The Marine Mammal Protection Act: Reauthorization Issues
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The Marine Mammal Protection Act:
Reauthorization Issues
-name redactedSpecialist in Natural Resources Policy
June 11, 2007
Congressional Research Service
7-....
www.crs.gov
RL30120
CRS Report for Congress
Prepared for Members and Committees of Congress
The Marine Mammal Protection Act: Reauthorization Issues
Summary
The Marine Mammal Protection Act (MMPA) was last reauthorized in 1994. The MMPA’s
authorization of appropriations expired at the end of FY1999. At issue for Congress are the terms
and conditions of provisions designed to reauthorize and amend the MMPA to address a variety of
concerns relating to marine mammal management. In the 109th Congress, the House passed a bill
to reauthorize and amend the MMPA, but no further action was taken on this measure. The 110th
Congress may again consider measures to amend and reauthorize the MMPA as well as bills to
address specific marine mammal regulatory and management issues.
Several issues that may arise in reauthorization relate to modifying management of the
interactions between marine mammals and commercial fishing operations. Other concerns relate
to marine mammals in captivity and subsistence use of marine mammals by Native Americans.
Additional issues include providing for trade in marine mammal products, managing robust
marine mammal stocks, understanding the effect of noise on marine mammals, fostering
international cooperation, regulating large incidental takes, modifying the scientific research
permit process, improving agency compliance with MMPA deadlines, facilitating marine
mammal research by federal scientists, dealing with harassment of marine mammals, considering
a directed research program, and appropriating adequate funding for federal agency programs.
While some of these issues could be addressed administratively, in regulations proposed and
promulgated by the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, or the
USDA Animal and Plant Health Inspection Service, others likely would require statutory changes.
Most potential participants in the reauthorization debate anticipate extended negotiations on some
of these issues. Although the authorization for appropriations expired at the end of FY1999, the
MMPA itself did not expire. Eventually, however, an extension of funding authority may need to
be considered to continue federal program operations. Most of the issues associated with this law
are not time-sensitive, and a number of oversight hearings have been held to increase
understanding of various issues, positions, and possibilities.
This report lays out the range of issues likely to be raised during any reauthorization debate, the
reasons behind them, and possible proposals that could be offered to address these concerns. This
report will be updated as warranted to reflect the evolution of these issues.
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The Marine Mammal Protection Act: Reauthorization Issues
Contents
Introduction ................................................................................................................................1
Constituency Groups...................................................................................................................1
Commercial Fishing Industry ..........................................................................................2
Environmental Groups ....................................................................................................2
Public Display Community .............................................................................................2
Animal Protection Advocates ..........................................................................................3
Native Americans............................................................................................................3
Marine Mammal Scientists..............................................................................................3
Marine Mammal Managers .............................................................................................3
Marine Mammal Protection Act ..................................................................................................4
1994 MMPA Reauthorization ......................................................................................................5
Implementation of the 1994 Amendments .............................................................................6
Miscellaneous MMPA Amendments ......................................................................................7
Issues for Congress .....................................................................................................................8
Commercial Fishing Interactions with Marine Mammals.......................................................8
Optimum Sustainable Population ....................................................................................8
Calculating Potential Biological Removal .......................................................................9
Zero Mortality Rate Goal .............................................................................................. 10
Stock Assessment Process ............................................................................................. 11
Deterrence .................................................................................................................... 11
Reinstate Limited Authority for Intentional Lethal Taking ............................................. 13
Integration with Fishery Management ........................................................................... 13
Fishery Impacts and Southern Sea Otters....................................................................... 14
Marine Mammals in Captivity............................................................................................. 14
Authority for Captive Marine Mammals........................................................................ 15
Export of Captive Animals ............................................................................................ 16
Import of Captive Animals ............................................................................................ 17
