts were ones of pursuit, torment or 
annoyance. Also important, swim with the dolphin programs may not 
result in immediately observable disruption of natural behavioral 
patterns, but are likely to cause disruption of natural behavioral 
patterns that are associated with cumulative long-term harm to marine 
mammals, which is difficult to prove in specific cases. In addition to 
concentrated education and outreach efforts focused on these 
activities, the agency is working to determine if additional regulatory 
and enforcement measures will more effectively address the issue.
    Over the past several years, swimming with wild dolphins has 
significantly increased in the Southeast U.S. and Hawaii, and is 
beginning to expand to other U.S. coastal areas and to other species of 
marine mammals. In the Southeast, swimming with bottlenose dolphins 
appears to be facilitated by illegal feeding activities, which have 
been prohibited since 1991 when NOAA Fisheries amended the definition 
of ``take'' under 50 CFR 216.3 to include feeding or attempting to feed 
a marine mammal (56 FR 11693, March, 20, 1991). In Hawaii, where 
feeding of wild dolphins has not been a concern, swim with activities 
primarily target Hawaiian spinner dolphins and take advantage of the 
dolphins' use of shallow coves and bays during the day to rest and care 
for their young. In the Southwest, tour operators are offering 
opportunities to dive and swim with gray whales, pilot whales, Pacific 
white-sided dolphins, harbor seals, and sea lions.
    Additional activities of concern include the use of motorized or 
non-motorized vessels (e.g., outboard or inboard boats, kayaks, canoes, 
underwater scooters, or other types of water craft) to interact with 
marine mammals in the wild by: (1) tightly circling or driving through 
groups of dolphins in order to elicit bow-riding behavior (via large 
vessels or personal watercraft); (2) using non-motorized vessels to 
quietly approach (sometimes resulting in a startle response when the 
vessel is not detected by the animal until it is too close); (3) 
petting gray whales in California; and (4) using underwater 
``scooters'' to closely approach, pursue and interact with the animals. 
Public interactions with marine mammals on land have also increased in 
recent years. Elephant seals, harbor seals and sea lions in the 
Southwest, and monk seals in Hawaii, are closely approached by people 
for the purpose of observing them, posing with them for pictures, 
touching, petting, poking, throwing objects at them to elicit a 
reaction, or simply strolling among them. These activities can be 
harmful to animals and to humans--a number of injuries and even deaths 
have resulted from individuals trying to swim and interact with wild 
marine mammals.
    NOAA Fisheries has been regulating the impacts of human activities 
on marine mammals to the extent that the MMPA provides us with 
regulatory authority, within the constraints of the current definition 
of harassment and as allowed by the availability of resources. As these 
activities have grown exponentially worldwide, more research has been 
focused on impacts of these human activities, and the agency is now 
able to begin synthesizing these research findings into management 
decisions.

    Question 28. How will the Administration's proposed change to the 
harassment definition fix this concern? If this change is made, should 
we expect to see NMFS and FWS increase their enforcement activities?
    Answer. The proposed new definition of ``Level B harassment,'' 
which is consistent with the previous Administration's position, makes 
explicit that activities directed at individual or groups of marine 
mammals in the wild that are likely to disturb them are considered 
harassment. This will greatly improve the ability to regulate and 
enforce against individuals or organizations who approach marine 
mammals too closely and engage in inappropriate activities that are 
likely to disturb the animals such as swimming with, chasing or 
touching the animals. The proposed harassment definition will also 
improve the ability to regulate and enforce against activities that may 
not overtly lead to abandonment or significant alteration of the marine 
mammal's natural behavioral pattern at the time, but that are likely to 
cause disruption of natural behavioral patterns associated with 
cumulative, long-term harm to marine mammals.
    NOAA Fisheries intends to implement the new language in several 
ways. First, the agency will continue its long-term outreach efforts to 
educate the public and commercial operators about safe and responsible 
marine mammal viewing practices by continuing to produce outreach 
materials (e.g., brochures, posters, signs, public service 
announcements, etc.), holding community workshops, and continuing its 
partnership with the Watchable Wildlife program. Second, the agency 
intends to develop regulations as follow-up to the Advance Notice of 
Proposed Rulemaking published in January 2002 (67 FR 4379) that would 
further clarify specific activities directed at marine mammals that can 
cause harassment of the animals. Third, the NOAA Office of General 
Counsel intends to work with its Office for Law Enforcement and NOAA 
Fisheries to develop strategies for enforcement.

    Question 29. To be able to use the ``dolphin-safe'' label for tuna 
caught in the ETP pursuant to 16 USC 1385(d)(2), a tuna product 
exported to the U.S. either must be accompanied by a written 
certification that the tuna was not caught by setting on dolphins, or 
the vessel must be of a size and type that the Secretary of Commerce 
has determined ``is not capable of deploying its purse seine nets on or 
to encircle dolphins.'' NOAA has defined this size vessel to be less 
than 400 short tons, yet vessels in this category have been observed 
setting on dolphins. Does NOAA plan to revise its regulations defining 
what size vessel is capable of setting on dolphins? Is NOAA allowing 
tuna caught by vessels less than 400 short tons to be labeled ``dolphin 
safe,'' despite these observations?
    Answer. Currently, several actions are being taken, both within 
NOAA Fisheries and the international community, to address the issue of 
purse seine vessels less than 400 short tons (st) that intentionally 
set on dolphins in the eastern tropical Pacific (ETP). First, we note 
that vessels of 400 st or less carrying capacity are divided into five 
classes--Classes 1-3 contain vessels of 200 st or less carrying 
capacity and Classes 4-5 contain vessels between 201 and 400 st 
carrying capacity. Only Class 4-5 vessels contain sufficient horsepower 
to chase and set on dolphins. Some of these vessels have been observed 
deploying purse seines on dolphins in the ETP.
    NOAA Fisheries and the Parties to the Agreement on the 
International Dolphin Conservation Program (AIDCP) are aware of the 
problem of Class 4-5 vessels setting on dolphins in the ETP. At the 
33rd Meeting of the Parties to the AIDCP in June 2003, a plan to 
enhance the success of the AIDCP, originally proposed by the U.S. in 
February 2003, was discussed and approved. Among other things, the plan 
tasks the Parties with further investigating the equipment and other 
indicators of observed cases of Class 4-5 vessels setting on dolphins 
in the ETP; exploring methods to ensure compliance within those two 
size classes; and evaluating the effectiveness of the requirement that 
observers be placed on Class 4-5 vessels that have been alleged to set 
on dolphins. Currently, any Class 4-5 vessels observed setting on 
dolphins are required to carry an observer on all subsequent trips. At 
upcoming Meetings of the Parties, the United States delegation plans to 
follow-up on this issue and actively pursue the formal adoption of a 
resolution requiring all vessels capable of setting on dolphins to 
carry observers.
    Regulations pertaining to tuna tracking and imports currently only 
address purse seine vessels in excess of 400 st carrying capacity (50 
CFR 216.91-216.93). Therefore, under current regulations, a small 
amount of tuna caught by Class 4-5 vessels that intentionally set on 
dolphins in the ETP, could potentially be imported to the U.S. 
Therefore, the NOAA Fisheries Tuna Tracking and Verification Program is 
carefully monitoring and checking the trip records for these vessels 
when they appear on import documents. Thus far, import shipments of 
canned tuna originating from small vessels fishing in the ETP have been 
minimal. Nevertheless, NOAA Fisheries is disturbed by this caveat in 
the dolphin-safe labeling standard, which is why we are spearheading 
the effort to extend observer coverage to all vessels capable of 
setting on dolphins.
    We also note the importance of accurately characterizing the 
potential impact of tuna imports originating from Class 4-5 vessels 
that intentionally set purse seines on dolphins in the ETP. Specific 
tunas, types of processing, and nations from which tuna is being 
imported are indicative of fish caught by purse seining in the ETP. For 
example, imports in this category would include frozen yellowfin, and 
not fresh yellowfin (caught by pole-and-line fishing) or other tuna 
(caught by methods other than purse seining). By querying the NOAA 
Fisheries, Foreign Trade Information database (http://www.st.nmfs.gov/
st1/trade/trade_cmprsn_by_product.html) one can determine the relative 
impact of imports of yellowfin tuna caught in ETP purse seine 
operations as a percentage of overall yellowfin tuna imported to the 
U.S.
    In 2002, a total of 24,949,546 lbs of yellowfin tuna were imported 
to the U.S. Of that total, a maximum of 42,197 lbs of yellowfin tuna 
(0.169 percent) could have come from the ETP purse seine fishery. It is 
possible that a portion of the 42,197 lbs could have originated from 
Class 4-5 vessels, of which some smaller percentage of yellowfin tuna 
might have come from Class 4-5 vessels setting on dolphins. Results 
from available 2003 data are similar to those for 2002. A total of 
250,219,896 lbs canned tuna was imported to the U.S. in 2002, of which 
44,482,354 lbs (18 percent) could have originated from purse seine 
operations in the ETP. (Available data for 2003 are similar to those 
for 2002.) However, NOAA Fisheries views these figures as extremely 
conservative relative to the question of tuna imports originating from 
small boats setting on dolphins in the ETP. First, the bulk 
(approximately 96 percent) of these canned tuna imports come from Costa 
Rican and Ecuadorian canneries, where imports are closely scrutinized. 
The remainder of the canned tuna imports come from Mexico. If there 
were a problem, it would comprise some fraction of this small 
percentage of canned tuna imports.
    NOAA Fisheries is concerned about the fraction of tuna imports that 
may have been caught by Class 4-5 vessels setting on dolphins in the 
ETP, and the misinformation this small number of imports would provide 
consumers. It also notes that available data indicate that the 
magnitude of this problem is very small relative to all tuna imports. 
Still, the agency is currently addressing this issue and dedicated to 
rectifying it through international channels, as well as through its 
domestic regulations.

    Question 30. Section 3003(b) of Public Law 102-587, enacted in 
1992, directed the Secretary of Commerce, by November 1994, to develop 
and implement objective criteria to determine at what point a marine 
mammal undergoing rehabilitation is returnable to the wild. Would you 
update the Committee on the status of those criteria and the agency's 
plans for finalizing them?
    Answer. A draft NOAA Technical Memorandum entitled, ``Release of 
Stranded Marine Mammals to the Wild: Background, Preparation, and 
Release Criteria'' was posted in the Federal Register for public 
comment in 1997. This document was produced by NOAA Fisheries and the 
Fish and Wildlife Service (FWS) based on comments generated in a 
workshop sponsored by the Marine Mammal Commission (St. Aubin etal. 
1996). Based on the public comments received, NOAA Fisheries convened 
two working groups in 2001 to specifically address issues raised by the 
1997 review. NOAA Fisheries has taken the recommendations from the 
working groups and from the FWS and generated a draft final document, 
which NOAA Fisheries plans to provide for public review within the next 
few months.
Co-Management
    Question 31. Under the Administration's proposed bill, Alaska 
Natives would be included in the management process of depleted stocks, 
and in making depletion findings. What is the rationale for bringing 
Alaska Natives into the management of depleted marine mammal stocks 
when this has been a Federal agency role in the past?
    Answer. The rationale behind bringing Alaskan natives into the 
process is 1) to try to prevent depletion proactively, 2) to bring the 
expertise and input of Alaskan natives into the process of managing 
depleted stocks, and 3) to provide a more cooperative, enforceable 
process of regulating subsistence harvest for both non-depleted and 
depleted stocks that would be in addition to and more timely than the 
current, cumbersome formal rulemaking process for regulating 
subsistence harvest, which is only applicable if a stock is already 
depleted.

    Question 32. Do you think the current methods of consultation and 
opportunity for notice and hearing by interested members of the public 
are not adequate for the Alaska Natives to contribute to the process?
    Answer. The current methods of consultation and opportunity for 
notice and hearing by interested members of the public are adequate for 
the Alaska Natives to contribute to the process. However, the current 
process for regulation of subsistence harvest is not effective in that 
it does not provide an enforceable mechanism to regulate subsistence 
harvest prior to depletion and it only provides a cumbersome, formal 
rulemaking process for regulation of subsistence harvest after a stock 
is designated as depleted.

    Question 33. If this public consultation process is not adequate, 
why aren't other interested parties being included in the management 
consultation?
    Answer. See the answer to the previous question. In addition, the 
Administration bill's proposal for harvest management agreements would 
provide opportunity for input by others who, although they are not 
directly affected by the process, are still interested parties or 
individuals.
Animal and Plant Health Inspection Service (APHIS)
    Question 34. Currently, wild marine mammals fall under the 
authority of NMFS and FWS in the wild. However, the primary authority 
gets passed to APHIS if the marine mammals are placed in public 
displays. Does NMFS play any role in the oversight of marine mammals in 
public displays?
    Answer. The 1994 Amendments to the MMPA removed NOAA Fisheries' 
authority to oversee captive care and maintenance of marine mammals 
under the MMPA and shifted that responsibility to APHIS under the 
Animal Welfare Act. However, NOAA Fisheries has authority under the 
MMPA for those species of marine mammals under its jurisdiction to 
issue permits for importation and capture from the wild and to ensure 
that marine mammals held for public display purposes are held in 
accordance with the three public display criteria outlined in Section 
104 (c)(2)(A). The three public display criteria require holders of 
marine mammals to (1) offer a program of education or conservation 
based on professionally recognized standards, (2) be registered or hold 
a license issued under the Animal Welfare Act (7 U.S.C. 2131 et seq.), 
(3) maintain facilities that are open to the public on a regularly 
scheduled basis and to which access is not limited other than by 
charging an admission fee. In addition, Section 104 (c)(10) requires 
NOAA Fisheries to maintain an inventory of all marine mammals under its 
jurisdiction held in captivity.

    Question 35. Does APHIS ever consult with NOAA on issues regarding 
the care and maintenance of captive marine mammals? Would that be 
useful?
    Answer. Jurisdiction over marine mammal care and maintenance issues 
was transferred to APHIS under the Animal Welfare Act in 1994. NOAA 
Fisheries has no authority to oversee care and/or handling of marine 
mammals held for public display under the MMPA. NOAA Fisheries is 
available to offer any assistance requested by APHIS, but NOAA 
Fisheries' role would be limited under the MMPA .

    Question 36. Concerns have been raised over the years with respect 
to the capabilities of APHIS to ensure adequate care for marine mammals 
on display (e.g., with respect to Suarez Circus and the dolphin 
``petting pools''). What additional role might NMFS play to ensure the 
well being of these animals?
    Answer. Under the MMPA, NOAA Fisheries currently does not have 
authority over the captive care and maintenance of marine mammals held 
for public display. Nevertheless, NOAA Fisheries maintains interest in 
the humane care and handling of marine mammals. However, without 
specific regulatory authority defined in the statute, it is difficult 
to identify what role(s) NOAA Fisheries could play to ensure the well 
being of these animals given its limited authority under the MMPA.
Fishery Interactions
    Question 37. NMFS can require vessels in Category I and II 
fisheries to take observers on board. Funding to provide adequate 
observer coverage has been found to be lacking. NMFS reportedly has not 
actively enforced this requirement when captains refuse to take an 
observer on board. Do you consider the observer program necessary to 
help the Take Reduction Plans achieve their goals? If so, how should 
observer capabilities be improved?
    Answer. Yes, observer programs are essential to NOAA Fisheries in 
terms of obtaining high-quality information for estimates of serious 
injuries and mortality of marine mammals incidental to fishing 
operations. Observer programs currently provide the most representative 
assessment of serious injury and mortality rates in fisheries. In 
addition, take reduction teams and plans require good observer 
information to develop sensible regulations.
    Increased observer coverage in Category I and II fisheries is 
needed in general to improve data on marine mammal bycatch. Currently, 
approximately 30 percent of Category I and II commercial fisheries have 
some level of observer coverage (<1-100 percent). In addition to more 
extensive coverage across fisheries, NOAA Fisheries needs higher levels 
of coverage in certain fisheries to improve precision of marine mammal 
bycatch estimates. In an effort to increase observer coverage in the 
future, NOAA included a request for $2.8 million in the President's 
FY'04 budget to support efforts to reduce bycatch, which includes 
additional observer coverage in U.S. fisheries.

    Question 38. Is NMFS actively enforcing the requirement for 
observers to be taken on vessels in Category I and II fisheries? If 
not, why not, and what can be done to improve this situation?
    Answer. For the most part, NOAA Fisheries has not had difficulty 
when we have requested participants in Category I or II fisheries to 
take observers onboard their vessels. In a few cases in some regions, 
however, we have had problems with fishermen refusing to take observers 
to monitor interactions with marine mammals.
    Nonetheless, we have recently re-doubled our efforts to engage 
enforcement officers in these matters and to more widely educate 
fishermen about the requirements in Section 118 for Category I and II 
vessels to take observers onboard when requested and the potential 
consequences of non-compliance with these requirements. Specifically, 
we have developed and distributed outreach and education materials 
about observer program requirements, stationed a staffed kiosk at trade 
and industry shows to talk to fishing industry members directly about 
MMPA observer requirements, and assigned permanent staff to specific 
geographic areas of responsibility to provide outreach to fishermen. We 
also have a presence at fishery management council meetings and have 
made presentations to them about MMPA observer program requirements and 
its goals.
    Enhancing enforcement of the MMPA is an area the agency is working 
to improve. For example, the administration's MMPA reauthorization bill 
contains several provisions to enhance enforcement of the Act, 
including increasing civil penalties and clarifying that individuals 
who interfere with investigations or submit false information are in 
violation of the MMPA.

    Question 39. Many problems have been cited with the effectiveness 
of the Take Reduction Team process. Given the limited number of Take 
Reduction Teams established, Take Reduction Plans developed and 
implemented, difficulties in meeting statutory and regulatory deadlines 
and other concerns, is the TRT process an adequate tool to reduce the 
interactions of marine mammals and fisheries?
    Answer. 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 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.
    Since the first Take Reduction Team was enacted, we have seen 
significant success and have worked to overcome problems. Namely, the 
Pacific Offshore Cetacean Take Reduction Plan (POCTRP) has successfully 
reduced incidental mortality and serious injury 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 percent 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. While we have experienced management 
challenges related to preventing entanglement of large whales in the 
Atlantic in certain gear types, we are currently working closely with 
the Atlantic Large Whale Take Reduction Team to develop viable 
alternatives to address these challenges and feel that Section 118 
provides an effective framework in which to meet these challenges. The 
Bottlenose Dolphin Take Reduction Team is the newest TRP. We think the 
process, given the range of issues and stakeholders, came out well and 
the plan when implemented, will work.
    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's 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.

    Question 40. How accurate is our information with respect to 
numbers of marine mammals ``taken'' as bycatch in commercial fisheries?
    Answer. Our information is generally good enough to identify in 
which fisheries incidental mortality and serious injury of marine 
mammals is a problem. In that sense, the information on bycatch is 
accurate. Where we have problems is the specifics of the interaction to 
help develop targeted regulations. Nonetheless, precision of 
information varies from fishery to fishery depending on a variety of 
factors, including, but not limited to, the size of the fishery, the 
nature and incidence of marine mammal bycatch in the fishery, and the 
level of observer coverage in the fishery. There are few instances in 
which marine mammal bycatch estimates are associated with high 
precision; in most fisheries, the lack of observer coverage and the 
rarity of the interactions, characteristic of fishery interactions with 
protected species, makes it difficult to achieve a high degree of 
precision in marine mammal bycatch estimates.

    Question 41. How effective is the current linkage between TRTs and 
the Regional Fishery Management Councils with respect to bycatch 
reduction efforts?
    Answer. The agency has taken steps to improve the linkage between 
TRTs and regional fishery management councils given the overlap in 
their functions and objectives. For instance, both the Atlantic Large 
Whale Take Reduction Team and Bottlenose Dolphin Take Reduction Team 
include representatives from Federal fishery management councils as 
well as state and interstate fishery commissions. These TRT members are 
routinely asked to track and present information about fishery 
management decisions so that the TRT is aware of the effects of 
management decisions on efforts to reduce incidental mortality and 
serious injury of marine mammals under a particular TRP.
    Additionally, the Protected Resources Division of NOAA Fisheries' 
Southeast Regional Office recently filled the new position of liaison 
with the Caribbean, South Atlantic, and Gulf of Mexico fishery 
management council meetings. We are aware of the need for close 
collaboration between TRTs and fishery management entities and are 
taking steps to improve the connection between them.

    Question 42. The Atlantic Large Whale TRT appears to be struggling 
in achieving their objectives. Could you comment on why they are having 
such problems and how these might be overcome or avoided in the future?
    Answer. The Atlantic Large Whale Take Reduction Plan (ALWTRP) was 
developed pursuant to section 118 of the MMPA to reduce serious injury 
and mortality of three endangered species of whales (north Atlantic 
right, humpback, and fin). As estimated in the most recent Stock 
Assessment Report (2002), PBR for humpback and fin whales is estimated 
at 1.3 and 4.7, respectively, while PBR for right whales is zero. 
Therefore, the Atlantic Large Whale TRT is tasked with reducing 
incidental mortality and serious injury of the critically endangered 
north Atlantic right whale stock to zero, and the plan cannot satisfy 
its objectives if even one right whale is killed or seriously injured 
by becoming entangled in commercial fishing gear.
    This is a complicated problem with a broad range of stakeholders. 
One of the problems is being able to clearly link gear to entanglements 
to specifically identify appropriate management measures to reduce 
take. During 2002, 8 right whales were documented as entangled in 
fishing gear. Of these 8, only 1 was subsequently linked to a specific 
fishery or gear type. Thus far in 2003, 4 right whales have been 
documented as entangled; gear modifications and methods for marking 
gear are being explored. The ALWTRP relies on a combination of fishing 
gear modifications and time/area closures to reduce risk of 
entanglement in commercial fishing gear. However, without knowing 
exactly which specific fishery or gear type is causing entanglements, 
the TRT must strive to reduce risk from all the fisheries regulated 
under the plan. Finding an appropriate effective way to mark gear is 
needed.
    In light of these entanglements, NOAA Fisheries convened a TRT 
meeting in April 2003 to obtain feedback on modifications needed to 
improve the plan. One of the outcomes from the meeting was the 
establishment of a gear marking subgroup that will develop a plan to 
assist in determining which fisheries and, more importantly, which 
components of fishing gear, are entangling whales. The TRT and NOAA 
Fisheries is striving to achieve its goals by continuing to modify 
commercial fishing gear as new information becomes available, directing 
funds toward additional gear research, expanding gear modifications and 
time/area closures, and continuing to include and regulate under the 
plan additional fisheries that may be interacting with these three 
stocks of whales. A limiting factor is the lag time between 
implementing new regulations and knowing whether those regulations have 
been effective. NOAA Fisheries is presently working on a proposed rule 
and draft environmental impact statement to modify the ALWTRP. NOAA 
Fisheries plans to arrange for the TRT to meet again in February 2004 
to review new information and further discuss proposed modifications to 
the plan.

