[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
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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\
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\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.
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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\
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\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.''
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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\
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\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.
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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.