Scientific Research on Captive Marine Mammals.......................................................... 17
More Extensive Medical Exams for Transferred Animals .............................................. 18
Necropsies .................................................................................................................... 19
Genetic Mixing ............................................................................................................. 20
Wild Versus Captive Survivorship ................................................................................. 21
Air Quality and Noise at Facilities................................................................................. 21
Rehabilitation and Release ............................................................................................ 21
Quality of Captive Environments .................................................................................. 22
Programs Promoting Human Interaction with Captive Dolphins .................................... 23
Insurance Requirement.................................................................................................. 23
Prohibition of Traveling Exhibits................................................................................... 23
Prohibition of Wild Captures for Public Display ............................................................ 24
Native Americans and Marine Mammals ............................................................................. 24
Co-Management with Native American Tribes .............................................................. 24
Reporting Subsistence Takes ......................................................................................... 25
Limitation on the Sale of Edible Subsistence Takes ....................................................... 26
Definition of Subsistence Whaling ................................................................................ 27
Definition of Subsistence .............................................................................................. 27
Cultural Exchange......................................................................................................... 28
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The Marine Mammal Protection Act: Reauthorization Issues
Permits and Authorizations.................................................................................................. 28
Polar Bear Sport Hunting in Alaska ............................................................................... 28
Large Incidental Takes .................................................................................................. 29
Noise and Its Effects ..................................................................................................... 29
Research Permits for NMFS and FWS Scientists........................................................... 31
Scientific Research Permits ........................................................................................... 32
State Approval of Federal MMPA Permits ..................................................................... 33
Program Management and Administration........................................................................... 33
Definition of “Take”...................................................................................................... 33
Trade in Marine Mammal Parts and Products ................................................................ 33
Management of Robust Stocks ...................................................................................... 34
Fostering International Cooperation .............................................................................. 35
Harassment ................................................................................................................... 36
Management Consistency Between FWS and NMFS..................................................... 37
Directed Research Program........................................................................................... 37
Federal Agency Roles ................................................................................................... 38
Agency Delays in Compliance with MMPA Deadlines .................................................. 38
Appropriation of Agency Funding ................................................................................. 39
Congressional Outlook.............................................................................................................. 39
Oceans Commissions Reports ............................................................................................. 41
Tables
Table 1. Ocean Commissions Recommendations Relating to Marine Mammals ......................... 41
Contacts
Author Contact Information ...................................................................................................... 43
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The Marine Mammal Protection Act: Reauthorization Issues
Introduction
The Marine Mammal Protection Act (MMPA) of 1972 (P.L. 92-522, as amended; 16 U.S.C.
§§1361, et seq.) was last reauthorized in 1994 by P.L. 103-238. The authorization of
appropriations under the MMPA expired at the end of FY1999. The 104th, 105th, 106th, 108th, and
109th Congresses enacted additional amendments addressing single or limited issues (see
“Miscellaneous MMPA Amendments”); no MMPA amendments were enacted by the 107th
Congress.1 At issue for Congress are the terms and conditions of provisions to reauthorize and
amend the MMPA to address a variety of concerns related to marine mammal management.
Legislation introduced, but not enacted, in the 105th, 106th, 107th, 108th, and 109th Congresses
suggests a number of issues that may be discussed during a reauthorization debate. To identify a
larger universe of potentially relevant concerns, the Congressional Research Service queried
commercial fishing, scientific research, public display, 2 animal protection, Native American, and
environmental interests to identify issues that might surface during a reauthorization debate.3 This
report identifies these concerns and provides background to facilitate a better understanding of
various positions on these issues. These concerns, along with other factors, may be considered as
Congress determines whether and how to address MMPA reauthorization.