    Question 43. The Administration's bill proposes to let the 
Secretary only develop take reduction plans for the strategic stocks 
that interact with Category I and II fisheries. NMFS would no longer be 
required to develop plans for stocks that are listed under the 
Endangered Species Act but do not have a high fishery-related 
mortality.
    It is understandable that the agency has to focus their limited 
resources. However, is it necessary or advisable to address limited 
resources in this way, instead of placing such stocks at a lower 
priority for plan development? Isn't this particularly an issue as new 
fisheries are developing, and our knowledge of marine mammals and 
fishery interactions increases?
    Answer. Stocks that are listed as either endangered or threatened 
under the Endangered Species Act are automatically considered 
``strategic'' under the MMPA. For many of these stocks, endangered or 
threatened status has little or nothing to do with interactions with 
fisheries, but rather, other historical or non-fishery-related threats. 
Therefore, convening TRTs and developing TRPs for these stocks does not 
always constitute the best use of resources or the best approach to 
recovering these stocks. We do have the ability to prioritize convening 
TRTs and developing TRPs, and we do. Nonetheless, the Administration 
bill's section 402(c) provides a reasonable process to determine that a 
TRT/TRP process is not just a lower priority, but, it is unnecessary 
because fishery-related mortality and serious injury is having a 
negligible impact on a strategic marine mammal stock.
    The language proposed in Section 402(c) of the Administration bill 
merely provides NOAA Fisheries with some flexibility in dealing with 
strategic stocks where fishery mortality/serious injury is not an 
issue. Nonetheless, having this flexibility hinges on being able to 
determine that fishery-related mortality and serious injury is having a 
negligible impact on such stock(s). Therefore, as the question 
suggests, in the event that information shows new or even old fisheries 
are beginning to result in incidental mortality or serious injury of a 
strategic stock at a level that NOAA Fisheries determines is more than 
negligible, the agency would be subject to the requirement to convene a 
TRT and develop a TRP.

    Question 44. Section 402(a) of the Administration bill is intended 
to clarify that it is a violation of the MMPA to engage in a Category I 
or Category II fishery without having registered. Would you explain why 
such a clarification is needed? That is, is it not already clear that 
section 118(c)(3)(C)(i) establishes such a prohibition by stating--``An 
owner of a vessel engaged in a fishery listed under paragraph (1)(A)(i) 
or (ii) who . . . fails to obtain from the Secretary an authorization 
for such vessel under this section . . . shall be deemed to have 
violated this title . . .''?
    Answer. These amendments were meant to streamline Sec. 118 
provisions detailing requirements of Category I and II fisheries. 
Section 402(a) would amend section 118(c)(3)(A) of the Act to clarify 
that it is a violation to engage in a Category I or II fishery without 
having registered under paragraph (2) of that subsection. Although such 
a prohibition seemingly exists under current section 118(c)(3)(C), the 
proposed amendment would eliminate any ambiguity regarding this 
important aspect of the incidental taking regime. NOAA Fisheries has 
been informed that there are those who interpret this provision to mean 
that if they do not interact with mammals then they do not need to 
register. Further, the requirement that owners of registered vessels 
carry an observer if requested to do so by the Secretary would be 
amended to clarify that this requirement applies to all participants in 
Category I and II fisheries. The proposed amendment would also place 
all of the prohibitions currently in subsection (c) into a single 
subparagraph to eliminate the possible confusion caused by having them 
set forth in three separate subparagraphs.
Recreational Fisheries
    Question 45. The Administration bill proposes to make the MMPA's 
commercial fisheries' requirements applicable to certain recreational 
fisheries as well. What is the problem you are trying to fix with these 
proposed changes? Are there specific fisheries or categories of fishers 
that are the target of this proposal?
    Answer. The Administration bill proposes these changes because 
certain non-commercial fisheries, including recreational and personal 
use fisheries, are known to incidentally take marine mammals. Of 
particular concern are situations where non-commercial fishermen use 
the same type of gear as commercial fishermen and deploy it in a 
similar manner such that it results in interactions with marine 
mammals. Some examples include crab pots, gillnets, trawls and seines 
in the Southeast and Gulf; personal use set gillnets, crab pots and 
trollers in Alaska; recreational shoreline casting in Hawaii; and 
Atlantic highly migratory recreational fishing. Currently, individuals 
in these non-commercial fisheries who take marine mammals are in 
violation of the take prohibitions of the MMPA. We would provide a take 
exemption to certain non-commercial fisheries consistent with that for 
commercial fisheries. The MMPA currently does not authorize NOAA 
Fisheries to actively monitor marine mammal bycatch in non-commercial 
fisheries or address it via the TRT or TRP development process. 
Amending the MMPA to include non-commercial fishing activities that 
result in frequent or occasional marine mammal bycatch would enable 
NOAA Fisheries to address all important sources of mortality and 
serious injury incidental to fisheries and rectify an inequitable 
provision of the MMPA, which, in some cases, requires NOAA Fisheries to 
address marine mammal bycatch in the commercial fishing sector while 
ignoring the same problem in the non-commercial fishing sector. This 
inequity undermines NOAA Fisheries' ability to work collaboratively 
with the commercial fishing industry. Additionally, it results in 
management solutions that do not fully address the problem.

    Question 46. Reportedly, there are 2.2 million anglers who fish in 
salt water, on an average of 10 times a year. How can these proposed 
changes be implemented when there are so many fishers?
    Answer. NOAA Fisheries acknowledges the large number of 
recreational anglers that fish in coastal and marine waters. This is 
precisely why the proposed amendments to Section 118 contained in the 
administration bill are focused on ``listed fisheries,'' and do not 
specifically mention non-commercial or recreational fisheries in the 
proposed statutory language. This is also why the agency proposed to 
retain the requirement for listing only commercial fisheries under 
Category III. This way, when the agency identifies a non-commercial 
fishery that results in frequent or occasional incidental mortality and 
serious injury of marine mammals, we would first list the fishery as 
Category I or II before we would incorporate them under a TRP or into a 
TRT. The agency does not anticipate the need to address marine mammal 
bycatch across the board in non-commercial fisheries, only in limited 
cases. This language would give us the flexibility to address marine 
mammal bycatch from all the problem sources, but is only expected to be 
applied to recreational fisheries in limited circumstances.

    Question 47. Are there not more narrowly focused solutions that 
could target select groups of recreational fishers rather than making 
such broad changes?
    Answer. There may be other approaches that would allow NOAA 
Fisheries to work with non-commercial fisheries that result in frequent 
or occasional incidental mortality and serious injury of marine 
mammals, but the proposal in the Administration bill would provide for 
a narrowly focused solution within the framework of section 118 and the 
processes that are used to address similar problems with commercial 
fisheries.
                                 ______
                                 
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                            Dr. Rebecca Lent
    Question 1. Regarding the definition of ``harassment,'' it appears 
to me the Administration is abandoning the precautionary approach 
embedded in the MMPA. The Administration has set the bar pretty high, 
and its definition will allow unregulated activities with the potential 
to harm marine mammals. Why didn't you take the National Research 
Council's recommendation for a definition of harassment?
    Answer. The Administration used the NRC recommendations as a 
starting point for revising the current harassment definition to 
clarify that the harassment definition should focus on those activities 
that result in biologically significant, harmful effects on marine 
mammals. The administration's bill achieves this goal. Certain 
additional agency concerns affected some of the specific language 
choices in the administration's proposed amendments to the definition.
    Specifically, the definition of harassment proposed by the 
administration would:

  (1)  Make the definition more enforceable by eliminating the need to 
        prove first that activities involve ``pursuit, torment, or 
        annoyance,'' terms that are currently undefined in the MMPA, 
        before they can qualify as Level A or B harassment;

  (2)  Make explicit that those activities directed at marine mammals 
        that are likely to disturb the animals, such as closely 
        approaching, swimming with, touching or feeding marine mammals 
        in the wild, are considered harassment; and,

  (3)  Clarify that Level B harassment generally means those acts that 
        are likely to have biologically significant, harmful effects on 
        marine mammals, rather than those that result in de minimus 
        effects, which is an interpretation that some people have 
        advocated and that could unnecessarily constrain the agency's 
        resources and overburden the regulated community.

    The Administration's definition of harassment differs from the NRC 
definition in three ways:

   The Administration's definition includes Level A harassment 
        (not addressed by the NRC) and differs from the current 
        definition in the MMPA solely by adding the term ``significant 
        potential.''

   The Administration's definition changes the Level B 
        threshold from ``potential to disturb'' to ``likely to 
        disturb'' which provides a more appropriate delimitation 
        concerning what activities should be covered under this part of 
        the harassment definition. The NRC definition perpetuates an 
        overly broad standard of Level B harassment, inasmuch as it 
        would include even a very remote possibility that disturbance 
        might occur.

   The NRC recommended the phrase ``meaningful disruption of 
        biologically significant activities.'' While the Administration 
        definition differs, it captures the same concept of clarifying 
        that Level B harassment means those acts that exceed a de 
        minimus threshold. The NRC phrase may be too constraining if 
        the term ``biologically'' is interpreted too narrowly. For 
        either case, regulation or guidance could provide a clearer 
        definition of terms.

    While there are differences between the two definitions, the intent 
of the changes is similar--to clarify that Level B harassment means 
those acts that are likely to result in biologically significant, 
harmful effects on marine mammals rather than those that result in de 
minimus effects. NOAA Fisheries does not believe the precautionary 
principles of the MMPA are undermined by this proposed definition or 
that the definition sets the bar too high.

    Question 2. I am concerned about the inconsistencies in 
implementation of MMPA permitting requirements for marine mammal 
``takings.'' In an op-ed by a National Research Council scientist, 
Kenneth Brink, from Woods Hole Oceanographic Institution, NOAA's marine 
mammal protection policies were described as ``wildly inconsistent.'' 
Will the Administration's proposed language address those 
inconsistencies, and if so, how?
    Answer. The statement made by Dr. Brink was that ``existing 
policies regarding marine mammals and sound in the ocean are well-
intentioned, but they are wildly inconsistent.'' However, previously, 
Dr. Brink notes, ``[research] permits are hard to obtain and 
researchers are subject to a lengthy review process. But when 
commercial operators, or even other scientists, actually run ships 
producing exactly the same sounds in the same location, they do not 
need research permits.'' Dr. Brink's statement indicates that he is 
unaware of the incidental harassment authorization program under 
section 101(a)(5) of the MMPA wherein those individuals who indirectly 
harass marine mammals also must obtain authorization, for example, for 
oceanographic research or commercial resource extraction.
    Therefore, NOAA Fisheries does not see an inconsistency in the 
application of the MMPA or agency policy. NOAA Fisheries is currently 
drafting acoustic criteria for ensuring consistency for all activities, 
including scientific research that is directed toward marine mammals 
and maritime activities that might incidentally harass marine mammals 
while in the process of conducting research, commerce, or defense.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John F. Kerry to 
                             Marshall Jones

Harassment Definition
    Question 1. Three of the witnesses appearing today raise concerns 
with the Administration's proposal to only require an incidental take 
authorization for harassment under the MMPA if the activity can be 
shown to lead to ``abandonment'' or to ``significantly alter'' a 
natural behavior. Given our lack of knowledge about the likely impacts 
of various activities on marine mammals, won't it be impossible to know 
in some cases at the time an activity is proposed whether such activity 
would ``cause disruption of natural behavioral patterns,'' such as 
migration, ``to a point where such behavioral patterns are abandoned or 
significantly altered''?
    Answer. At the outset, it should be noted that a large part of the 
Administration's proposed definition of ``harassment,'' as applicable 
to military readiness activities, was enacted as part of the Defense 
Authorization Bill for Fiscal Year 2004 that was signed by President 
Bush and became Public Law No. 108-136 on November 24, 2003. We also 
continue to support a full reauthorization of the MMPA through passage 
of the Administration's proposal.
    With this in mind, it is true that, while U.S. Fish and Wildlife 
Service (Service) continues to improve its ability to identify 
activities that could result in a significant negative response versus 
those that may have insignificant effects on marine mammals, there will 
continue to be instances where we cannot be certain of potential 
impacts. The Service believes the definition contained in Public Law 
No. 108-136 provides enough guidance to address military readiness 
activities where there is uncertainty regarding the effects of those 
activities, and note that further direction may be requested from the 
agencies on whether harassment may occur and whether an incidental take 
authorization would be recommended. This should help the implementing 
agencies focus on activities that may have biologically significant 
negative impacts.

    Question 1a. Do you foresee any situations in which the use of the 
term ``abandonment'' could raise Level B harassment to impacts that are 
the equivalent of non-harassment lethal takes?
    Answer. Activities that cause an animal to abandon an important 
behavioral pattern (either temporarily or permanently) could be 
considered harassment (e.g., causing a female not to nurse or care for 
her young). If the activity were such that abandonment of the behavior 
resulted in death, the Service would consider that a ``take'' by 
killing under the MMPA. However, we recognize that the MMPA definition 
of ``take'' includes both kill and harass; harassment is considered 
``take,'' regardless of whether the harassment is Level A or Level B.

    Question 1b. Isn't it the case that many activities that have the 
potential for serious impacts on marine mammals simply go unregulated?
    Answer. It is possible that such activities occur. The Service 
makes every effort to work with Federal agencies, industry and the 
public to identify and regulate those activities that harass individual 
marine mammals and marine mammal stocks.

    Question 1c. The House passed a DOD authorization bill without the 
third prong of the Administration's proposed definition, aimed at 
activities ``directed at'' marine mammals. Do you have any concerns 
with dropping this part of the definition, and if so, why?
    Answer. As noted in the answer to the first part of this question, 
the Defense Authorization Bill for Fiscal Year 2004, Public Law No. 
108-136, makes much of the Administration's original proposed 
definition applicable to military readiness activities, and the 
Department supports this definition. However, as we work toward a full 
reauthorization of the MMPA, we recommend that the Committee include 
the language aimed at activities that are directed toward specific 
marine mammals. The cumulative effects of repeated interactions between 
humans and marine mammals could result in negative impacts to an 
individual, group, or stock of marine mammals. Such activities should 
be regulated through appropriate permitting terms and conditions. This 
language will help enhance enforcement and education efforts by making 
it clear that activities directed at individuals or groups of marine 
mammals may be considered harassment without requiring the Service to 
demonstrate that the resulting disturbance of the animals was 
biologically significant.
DOD Provisions: Deletion of ``Small numbers,'' ``Specified Geographical 
        Area''
    Question 2. Could you explain how the ``specified geographical 
area'' standard is currently applied in the context of the Fish and 
Wildlife Service?
    Answer. The Service has promulgated regulations authorizing the 
incidental taking of polar bears and Pacific walrus for oil and gas 
activities conducted in the Beaufort Sea and adjacent coast along the 
north slope of Alaska. The geographic area is specifically described to 
overlap the existing and projected area of oil and gas activities and 
the range of the Beaufort Sea polar bear population. Pacific walrus are 
not common in this area but do occur and are, therefore, included in 
the rule. The ``specified geographical area'' standard is used to 
define the boundaries within which the effects of the ``specified 
activities'' are analyzed to determine whether any taking that could 
result from those activities will be within the negligible impact 
level.

Scientific Permitting Issues--There is a lot of discussion concerning 
        the need to fix the permitting process.
    Question 3. Is the process at fault or do these cases highlight the 
need for a higher level of awareness from those seeking and issuing the 
permits?
    Answer. The Service believes that the scientific research 
permitting process, though potentially rigorous, sets appropriate 
conservation standards while recognizing the need for research that may 
negatively affect marine mammals. However, we think that the process 
would benefit from better outreach and communication with the regulated 
public. We are working to address this issue, and discuss some of our 
efforts in our responses to subsequent questions.

    Question 3a. What aspects of the permitting process are being or 
could be changed to improve this situation?
    Answer. The Service is in the process of reviewing all of its 
permitting activities to determine how well they serve the public and 
provide for the conservation of the resources in question. We have 
sought public comment 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 and which can also be 
found at http://permits.fws.gov) 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 the National 
Marine Fisheries Service (NOAA Fisheries) to consolidate review of 
joint applications and enable the agencies to issue a single permit in 
situations where proposed research activities include marine mammal 
species under both agencies' jurisdiction. In addition, the Service is 
reviewing and updating permit application forms to ensure a clearer 
information request from the public. We believe this will decrease the 
number of incomplete applications we receive.
    The Service makes available to the public, via our website at 
http://international.fws.gov/permits/marinemammals.html, downloadable 
versions of permit applications, fact sheets, and a list of frequently 
asked questions. One of the improvements of the permitting process that 
we are currently investigating is the on-line submission of permit 
applications and the acceptance of credit cards for application fee 
payments. In addition, we are developing better outreach materials for 
the public by updating and expanding our existing fact sheets on marine 
mammals to better address specific activities such as scientific 
research.

    Question 3b. How many FTEs does your agency have for processing 
authorization requests under the MMPA?
    Answer. The Service does not assign FTEs exclusively to the 
processing of scientific permit applications for MMPA species. Instead, 
it relies on program staff with knowledge of various scientific and 
administrative disciplines for technical review and processing of 
applications. The Service estimates that it has 10 staff persons who 
each spend a small portion of their time on MMPA scientific research 
permits in addition to their other responsibilities.

    Question 3c. Are most of the applications processed within the 
statutory time frame?
    Answer. The Service makes every effort to process applications 
received within the statutory time frame. However, as described below, 
most of these applications are complex and include a substantial 
consultative process. Given these factors, we estimate that 65 to 70 
percent of the final determinations on a permit application extend 
beyond the statutory time frame (30 days after the close of the public 
comment period).
    Permit applications for scientific research undergo a four-stage 
review process. Following initial submittal, an application is reviewed 
for completeness and, if necessary, the researcher is contacted to 
provide additional information. As required under the Act, we transmit 
the complete application to the Marine Mammal Commission (MMC) for its 
review and concurrently publish a notice of receipt of application in 
the Federal Register for public review and comment.
    The Service consults with its appropriate Regional Offices for 
review and comment, and, when proposed research activities involve live 
animals, the Service consults with the Animal and Plant Health 
Inspection Service (APHIS) of the U.S. Department of Agriculture to 
ensure that any involved facility is registered for scientific research 
under the Animal Welfare Act (AWA). After the close of the 30-day 
public comment period, the researcher may be contacted to provide 
additional information to address recommendations by the MMC or other 
commenters.
    The Service reviews all permit requests for compliance with the 
National Environmental Policy Act (NEPA), and must consider whether the 
issuance of a permit affects non-targeted species listed under the 
Endangered Species Act (ESA). Also, for research targeting southern sea 
otters and manatees, both ESA-listed species, the Service must also 
review the permit for compliance with the requirements of the ESA; 
these assessments -often add to the processing time frame. Finally, 
after consideration of all the information, the Service makes a 
decision to issue or deny the permit.

    Question 3d. How will requirements under NEPA be integrated with 
those of MMPA, and will the interaction between these two statutes lead 
to any difficulties in getting authorization requests processed in a 
timely manner?
    Answer. As mentioned in our previous response, to the extent 
possible, all consultation and review requirements are addressed 
concurrently during the processing of an application for a scientific 
research permit. In certain instances, the preparation of an 
environmental assessment or impact statement under NEPA may lengthen 
the process.

    Question 3e. Could general authorizations be one approach? How 
would that work?
    Answer. Any proposed research activities that may result in death 
or serious injury are probably better served through the existing 
permitting process. However, general authorizations could possibly be 
developed for: (1) certain generic categories of research activities; 
(2) species-specific research; or (3) non-intrusive research involving 
captive animals. Under such a mechanism, the applicant should still be 
required to provide information that shows that the proposed activities 
would further a bona fide scientific purpose. Similarly, regulations 
implementing such authorizations should provide an opportunity for the 
public to review and comment on such overarching activities and their 
anticipated effects as well as address any possible take occurring in 
the context of obtaining scientific information beneficial to the 
conservation of the species.
Enforcement
    Question 4. Has the FWS been enforcing the MMPA provisions against 
intentional interactions with marine mammals by individuals? If not, 
why not?
    Answer. The Service Office of Law Enforcement upholds the MMPA and 
enforces its prohibitions on the hunting, killing, capture, or 
harassment of marine mammals. Service special agents investigate 
individuals and organizations that violate this law. Many marine mammal 
species, however, live in geographically remote areas that are 
relatively inaccessible, making it difficult to apprehend violators in 
the act of lethal take or harassment. Even when such violations are 
reported and investigated after the fact, officers may be unable to 
obtain sufficient evidence to support MMPA charges.
    The Service, however, works diligently to safeguard marine mammal 
species. In the Southeast, for example, the Office of Law Enforcement 
protects manatees by addressing both ``intentional'' take (e.g., 
tourists who harass the animals by attempting to feed, handle, or touch 
them) and ``unintentional'' take (e.g., boat collisions).
    As previously noted, changes to the definition of harassment 
contained in the Administration's proposed MMPA reauthorization, which 
add clarity and make explicit that activities that are directed at 
marine mammals in the wild that are likely to disturb them constitute 
harassment, will help enhance the Service's ability to enforce these 
provisions.

    Question 4a. Are there examples of activities that constitute 
``incidental takes'' that are not being regulated under the MMPA?
    Answer. The Office of Law Enforcement attempts to investigate all 
known instances of MMPA violations, including ``incidental takes.'' 
Although only those who ``knowingly'' violate this law are subject to 
criminal penalties, charges can be brought under civil procedures 
against those involved in incidental or unintentional take.
    However, incidental take may not always be readily apparent. For 
example, we are also concerned about the potential for incidental takes 
associated with activities related to air taxi operations and air 
transport companies operating either point to point flights or charter 
flights in the vicinity of marine mammal high use areas. We are working 
with air taxi operators and air transport companies and the Federal 
Aviation Administration to identify these areas and appropriate routes 
and flight altitudes to minimize potential disturbance. We have 
distributed this information directly to companies and pilots and have 
also worked with the FAA to have this information included on flight 
navigation charts.
Co-Management
    Question 5. Under the Administration's proposed bill, Alaska 
Natives would be included in the management process of depleted stocks, 
and in making depletion findings. What is the rationale for bringing 
Alaska Natives into the management of depleted marine mammal stocks 
when this has been a Federal agency role in the past?
    Answer. The model for the Administration's proposed bill is the 
existing agreement between NOAA Fisheries and the Alaska Eskimo Whaling 
Commission that governs the taking of bowhead whales. While this 
agreement is conducted under a separate authority, it is a successful 
harvest management agreement for an endangered species. As demonstrated 
by that agreement, subsistence harvest of a depleted stock can be 
cooperatively managed in an effective manner.
    By including the Alaska Native community in the management process, 
cooperative harvest management agreements would provide an additional 
management tool that could play an important role in effective 
conservation and management of depleted species or stocks without the 
requirement for a formal rule-making. Under current law, the only way 
to manage subsistence harvest of depleted stocks or species is through 
regulation. Regulations for subsistence harvest can only be developed 
for depleted species (including those that are depleted because they 
are listed under the ESA) if the managing agency finds that subsistence 
harvest is detrimental to population recovery. These conditions have 
only been met for one stock (beluga whales in Cook Inlet). The 
Administration's proposal would provide a mechanism to manage harvest 
of depleted stocks without having to meet the existing restrictive 
criteria.
    For all species, regardless of status, the ability to manage 
subsistence harvest through cooperative harvest management agreements 
provides an additional management tool that can be useful whether or 
not harvest levels are related to population status. In addition, the 
community supports ``management prior to depletion'' through regulation 
of subsistence harvest in order to prevent depletion. It is committed 
to and engaged in conservation measures for depleted and non-depleted 
stocks. The Administration's harvest management proposal is designed to 
enhance the achievement of the conservation goals of the MMPA by 
providing a way for the community to more effectively focus its 
commitment and expertise.

    Question 5a. Do you think the current methods of consultation and 
opportunity for notice and hearing by interested members of the public 
are not adequate for the Alaska Natives to contribute to the process?
    Answer. Our experience through the implementation of Section 119 
shows that the Alaska Native community is an interested and 
knowledgeable partner in gathering information about subsistence 
harvested species. For many on the coast, their lifestyle depends upon 
the continued availability of these species, which is recognized in 
Section 101(b)--an exemption specifically to support subsistence take, 
providing it is done in a non-wasteful manner. Explicit inclusion of 
the community in the management process recognizes their unique status 
and capability to contribute information and insights potentially 
outside of the traditional western approach to science and management.

    Question 5b. If this public consultation process is not adequate, 
why aren't other interested parties being included in the management 
consultation?
    Answer. The Alaska Native community has a unique role due to the 
subsistence exemption under section 101(b) and has the potential to 
contribute significant conservation actions through support of 
regulation of subsistence harvest. As the potential management actions 
relate to subsistence harvest and a limitation of that harvest, it is 
appropriate to limit the consultation to subsistence hunters and their 
representatives who are directly affected by such proposals. However, 
once a management approach has been developed and a management plan 
drafted, our proposed process appropriately includes an opportunity for 
public review and comment.
Animal and Plant Health Inspection Service (APHIS)
    Question 6. Currently, wild marine mammals fall under the authority 
of NMFS and FWS in the wild. However, the primary authority gets passed 
to APHIS if the marine mammals are placed in public displays. Does FWS 
play any role in the oversight of marine mammals in public displays?
    Answer. The Service does play a role in the oversight of marine 
mammals in public displays. Under the authority of Sections 107(a) and 
112(c) of the MMPA, the Service entered into an agreement with APHIS, 
as well as NOAA Fisheries, to facilitate and promote the consistent, 
effective and cooperative implementation of all standards governing the 
humane care, handling, treatment, and transportation of marine mammals, 
both pursuant to their take or import, and during their captivity. 
Additionally, under the authority of Section 104(c)(1) of the MMPA, the 
Service issues permits for the take or import of marine mammals for 
public display purposes. Such public display permits include conditions 
on the care and humane maintenance of the animals. Finally, while APHIS 
has primary responsibility for ensuring that public display facilities 
maintain marine mammals consistent with the requirements of the AWA, 
Service regulations under 50 CFR 13 Subpart D require permit holders to 
allow for Service inspection of records, facilities, etc. Thus, the 
Service does have an active role in the oversight of publicly displayed 
marine mammals.

    Question 6a. Does APHIS ever consult with FWS on issues regarding 
the care and maintenance of captive marine mammals? Would that be 
useful?
    Answer. APHIS and the Service frequently consult on issues 
regarding the care and maintenance of captive marine mammals. The 
Service also meets with APHIS, MMC, NOAA Fisheries, and Department of 
State representatives on a regular basis to ensure broad-spectrum 
oversight of captive-held marine mammals. Finally, the Service and 
APHIS consult on an ad hoc basis whenever queries or concerns arise 
regarding a specific facility's maintenance of publicly displayed 
marine mammals. These types of consultations are an essential part of 
the Service's oversight of marine mammals in public displays.

    Question 6b. Concerns have been raised over the years with respect 
to the capabilities of APHIS to ensure adequate care for marine mammals 
on display (e.g., with respect to Suarez Circus and the dolphin 
``petting pools''). What additional role might FWS play to ensure the 
well being of these animals?
    Answer. The Service believes that the veterinarians at APHIS have 
the expertise necessary to oversee marine mammals held in captivity. As 
stated in our responses above, the Service currently plays an active 
role in ensuring the healthful maintenance of publicly displayed marine 
mammals. Therefore, the Service believes an additional role is not 
necessary at this time to ensure the adequate care of these animals.
    With regard to the Suarez Circus, mentioned in the question above, 
the Service determined that the circus was not maintaining marine 
mammals, i.e. polar bears, consistent with the requirements of the Act 
or consistent with the conditions of the Service issued permit and, 
therefore, took appropriate actions.
Sea Otters
    Question 7. Southern sea otters (found in California), listed as 
threatened under the ESA, were steadily increasing until their 
population began to decline in 1995; record numbers of dead otters have 
washed ashore in California this year.
    Answer. It is correct that the southern sea otter population began 
to decline in 1995; however, from 2000 to 2003, southern sea otter 
population counts were stable or increasing with a record high of 2,505 
sea otters counted in spring 2003. Beginning in April 2003, we noted a 
dramatic increase in the number of sea otter carcasses washed ashore. 
We are currently investigating the possible causes of mortality.

    Question 7a. Do you agree with Ms. Young's written testimony that 
proposed changes could result in the authorization of incidental take 
of these otters?
    Answer. No, we do not agree with Ms. Young's testimony that 
proposed changes could result in the authorization of incidental take 
of southern sea otters. There appears to be some confusion with respect 
to Section 118(a)(4) of the MMPA and Public Law 99-625. Section 
118(a)(4) excludes southern (California) sea otters from provisions of 
section 118 of the MMPA with respect to authorization of incidental 
take in commercial fisheries, and the Administration's proposal would 
not alter the provision. In addition, Section 101(a)(5)(E)(vi) makes 
clear that incidental take of southern sea otters during commercial 
fishing cannot be authorized under the MMPA.

    Question 7b. Was that the intention of these proposed changes?
    Answer. The Administration's proposal is narrowly tailored to cover 
only the information and monitoring provisions of Section 118. The 
intent of our proposed changes is to allow for collection of 
information on southern sea otter/fishery interactions. Regardless of 
current prohibitions on incidental take of sea otters in fisheries, 
there continues to be a concern that interactions between sea otters 
and fisheries are occurring. Without data on the nature and magnitude 
of these interactions it is difficult for state and Federal agencies to 
manage fisheries in a manner that is consistent with sea otter 
conservation and recovery as well as equitable for the fishing 
community.
    Question 7c. Do the proposed changes still make sense, given the 
recent decline of this species?
    Answer. The proposed changes clearly benefit recovery of the 
southern sea otter. Incidental take in fisheries continues to be a 
concern. With better information, we can work together with fisheries 
interests to eliminate the potential for negative interactions with sea 
otters.
Action Deadlines
    Question 8. The 1994 MMPA Amendments established several specific 
deadlines for agency action. For example, section 104(c)(3)(C) directed 
the Secretary, within 120 days of enactment, to issue a general 
authorization and implementing regulations allowing bona fide 
scientific research involving taking by Level B harassment. Also, 
section 113(c) directed the Secretary of the Interior to review the 
effectiveness of U.S. implementation of the Polar Bear Agreement and 
submit a report of its findings to Congress by April 1995. Neither of 
these actions has been completed. What are the agency's plans for 
carrying out these statutory mandates?
    Answer. Although the Service is aware of the General Authorization 
for scientific research under Level B harassment (Section 104(c) (3)(C) 
of the Act, we have as yet not developed the implementing regulations. 
As we discuss below, considerable time has been spent by staff 
addressing issues related to developing our polar bear trophy import 
regulations. Our next priority is to develop the regulations on the 
general authorization for scientific research under Level B harassment. 
We anticipate that the scientific research permitting process will be 
less cumbersome once regulations are developed to implement the Level B 
Harassment provision.
    Review of the effectiveness of the U.S. implementation of the Polar 
Bear Agreement is still in progress. A major component of the U.S. 
implementation is the development of an agreement with the Russian 
Federation on the conservation of the Alaska-Chukotka polar bear 
population. That agreement was formally signed in October of 2000, and 
the Senate recently gave its advice and consent for the ratification of 
the agreement. Domestic legislation necessary to give effect to the 
agreement is being developed by the Administration.

    Question 8a. Other actions to implement the 1994 amendments also 
have yet to be taken. Please describe the status of the following 
actions and the agency's plans to complete them:

   the issuance of deterrence guidelines under section 
        101(a)(4);

    Answer. For species under the jurisdiction of the Service and 
managed under MMPA, we believe that the small amount of interactions do 
not necessitate the development of deterrence guidelines at this time. 
Lacking specific issues or types of activities that could be used to 
define and develop appropriate regulations, we have chosen to use other 
mechanisms to address specific issues that have arisen and meet overall 
conservation goals of minimizing disturbance.

   revision of small-take regulations to reflect the addition 
        of section 101(a)(5)(E);

    Answer. The Service understands that NOAA Fisheries is developing 
uniform, national standards, and a process for issuing authorizations 
under 101(a)(5)(E) of the MMPA for takes of endangered and threatened 
marine mammals in commercial fisheries. The Service will engage with 
NOAA Fisheries and make sure the needs of species under our 
jurisdiction are addressed. Although we believe the incidental take of 
southern sea otters may be occurring in the California fisheries, these 
mammals are not subject to section 101(a)(5)(E).

   revision of regulations to reflect the numerous changes to 
        the Act's permit provisions (section 104); and

    Answer. The Service has not yet fully implemented all of the 1994 
Amendments to Section 104 of the Act. Based on congressional and public 
interest, the Service has used available resources to develop our polar 
bear trophy import regulations. Considerable time has been spent by 
staff in gathering and analyzing data, working with the Canadian 
Wildlife Service, and resolving a number of complex technical issues 
concerning the amendments, other sections of the MMPA, and the 1973 
International Agreement on the Conservation of Polar Bears. We are 
currently working on a proposed rulemaking to review new information 
received from Canada to approve an additional polar bear population, 
the Gulf of Boothia, for the importation of sport hunted trophies. As 
noted above, our next priority is to develop the regulations on the 
general authorization for scientific research under Level B harassment. 
Once those regulations are finalized, we will assess priorities to 
revise and update current regulations for the processing of other types 
of permit applications.

   the multi-party review of the Polar Bear Agreement called 
        for under section 113(b).

    Answer. Preparation of the multi-party review is in progress. 
Initial preparation involved formal contact with the other signatory 
nations. Initial report preparation began with the receipt of 
information from the other parties and will be completed with limited 
information provided by the Russian Federation.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                       VADM Charles W. Moore, Jr.

    Question 1. Ocean Noise, Harassment, and Permit Issues--Due to a 
court injunction on the Navy's use of low frequency active sonar, the 
Navy is only allowed to train with this sonar in a very limited area. 
In fact, I understand that the Navy has only been able to operate this 
sonar four times since the court action. What kind of research, if any, 
is the Navy doing on marine mammals in conjunction with its limited 
operation of LFA sonar?
    Answer. Pursuant to the terms of regulation governing the Taking of 
Marine Mammals Incidental to Navy Operations of Surveillance Towed 
Array Low Frequency Active Sonar, set forth in 50 CFR 216.185, the Navy 
is obligated to conduct all monitoring and research required under the 
Letter of Authorization. The current Letter of Authorization requires 
that Navy research must include one of the following: (1) the 
behavioral reactions of cetaceans to sound levels that were not tested 
during the research phase, specifically between 155 dB and 180 dB, (2) 
the responses of sperm and beaked whales to LF sonar signals, (3) the 
habitat preferences of beaked whales, (4) passive acoustic monitoring 
for the possible silencing of calls of large whales using bottom-
mounted hydrophones, and (5) long term, cumulative effects on a stock 
of marine mammals that is expected to be regularly exposed to LFA and 
monitor it for population changes throughout the five-year period. 
Currently the Navy is funding research studies on the bio-acoustic 
impacts of low frequency sounds upon marine mammals.

    Question 2. If the Administration's proposed definitions of 
harassment were enacted, what other naval activities, besides LFA use, 
would and would not qualify as Level A and Level B harassment? Please 
provide specific examples.
    Answer. The current statutory definition of ``harassment'' focuses 
on the ``potential'' to injure [Level A harassment] or the 
``potential'' to disturb [Level B harassment] marine mammals. This 
sweeping statutory language has caused regulatory agencies to opine in 
the past that Level B harassment ``is presumed to occur when marine 
mammals react to the generated sounds or visual clues''--in other 
words, whenever a marine mammal notices and reacts to an activity, no 
matter how transient or benign the reaction. Thus, any naval activity 
to which marine mammals react potentially can be viewed as Level B 
``harassment.'' The strictness of this interpretation caused the 
National Research Council, in its 2000 report, entitled Marine Mammals 
and Low Frequency Sound, to state, ``If [this] 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.'' The NRC then went on 
to say, ``It does not make sense to regulate minor changes in behavior 
having no adverse impact; rather, regulations must focus on significant 
disruptions of behaviors critical to survival and reproduction, which 
is the clear intent of the definition of harassment in the MMPA.''
    The change in the definition of Level B ``harassment' that DOD is 
proposing would do exactly as the NRC suggests. It would exclude 
transient, biologically insignificant effects from regulation while 
retaining regulation of biologically significant effects. Not only 
death and injury would be regulated, but also the abandonment or 
significant alteration of behaviors critical to survival and 
reproduction. Thus, naval activities such as ship shock testing, the 
use of SURTASS LFA, and certain military research activities associated 
with probable Level B harassment (under the proposed modification) 
would still require small take authorizations, while routine movement 
of ships, over-flight of missiles across beaches occupied by pinnipeds, 
and certain military testing activities would not.
    As for Level A harassment, DOD already exercises extraordinary care 
in its worldwide activities, resulting in fewer than 10 deaths or 
injuries annually (as opposed to 4800 deaths annually from the 
commercial fishing industry). These deaths and injuries are associated 
with accidental ship strikes of marine mammals. The proposed 
modification of the definition of Level A harassment would not 
substantially alter the list of naval activities subject to regulation.

    Question 3. As a government branch that frequently seeks MMPA 
permits, does the Navy recommend other changes to the overall NOAA 
process for issuing permits?
    Answer. The Administrations' MMPA proposal was carefully 
coordinated with NOAA, DOD, and other relevant agencies. With respect 
to the change in the definition of ``harassment,'' the proposal adopts 
verbatim a reform proposal developed during the prior Administration by 
NOAA, U.S. Fish and Wildlife Service, Marine Mammal Commission, and the 
Navy and applies it to military readiness activities. Additionally, the 
ruling on the Preliminary Injunction in the SURTASS LFA litigation 
revealed other structural deficiencies in application of the MMPA to 
military readiness activities that are addressed in the 
Administration's MMPA proposal. Finally, a national defense exemption 
provision was added to bring the MMPA in line with other environmental 
laws, which contain similar provisions. The main focus of the 
Administration's proposal seeks narrow, targeted modifications to the 
MMPA and its permitting processes. The recent Summary Judgment ruling 
in the SURTASS LFA litigation is being reviewed to determine if any 
additional changes are required. If changes are required, DOD will 
coordinate these changes with NOAA and other interested agencies.

    Question 4. What does the Navy do that would not qualify as an 
activity that is ``necessary for national defense?'' Couldn't the Navy 
argue or a judge interpret that--in some way or another--everything the 
Navy does is necessary for national defense?
    Answer. The modifications to the MMPA that DOD is seeking, 
including the national defense exemption, are designed to address 
encroachment associated with the application of the MMPA to military 
readiness activities. This term is currently defined by section 315(f), 
Pub. L. No 107-314 as: ``(A) all training and operations of the Armed 
Forces that relate to combat; and (B) the adequate and realistic 
testing of military equipment, vehicles, weapons, and sensors for 
proper operation and suitability for combat use.'' The definition then 
provides a list of administrative, support, and logistical activities 
that are not considered ``military readiness activities.'' Given the 
focus of DOD's proposed MMPA modifications on military readiness 
activities, relation of that term to training, operations, and testing 
associated with combat or combat use, and limitations placed on the 
term regarding administrative, support and logistical activities, DOD 
does not intend to argue that all its activities are ``necessary for 
national defense.''

    Question 5. How can you assure me and the general public that the 
privilege to obtain an exemption would be limited to the cases of only 
the most critical defense needs?
    Answer. Although DOD believes that it is unacceptable as a matter 
of public policy for indispensable readiness activities to require 
invocation of emergency authority--particularly when narrowly tailored 
modifications of the MMPA would enable both essential military 
readiness activities and protection of marine mammals to continue, DOD 
also believes that every environmental statute should have such an 
authority as an insurance policy. DOD further believes that it would 
only be necessary to invoke such an emergency authority as a failsafe 
mechanism.

    Question 6. Why is two years, as the House bill proposes, an 
appropriate maximum length for an exemption?
    Answer. Existing statutory and regulatory exemption authorities are 
usually renewable and limited to between one and three years. A two-
year exemption period, with appropriate extensions would allow for 
sufficient time in which to resolve any underlying statutory or 
regulatory obstacles, monitor impacts to marine mammals and operations 
to determine if mitigation measures are required, and implement 
appropriate mitigation measures or statutory/regulatory mechanisms that 
preserve necessary operational flexibility.
DOD provisions: Impacts from Use of Mid-frequency Sonar
    Question 7. Describe all current Navy activities that have the 
potential to disrupt natural behaviors of a marine mammal or marine 
mammal stocks in the wild--the current statutory standard-for which the 
Navy has not sought an incidental take authorization under the MMPA. 
Which of these does the Navy believe would not constitute harassment 
under the Administration's proposed definition?
    Answer. The current statutory definition of ``harassment'' focuses 
on the ``potential'' to injure [Level A harassment] or the 
``potential'' to disturb [Level B harassment] marine mammals. This 
sweeping statutory language has caused regulatory agencies to opine in 
the past that Level B harassment ``is presumed to occur when marine 
mammals react to the generated sounds or visual clues''--in other 
words, whenever a marine mammal notices and reacts to an activity, no 
matter how transient or benign the reaction. Thus, any naval activity 
to which marine mammals react potentially can be viewed as Level B 
``harassment.'' The strictness of this interpretation caused the 
National Research Council, in its 2000 report, entitled Marine Mammals 
and Low Frequency Sound, to state, ``If [this] 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.'' The NRC then went on 
to say, ``It does not make sense to regulate minor changes in behavior 
having no adverse impact; rather, regulations must focus on significant 
disruptions of behaviors critical to survival and reproduction, which 
is the clear intent of the definition of harassment in the MMPA.''
    The change in the definition of Level B ``harassment'' that DOD is 
proposing would do exactly as the NRC suggests. It would exclude 
transient, biologically insignificant effects from regulation while 
retaining regulation of biologically significant effects. Not only 
death and injury would be regulated, but also the abandonment or 
significant alteration of behaviors critical to survival and 
reproduction. Thus, naval activities such as ship shock testing, the 
use of SURTASS LFA, and certain military research activities associated 
with probable Level B harassment (under the proposed revision) would 
still require small take authorizations, while routine movement of 
ships, over-flight of missiles across beaches occupied by pinnipeds, 
and certain military testing activities would not.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John F. Kerry to 
                       VADM Charles W. Moore, Jr.

    Question 1. Isn't the LFA-sonar situation somewhat of an outlier 
situation in terms of DOD's overall experience with getting incidental 
take authorizations under the MMPA?
    Answer. The permitting challenges associated with LFA highlight 
similar problems we have previously encountered. In DOD's overall 
experience, discrete challenges to obtaining take authorizations 
presented themselves and at times caused delay, added expense, and 
reduction in training fidelity. LFA is significant in that it exposes 
the Marine Mammal Protection Act as possessing not a discrete 
challenge, but a variety of problems stemming from provisions that are 
vague, impractical from a scientific basis, and responsible for 
preventing the Navy from deploying mission-essential platforms 
notwithstanding the completion of a $10-million scientific research 
project conducted by leading independent scientists. The challenges 
posed by the vague definition of harassment and other technical flaws 
in the MMPA will, if left unamended, only lead to increased 
restrictions on training, scientific research, and exploration due to 
the decision handed down in August 2003 by the Federal District Court 
of Northern California that will issue a permanent injunction on 
employment of LFA.