Other than recommendations contained in reports to Congress mandated by the MMPA
Amendments of 1994 (discussed later in this report) and in testimony presented at a June 29,
1999 oversight hearing before the House Resources Subcommittee on Fisheries Conservation,
Wildlife, and Oceans, the Clinton Administration did not release any comprehensive proposals
related to MMPA reauthorization. In the 109th Congress, H.R. 4075 incorporated some of the
MMPA amendments proposed by the Bush Administration.4 Congress has been active on marine
mammal protection issues in recent years, responding primarily to balancing concerns of the
commercial fishing industry and environmental interests. Congress generally views the MMPA as
working well, but possibly needing changes to address an increasing number of concerns that
have arisen since the 1994 amendments. In the House, the Committee on Natural Resources has
jurisdiction over any MMPA reauthorization legislation. In the Senate, the Committee on
Commerce, Science, and Transportation has jurisdiction over any legislation on this issue.
Constituency Groups
An array of groups and individuals hold common and conflicting interests in our nation’s marine
mammals. Despite their diversity, they generally share the goals of ensuring sustainable marine
1
MMPA amendments were included in P.L. 104-297 (§405(b)(3)), P.L. 105-18 (§2003 and §5004), P.L. 105-42
(International Dolphin Conservation Program Act), P.L. 105-277, P.L. 106-555 (Title II, Marine Mammal Rescue
Assistance Act of 2000), P.L. 108-108 (§149), P.L. 108-136 (§319), and P.L. 109-479 (Title IX). For additional
information, see CRS Report RL33459, Fishery, Aquaculture, and Marine Mammal Legislation in the 109th Congress,
by (name redacted). Archived issue briefs covering legislation in previous Congresses are also available from this
author.
2
Zoos and aquariums holding marine mammals for public education and entertainment.
3
To facilitate a candid discussion of issues, individual respondents were guaranteed they would not be identified by
name. Opinions of individuals and groups may not accurately reflect the opinion of the majority. Presentation of
constituent opinion in this report represents a sampling, and is not a quantitative assessment.
4
The Administration’s draft language of June 16, 2005, is available at http://www.nmfs.noaa.gov/pr/pdfs/laws/
mmpa_bill.pdf.
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mammal populations and maintaining healthy marine ecosystems. These groups, however,
sometimes disagree about how best to achieve these goals and use these common resources, and
thus, conflict is inevitable. As Congress considers reauthorization of the MMPA, these diverse
groups will advocate a wide variety of policy proposals.5
Commercial Fishing Industry
There were more than 65,000 commercial fishing vessels estimated to be operating in U.S.
marine fisheries in 2001,6 and 3,242 processor and wholesale plants employing 65,690
individuals in 2004.7 In 2005, the total catch of marine fish was more than 9.6 billion pounds,
with an estimated ex-vessel value8 of more than $3.9 billion. 9 For 2005, the overall economic
contribution of commercial fishing to gross national product (in value added) was estimated to
exceed $32.9 billion.10
This sector is chiefly concerned with ensuring sustainable fisheries that balance environmental
protection with the continued short-term and long-term viability of the industry. An additional
concern is how best to manage conflicts between increasingly abundant marine mammals and
commercial fishing. Within this sector is a diverse group of interests, each with specific concerns
regarding the rational use of living marine resources and the allocation of resources among user
groups. These sectors divide according to scale of operation; type of activity (fishermen, catcherprocessor, processor); type of fishing gear used (trawl, longline, gillnet, pots, seine); and location
(inshore or offshore).
Environmental Groups
More than 50 U.S. environmental and conservation organizations focus primarily or largely on
marine issues. Membership in these groups ranges into the millions. With respect to the MMPA,
environmental groups are principally concerned with the lack of assessment data for many
managed stocks, the direct and indirect harm to less resilient marine species (including marine
mammals), the protection of marine biodiversity, and the continuing loss of marine habitat.
Public Display Community
This community includes about 200 U.S. marine life parks, aquariums, and zoos dedicated to the
conservation of marine mammals and their environments through public display, education, and
5
These are general characterizations. There is enormous variability and crossover of membership in these groups,
which often blurs the distinction among the concerns within each group. For example, marine mammal scientists may
act both as objective independent analysts and serve as advocates for a specific sector.