Diesel Submarine Capabilities
    Question 2. In your written testimony, you note that ``new ultra-
quiet diesel-electric submarines armed with deadly torpedoes and cruise 
missiles are proliferating widely.'' You also state that of the 380 
submarines owned by 41 countries, more than 300 are quiet diesel 
submarines. Are these ``fast'' or ``slow'' submarines? Especially for 
the slower submarines, are there other ways to detect them besides use 
of LFA sonar, such as global satellite and other methods of detecting 
them when they must surface?
    Answer. All diesel submarines can travel ``fast.'' Nominal top 
speed underwater is 17 to 20 knots (19.6 to 23 mph). High speeds 
deplete their batteries and make them more vulnerable to passive sonar 
detection. Standard diesel electric practice is to operate at slow 
speeds (three to five knots) or to loiter in the vicinity of the 
projected track of a target or targets. At slow speeds and when 
``hovering'' underwater, the stealth of advanced diesel submarines 
makes them essentially undetectable by passive sonar at the ranges 
required for cueing tactical platforms. The only reliable method of 
long-range detection is low frequency active sonar. LFA provides long-
range active detection, such that a surface ship emitting an active LFA 
signal would be aware of the presence of an enemy submarine before it 
was within the submarine's effective weapon range. As for other methods 
of detecting submarines, the SURTASS LFA Environmental Impact Statement 
provides a detailed analysis of other options for the surveillance and 
detection of submarines. This includes the Sound Surveillance System 
(SOSUS), other passive and active sensors, and non-acoustic alternative 
underwater detection technologies such as radar, laser, magnetic, 
infrared, electronic, electric, optical, hydrodynamics, and biologics. 
Satellite detection of a surfaced submarine would be hit or miss, with 
the odds of a satellite track intersecting the surfaced submarine's 
track being very low.

Foreign Diesel Submarine Numbers
    Question 3. In your written testimony, you note that ``new ultra-
quiet diesel-electric submarines armed with deadly torpedoes and cruise 
missiles are proliferating widely.'' You also state that of the 380 
submarines owned by 41 countries, more than 300 are quiet diesel 
submarines. How many of these 300 quiet submarines are owned by our 
allies? Of the ones that are not, how many of these have been built in 
the last ten years?
    Answer. There are currently more than 150 submarines in the navies 
of potentially unfriendly countries other than Russia. Approximately 45 
of these are modern, non-nuclear boats. About 45 more are on order 
worldwide, principally from German and Russian shipyards. Jane's 
Underwater Warfare Systems 2003-2004 indicates that as of 2002 at least 
60 diesel submarines have been built by our non-allies in the last 10 
years. In the future, it is projected that 75 percent of the submarines 
in the rest of the world will have advanced capabilities, most likely 
including air-independent propulsion that allows 30 to 50 days of 
submerged operations without surfacing or snorkeling. When these units 
are in a defensive mode, that is, not having to travel great distances 
or at high speed, they have a capability nearly equal to that of the 
modern nuclear submarine. Quieting technology is expected to 
proliferate, which will render these submarines difficult to detect, 
even with the latest anti-submarine warfare passive sonar equipment; 
and they may be armed with highly capable weapons.
    In the March 2003 declaration of the Commander of the U.S. Seventh 
Fleet (which includes the Western Pacific, Indian Ocean, and Persian 
Gulf), Vice Admiral Robert F. Willard stated, ``On 3 June 2002, China 
placed a $1.6-billion order with Russia for eight additional Kilo-class 
diesel submarines to augment the four they already have. India is 
negotiating with Russia for two diesel attack submarines to be built in 
Russia (with as many as ten more to be assembled in India later) and up 
to 12 French Scorpene-class submarines in the coming years. India's 
updated Kilo-class submarines have been fitted to launch four subsonic 
Russian anti-ship missiles, and India is working with Russia to develop 
an anti-ship and land-attack missile, a 300-kilometer supersonic weapon 
that India plans on producing by 2004 for use on surface ships and 
Indian-built nuclear-powered submarines. Pakistan launched its first 
indigenously assembled submarine, a French Agosta 90B-class diesel 
boat; and the next unit in this class will have air-independent 
propulsion. In addition, Malaysia, Republic of Korea, Japan, and 
Australia are taking delivery of or have ordered advanced, stealthy 
submarines armed with state-of-the-art missiles and torpedoes capable 
of striking targets at sea or on land far from their homeports. 
Although smaller numbers of Russian ballistic missile and nuclear 
attack submarines remain a priority, they are continuing to maintain 
some of their most modern and highly capable Kilo-class diesel 
submarines. When all these submarines come into service, Asia's key 
waterways could become more crowded--and more dangerous--below the 
surface than they were at the height of the Cold War.''

Use of LFA Sonar
    Question 4. One potential downside of using LFA sonar that some 
experts have raised is whether its use could alert other countries as 
to the location of the submarine sending out the LFA sonar signal. Is 
there any merit to this concern?
    Answer. The SURTASS LFA system is deployed and operated from a 
surface ship, submarines do not have this capability. Although it is 
true that the SURTASS LFA ship cannot remain undetected while operating 
and has no defensive systems, its strengths far outweigh these 
deficiencies. LFA transmits a varying signal designed to maximize 
detection, thereby making countermeasures and evasive actions by threat 
submarines unlikely. The SURTASS LFA sonar system provides a long-range 
detection operating with other naval forces and under the protective 
arm of the combined air, surface, and submarine combatant units. While 
hostile submarines will detect LFA, they will not be able to close and 
neutralize the SURTASS ship without being detected and targeted by 
combatant units.

    Question 5. If the Administration's definition of harassment were 
adopted, would the Navy need to seek an authorization for LFA-sonar?
    Answer. Yes.

    Question 6. Isn't it the case that the use of mid-range sonar by 
the Navy and/or NATO forces has been connected to strandings of beaked 
whales and other species in the Bahamas?
    Answer. A combination of factors acting together, including the 
presence of a strong surface duct, unusual underwater bathymetry, 
intensive active use of multiple sonar units over an extended period of 
time, a constricted channel with limited egress, and the presence of 
beaked whales that appear to be sensitive to the frequencies produced 
by these sonars has been established as the most likely cause of the 
15-16 March 2000 stranding event in the Bahamas. The interim results of 
the investigation into this event are described in the Joint Interim 
Report, Bahamas Marine Mammal Stranding Event of 15-16 March 2000, 
issued by the Navy and National Marine Fisheries Service in December 
2001.
    For additional granularity the following is an excerpt from that 
report:

        ``Based on the way in which the strandings coincided with 
        ongoing naval activity involving tactical mid-range frequency 
        sonar use in terms of both time and geography, the nature of 
        the physiological effects experienced by the dead animals, and 
        the absence of any other acoustic sources, the investigation 
        team concludes that tactical mid-range frequency sonars aboard 
        U.S. Navy ships that were in use during the sonar exercise in 
        question were the most plausible source of this acoustic or 
        impulse trauma. This sound source was active in a complex 
        environment that included the presence of a strong surface 
        duct, unusual underwater bathymetry, intensive active use of 
        multiple sonar units over an extended period of time, a 
        constricted channel with limited egress, and the presence of 
        beaked whales that appear to be sensitive to the frequencies 
        produced by these sonars. The investigation team concludes that 
        the cause of this stranding event was the confluence of the 
        Navy tactical mid-range frequency sonar and the contributory 
        factors noted above acting together. Combinations of factors 
        different from this one may be more or less likely to cause 
        strandings.''

    Question 7. Haven't there been other similar strandings in 
connection with the use of this sonar, for example in the Canary 
Islands?
    Answer. The Canary Islands stranding occurred coincident with a 
naval exercise sponsored and controlled by the Spanish Navy from 16-26 
September 2002. This Spanish invitational exercise involved over 50 
naval assets, and was conducted in the Strait of Gibraltar and Eastern 
Atlantic (in and around the Canary Islands).
    The tactical exercise included the following types of ships: 
aircraft carrier, frigate, amphibious assault, mine warfare, survey, 
and auxiliary, as well as aircraft and submarines from Spain, Turkey, 
Poland, Italy, Greece, Germany, France, United Kingdom, and the United 
States. During this exercise, hull-mounted, mid-frequency sonars were 
activated. In addition, there were similar factors in this stranding to 
those in the Bahamas:

  a.  extended use of numerous hull mounted sonars;

  b.  deep to shallow water bathymetry; and

  c.  the nature of the ship configuration used during the exercise and 
        its possible impact on whale movements.

    Shortly after the stranding both the Assistant Secretary of the 
Navy for Installations and Environment and the Commander in Chief, U.S. 
Naval Forces Europe, offered the assistance of U.S. scientists to 
assist in the examination of the whale carcasses that was not accepted. 
To date, neither the U.S. Navy nor NOAA Fisheries have received the 
final report of the Anathomo-Pathologic Study made by scientists on the 
Canary Islands relating to the cause of the stranding event.

DOD Provisions: Impacts from Use of Mid-range Sonar
    Question 8. With respect to the recent incident in the Haro Strait, 
was similar technology being used?
    Answer. Yes, USS SHOUP's AN/SQS-53C(V)4 Hull Mounted Sonar with 
Kingfisher avoidance was used as an integral component of a Swept 
Channel and Surface Ship Small Avoidance exercise. The object of this 
exercise is to navigate in a confined area, in a condition of 
heightened readiness, coordinate the use of and reporting of sensor 
information, and to detect and avoid other submerged objects. The 
impetus for this training was the damage done to USS PRINCETON (CG 59) 
and two other ships by mines in the Arabian Gulf during Operation 
Desert Storm in 1991. All U.S. Navy ships are required to conduct a 
Swept Channel exercise at least once every three months to maintain 
this basic readiness skill.

DOD Provisions: Impacts from Use of Mid-range Sonar
    Question 9. Did Navy seek an authorization for this activity? Why 
not?
    Answer. Navy did not seek a Letter of Authorization under the MMPA, 
as there was at no time prior to conducting this routine exercise, any 
indication that any statutory threshold would be crossed.

DOD Provisions: Impacts from Use of Mid-range Sonar
    Question 10. What are the findings of the necropsies of the dead 
porpoises found in the area?
    Answer. The necropsies are being carried out under the authority of 
National Oceanic and Atmospheric Administration (NOAA) Fisheries. 
Results are not expected until mid to late October. I cannot overstress 
the importance of waiting for the results of the necropsies before 
drawing any final conclusions regarding the effect, if any, of USS 
SHOUP's use of sonar. The necropsies should help experts better 
determine whether there was any direct causal link between sonar usage 
and the deaths. We support NOAA Fisheries' retention of Dr. Darlene 
Ketten, one of the world's foremost experts in this field of study, to 
oversee these scans and necropsies. Dr. Ketten played a similar key 
role in the inquiry into the Bahamas stranding event to which you refer 
above. However, please note that at least six of these seventeen 
reported strandings occurred prior to USS SHOUP getting underway on May 
5, 2003. Two of the strandings were discovered on May 6, 2003, and the 
remaining five were discovered seven to fifteen days after May 5, 2003. 
Pending release of the necropsy findings, strandings such as these are 
a known and expected annual occurrence in the Puget Sound region as a 
result of known disease pathogen and normal mortality.

DOD Provisions: Impacts from Use of Mid-range Sonar
    Question 11. A Navy report issued on May 13 notes that ``natural 
behavioral patterns were not abandoned or significantly altered.'' Does 
this mean that the Navy does not believe this activity would require an 
authorization under the Administration's proposed new definition of 
harassment, even though similar sonar has been connected to the deaths 
of other marine mammals?
    Answer. Commander, U.S. Pacific Fleet has not yet issued any formal 
report on the May 5, 2003 Haro Strait allegations. The final report of 
the inquiry by Commander, U.S. Pacific Fleet will be released shortly 
after completion of NOAA Fisheries' report on the necropsies of 16 
stranded harbor porpoises. The Pacific Fleet cannot complete its report 
until the necropsy results are known. Navy has been advised that NOAA 
Fisheries should make its findings available mid to late October, 
although the release date could slip into November.
    Prior to May 5, the Navy did not believe that potential 
environmental effects of the SHOUP exercise would require authorization 
under the MMPA. It is the Navy's position that an activity that does 
cause marine mammals to strand would be regulated under the Department 
of Defense's proposed amendment to the MMPA. The outcome of the SHOUP 
inquiry will provide more information on the Navy's determinations for 
authorizations for future exercises. The instance in which sonar was 
implicated in the strandings of marine mammals--the Bahamas incident--
involved a particular type of animal, the beaked whale, and a different 
set of environmental and operational circumstances than that found 
during the SHOUP exercise.

Impacts from Use of Mid-range Sonar
    Question 12. Did the Navy have an authorization from NMFS under 
MMPA for the use of mid-range sonar in the Bahamas? In the Canaries? 
For dropping live ordnance in the Gulf of Maine? If not, why not?
    Answer. The MMPA prohibits the ``taking'' of marine mammals without 
a permit. The Navy did not seek a Letter of Authorization or a ``take'' 
permit for the March 2000 Bahamas training, as there was no indication, 
historic or scientific, prior to the event that there would be any 
takings or adverse affect on marine mammals or any other species; in 
effect, there was no reasonable way to foresee that the statutory 
threshold requiring such an authorization would be crossed.
    Navy implements a number of measures to protect species of concern 
during ordnance training in the Gulf of Maine. We believe such measures 
are sufficiently protective to avoid the ``taking'' of marine mammals 
and, consequently, that a Letter of Authorization under the MMPA is not 
required. Allegations that Navy was responsible for the death of a 
partially decapitated right whale proved to be unfounded when a team of 
scientists from the New England Aquarium, who examined the carcass, 
found no evidence linking Navy training to the death of the right 
whale.
    The Navy did not have an MMPA permit for the Canary Islands 
exercise. The U.S. Navy units participating were doing so as part of a 
multi-national exercise, which was sponsored by, and under the command 
of Spain. To date, neither the U.S. Navy nor NOAA Fisheries have 
received the final report of the Anathomo-Pathologic Study made by 
scientists on the Canary Islands relating to the cause of the stranding 
event.

DOD Provisions: National Security Exemption
    Question 13. In 1998, Congress amended the U.S. Armed Forces Code 
to give the military an opportunity to suspend administrative actions 
pending consultation between the Secretary of Defense and the head of 
the agency involved. How many times has the Secretary of Defense used 
the provisions in Section 2014 for activities that fall under the scope 
of the Navy?
    Answer. Exemption authorities do not work well in addressing those 
degradations in readiness that result from the cumulative, incremental 
effects of many different regulatory requirements and actions over 
time. Therefore, the Secretary of Defense has not used the provisions 
of 10 U.S.C. Sec. 2014 for any activities that fall under the scope of 
the Navy.

    Question 14. Why do you require an exemption for national security 
when you can use the Title 10 Section 2014 exemption?
    Answer. Although existing exemptions are a valuable hedge against 
unexpected future emergencies, they cannot provide the legal basis for 
the Nation's everyday military readiness activities. DOD believes that 
it is unacceptable as a matter of public policy for indispensable 
readiness activities to require repeated invocation of emergency 
authorities--particularly when narrow clarifications of the underlying 
statutory and regulatory schemes would enable both essential readiness 
activities and the protection of the environment to continue. Further, 
unlike other natural resources statutes, such as the Endangered Species 
Act or the Migratory Bird Treaty Act, there is no national security 
exemption in the Marine Mammal Protection Act.

    Question 15. Isn't it correct that the current rules provide a 5-
day period, not as a limit on the length of any exemption granted, but 
rather the time by which an agreement must be worked out between DOD 
and the regulatory agency? And if such an agreement is not worked out, 
then the President can take action to grant an exemption?
    Answer. The provisions of 10 U.S.C. Sec. 2014, which allow a delay 
of at most five days in regulatory actions significantly affecting 
military readiness, is a valuable insurance policy for certain 
circumstances, but allows insufficient time to resolve disputes of any 
complexity. More to the point, 10 U.S.C. Sec. 2014 merely codifies the 
inherent ability of cabinet members to consult with each other and 
appeal to the President. Since it does not address the underlying 
statutes giving rise to the dispute, it does nothing for readiness in 
circumstances where the underlying statute itself--not an agency's 
exercise of discretion--is the source of the readiness problem. 
Further, it does nothing to address private litigation against DOD and 
appropriate regulatory agencies. This is particularly relevant because 
the MMPA relief DOD is seeking was occasioned by private litigants 
seeking to overturn Federal regulatory processes and compel Federal 
regulators to impose crippling restrictions on our readiness 
activities.

    Question 16. If this exemption is not adequate, why alter the 
existing exemption instead of creating a new one?
    Answer. As noted earlier, there currently is no national security 
exemption under the Marine Mammal Protection Act. Therefore, there is 
no exemption to modify. As for possible modifications to 10 U.S.C. 
Sec. 2014, the inherent deficiencies noted above would require major 
modifications of its provisions. Finally, DOD believes it is 
inappropriate to pursue modification of 10 U.S.C. Sec. 2014 when it is 
unacceptable to seek repeated invocation of the provision to address 
instances of the adverse impacts of environmental laws upon military 
readiness activities.

    Question 17. Why didn't DOD feel it necessary to request a national 
security exemption in the 2002 proposal?
    Answer. The national security exemption process, which is an 
addition from last year's proposals regarding MMPA, derives from 
feedback that DOD received from environmental advocates after we 
submitted our proposal. These advocates indicated that existing 
statutory emergency authorities, which would fully exempt DOD from the 
waived statutory requirements however long the exemption lasted, should 
be invoked rather than having DOD seek narrow, targeted changes to 
existing environmental statutes that adversely impact military 
readiness activities. Although DOD continues to believe that 
predicating essential military training, testing, and operations on 
repeated invocations of emergency authority is unacceptable as a matter 
of public policy, we do believe that every environmental statute should 
have such authority as an insurance policy. The comments we received 
last year highlighted the fact that the MMPA does not currently contain 
such emergency authority, so this year's submission does include a 
waiver mechanism. Like the Endangered Species Act, our proposal would 
allow the Secretary of Defense, after conferring with the Secretaries 
of Commerce or Interior, as appropriate, to waive MMPA provisions for 
actions or categories of actions. This provision is not a substitute 
for other clarifications DOD has proposed to the MMPA, but rather a 
failsafe mechanism in the event of emergency.

    Question 18. National defense is not defined in DOD's proposed 
exemption provision. What would it cover? Is it broader than combat 
activities? Than military readiness?
    Answer. The modifications to the MMPA that DOD is seeking, 
including the national defense exemption, are designed to address 
encroachment associated with the application of the MMPA to military 
readiness activities. This term is currently defined by Section 315(f), 
Pub. L. No 107-314 as: ``(A) all training and operations of the Armed 
Forces that relate to combat; and (B) the adequate and realistic 
testing of military equipment, vehicles, weapons, and sensors for 
proper operation and suitability for combat use.'' The definition then 
provides a list of administrative, support, and logistical activities 
that are not considered ``military readiness activities.'' Given the 
focus of DOD's proposed MMPA modifications on military readiness 
activities, relation of that term to training, operations, and testing 
associated with combat or combat use, and limitations placed on the 
term regarding administrative, support, and logistics functions, it is 
DOD's belief that any invocation of the national defense exemption 
would be limited in scope.

    Question 19. Could the exemption be granted in times of peace? When 
there is no declared national security emergency?
    Answer. Military readiness is maintained by thousands of discrete 
testing and training activities at hundreds of locations conducted 
daily. Many of these military readiness activities are being adversely 
affected by environmental provisions, such as the MMPA. Maintaining 
military readiness through the use of emergency exemptions would 
involve issuing and renewing scores or even hundreds of exemptions 
annually. Although a discrete activity (e.g., a particular carrier 
battle group exercise) might only rarely rise to a level critical for 
national security, it is clearly intolerable to allow all activities 
that do not individually rise to that level to be compromised or ended 
by over regulation. Finally, to allow continued, unchecked degradation 
of readiness until an external event like the attack on Pearl Harbor or 
the terrorist attacks of September 11, 2002, causes the exemption to be 
invoked, would mean that our military forces would go into battle 
having received degraded training, with weapons that had received 
degraded testing and evaluation. Although DOD believes that it is 
unacceptable as a matter of public policy for indispensable readiness 
activities to require invocation of emergency authority--particularly 
when narrowly tailored modifications of the MMPA would enable both 
essential military readiness activities and protection of marine 
mammals to continue, and would only invoke such an exemption as a 
failsafe mechanism--DOD believes the exemption could be granted in 
times of peace and when there is no declared national security 
emergency.
                                 ______
                                 
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                       VADM Charles W. Moore, Jr.

    Question 1. At the hearing you testified that the permitting 
requirements under the MMPA have forced the Navy to ``dumb down'' many 
of its exercises. Please provide specific examples of when this has 
occurred, how those instances have adversely impacted military 
readiness, and a pattern to justify amending the MMPA.
    Answer.

  a.  Operational training and deployment of the Navy's Surface Towed 
        Array Sonar System Low Frequency Active (SURTASS LFA) sonar 
        system has been delayed for six years by environmental issues. 
        The sonar is critically needed to protect Sailors and Marines 
        in waters such as those off North Korea, in the Arabian Sea, 
        and in the Taiwan Strait.

    1.  Without this sonar system, diesel submarines operated by North 
            Korea, Iran, and China have a greater ability to approach 
            and launch their weapons at U.S. Navy ships without being 
            detected.

    2.  Even after six years of development and completion of the 
            environmental permitting process and after the Navy 
            invested $10 million on independent scientific research 
            that showed the system could be used with negligible impact 
            on marine mammals, special interest groups sued the Navy to 
            stop training with the system.

    3.  Today, the Navy is under a court order that restricts testing 
            and training with the sonar. As part of that litigation, 
            the court has required Navy to negotiate with the special 
            interest group over where and when the Navy would operate 
            the system.

  b.  During the last six years of conducting research on how to 
        counter mines and detect submarines in shallow water, over 76 
        percent of the tests planned by the Navy's Office of Naval 
        Research have been delayed, scaled back, or cancelled due to 
        environmental rules regulating marine mammals.

    1.  In the last four years, nine of ten tests have been affected 
            and 17 associated projects have been scaled back or 
            eliminated to avoid potential environmental issues.

    2.  Even after the Navy's extensive efforts to comply with 
            environmental laws, special interest groups sued in the 
            fall of 2001 to stop the Navy's shallow water tests. The 
            court decision denied the challenge to the research effort 
            as a whole, but left each individual test open to 
            litigation over compliance with environmental regulations. 
            Since the litigation, only one sea test conducted overseas 
            has been completed and future tests are at risk.

  c.  Navy's efforts to establish permanent, at-sea shallow water 
        training ranges for both the East and West coasts are being 
        delayed by environmental regulations and the potential for 
        litigation, particularly over how to apply the definition of 
        ``harassment'' in the Marine Mammal Protection Act to Navy 
        training.

    1.  As a result, the Navy does not have dedicated at-sea Shallow 
            Water Training Ranges to hone the skills necessary for 
            combat in the Navy's most likely battlefield, the 
            littorals.

    2.  In January 2003, an environmental special interest group sued 
            and stopped Woods Hole Oceanographic Institute from 
            conducting Office of Naval Research sponsored research on a 
            high frequency sonar system designed to detect and thereby 
            prevent harm to marine mammals that could be present on 
            these ranges.

  d.  Common examples of mitigation in Anti-Submarine Warfare fleet 
        training exercises that degrade realism follow.

    1.  The Navy must routinely practice moving ships through straits. 
            For example, to safely transit the Strait of Hormuz 
            requires that ships be ready to defend against mines and 
            submarines, among other threats. Mitigation for marine 
            mammals has resulted in practicing this critical skill in 
            less realistic conditions in deep water to avoid potential 
            harassment. The Navy has been unable to replicate the 
            complex combination of conditions that exist in shallow 
            water and narrow channels that would allow for realistic 
            training for ships, aircraft, and submarines by some other 
            means.

    2.  Mitigation measures often call for aerial and other on-site 
            surveys immediately prior to an exercise to determine the 
            presence of marine mammals, turtles, other protected 
            animals, or masses of seaweed that serve as an indicator 
            that animals might be present in the exercise area. Post-
            exercise surveys are also a common mitigation requirement 
            to ensure animals have not been injured. The requirement 
            for these visual surveys effectively precludes training at 
            night, since the survey requirement can only be met in 
            daylight.

  e.  Ship shock tests are conducted to measure the effectiveness of a 
        vessel and its systems in the event of a nearby, large 
        underwater explosion. A problem resulted when during the 
        SEAWOLF shock test, Navy was required to adopt mitigation 
        requiring Navy aircraft to fly at 500 feet to sight sea 
        turtles. Ironically, due to legal requirements of the MMPA, 
        NOAA Fisheries insisted that mitigation flights flown below 
        1,000 feet themselves required an MMPA permit, because these 
        mitigation flights could disturb marine mammals. In effect, 
        Navy needed a permit to get a permit.

  f.  At the Pt. Mugu Sea Test Range, missiles fired from San Nicolas 
        Island may briefly startle seals and sea lions on the beach. 
        However, none have stampeded. The potential of ``harassment'' 
        required the range to secure a MMPA permit. While awaiting the 
        permit, three ships of the USS CARL VINSON battlegroup were not 
        able to complete necessary anti-ship missile training 
        evolutions and deployed to the Arabian Gulf without the 
        valuable training needed to protect the ship and the 
        battlegroup.

  g.  Navy lays communications and other cables in the oceans for 
        national security reasons. NOAA Fisheries prepared a draft 
        white paper speculating that cable laying could result in 
        marine mammal takes due to elevated noise levels, vessel 
        traffic, and whales becoming entangled in the cables. 
        Entanglement is unlikely, but the need for a permit for noise 
        and vessel traffic could delay projects for months.

  h.  Consideration of environmental factors (such as time of year, 
        predicted locations of animals, and whether the training area 
        includes designated ``critical habitat'') is a routine part of 
        fleet exercise planning. Constant regulatory pressure, the 
        vagueness of the definition of harassment in the Marine Mammal 
        Protection Act, and the threat of litigation by special 
        interest groups that could delay or stop training, conflict 
        with the operational need for the training and could add time 
        away from home for deploying troops.

    Question 2. While you acknowledged in your testimony that the Navy 
has never been denied a permit under the MMPA, you stated that there 
were ``several examples'' of permit applications having been withdrawn 
and exercises cancelled due to the onerous mitigation measures imposed 
on the Navy as a condition of receiving its permit. Please provide the 
committee examples of these onerous mitigation measures; documentation 
of permits being withdrawn and exercises cancelled; and documentation 
linking the two together.
    Answer.

  a.  Common examples of mitigation.

    1.  Anti-Submarine Warfare fleet training exercises. The Navy must 
            routinely practice moving ships through straits. For 
            example, to safely transit the Strait of Hormuz requires 
            that ships be ready to defend against mines and submarines, 
            among other threats. Mitigation for marine mammals has 
            resulted in practicing this critical skill in less 
            realistic conditions in deep water to avoid potential 
            harassment. The Navy has been unable to replicate the 
            complex combination of conditions that exist in shallow 
            water and narrow channels that would allow for realistic 
            training for ships, aircraft, and submarines by some other 
            means.

    2.  Mitigation measures often call for aerial and other on-site 
            surveys immediately prior to an exercise to determine the 
            presence of marine mammals, turtles, other protected 
            animals, or masses of seaweed that serve as an indicator 
            that animals might be present in the exercise area. Post-
            exercise surveys are also a common mitigation requirement 
            to ensure animals have not been injured. The requirement 
            for these visual surveys effectively precludes training at 
            night, since the survey requirement can only be met in 
            daylight. The recent LFA decision handed down by the 
            Federal District Court of Northern California would require 
            Navy to employ aerial and small boat surveys ``close to 
            shore'' off North Korea. Clearly Navy cannot conduct this 
            mitigation without great risk to its sailors. Consequently, 
            essential training in the future may not take place.

    3.  Ship shock tests are conducted to measure the effectiveness of 
            a vessel and its systems in the likely event of a nearby, 
            large underwater explosion. A problem resulted when during 
            the SEAWOLF shock test, Navy was required to adopt 
            mitigation requiring Navy aircraft to fly at 500 feet to 
            sight sea turtles. Ironically, due to legal requirements of 
            the MMPA, NOAA Fisheries insisted that mitigation flights 
            flown below 1000 feet themselves required an MMPA permit 
            because these mitigation flights could disturb marine 
            mammals. In effect, Navy needed a permit to get a permit.

    4.  At the Pt. Mugu Sea Test Range, missiles fired from San Nicolas 
            Island may briefly startle seals and sea lions on the 
            beach. However, none have stampeded. The potential of 
            ``harassment'' required the Range to secure a MMPA permit. 
            While awaiting the permit, three ships of the USS CARL 
            VINSON battlegroup were not able to complete necessary 
            anti-ship missile training evolutions and deployed to the 
            Arabian Gulf without the valuable training needed to 
            protect the ship and the battlegroup.

    5.  Navy lays communications and other cables in the oceans for 
            national security reasons. NOAA Fisheries prepared a draft 
            white paper speculating that cable laying could result in 
            marine mammal takes due to elevated noise levels, vessel 
            traffic, and whales becoming entangled in the cables. 
            Entanglement is unlikely, but the need for a permit for 
            noise and vessel traffic could delay projects for months.

  b.  Permits.

    1.  In 2001 and 2002, the Navy made a total of nine requests for 
            small take authorizations, either in the form of a request 
            for a Letter of Authorization or a request of an Incidental 
            Harassment Authorization. On average, the Navy submits 
            approximately four requests per year for small take 
            authorization under the MMPA. Most requests for small take 
            authorization are associated with potential takes by Level 
            B harassment.

  c.  The Navy MMPA small take authorizations are requested in support 
        of:

    1.  Scientific Research--actions such as tagging and tracking 
            animals in the wild, and testing and training captive 
            animals in the Navy's marine mammal program.

    2.  Systems Test and Evaluation Requirements--ship shock trials of 
            new classes of ships, and development and testing of new 
            sonar equipment and mine countermeasures.

    3.  Rocket or Missile Noise--Navy sought a small take authorization 
            for its missile and rocket launch activities at San Nicolas 
            Island.

    4.  Construction/Demolition Noise--Navy sought a permit for 
            demolition of facilities at Point Mugu Lagoon.

  d.  Based on available public records covering the past nine years, 
        the Navy has never officially been denied a permit under the 
        MMPA. However, announcements of permit applications being 
        denied are very rare. One reason the Navy does not have permits 
        denied is that the Navy does not apply for a small take 
        authorization when the action in question is not expected to 
        result in a ``take'' under the MMPA. Often, this determination 
        is made only after extensive mitigation measures are employed 
        (e.g., lookouts, sonar power reductions, daylight-only, sea 
        state, and other operational restrictions). Also, the long lead 
        time and cost associated with securing a small take 
        authorization often dictate that Navy activities forego short-
        fused testing and training opportunities that would normally be 
        subject to small take authorization requirements.

     For example, in the spring of 2000, an exercise opportunity arose 
        to train with a Dutch submarine, which would be available for 
        only several weeks. The training included testing the U.S. 
        Navy's ability to detect a diesel submarine off the Atlantic 
        seaboard. The Office of Naval Research officially coordinated 
        with NOAA Fisheries to meet legal obligations under MMPA and 
        other environmental laws. Because the window for conducting 
        this testing was less than 45 days due to the limited 
        availability of operational assets, the request for concurrence 
        from NOAA Fisheries was withdrawn and the testing and training 
        cancelled because permits could never have been obtained within 
        the time constraints presented. See attached.

  e.  Some Navy testing events have actually been canceled due to an 
        inability to comply with environmental requirements. During the 
        last six years of research on how to counter mines and detect 
        submarines in shallow water, over 76 percent of the tests 
        planned by the Navy's Office of Naval Research have been 
        delayed, scaled-back, or cancelled due to environmental rules 
        regulating marine mammals. In the last four years, 9 of 10 
        tests have been affected and 17 associated projects have been 
        scaled back or eliminated to avoid potential environmental 
        issues. See for example the attached.

  f.  Additional Comments.

    1.  Although the Navy has not been denied a small take 
            authorization, it cannot be said that the MMPA has not 
            affected testing and training evolutions. Several facets of 
            the MMPA are adversely affecting Navy testing and training 
            evolutions. The current definition of Level B harassment, 
            premised on the ``potential to disturb,'' is a vague and 
            impractical standard. The lack of a scientific basis for 
            level B harassment determinations and the subsequent 
            inability of the regulatory agency to determine appropriate 
            action thresholds hampers operational planning and leaves 
            both the activity and NOAA Fisheries vulnerable to resource 
            and time consuming lawsuits. Further, the vague and 
            imprecise standards unduly lengthen the small take 
            authorization administrative process and introduce 
            unpredictable mitigation requirements.

    2.  Additionally, the requirement that small take authorizations 
            involve no more than ``small numbers'' of takes is 
            problematic. In 2000, the National Research Council 
            supported removal of the phrase ``of small numbers'' 
            because they foresaw that the dual requirement for both 
            ``small numbers'' of takes and the ``negligible impact'' on 
            a species or stock could result in the denial of permits 
            for activities that would insignificantly harass a large 
            number of animals. This predicament has in fact arisen in 
            the context of the SURTASS LFA litigation and, if 
            maintained, may impact other take authorizations in the 
            future.

    3.  Given the increasing demand upon the Navy to meet operational 
            commitments throughout the world and the changing nature of 
            training associated with such commitments, the current MMPA 
            language and resultant permitting process fails to provide 
            the flexibility required to support training and testing 
            needs.

    Question 3. In hindsight, should the Navy have sought a permit 
under the MMPA prior to conducting its recent sonar exercises in Puget 
Sound that is under investigation for the death of several marine 
mammals? Please explain. If the Administration's proposed changes were 
adopted, would the Navy be required to secure a permit for an identical 
activity in the future?
    Answer. At this juncture, there remains no evidence that any marine 
mammals were injured or harassed as a result of USS SHOUP's use of mid-
range sonar on May 5, 2003. Much of the behavior observed was subject 
to varying descriptions and interpretations. Navy has not yet completed 
its formal report on the May 5, 2003, Haro Strait allegations. The 
matter has been under investigation by the Commander, U.S. Pacific 
Fleet, and National Oceanic and Atmospheric Administration (NOAA) 
Fisheries. The Pacific Fleet inquiry has been focused on an extensive 
acoustic analysis of the events of May 5, 2003, employing a rigorous 
methodology consistent with the analysis undertaken as part of the 
investigation into the Bahamas event. It is presently premature to 
discuss the preliminary findings of the Pacific Fleet's inquiry. 
Completion of the Pacific Fleet's inquiry is dependent upon NOAA 
Fisheries' notification of the harbor porpoise necropsy findings. NOAA 
Fisheries is investigating the various possible causes for the dolphin 
strandings in Puget Sound. One possibility is that these dolphins 
stranded due to illness caused by a pathogen that has historically been 
responsible for strandings. On May 20, 2003, Richard Osborne, Research 
Director of the Whale Museum, Friday Harbor, WA, stated museum 
personnel have been documenting porpoise strandings in the San Juan 
Islands (Haro Strait) since 1980. Since 1992 the stranding network has 
documented an average of 5.8 porpoises a year, and 70 percent of those 
strandings have occurred between March and June, with the peak in May. 
The pattern this year appears to be normal. In short, Navy is not 
presently in a position to comment as to whether this event would 
constitute harassment under existing law or under the Administration's 
proposed clarification of the term.

    Question 4. This law essentially asks only that you obtain a permit 
for activities that will disturb or ``take'' marine mammals. What steps 
have you taken to work directly with the regulating agencies to work 
out your concerns?
    Answer. The Navy meets regularly with NOAA Fisheries at both 
regional and headquarters levels to discuss issues specific to permit 
authorizations and for resolving the broader issues surrounding the 
challenges posed by the Marine Mammal Protection Act (MMPA). In 2000, 
during the previous presidential administration, representatives of 
NOAA Fisheries, U.S. Fish and Wildlife Service, the Marine Mammal 
Commission, and the U.S. Navy agreed to work together to amend the MMPA 
because they agreed that, as currently written, the MMPA was 
fundamentally flawed and that these flaws were insurmountable without 
amendment to the MMPA itself. Most of the problems with the MMPA 
identified by these Federal agencies were the same issues identified by 
the National Research Council (NRC) (National Academy of Science) in a 
report to Congress in 2000. In its report, the NRC concluded that, if 
the current definition of Level B harassment ``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.''
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John F. Kerry to 
                            David Cottingham

Harassment Definition
    Question 1. Three of the witnesses appearing today raise concerns 
with the Administration's proposal to only require an incidental take 
authorization for harassment under the MMPA if the activity can be 
shown to lead to ``abandonment'' or to ``significantly alter'' a 
natural behavior. Given our lack of knowledge about the likely impacts 
of various activities on marine mammals, won't it be impossible to know 
in some cases at the time an activity is proposed whether such activity 
would ``cause disruption of natural behavioral patterns,'' such as 
migration, ``to a point where such behavioral patterns are abandoned or 
significantly altered''?
    Answer. Our knowledge about marine mammal behavior may be far from 
perfect, but we do know some things. Because of the strong commitment 
to sound science and well-funded continuing research upon which the 
Administration's proposal is predicated, there will be many cases in 
which it will be fairly apparent whether a particular activity can be 
expected to result in the significant alteration of marine mammal 
behavioral patterns. There may also be instances in which a 
determination of significance, at least initially, will be more 
difficult to make, particularly if the activity involves novel stimuli 
or is acting in conjunction with other sources of disturbance. In such 
cases, it may indeed be difficult to ``know'' at the outset if the 
behavioral impact of a proposed activity will be significant. However, 
the definition of harassment proposed by the Administration does not 
require that level of certainty. To constitute harassment under the 
Administration's proposal, the activity or activities need only have a 
significant potential of injuring a marine mammal or marine mammal 
stock or a likelihood of disturbing a marine mammal or marine mammal 
stock to the point where its behavioral patterns are abandoned or 
significantly altered.
    Clarification of the current definition of Level A harassment is 
necessary because the current ``potential to injure'' standard contains 
no guidance as to how much of a potential there must be to trigger the 
provision. Under this standard, many interactions between marine 
mammals and human activities are subject to debate and, potentially 
litigation, on the issue of whether there is the ``potential to 
injure'' a marine mammal. Retaining, without qualification, the term 
``potential'' will require agencies and citizens either to seek an 
authorization for any action that has even a remote possibility of 
causing injury to a marine mammal, to assemble an administrative record 
that rules out any possibility of injury or disturbance, or risk 
litigation. Similarly, the Administration's proposed definition of 
Level B harassment provides additional guidance as to how substantial 
the potential for disturbance should be to constitute harassment That 
proposal draws on the National Research Council's recommendation that 
regulatory agencies focus their attention on those activities that are 
likely to cause significant disruption of important behaviors. The use 
of the term ``potential'' in the current definition of Level B 
harassment carries with it the same problem of over-inclusiveness, lack 
of clarity, and risk of litigation discussed above with respect to 
Level A harassment. Moreover, the problem with Level B harassment is 
even more onerous than that for Level A harassment in that more 
activities have some potential to disturb marine mammals than to cause 
injury. The goal of the Administration's proposed redefinition of 
harassment is to focus agency attention and resources on those 
activities that have more than a de minimis likelihood of causing the 
disruption of critical biological behaviors. That definition would be 
more enforceable, and 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.
    To the extent that there is uncertainty in applying the proposed 
``abandoned or significantly altered'' standard, much of it can be 
addressed in the legislative history accompanying the provision or in 
implementing regulations issued by the responsible resource agencies to 
refine further how likely the abandonment or alteration of behavioral 
patterns needs to be. In this regard, the Commission believes that the 
guidance contained in the conference report that accompanied the change 
in the harassment definition enacted for military readiness activities 
and certain research activities by Public Law 108-136, the National 
Defense Authorization Act of 2004, which appears to be drawn from a 
2000 National Research Council Report, Marine Mammals and Low-Frequency 
Sound (see p. 67), might lead the regulatory agencies charged with 
implementing the new definition of harassment into adopting an 
interpretation that is too exclusionary. Under guidance in that report, 
behavioral patterns might be considered to be abandoned or 
significantly altered only if they resulted in ``demographic 
consequences to reproduction or survivability of the species.'' 
Implementing the definition in this way would render the distinction 
between Level A and Level B harassment essentially meaningless by 
equating taking by Level B harassment that had demographic consequences 
with taking by Level A harassment (by causing injury, or having a 
significant potential to cause injury, at the population or individual 
level). Furthermore, it may be difficult to determine when a single 
event or series of events results in population-level impacts for many 
years, which may affect our ability to make a timely determination as 
to when harassment may have occurred.

    Question 1a. Since even a momentary abandonment of sheltering a 
young calf from a killer whale attack could be lethal, wouldn't the use 
of this term in some cases raise Level B harassment to impacts that are 
the equivalent of non-harassment lethal takes?
    Answer. The Marine Mammal Protection Act defines ``take'' to mean 
``to harass, hunt, capture, or kill, or attempt to harass, hunt, 
capture, or kill any marine mammal.'' None of these elements is 
mutually exclusive. For example, chasing and capturing a dolphin would 
constitute a taking by both harassment and capture. Similarly, killing 
a marine mammal, in many instances, would also constitute taking by 
hunting and Level A harassment. Thus, it is possible that Level B 
harassment could, in certain instances, such as the example given, also 
result in a sequence of events that leads to injury or mortality of an 
animal. The situation under the Administration's proposed definition of 
harassment would be no different than it would be under the existing 
harassment definition. In both cases, the example would constitute 
Level B harassment (be it through the potential to disturb the marine 
mammals involved or because the disturbance resulted in the abandonment 
or alteration of sheltering behavior) that led to Level A taking. 
Whether the example also would have been identified as a situation that 
raised concerns about taking by Level A harassment under the 
Administration's proposed definition depends on whether the potential 
for this type of injury was considered significant.

    Question 1b. Isn't it the case that many activities that have the 
potential for serious impacts on marine mammals simply go unregulated?
    Answer. Yes, some activities that could result in serious impacts 
to marine mammals and marine mammal populations are, at present, 
largely unregulated with regard to marine mammal conservation. 
Oftentimes this is a function of the ubiquitous nature of the type of 
activity and the remoteness of the causal connection between any single 
action and the risk posed to marine mammals. Shipping along the East 
Coast of the United States provides a good example of this.
    Thousands of ships annually ply the waters frequented by North 
Atlantic right whales and other large cetacean species. We know that 
some small fraction of these ships is likely to collide with these 
whales, resulting in at least some deaths and serious injuries each 
year. Because of the small number of right whales remaining and the 
population's critically endangered status, any mortalities or serious 
injuries will likely have significant adverse impacts on the species. 
Nevertheless, because of the large expanse of ocean involved, and the 
unpredictability as to when and where any particular interaction 
between a whale and vessel will occur, it is difficult to prescribe a 
set of regulations that will eliminate the potential for adverse 
impacts without also placing burdens on the majority of vessels whose 
activities are not expected to take marine mammals. For some species, 
such as the North Atlantic right whale, which congregate somewhat 
predictably near heavily used shipping lanes at certain times of the 
year, a more targeted approach may be available. In this regard, the 
National Marine Fisheries Service is endeavoring to identify areas 
where these problems are most acute and is considering various 
alternatives, such as mandatory ship routing measures and speed 
restrictions, aimed at significantly reducing threats posed by ships.
    Ships and other activities that introduce sound into the marine 
environment may also have adverse effects on marine mammals even when 
they do not involve close approaches to the animals or pose a risk of 
taking by collision. To date, efforts to address such impacts have 
focused largely on discrete sources that are most readily identified--
those that intentionally introduce loud sounds into the marine 
environment. These sources include seismic profiling by the oil and gas 
industry, geophysical research, deployment of certain sonars by the 
military, and some construction/demolition activities. Certain more 
omnipresent sound sources, such as tankers, freighters, and other large 
ships, which may not individually have adverse effects on marine 
mammals but which collectively may be a significant problem, currently 
are not regulated. The Commission's Advisory Committee on Acoustic 
Impacts on Marine Mammals is considering the full spectrum of sound 
sources and their potential to affect marine mammals. We expect that 
the Committee's report will identify needed research to assess the 
potential impacts of these other sound sources and may include 
recommendations on how to mitigate the impacts of those sources of 
greatest concern.
    Activities that produce marine pollution also pose risks to marine 
mammals by exposing them to harmful substances that may kill or injure 
animals, that may expose them to diseases and pathogens, or that may 
otherwise compromise the health of the animals. Although many potential 
sources are well regulated under a host of federal, state, and 
international laws, others, such as non-point-source pollution, are 
not. Similarly, activities that contribute to the proliferation of 
marine debris, only some of which are regulated, may have serious 
impacts on the health and survival of marine mammals. Although such 
activities may adversely affect marine mammals, and arguably constitute 
unauthorized takings under the Marine Mammal Protection Act, they also 
have more general impacts throughout the marine environment. Thus, they 
are probably best addressed under statutes other than the Marine Mammal 
Protection Act.

    Question 1c. The House passed a DOD authorization bill without the 
third prong of the Administration's proposed definition, aimed at 
activities ``directed at'' marine mammals. Do you have any concerns 
with dropping this part of the definition and, if so, why?
    Answer. The Commission and other agencies that fashioned the 
Administration's proposed definition of harassment agreed that the 
third prong of the definition was a critical element in a comprehensive 
approach to addressing activities that may harass marine mammals. There 
was general agreement that, while it was appropriate to focus agency 
attention and resources on those activities that may have significant 
impacts on marine mammals and marine mammal populations, we did not 
want to establish barriers that would make it more difficult to enforce 
the Act's taking prohibition with respect to those who intentionally 
interact with and disturb marine mammals in the wild. For example, to 
sustain an enforcement action against someone directing his or her 
actions at a marine mammal, it should be sufficient for the government 
to establish that the person directed his or her activities at the 
marine mammal in a way that was likely to disturb the animal (e.g., 
entered the water to swim with the animal or closely approached it in a 
vessel) or did disturb the animal by disrupting its behavior. The 
government should not be required to establish also that the 
disturbance had a significant effect on the survival of the animal or 
on the welfare of the population of which it is a part. This would 
unnecessarily complicate the prosecution of harassment cases, changing 
the proceedings from finding of facts (i.e., was a marine mammal 
disturbed by someone's actions?) to a battle of experts debating the 
impact of that disturbance on the animal or the stock.
    This was not considered to be a critical omission in the harassment 
definition adopted as part of the National Defense Authorization Act of 
2004, inasmuch as that definition is only applicable to military 
readiness activities and scientific research activities being conducted 
by or on behalf of the Federal government consistent with the 
permitting requirements of the Marine Mammal Protection Act. In 
contrast, omitting this prong of the definition from a more generally 
applicable definition of the term harassment, assuming a significance 
threshold is included elsewhere in the definition, as recommended by 
the Administration, would be a major shortcoming that would undermine 
the regulatory agencies' ability to enforce the Act's taking 
prohibition against those who engage in activities that traditionally 
have been considered harassment.
Scientific Permitting Issues
    Question 2. What are your views with respect to improvements that 
could be made to the permitting process to address concerns raised by 
the scientific community, including both statutory and administrative 
changes?
    Answer. At the outset, it is important to remember that we are 
looking at two distinct processes under the Marine Mammal Protection 
Act that are used to authorize the taking of marine mammals in the 
course of conducting scientific research. The permitting process under 
section 104 of the Act is limited to research on marine mammals and 
requires, among other things, that an applicant demonstrate that the 
proposed taking is necessary to further a ``bona fide scientific 
purpose.'' For research not on marine mammals (e.g., geophysical 
research) that will or may involve the taking of marine mammals, 
incidental taking can be authorized under section 101(a)(5) of the Act.
    One proposal that has been made is to bring all research, not just 
that on marine mammals, under the section 104 permitting authority. 
Without further details of such a proposal, it is difficult to comment 
specifically. It is worth noting, however, that the amount of time it 
takes to process a research permit application may not be any shorter 
than that for securing an incidental harassment authorization under 
section 101(a)(5)(D)--as opposed to the lengthier rulemaking process 
required to authorize other types of taking under section 101(a)(5)(A).
    Although there is nothing inherently objectionable about the 
proposed expansion of the Act's permitting authority, it probably would 
need to include more than just a few simple wording changes. For 
example, one of the key issuance criteria for scientific research 
permits under the existing provision is whether the proposal 
constitutes bona fide research. The permitting agencies are well 
situated to make such determinations with respect to marine mammal 
research but may be patently unqualified to make such determinations in 
other disciplines. Thus, before making any such statutory change, 
Congress should also consider corresponding changes to the underlying 
issuance criteria or should anticipate the need, at least in some 
instances, for the resource agencies to solicit outside expertise in 
making the required determinations.
    Under the incidental take provisions, a principal finding to be 
made is whether the proposed activities will have a negligible impact 
on the affected marine mammal species and stocks. In contrast, there is 
no explicit requirement that such a finding be made before issuing a 
scientific research permit. Would meeting the negligible impact 
standard continue to be a requirement for research that is not directed 
at marine mammals, but which is expected to result in the taking of 
marine mammals? Would applicants still be required to reduce the level 
of taking and impact on marine mammals to the extent practicable? If 
so, these criteria need to be reflected in the proposed amendments.
    In addition, there are cross-statutory issues that need to be 
addressed. For example, if endangered or threatened species are 
involved, an applicant would also have to satisfy the requirements of 
the Endangered Species Act (ESA). It is possible that some or all of 
these research activities could be covered under a permit for 
scientific purposes issued under section 10 of the Act. However, if any 
taking needed to be authorized through the section 7 consultation 
process, moving the Marine Mammal Protection Act (MMPA) process out of 
section 101(a)(5) may make this impossible to do, inasmuch as section 
7(b)(4) explicitly requires a parallel authorization under that 
provision of the MMPA as a condition of obtaining an ESA incidental 
take statement.
    Another issue that involves the overlay of different statutes is 
compliance with the National Environmental Policy Act (NEPA) in issuing 
MMPA permits and incidental take authorizations. Admiral West, in his 
testimony before the subcommittee, identified compliance with the NEPA 
requirements as a major obstacle to securing timely authorizations for 
research activities. Admiral West identified the limited resources of 
the National Marine Fisheries Service (NMFS) as a factor contributing 
to some of the delays faced by applicants and noted that these 
resources are being stretched further by a need to prepare 
environmental assessments (EAs) or environmental impact statements 
(EISs) in conjunction with reviewing requests for authorizations and 
permits. He did not, however, identify a proposed solution to this 
problem, be it providing the agency with additional resources to speed 
up processing or easing or lifting certain requirements.
    The Commission believes that it would be worthwhile for authorizing 
agencies to review their processes for reviewing incidental take 
authorizations under NEPA and consider whether streamlining under the 
statutes as currently written is possible or necessary. In this regard, 
an activity underlying an incidental take request might have 
significant environmental effects that warrant the preparation of an 
environmental impact statement; however, the issuance of an incidental 
take authorization, by itself, at least for Federal actions that 
otherwise are subject to NEPA, should not rise to that level. That is, 
to meet the statutory requirements for issuing a small-take 
authorization, the resource agency must determine that the level and 
type of taking will have a negligible impact on the affected marine 
mammal species and stocks. Because any such authorization under the 
requirements of the MMPA can have no more than a negligible impact on 
marine mammals, it may be appropriate to consider establishing a 
categorical exclusion under NEPA for these actions if they do not 
present the potential for significant impacts to other resources. This 
may lessen the administrative and paperwork burden on the agencies.
    Amendments enacted in 1994 added a general authorization process to 
section 104 of the MMPA, under which bona fide research that may result 
only in taking marine mammals by Level B harassment could be quickly 
authorized. Some have suggested expanding this approach to include 
other types of research that may incidentally take marine mammals. In 
this regard, it should be remembered that the general authorization was 
added to ease the procedural burden of obtaining authorization to 
conduct research activities that are likely only to disturb, but not 
harm, a marine mammal. However, under the redefinition of harassment 
enacted as part of the National Defense Authorization Act of 2004, and 
several of the proposals currently being considered, these benign types 
of disturbance covered by the general authorization possibly would no 
longer constitute harassment at all. Thus, we recommend that Congress 
proceed cautiously in considering any proposal to expand the general 
authorization if it would apply to activities that, under the 
redefinition of Level B harassment, are expected to cause the 
abandonment or significant alteration of important behavioral patterns.
    A significant limitation under the existing general authorization 
is that it does not streamline the authorization process for activities 
that are likely to take marine mammal species listed under the 
Endangered Species Act, even if the taking would be only by Level B 
harassment. A full-fledged permit is still required under the ESA. 
Unless something were done to overcome this limitation, the 
applicability of the general authorization to other types of research 
that incidentally take marine mammals would be similarly limited. In 
fact, because there is less control over what animals are harassed 
incidental to these research activities than when research is directed 
at specific animals, the usefulness of a general authorization in these 
other settings may be quite narrow.
    Representatives of Alaska Native organizations have identified the 
need to analyze specimens from marine mammals harvested for subsistence 
purposes for a variety of reasons, such as contaminant screening, 
health assessments, stock structure analyses, etc. They are also 
working with scientists at the University of Alaska and elsewhere to 
develop and maintain a tissue bank of these marine mammals. Current 
NMFS regulations require all people handling the samples and doing 
those analyses on behalf of Natives to have research permits. The Fish 
and Wildlife Service allows greater flexibility regarding such research 
on walrus, sea otter, and polar bear samples. Under regulations 
implementing the Native exemption, the Fish and Wildlife Service allows 
marine mammals taken by an Alaskan Native to be transferred to ``a duly 
authorized representative'' of the Service for scientific research 
purposes. Similar regulations presumably could be adopted by NMFS.
    Another permitting issue that has recently arisen involves requests 
to maintain specimens in tissue banks and museums for future research 
and reference. Scientists are now storing tissues from many marine 
mammal species for future use as research needs arise. Many types of 
research, particularly those investigating historical patterns of 
populations, rely on the availability of such samples. Thus, the 
opportune collection and archiving of such materials (i.e., those from 
dead and stranded animals) is something that should be encouraged. 
Nevertheless, the MMPA permit provisions currently require that an 
applicant demonstrate that the collection of material is necessary to 
further a bona fide scientific purpose. This is something that may be 
difficult for some institutions to do at the outset in instances when 
they do not know how the specimens may be used in the future. The 
Commission therefore believes that properly accredited tissue banks 
should remain subject to the MMPA and ESA permitting requirements, but 
should be relieved of the obligation to demonstrate that bona fide 
research will be conducted on a particular sample. Such a showing 
should be deferred until a researcher wishes to obtain these samples 
for specific research purposes, an activity that should remain subject 
to the full permitting requirements of the Acts.

    Question 2a. Admiral West is suggesting an enhanced research 
program on ocean noise. The MMC received an appropriation in the FY2003 
bill also to look into this issue. Do you agree with Admiral West on 
the need for such a program? Where might such a program be housed?
    Answer. The Commission has chartered an advisory committee in 
compliance with the Federal Advisory Committee Act to discuss and 
provide recommendations on these issues. The committee has 28 members 
including representatives from Federal agencies, academic institutions, 
oil and gas companies, and environmental organizations. The advisory 
committee will discuss and identify both additional research needs and 
how to accomplish them.
    The Commission agrees with Admiral West's testimony regarding the 
need to improve our understanding of how marine mammals respond to a 
variety of undersea sounds. The Navy's Office of Naval Research (ONR) 
has historically sponsored most of the work in this arena. ONR, the 
National Science Foundation, NMFS, and the Minerals Management Service 
have recently begun coordinating some of their efforts involving such 
research through the National Ocean Partnership Program, which the 
Consortium on Ocean Research and Education (CORE) manages. The 
Commission believes that this partnership greatly enhances the 
coordination of Federal agencies' research on sound and marine mammals.
Enforcement
    Question 3. The Marine Mammal Commission has raised concerns that 
NMFS has failed to enforce the MMPA against ongoing activities such as 
individuals on jet skis and in boats intentionally interfering with 
marine mammals in the wild. Can you describe some of these concerns, 
and what the source of the problem is?
    Answer. The issue of interactions between people and wild marine 
mammals was considered at the Commission's 2002 annual meeting. Because 
of the regional focus of that meeting, we concentrated our review on 
interactions between people and pinnipeds along the California coast 
and wild dolphin swim programs in Hawaii. Nevertheless, we have similar 
concerns with respect to wild swim programs in the southeastern United 
States and to these types of activities in other regions. We expect to 
revisit this issue at our 2004 annual meeting.
    The Commission appreciates that the enforcement resources of the 
National Marine Fisheries Service are finite. Enforcement officers 
cannot be everywhere all the time to ensure that marine mammals are not 
harassed by the public as they try to approach animals closely. 
Nevertheless, there are certain hot spots where these activities occur 
on a daily basis. For example, commercial operators at Kealakekua Bay, 
on the island of Hawaii, rent boats or conduct tours that enable, and 
in some instances encourage, people to closely approach resting spinner 
dolphins that frequent the area after foraging offshore at night. In 
many situations, the operators have their clients enter the water with 
snorkel or SCUBA gear just ahead of a swimming pod of dolphins. 
Enforcement personnel could target such areas, where incidents of 
possible harassment reportedly occur routinely and where these 
activities seem to be having adverse impacts on marine mammal 
populations.
    The exchange of letters between the Commission and the National 
Oceanic and Atmospheric Administration (NOAA) that followed the 
discussion of this issue at our 2002 meeting is attached. The 
Commission's 6 May 2003 letter provides additional background and 
details of our concerns. In it, the Commission recommended that NOAA 
give higher priority to pursuing its enforcement of these violations of 
the Marine Mammal Protection Act, particularly in those locations where 
scientists have reported that ongoing incidents of Level B harassment 
of individuals appear to be posing risks of injury at the population 
level. The Commission further recommended that, to the extent that 
ambiguity in the definition of harassment is hampering NOAA's 
enforcement efforts, the agency take steps to delineate more precisely 
what types of interactions constitute harassment and will be considered 
actionable by the agency.

    Question 3a. Will the Administration's proposed change to the 
harassment definition fix this concern?
    Answer. The Commission believes that the Administration's proposed 
changes to the definition of harassment will address our concerns. 
First, it will clarify that any action can constitute harassment, not 
just acts of pursuit, torment, or annoyance. Second, we believe that 
the third prong of the proposed definition will clarify that any 
disturbance of a marine mammal that disrupts its behavior constitutes 
Level B harassment. Nevertheless, it is the regulatory agencies, rather 
than the Commission, that make the determinations as to what is or is 
not harassment and choose which cases they will pursue. Thus, this is a 
question best addressed to them.
Animal and Plant Health Inspection Service (APHIS)
    Question 4. Currently, wild marine mammals fall under the authority 
of NMFS and FWS in the wild. However, the primary authority gets passed 
to APHIS if the marine mammals are placed in public displays. Does 
NMFS/FWS play any role in the oversight of marine mammals in public 
displays?
    Answer. Currently, NMFS and FWS generally play a minor role in the 
oversight of matters related to the care and welfare of marine mammals 
maintained in captivity for purposes of public display. Under 
amendments enacted to the MMPA in 1994, captive care and maintenance 
standards for marine mammals at facilities in the United States are 
exclusively under the jurisdiction of the Animal and Plant Health 
Inspection Service (APHIS). Nevertheless, actions to revoke a permit or 
to seize animals from a facility that loses its Animal Welfare Act 
(AWA) exhibitors license remain within the purview of NMFS and FWS, 
although the concurrence of APHIS in the underlying finding is 
required. In addition, determinations pertaining to the adequacy of 
education and conservation programs and the accessibility of facilities 
are made by NMFS and FWS. These agencies are also the ones that receive 
notices of intended transfers of marine mammals between facilities, 
make determinations that the recipient facility meets the requirements 
of the MMPA, and maintain the inventory of marine mammals maintained 
for purposes of public display under section 104(c)(10) of the Act.
    Thus, NMFS and FWS retain some authority over marine mammals at 
public display facilities. This is reflected in the Memorandum of 
Agreement entered into between NMFS, FWS, and APHIS in 1998 to 
coordinate their activities concerning marine mammals. That Agreement, 
among other things, specifies that NMFS and FWS will inform APHIS of 
the ``[i]ssuance of citations for violations of the MMPA pertaining to 
the care and maintenance of captive marine mammals.''
    Perhaps the area in which NMFS and FWS have the greatest latitude 
in making determinations concerning the adequacy of public display 
facilities is for foreign facilities. Rather than considering solely 
whether a facility is licensed under the AWA, as is the case for 
domestic facilities, the agencies must determine that a foreign 
facility receiving a marine mammal from the United States meets 
standards that are comparable to those applicable to domestic 
facilities. In making these determinations NMFS, FWS, and APHIS work 
together to make a finding that a foreign facility meets comparable 
standards.

    Question 4a. Does APHIS ever consult with NOAA or FWS on issues 
regarding the care and maintenance of captive marine mammals? Would 
that be useful?
    Answer. For several years, representatives of APHIS's Animal Care 
Division, the permit offices of NMFS and FWS, the State Department, and 
the Commission have been meeting several times a year to advise one 
another about and discuss current and developing issues related to the 
maintenance of marine mammals in captivity. APHIS also consults with 
these agencies when it is considering specific actions, such as 
rulemakings concerning the care and maintenance of marine mammals. For 
example, FWS, NMFS, and the Commission all participated as non-voting 
observers during the negotiated rulemaking convened by APHIS in 1995 
and 1996 to revise its marine mammal regulations.
    For more than 15 years, the Commission has made a series of 
recommendations to APHIS concerning various aspects of the program for 
overseeing the welfare of marine mammals maintained in captivity. The 
Commission has expressed concern about certain provisions of the 
applicable care and maintenance standards and has stressed the need for 
a comprehensive review of these regulations. APHIS revised certain 
portions of its regulations in 2001 through negotiated rulemaking. 
However, the most controversial, and potentially costly, aspects (e.g., 
space, water quality, enclosure and water temperature requirements) 
remain unchanged. The Commission has been advised by APHIS that it 
expects to publish a proposed rule on these other matters in 2005.

    Question 4b. Concerns have been raised over the years with respect 
to the capabilities of APHIS to ensure adequate care for marine mammals 
on display (e.g., with respect to Suarez Circus and the dolphin 
``petting pools''). What additional role might NMFS/FWS play to ensure 
the well-being of these animals?
    Answer. The Commission is among those entities that have made 
recommendations concerning steps that APHIS might take to strengthen 
its ability to ensure that marine mammals maintained in captivity 
receive adequate care. For example, because we believe that marine 
mammals differ sufficiently from other animals subject to regulation 
under the AWA (coverage includes mostly terrestrial mammals and birds) 
and have different needs based on their physiological, behavioral, and 
social differences, the Commission has recommended that APHIS develop a 
core group of inspectors with specialized training and expertise to 
inspect marine mammal facilities. Because of cost concerns and 
logistical constraints, APHIS chose not to adopt this recommendation, 
but opted instead to provide supplemental training to its inspectors on 
the special needs of marine mammals. While the Commission considers 
this to be a positive development, we remain concerned that situations 
may arise when the determinations to be made require more specialized 
knowledge of the particular needs of marine mammals.
    As recognized by Congress when it passed the 1994 amendments to the 
MMPA, the National Marine Fisheries Service and the Fish and Wildlife 
Service each have several employees with specialized knowledge about 
the life histories, behavior, and biology of most species of marine 
mammals that might be called upon to augment APHIS's capabilities. They 
are a potentially valuable resource that can be called on by APHIS in 
at least two ways. First, they can be consulted by APHIS as that agency 
designs care and maintenance standards appropriate for the 
particularized needs of various marine mammal species maintained at 
public display facilities. Second, they can be consulted by APHIS 
inspectors to help make findings when compliance issues arise that may 
require specific expertise.
                                 ______
                                 
   Responses to Written Questions Submitted by Hon. John F. Kerry to 
                          RADM Richard D. West

Scientific Permitting Issues
    Question 1. In your written testimony, you suggest as a possible 
change to the MMPA, that all scientific research should have a special 
permitting program that would entail less case-by-case review of 
various research projects. But does this really make sense? Is it the 
case that all scientific research will have minimal potential to harm 
marine mammals?
    Answer. As I mentioned in my testimony, the overly complex and 
lengthy permitting process is having a chilling effect on scientific 
research in the marine environment. Given the choice of proposing and 
executing experiments that can be completed in a cost-effective and 
expeditious fashion or marine research that cannot, researchers are 
selecting the path of less resistance.
    The suggestion that the Congress consider including other ocean 
science research in the same permitting category as research on marine 
mammals does not imply that these experiments have no potential to harm 
marine mammals. Under current law, marine mammal permits are issued for 
activities that range from harassment to more serious takings. Rather, 
the goal is to replace the current patchwork of regulatory options that 
scientists must wade through with a single process that would provide 
for assessment of the potential impacts to marine mammals and guidance 
and authorization for addressing them. In addition, the inclusion of 
marine mammalogists in the same science-permitting regime as other 
ocean scientists could facilitate participation of the former in 
multidisciplinary research efforts.
    The recommended change could be used to streamline the regulatory 
process and improve its predictability for research programs. For 
example, seismic research in the ocean environment currently is 
permitted under the incidental harassment authorization (IHA) of the 
MMPA. However, all seismic programs are operated in a very similar 
fashion with the major variable being the size of the airgun arrays. 
The research community has developed a set of marine mammal mitigation 
measures that have been incorporated into the IHA applications by NMFS. 
Intensive reviews of what are essentially repetitive data should not be 
required for each permit application.

    Question 2. Didn't the Ewing research involve air guns that could 
have more than de minimis impacts on marine mammals? In fact, the court 
found that ``the Ewings air guns send out blasts at a sound level 
recognized to be in excess of what would cause significant harm to an 
important biological activity in 95 percent of marine mammals exposed 
to it.''
    Answer. It is true that the Ewing air guns create high sound 
levels, but it is important to understand that the calculated point 
source signal strength is not experienced anywhere in the water. This 
calculation is used by scientists to compare air gun signals and should 
not be used to assess potential impacts on marine mammals. Actual sound 
levels decrease very rapidly as the distance from the source increases. 
The pressure from a 20-gun array falls below 200 dB about 200 meters on 
either side of the ship. For comparison, humans in water begin to feel 
pressure at 182 dB and sperm whales emit sounds in the range of 200-225 
dB.
    All the parameters--frequency, intensity, and timing of the 
signal--must be considered when judging the effect of sound in the 
water, as well as a species' sensitivities to these characteristics. To 
do otherwise, is to view only a very limited section of a much larger 
and more complex picture. It should be noted, however, that good 
information on the effect of sound is lacking for many marine mammals, 
and what is available is largely extrapolated from ear structure and 
other anatomical aspects. As you know, CORE supports a strong research 
program to expand our understanding and limit uncertainties.
    It should be noted that the Ewing airguns are very similar to those 
used in commercial and industrial activities, which are not regulated 
on a case-by-case basis, but operate instead under a general 
authorization.

    Question 3. Apparently, many scientific researchers outside of the 
marine mammal field have not been seeking incidental take 
authorizations from NMFS or FWS. Why is that? Has the community been 
unaware of this statute for the past 30 years?
    Answer. Incidental take authorizations authorize takes, not 
activities. The MMPA indicates that no permit is required if no harm is 
anticipated to marine mammals in general and specific endangered 
species. To avoid the potential for harm to marine mammals, non-marine 
mammal researchers have followed mitigation procedures that were 
developed through advice from marine biologists and fisheries experts. 
Several programs executed in high-density mammal population areas were 
accompanied by observers from NMFS, or, in the case of a foreign EEZ, 
by observers assigned from those countries.
    Most oceanographic research produces noise. The propulsion of 
ships, depth sounders, acoustic current meters, and many other 
scientific instruments either produce sound as a byproduct, or by 
design. However, until the regulatory agencies publish guidelines for 
what levels of sound pose a risk of a take, there will be no objective 
basis for oceanographic researchers to decide whether they need to 
apply for incidental take authorizations or not.

    Question 4. Given that few authorizations have been sought, isn't 
it premature to suggest significant statutory changes at this time?
    Answer. All three of the committees established by the National 
Academy of Science over the past decade have emphasized the obstacles 
to research posed by the regulatory process. The regulatory roadblocks 
and adverse court decisions over the past few years make obvious the 
urgent and immediate need for statutory changes.

    Question 5. I am intrigued by your suggestion that we authorize a 
new research program on the effects of underwater sound on marine 
mammals. What are some of the options for housing such a program?
    Answer. CORE believes that this effort needs to be multi-agency, 
focused, and involve input from external communities such as academic 
researchers, private sector users and non-governmental organizations. 
Projects should be competitively selected and peer-reviewed and an 
oversight board should define the research areas and priorities to 
ensure that work focuses on critical issues.
    Fortunately, the government already has a mechanism that can manage 
these requirements in the National Oceanographic Partnership Program 
(NOPP). This program already has the involvement of all the Federal 
players, and has already begun a pilot program as part of its current 
research effort. We believe that it is important to use existing 
administrative structures, rather than spend time, resources and effort 
on establishing new ones that may not be any more successful.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John F. Kerry to 
                               Nina Young

Harassment
    Question 1. You say other measures could be done to fix concerns of 
the Navy and others. What are some of these measures?
    Answer. The Department of Defense's (DOD) proposal to create a 
separate incidental take exemption process for military readiness 
activities would introduce substantial ambiguity and would eliminate 
critical elements from the authorization process. We believe that the 
Department should look to both legislative and non-legislative 
alternatives to further streamline the administrative process. In 
addition, there may be opportunities to address DOD's concerns through 
improved coordination and implementation of other statutes.
    First, Congress or the Administration could consider a consultation 
process that would provide the applicant with greater certainty and 
guidance. Through a consultation process the applicant would have a 
clear indication what provisions of the MMPA and NEPA are applicable to 
the proposed activity. While this requires advanced planning on the 
part of the applicant, the benefits of improved communication early in 
the process will likely be reaped with fewer delays during the 
permitting process.
    Second, we would urge Congress to mandate that NMFS undertake a 
programmatic review of the incidental take authorization program as a 
means to improve efficiency and meet the goals and mandates of the 
MMPA.
    Third, Congress should provide NMFS with additional resources to 
adequately staff the Office of Protected Resource to expedite and 
streamline the incidental take permitting process.
    Finally, wherever possible NMFS should undertake programmatic 
environmental analyses to further streamline the permitting process.

    Question 1a. As a biologist, what concerns do you have with the 
Administration's definition?
    Answer. As a biologist I am most concerned about the DOD's and the 
Administration's proposal to add a new requirement to Level B 
harassment that natural behavioral patterns be disrupted to the point 
where such behavioral patterns are abandoned. Requiring the abandonment 
of critical biological behaviors for an action to constitute harassment 
violates the precautionary goals of the Act and sound scientific 
conservation principles. As has been noted in the hearing by Dr. Tyack, 
abandonment of surfacing or breathing will result in the death of a 
marine mammal. Abandonment of nursing bouts or feeding areas will 
result in energetic deficiencies that will compromise the health of 
individuals or populations. In addition, what constitutes 
``abandonment'' of behavioral patterns under the proposed new 
definition of Level B harassment will vary according to species, 
gender, time scale, and the nature of the behavior itself, making it 
especially difficult to interpret and implement this provision.

    Question 1b. Do we have enough knowledge to be able to predict 
whether a particular activity will result in ``abandonment'' of a 
behavior?
    Answer. The DOD bill and the Administration's reauthorization 
proposal are predicated on an unrealistically high assessment of our 
ability to differentiate between biologically significant and 
insignificant responses. When assessing activities that cause 
behavioral modification, scientists often cannot distinguish between 
those activities that will result in abandonment, have significant, 
long-term effects, and those that will not. For example, a disturbance 
that causes what might appear to be a relatively minor change in a 
marine mammal's migratory route could have unforeseen, and possibly 
significant, consequences in increased energy expenditures or greater 
exposure of the animal to an increased risk of predation. Similarly, 
short-term behavioral changes can have long-term physiological 
consequences. Animals that avoid a loud sound source in the ocean may 
exhibit immunological changes, which over the long-term could 
compromise their immune system. Therefore, until scientist can 
distinguish reliably between significant and insignificant responses, 
or what responses will or will not have long-term consequences, 
Congress should refrain from adopting a definition that excludes 
consideration of short-term impacts.
DOD Provisions: Deletion of ``Small Numbers,'' ``Specified Geographical 
        Area.''
    Question 2. What concerns do you have with removing the requirement 
for ``small'' numbers, and for the limit to a ``specified geographical 
area''?
    Answer. The requirement that incidental take under these provisions 
be limited to ``small numbers of marine mammals of a species or 
population stock'' is an important and independent requirement that 
should continue to apply to all persons, including the Department of 
Defense. Deleting this requirement would allow increased and 
potentially unsustainable levels of injury or harassment. Although it 
is true that the bill retains the requirement that the Secretary find 
that the incidental taking have a negligible impact on the species or 
stock, these impacts are difficult to analyze, especially for marine 
mammal stocks for which little is known about their abundance or 
biology. Without the ``small number'' limitation, it may be difficult 
to evaluate the effects of injury or harassment on annual rates of 
recruitment and thereby establish sufficiently stringent quantitative 
standards for negligible impact; this creates the risk that adverse, 
possibly irreversible impacts will occur before they can be assessed. 
The additional requirement in the existing law, that the take be 
restricted to small numbers of marine mammals, ensures that that the 
biological consequence of that take will not hinder a marine mammal 
population's ability to grow or recover.
    Restricting the activities to a specified region is in keeping with 
the requirements that the incidental taking must have a negligible 
impact on a stock of marine mammals and ensure that the taking has the 
least practicable adverse impact on its habitat. NMFS criteria for 
stocks states that stocks should be defined on the smallest divisible 
unit approaching that of the area of take unless there exists evidence 
of smaller subdivisions provided by ecology, life-history, morphology, 
and genetics data. (NMFS 1995 and 1997). In combination with the 
``small numbers'' limitation discussed previously, this fine-scale 
approach to defining stocks provides an effective conservation and 
management strategy for restricting take geographically and numerically 
to prevent depletion of marine mammal populations and for prescribing 
mitigation that is appropriately tailored and scaled.
    In addition, geographic regions themselves serve different 
biological purposes for marine mammal stocks. Some areas are vital to 
foraging, others are migratory corridors, and still others are vital to 
breeding, calving, and reproduction. The biological significance of a 
particular habitat or region is critical for determining whether the 
taking will have a negligible impact on the population of marine 
mammals and result in the least practicable adverse impact on its 
habitat.
    Removing the requirement that the incidental take be restricted to 
a specified geographic region is contrary to effective conservation and 
management practices that limit take to narrowly defined marine mammal 
stocks on a restricted geographic basis to avoid depletion. It also 
jeopardizes the MMPA's goals of habitat conservation as it undermines 
effective consideration of the biological role or significance of the 
habitat to that marine mammal stock.
Scientific Permitting Issues
    Question 3. What concerns would you have with proposals to allow 
general authorizations?
    Answer. The MMPA currently contains a general authorization for 
scientific research directed on marine mammals that will cause no more 
than level B harassment. In addition, section 101(a)(5)(A) provides for 
5-year authorizations of incidental takes for specific activities, 
subject to reasonable requirements established in that subsection. 
Finally, section 101(a)(5)(D) provides for 1-year streamlined 
authorizations for incidental takes by harassment only, again subject 
to reasonable conditions such as monitoring and reporting. Given these 
existing provisions, we are unclear why additional authorizations are 
necessary.

Co-Management--You have raised a number of concerns with the 
        Administration's proposals on co-management of subsistence 
        stocks.
    Question 4. Do you support any changes to the current management of 
these stocks? What solutions would you propose?
    Answer. The management history of the subsistence harvest of beluga 
whales in Cook Inlet illustrates the need for proactive Federal 
intervention and management to avoid a marine mammal species becoming 
eligible for listing as depleted under the MMPA. While The Ocean 
Conservancy does not oppose subsistence use, we believe that in cases 
where marine mammal stocks are designated as strategic, the Federal 
government should be given the discretion to intervene and work with 
Native communities to monitor and regulate harvests to ensure the long-
term health of the stock and sustainable subsistence harvests. The 
purpose of the definition of ``strategic'' marine mammal stocks in 
Section 3(19), 16 U.S.C. Sec. 1362(19), is to identify unsustainable 
levels of take so that appropriate action can be taken to avoid listing 
that stock as depleted under the MMPA or as threatened or endangered 
under the ESA. Therefore, we propose that Section 101(b), 16 U.S.C. 
Sec. 1371(b), be amended to allow the Secretary to prescribe 
regulations governing the taking of members of a strategic stock by 
Native communities.
    Again, The Ocean Conservancy does not oppose subsistence hunting 
when conducted in a sustainable manner; however, we believe that future 
co-management agreements should generally be limited to stocks that are 
not strategic or depleted. As stated above we support harvest 
management agreement for all non-strategic stocks as long as the 
agreement considers take throughout the entire range of the stock, 
includes all Alaskan Natives that engage in subsistence use of that 
particular marine mammal stock within the area covered by the 
agreement, provides that any harvest of a stock covered by the 
agreement is sustainable and designed to protect the stock from 
becoming depleted or strategic, and contains effective provisions for 
monitoring and enforcement. A harvest management agreement should also 
provide for review and revocation of the agreement, tie violations of 
the agreement to the penalty provisions of the Act, and provide grants 
for research, monitoring, and enforcement of the agreement.
    Before a harvest management agreement is finalized, or final 
implementing rules or regulations are published, the public must be 
afforded an opportunity for notice and comment. We do not believe that 
the Secretary should be required to consult with Alaska Native Tribes 
and Tribally Authorized Organizations on depletion determinations under 
section 3(1)(A) or to provide them with an advance copy of draft 
proposed regulations under section 101(b)(3). The consultation 
provision under section 3(1)(A) currently only applies to MMC and its 
Committee of Scientific Advisors on Marine Mammals; section 101(b)(3) 
of the Act already provides adequate opportunity for notice and hearing 
by interested members of the public. We do not oppose the 
Administration's provisions for cooperative enforcement, authorizations 
of appropriations, and sovereign authorities/disclaimer.
    The Ocean Conservancy looks forward to working with Alaska Native 
Tribes and Tribally Authorized Organizations on this Title.

    Question 4a. What are your greatest concerns with the 
Administration's approach?
    Answer. There are several outstanding areas of disagreement between 
the Marine Mammal Protection Coalition (MMPC) and the Administration 
with respect to Title II of Administration's reauthorization bill:

        Scope of Agreements: The MMPC would not authorize future 
        agreements for species or stocks that are strategic, depleted, 
        or listed as threatened or endangered. Existing agreements 
        would not be affected.

        Management Plans: The MMPC would require that each Alaska 
        Native Tribe that engages in subsistence use of the affected 
        stock or species within the area covered by the plan be a 
        signatory to the agreement. It would also require that plans be 
        designed to prevent such stock or species from becoming 
        depleted or strategic. In comparison, the Administration's bill 
        would only require that the plan be designed to prevent 
        populations from becoming depleted.

        Review and Revocation of Plans and Agreements: The MMPC would 
        add a provision requiring the Secretary to review agreements 
        every 3 years or whenever significant new information suggests 
        that the mortality or serious injury of marine mammals subject 
        to the plan is having, or likely to have, an immediate 
        significant adverse impact on the stock or species. It would 
        also authorize the Secretary to revoke an agreement if the 
        actions of the Alaska Native Tribe or Tribally Authorized 
        Organization that are parties to the plan do not comply with 
        the agreement or the requirements of section 101(b) of the 
        MMPA. Before revoking an agreement, the Secretary would be 
        required to notify them and give them an opportunity to correct 
        deficiencies.

        Effect of Designation as Depleted or Strategic: The MMPC would 
        authorize the Secretary to prescribe regulations under section 
        101(b) if a species or stock subject to an agreement is 
        designated as depleted or strategic. It would authorize the 
        Secretary to solicit recommendations on those regulations from 
        affected Alaska Native Tribes and Tribally Authorized 
        Organizations prior to publication of proposed regulations. In 
        comparison, the Administration's bill would only apply to a 
        depleted stock, require the Secretary to provide draft proposed 
        regulations to them and to demonstrate that those regulations 
        are the least restrictive measures upon subsistence use.

        Public Notice and Review: The MMPC would also require public 
        notice and opportunity for comment on draft regulations to 
        implement an agreement.

        Emergency Regulations: In the event that mortality or serious 
        injury is having, or likely to have, an immediate and 
        significant adverse impact on a species or stock subject to an 
        agreement, the MMPC would authorize the Secretary to take 
        actions to mitigate such significant adverse impacts, including 
        modifying the agreement or suspending the harvest. Emergency 
        regulations would be published in the Federal Register and 
        remain in effect for up to 180 days, unless they are extended 
        for up to an additional 90 days.

        Consultation with Tribes and Tribally Authorized Organizations 
        on Depleted Determinations: The MMPC would delete this 
        provision.

Animal and Plant Health Inspection Service (APHIS)
    Question 5. Currently, wild marine mammals fall under the authority 
of NMFS and FWS in the wild. However, the primary authority gets passed 
to APHIS if the marine mammals are placed in public displays. Does 
NMFS/FWS play any role in the oversight of marine mammals in public 
displays?
    Answer. NMFS/FWS play a role in the oversight of captive marine 
mammals primarily through the issuance of permits to public display 
facilities. There are three requirements for a public display permit: a 
facility must have a professionally-recognized education program, must 
hold an APHIS license, and must not limit admission beyond an entrance 
fee. NMFS/FWS cannot require any additional permit conditions. Prior to 
the 1994 Amendments, NMFS/FWS could issue public display permits with 
conditions directly related to marine mammal welfare and survival; 
these conditions were often tailored (beyond the general care and 
maintenance standards mandated under APHIS) to the particular 
animal(s), facility, and/or transport situation to be covered by the 
permit. This coordination between NMFS/FWS and APHIS was accomplished 
through a Memorandum of Agreement.
    It is important to note that NMFS/FWS have numerous marine mammal 
biologists on staff (at the national headquarters and in its regional 
offices and fisheries science centers), including marine mammal 
veterinarians. APHIS has one marine mammal specialist at its national 
headquarters. All other APHIS staff, nationally and regionally, 
involved in inspecting and otherwise overseeing captive marine mammal 
facilities have participated in a short training course on marine 
mammal care requirements.
    NMFS/FWS play a more active role in imports of marine mammals for 
the purpose of public display. Import permit applications are published 
in the Federal Register and subject to public comment. NMFS/FWS have 
the authority to specify methods of capture, supervision, care, and 
transportation pursuant to the import. This public and agency oversight 
allows for careful scrutiny of import requests that may involve animals 
captured abroad illegally, at risk of carrying infectious diseases, or 
otherwise acquired or transported under circumstances that may not 
comply with the protective measures of the MMPA.

    Question 5a. Does APHIS ever consult with NOAA/FWS on issues 
regarding the care and maintenance of captive marine mammals? Would 
that be useful?
    Answer. APHIS has consulted with NMFS/FWS on care and maintenance 
issues since the 1994 Amendments, but these have been infrequent and 
informal consultations, usually undertaken when there is a particularly 
controversial situation involving a captive marine mammal facility or 
import. The most recent consultation of which we are aware involved the 
Suarez Brothers Circus polar bears. APHIS did consult with FWS on the 
holding conditions and care for these bears, but ultimately did not 
conclude that their conditions violated the Animal Welfare Act. 
Nevertheless, one bear died during transport to a U.S. zoo when FWS 
finally acted to remove the bears from the circus.
    Routine, formal consultation between APHIS staff and experts at 
NMFS/FWS, at a minimum when a complaint or inspection request is 
received for a particular facility, would certainly be useful. APHIS 
has limited expertise on the specialized biology of marine mammals, 
compared to NMFS and FWS. Clearly it would be an optimal utilization of 
available agency expertise for APHIS staff to formally consult with 
NMFS/FWS staff whenever questions arise (through an inspection, through 
a citizen or advocacy organization complaint, or during a public 
comment period for a permit application) as to the adequacy of a 
facility's care or conditions.

    Question 5b. Concerns have been raised over the years with respect 
to the capabilities of APHIS to ensure adequate care for marine mammals 
on display (e.g., with respect to Suarez Circus and the dolphin 
``petting pools''). What additional role might NMFS/FWS play to ensure 
the well being of these animals?
    Answer. NMFS/FWS have marine mammal biologists and veterinarians 
with whom APHIS could consult on a routine, formal basis whenever 
questions arise as to the adequacy of a facility's care or conditions. 
In addition, APHIS could consult with NMFS/FWS whenever issuing a 
license to a new facility and whenever the renewal of a license of an 
extant facility is accompanied by serious questions regarding the 
adequacy of that facility's care or conditions. The situation prior to 
the 1994 Amendments, under the Memorandum of Agreement, reasonably 
capitalized on the expertise available at NMFS/FWS. The current 
situation limits the utilization of agency expertise in a way that is 
arguably not in the best interests of captive marine mammals.

Fishery Interactions
    Question 6. NMFS can require vessels in Category I and II fisheries 
to take observers on board. Funding to provide adequate observer 
coverage has been found to be lacking. NMFS reportedly has not actively 
enforced this requirement when captains refuse to take an observer on 
board. Do you consider the observer program necessary to help the Take 
Reduction Plans achieve their goals? If so, how should observer 
capabilities be improved?
    Answer. The management framework established by the 1994 amendments 
to the Marine Mammal Protection Act can be effectively implemented only 
if bycatch levels are measured with sufficient reliability (accuracy 
and precision) to determine if and when excessive take is or may be 
occurring. The purpose of a take reduction team is to recommend 
measures that will reduce the number of takes to a tolerable level, and 
the efficacy of recommended measures can only be assessed if bycatch 
levels can be reliably estimated. Thus, reliable estimation of bycatch 
is fundamental to the identification and description of interaction 
problems and to feedback regarding the efficacy of the management 
response. Some teams have questioned the effectiveness of existing 
observer programs for detecting bycatch and changes in bycatch of 
marine mammals. Observation or monitoring of some fisheries is either 
absent altogether or insufficient to allow even minimal estimates of 
bycatch. For some fisheries that are observed, the data do not provide 
the precision needed to estimate bycatch levels with confidence and the 
estimated power of the observer-based monitoring program to detect a 
real change in the bycatch rate of some species is low.
    Therefore, the observer program is absolutely necessary for the 
Take Reduction Plan to achieve its goals. First, the bycatch data 
provides the basis upon which to evaluate takes against the potential 
biological removal level (PBR). These data are then integral to the 
development of bycatch reduction strategies. Once developed and 
implemented, the effectiveness of those strategies in reaching the 
goals of the Take Reduction Plan are evaluated using observer data.
    Congress must dedicate sufficient resources to the observer program 
so that the program can achieve the following:

  1.  Develop effective monitoring strategies for all fisheries and 
        gear types to reliably determine the level of interaction with 
        marine mammals.

  2.  Develop and implement reasonable monitoring standards such as the 
        level of observer coverage needed to address interaction issues 
        with an acceptable level of certainty.

  3.  Increase monitoring coverage where existing levels do not meet 
        minimal standards.

  4.  Distribute monitoring effort temporally and geographically to 
        ensure that monitoring requirements of the Marine Mammal 
        Protection Act are addressed for all stocks.

  5.  Provide more robust assessment of the specific factors 
        contributing to marine mammal mortality or serious injury.

  6.  Provide better assessment of fishery effort.

    Question 6a. Is NMFS actively enforcing the requirement for 
observers to be taken on vessels in Category I and II fisheries? If 
not, why not, and what can be done to improve this situation?
    Answer. Based on conversations at recent Bottlenose Take Reduction 
Team meetings, NMFS enforcement officers and Observer Program staff 
indicated that NMFS is not fully enforcing the requirement that 
Category I and II fisheries take observers. In some ports, fishermen 
still frequently refuse to take observers. The Take Reduction Team 
expressed its concern to NMFS but was given no reason as to why NMFS 
was not taking action against fishermen who outright refused to take 
observers. We urge Congress to increase the penalties associated with 
this infraction and require NMFS to provide a report on its enforcement 
efforts under the Act.

    Question 6b. Many problems have been cited with the effectiveness 
of the Take Reduction Team process. Given the limited number of Take 
Reduction Teams established, Take Reduction Plans developed and 
implemented, difficulties in meeting statutory and regulatory deadlines 
and other concerns, is the TRT process an adequate tool to reduce the 
interactions of marine mammals and fisheries?
    Answer. The Ocean Conservancy firmly believes that the Take 
Reduction Team process is an effective means to reduce marine mammal 
mortality and serious injury in commercial fishing operations. Once 
implemented, the Pacific Offshore Take Reduction Plan reduced takes of 
marine mammals by 75 percent, reducing takes below PBR. The team has 
been a model and has been expanded to address other fishery 
interactions, including those involving sea turtles. The Gulf of Maine 
and Mid-Atlantic harbor porpoise Take Reduction Plan has reduced harbor 
porpoise takes to below PBR and the mortality and serious injury 
associated with these fisheries is now on its way to approaching the 
zero mortality rate goal, the second of two objectives mandated by take 
reduction plans, under the Act.

    Question 6c. How accurate is our information with respect to 
numbers of marine mammals ``taken'' as bycatch in commercial fisheries?
    Answer. The bycatch information is as accurate as can be expected 
given the low level of observer coverage. As previously stated, 
Congress must appropriate increased funds and NMFS must dedicate those 
funds to increase observer coverage and improve the monitoring of 
bycatch. Increased observer coverage will greatly improve the accuracy 
of bycatch estimates and allow NMFS to target its resources at those 
fisheries that must reduce their bycatch of marine mammals to meet the 
goals of the Act.

    Question 6d. How effective is the current linkage between TRTs and 
the Regional Fishery Management Councils with respect to bycatch 
reduction efforts?
    Answer. The Regional Fishery Management Councils have 
representatives on the Take Reduction Team; nevertheless the linkage 
between the team and the councils is still poor. Many Regional Fishery 
Management Councils take management actions with little or no 
consideration of bycatch reduction measures that may be in place under 
a Take Reduction Plan. For example, the Gulf of Maine Harbor Porpoise 
Take Reduction Plan utilized fishery management closures as a mechanism 
to reduce harbor porpoise mortality. The combination of these closures 
and the additional requirement of acoustic deterrent devices (e.g., 
pingers) has resulted in significant reductions in harbor porpoise 
bycatch. However, if the New England Fishery Management Council takes 
unilateral action to remove or change these closures, without 
consideration of harbor porpoise bycatch, the bycatch could increase. 
Although NMFS recognizes this as a potential problem and has indicated 
that it is prepared to adopt the fishery management closures as harbor 
porpoise bycatch reduction closures under the MMPA, the failure to do 
so leaves bycatch reduction measures vulnerable to the actions of the 
councils. If fishermen want the benefit of fishery management closures 
and measures to be included in Take Reduction Plans as part of an 
overall bycatch reduction strategy, there must be closer coordination 
between the two bodies and with the Agency, between the Office of 
Protected Species and the Office of Sustainable Fisheries.

    Question 6e. The Atlantic Large Whale TRT appears to be struggling 
in achieving their objectives. Could you comment on why they are having 
such problems and how these might be overcome or avoided in the future?
    Answer. Since its inception, the Atlantic Large Whale Take 
Reduction Team (ALWTRT) has been engaged in an iterative process to 
develop, test, and require the use of ``whale safe'' gear. Bycatch 
reduction measures such as weak links were largely untested and the 
breaking strength that would likely achieve the greatest risk reduction 
was a matter for research. Over the years, the ALWTRT has continually 
worked to further refine and implement additional bycatch reduction 
measures and gear modification requirements in the face of continued 
entanglements of right whales and humpback whales. Many believe that to 
achieve truly ``whale safe'' gear, vertical lines must be eliminated 
and low-profile bottomlines must be developed. The latter includes such 
technology as sinking groundline or neutrally buoyant line. These lines 
would reduce the risk of entanglement associated with floating line 
that can float as much as 20 feet above the bottom when used between 
lobster traps/pots. The major impediment to deploying this technology 
is the cost associated with requiring lobstermen to change from 
floating line to sinking or neutrally buoyant line, which would likely 
cost in the tens of millions of dollars. An industry funded loan or 
government subsidy or loan would likely allow the industry to convert 
to using this gear more quickly than the proposed four to five year 
phase-in periods.

    Question 6f. The Administration's bill proposes to let the 
Secretary only develop take reduction plans for the strategic stocks 
that interact with Category I and II fisheries. NMFS would no longer be 
required to develop plans for stocks that are listed under the 
Endangered Species Act but do not have a high fishery-related 
mortality. It is understandable that the agency has to focus their 
limited resources. However, is it necessary or advisable to address 
limited resources in this way, instead of placing such stocks at a 
lower priority for plan development? Isn't this particularly an issue 
as new fisheries are developing, and our knowledge of marine mammals 
and fishery interactions increases?
    Answer. We are sympathetic to the need for the agency to focus its 
limited resources. However, Congress addressed this issue under section 
118 with regard to monitoring takes of marine mammals by requiring NMFS 
to allocate observers according to the following priorities: (1) are 
listed as endangered or threatened; (2) are strategic stocks; (3) are 
stocks for which the level of incidental mortality and serious injury 
is uncertain. 16 U.S.C Sec. 1387(d)(4). The Ocean Conservancy would 
prefer if Congress adopted a similar type of priority setting mechanism 
for take reduction plan rather than the Administration's proposal. We 
share your concerns that as fisheries develop new marine mammal fishery 
interactions may emerge that would benefit from strategies developed 
through a take reduction process.

Recreational Fisheries
    Question 7. The Administration bill proposes to make the MMPA's 
commercial fisheries' requirements applicable to certain recreational 
fisheries as well. What is the problem you are trying to fix with these 
proposed changes? Are there specific fisheries or categories of fishers 
that are the target of this proposal?
    Answer. Some non-commercial fisheries use gear similar or identical 
to commercial fishing gear and, as a result, are taking marine mammals 
at rates potentially equal to or greater than rates of incidental 
bycatch in commercial fisheries. This issue arose in the course of the 
Bottlenose Take Reduction Team where representatives from North 
Carolina noted that the public can obtain a permit to fish gillnets 
recreationally in areas where the team was attempting to regulate 
commercial gillnet fishing. However, according to NMFS, there are 
currently no mechanisms within the MMPA to monitor, track, or mitigate 
this take. As a matter of equity, and for purposes of effective marine 
mammal conservation, non-commercial fisheries that employ gear similar 
to commercial fishing gear and that have the same potential to take 
marine mammals should not be exempt from the Act. Therefore, The Ocean 
Conservancy supports the Administration's proposed amendments to 
include these fisheries under the provisions of Section 118.

    Question 7a. Reportedly, there are 2.2 million anglers who fish in 
salt water, on an average of 10 times a year. How can these proposed 
changes be implemented when there are so many fishers?
    Answer. While we cannot speak for NMFS, the provision is crafted 
narrowly so that only those fisheries that have interactions will be 
listed as Category I or II fisheries. It is not the position of The 
Ocean Conservancy that every recreational fisher be included under the 
provisions of section 118 and be required to get an authorization to 
take marine mammals. Rather we are only interest in regulating those 
recreational fisheries that would qualify under the definition of 
Category I and II fisheries. It is those fisheries that should be 
include under the provisions of section 118 and the take reduction team 
process.

    Question 7b. Are there not more narrowly focused solutions that 
could target select groups of recreational fishers rather than making 
such broad changes?
    Answer. We believe that the Administration's bill offers a narrowly 
focused alternative to target those recreational fishers that are using 
gear identical or similar to commercial fishing gear that has the same 
likelihood to kill or seriously injure marine mammals. These are the 
very fisheries that should be regulated under the provisions of section 
118.

    Question 8. Sea Otters--Southern sea otters (found in California), 
listed as threatened under the ESA, were steadily increasing until 
their population began to decline in 1995; record numbers of dead 
otters have washed ashore in California this year.
    The bill proposes to list information on the southern sea otters in 
section 118, increasing the efforts dedicated to gathering information 
on these otters. In your testimony you argue that this change could 
result in the authorization of incidental take of these otters, which 
is currently prohibited. Could you please explain how this could come 
about?
    Answer. Southern sea otters have been expressly exempt from the 
section 118 program since its inception. The reason for doing so is 
twofold: (1) sea otters are especially vulnerable to incidental take in 
fishing nets and are protected as a result of California law that 
imposes a ban on such nets throughout the species' range; and (2) a 
special law, Public Law 99-625, governs the applicability of incidental 
take prohibitions for southern sea otters. Under 99-625, zones are 
established where no take is allowed, as well as a management zone 
where incidental take is not prohibited. Currently, the U.S. Fish and 
Wildlife Service is reviewing whether the program established under 
Public Law 99-625 has been a failure. Until that determination is made, 
it is inappropriate to include the southern sea otter under section 
118, because that would create the potential for authorized incidental 
take within the no take zone.
    Based upon this concern, including the southern sea otter under 
even a portion of the section 118 program is a matter of concern. 
Taking the step could result in claims that incidental take generally 
is allowed under section 118. Even if those arguments are rejected, the 
fact the sea otters are included under one aspect of section 118 is 
likely to lead to arguments from parties favoring incidental take of 
this species in the no take zone to expand the basis for section 118 
regulation of this species to include a general incidental take 
authorization. The threat of such a political campaign to expose sea 
otters to the risk of incidental take prior to the completion of the 
FWS review of the Public Law 99-625 program is a compelling reason to 
continue to exclude this species from section 118.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. John F. Kerry to 
                             Peter L. Tyack

Harassment
    Question 1. Did the NRC report recommend a change in the definition 
of ``Level A'' harassment? Please explain why or why not.
    Answer. The 2000 NRC Report ``Marine mammals and low-frequency 
sound'' did not specifically suggest a rephrasing for the definition of 
``Level A'' harassment. However, on p 67 the report recommends a 
specific criterion for safe exposures to sound with respect to level A 
harassment. There is a well-developed experimental technique to safely 
study effects loud noises on hearing. In these experiments, one 
measures the sensitivity of hearing of the subject, then exposes the 
subject to a loud noise, and then immediately tests the sensitivity of 
hearing one more time. If the hearing is less sensitive, this is 
recorded as a temporary threshold shift, or TTS. This is a harmless 
test that is used routinely for humans and land animals. The 2000 NRC 
report advocated a preliminary criterion that any sound that produces 
10 dB or less of TTS should be viewed as not posing any risk to the 
auditory systems of marine mammals if the exposures are separated by 
enough time to allow full recovery (at least 24 hours). There has been 
considerable progress in TTS studies of marine mammals in the last 
decade, giving us guidance for acoustic criteria using this criterion 
for a variety of marine mammal species.

    Question 1a. In the definition of ``Level B'' harassment, did the 
NRC report suggest changing the standard in ``Level B'' harassment from 
the ``potential to disturb'' to ``likely to disturb''? Please explain 
why or why not.
    Answer. No. The 2000 NRC report did recommend a change in the 
definition of harassment, but did not change the existing wording about 
``potential to disturb.'' The main focus of discussion was the need to 
discriminate between short minor responses that could not harm an 
animal versus disruption of behavior that could pose a risk. I can only 
give a personal view about why the committee did not consider changing 
the ``potential to disturb'' language, but to this group of scientists, 
``potential to disturb'' seemed a reasonable criterion meaning ``more 
than a negligible chance.'' I think that the reason this has come up 
recently stems from legal as opposed to scientific judgments. For 
example, in the Opinion And Order On Cross-Motions For Summary Judgment 
in the SURTASS LFA case, NRDC et al.,v. Evans et al., the judge wrote 
``In fact, by focusing on potential harassment, the statute appears to 
consider all of the animals in a population to be harassed if there is 
the potential for the act to disrupt the behavioral patterns of the 
most sensitive individual in the group.'' [p. 27] There is so much 
variability in responsiveness of animals to sounds, that this is an 
extremely conservative interpretation. It is also very difficult to 
estimate the threshold for the most sensitive individual in a 
population of millions of animals. Certainly no such threshold has ever 
been applied to protect humans. It is much more conservative than 
thresholds used to protect hearing or toxic effects of chemical 
contamination. The way scientists often deal with this situation is to 
develop a risk function. The same opinion in the LFA case supported the 
Risk Continuum, which was the name of the risk function developed in 
the LFA Environmental Impact Statement: ``the Risk Continuum provides a 
more accurate measure of potential effects on individual animals within 
a population than the use of an ``all or nothing'' threshold above 
which all animals are considered taken and below which no animal (even 
the most susceptible) would be taken.'' [p 28]
    I think that the risk function approach is the most valid one for 
assessing the potential for takes. If Congress wants to set a threshold 
for the probability that an exposure will lead to a take, then I think 
that the cleanest way to do this is for the regulatory language to 
specify a precise probability, such as 20 percent or 50 percent.

    Question 1b. The NRC definition would define ``Level B'' harassment 
as the potential for ``meaningful disruption of biologically 
significant activities.'' What does the term ``meaningful disruption'' 
mean?
    Answer. My view is that meaningful disruption means the same thing 
as biologically significant disruption, and I think the only reason why 
the committee did not recommend ``biologically significant disruption 
of biologically significant activities'' was the copy editing desire 
not to use the same phrase twice in the same sentence.

    Question 1c. How does the term ``meaningful disruption'' relate to 
individual marine mammals? How does the NRC's population impacts 
approach fit with the inclusion of impacts to individuals?
    Answer. The term ``meaningful disruption'' was part of the NRC 
committee's recommendation for a new definition of harassment. This 
harassment definition is important in the context of the MMPA 
prohibition on taking marine mammals, where ``taking'' includes 
harassment. While the definition includes ``the potential to disturb a 
marine mammal or marine mammal stock,'' I do not personally understand 
what it means to disturb a stock, other than to disturb all of the 
individuals in the stock. The ``or marine mammal stock'' qualification 
seems redundant to me. If an action disturbs all 300 or so right whales 
at the same time, it disturbs the stock once, but the individuals 300 
times. The odds of this kind of stock-wide disruption seem vanishingly 
small. Clearly the primary role of the definition of harassment is 
related to the prohibition on taking individual animals. Therefore this 
definition applies primarily to defining takes of individuals by 
harassment.
    My understanding of the NRC suggestions for defining harassment is 
that they address the threshold for considering a change in behavior to 
be a level B take. The concept is that some behavioral responses may be 
so minor as to pose no chance of adverse impact to the individual. The 
determination of adverse impact from a conservation perspective should 
be based on the chance that the disruption could affect the ability of 
the individual animal to survive, grow, and reproduce. This 
determination can be improved using information from other individual 
animals, ideally integrated into a population model.

    Question 1d. Do we have enough science to predict ``biologically 
significant'' effects for marine mammals, at the time an activity is 
planned, with a great degree of certainty? If we do not, how could 
potential effects from activities, particularly those for which we have 
little knowledge as to effects, be addressed under the NRC approach?
    Answer. The scientific methods necessary to predict whether an 
activity poses a risk of biologically significant effects are advancing 
rapidly. Nothing could make this field progress more than having 
Congress specify a ``biological significance'' standard for regulating 
impacts of seafaring activities. If Congress makes this change, I am 
confident that the critical science will quickly follow. If the 
language also requires the same standard of environmental review for 
all activities, it will greatly improve the protection of marine 
mammals from the risks of unintended impacts.

    Question 1e. Isn't it the case that tests on marine mammals with 
respect to potential impacts of LFA-sonar were not done above a certain 
decibel level out of concern for possible impacts on them? Yet the 
authorization allows the deployment of LFA-sonar at these levels?
    Answer. Yes, at the outset of the tests on the impact of the LFA 
sonar on behavior of marine mammals, we expected strong behavioral 
responses, such as avoidance responses, in the 120-160 dB re 1 mPa 
exposure range, based upon previous research. Yet few responses were 
seen in the 120-155 dB range that raised our concern about adverse 
impacts. Many of these results, such as the impact of LFA signals on 
the length of humpback songs, have been published and are available for 
independent review. Information from other sources suggested a 180 dB 
re 1 mPa threshold for the onset of injury. Therefore, the risk 
function was set to acknowledge the possibility but low probability of 
adverse reactions as low as 120 dB, with risk increasing rapidly above 
the zone that was tested, where few adverse reactions were seen. The 
function estimated 50 percent ``level B takes'' at 165 dB and 95 
percent at 180 dB, above which all exposures were classed as level A 
takes. This kind of curve fitting is common in scientific research, and 
I believe is likely to be a conservative alternative to exposing 
animals to levels so high that they are close to those thought to pose 
a risk of injury. The only situation in which this approach would not 
provide a conservative estimate of risk is if there were a very sudden 
switch from very low probability of response near 155 dB to a very high 
probability a few dB higher. The data on reactions of marine mammals to 
sound suggest that this kind of sudden transition is quite unlikely.

    Question 1f. What other concerns regarding potential impacts were 
identified, such as use of LFA-sonar inshore?
    Answer. When the responses of migrating gray whales to LFA signals 
were tested in the inshore migration corridor, about 50 percent of the 
whales avoided exposure of sound levels greater than 140 dB. This 
response seemed to be specific to the inshore location, for when the 
sound source was moved a few kilometers offshore of the migration, this 
avoidance response disappeared, even for gray whales that were far 
enough offshore to pass near the sound source.

    Question 1g. Were these concerns appropriately addressed in your 
view in the final authorization?
    Answer. For concerns raised by the responses of whales to inshore 
but not to offshore sources, the answer is yes. The concerns about the 
response to sources within a few kilometers of the coast is addressed 
by the condition that the LFA system will not transmit sound within 12 
nautical miles of the coast.

    Question 1h. Knowing what you do about potential impacts, does it 
make sense for this kind of activity to escape the incidental take 
process, with the result that it would cannot be reviewed by NMFS or 
FWS?
    Answer. I am not sure what this question refers to. In my testimony 
I suggested that the Incidental Take process should be modified 
specifically so that activities like SURTASS LFA would be appropriate 
for the incidental take process. I strongly believe that it is the 
status quo that does not make sense. What I know about potential 
impacts suggests that many activities with high risk of potential 
impacts, such as commercial shipping, currently completely escape the 
incidental take process and are not reviewed in advance by NMFS or FWS. 
Even after ships strike and kill whales, I am not aware that they have 
been charged with violations of the prohibition on killing marine 
mammals under the Marine Mammal Protection Act, nor have these 
predictable takes resulted in monitoring or mitigation measures.
Scientific Permitting Issues
    Question 2. Wasn't your recent research project enjoined by a 
court, not because of the harassment definition, but because of NEPA?
    Answer. Yes. I do not think that the definition of harassment had 
anything to do with the ruling in this case. The crux of the judge's 
ruling was a disagreement with the NMFS decision that the amendments to 
my permit qualified for a categorical exclusion from the need for a new 
environmental analysis under NEPA.

    Question 2a. Given our lack of knowledge about the likely impacts 
of various activities on various species of marine mammals, how could 
NMFS or FWS feasibly develop the kind of risk-based general 
authorization scheme you suggest?
    Answer. We have plenty of information right now to order activities 
by relative risk, even if we cannot quantify the precise impact of each 
sound on each population of marine mammals in each behavioral state. 
For example, if I want to evaluate the responses of whales to the 
propulsion sound of a vessel for an hour-long experiment, I must go 
through a permitting process that often takes 6 months and imposes 
stringent reporting requirements. Yet the thousands of commercial ships 
that pose a significant risk of vessel collision along with the 
potential impact of the propulsion noise are completely unregulated. 
Even before we learn to quantify the precise risk, we can say that this 
is a completely unbalanced priority for regulation. The research to 
solve the problem is regulated, while the ships that cause the problem 
are not. Right now, on the basis of the intensity of the sources, the 
extent of their use, and proximity to marine mammal hot spots, it would 
be relatively simple for a risk-based authorization scheme to focus 
regulatory effort on the activities posing the greatest risk. Such a 
scheme would be much more effective at protecting marine mammals from 
the effects of manmade noise than the current system.

    Question 2b. Are you suggesting in your written testimony that we 
can safely presume that all scientific research will have minimal 
potential to harm marine mammals?
    Answer. No. Some kinds of research might involve intentionally 
killing animals to sample them. For example, during an epidemic, vets 
might request a lethal take to sample a wild marine mammal. My point 
was that behavioral research on wild marine mammals is regulated very 
heavily compared to non-research activities that pose much greater 
potential for harm to individuals and populations.

                                  
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