6
National Marine Fisheries Service, Fisheries of the United States, 2002, Current Fishery Statistics No. 2002 (Sept.
2003), p. 94. No revised estimate has been published more recently.
7
National Marine Fisheries Service, Fisheries of the United States, 2005, Current Fishery Statistics No. 2005 (February
2007), p. 82. This number represents individuals employed by processors and wholesale plants. It does not include
catching, transporting, or retail marketing of commercially caught fish, nor does it include jobs supported by
commercial fisheries.
8
Ex-vessel value is the money paid to the harvester for fish, shellfish, and other aquatic plants and animals, i.e., the
dollar value of the harvest when it is offloaded from the boat.
9
Supra note 7, p. 4.
10
Id., p. 79.
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research. The public display community has not taken a formal position on any of the issues
raised in this report.
Animal Protection Advocates
More than 30 U.S. animal protection organizations have programs focusing on the protection of
marine mammals and other marine species. Animal protection groups are concerned with impacts
on individual animals as well as species, with harassment as well as killing and injury, and with
captive as well as free-ranging animals. They share concerns with environmental groups
regarding habitat loss and degradation, but are also concerned with intentional and incidental
takes that result in animal suffering. Their key focus is on protection.
Native Americans
Because of their culture, tradition, and subsistence needs, many tribes and indigenous groups are
concerned about the management of marine mammals. Some Alaska Native groups are
represented by commissions (e.g., Eskimo Walrus Commission, Alaska Eskimo Whaling
Commission, Harbor Seal Commission, Aleut Marine Mammal Commission, Alaska Nanuuq
Commission, Alaska Sea Otter and Steller Sea Lion Commission) that coordinate management of
certain species with federal agencies. The long-term goals of tribes and indigenous groups
generally include economic stability, resource sustainability, and regulatory certainty. Of
particular concern during MMPA reauthorization will be cooperative management of marine
mammals, which they believe fosters economic vitality, environmental health, and rational
management of natural resources.
Marine Mammal Scientists
Scientists from academia, the private sector, and state and federal agencies are principally
involved in analyzing the ecological, social, and economic effects of MMPA provisions and
marine mammal management policy. Like the other groups, they are concerned with the health
and integrity of marine ecosystems and the rational use of marine resources. Specifically, they are
interested in the availability of adequate funding and accurate data to perform the necessary
analyses. Such scientists are also often members of or associated with other constituent groups.
Marine Mammal Managers
Federal and state marine mammal managers are charged with implementing the MMPA and
complementary state programs. Because of this responsibility, their interests and concerns are
more keenly focused on the pragmatic aspects of the MMPA. Specifically, they are interested in
clarity in the intent of management requirements and in federal appropriations to fund data
collection and research.
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Marine Mammal Protection Act
Congress enacted the Marine Mammal Protection Act (MMPA) in 1972, due in part to the high
level of dolphin mortality in the eastern tropical Pacific tuna fishery (estimated at more than
400,000 animals per year in the late 1960s). The MMPA established a moratorium11 on the
“taking” of marine mammals in U.S. waters and by U.S. nationals on the high seas.12 The MMPA
also established a moratorium on importing marine mammals and marine mammal products into
the United States. The MMPA protects marine mammals from “clubbing, mutilation, poisoning,
capture in nets, and other human actions that lead to extinction.” It also expressly authorized the
Secretaries of Commerce and the Interior to issue permits for the “taking” of marine mammals for
certain purposes, such as scientific research and public display.
Under the MMPA, the Secretary of Commerce, acting through the National Marine Fisheries
Service (NMFS, in the National Oceanic and Atmospheric Administration, also popularly referred
to as “NOAA Fisheries”), is responsible for the conservation and management of whales,
dolphins, porpoises, seals, and sea lions. The Secretary of the Interior, acting through the U.S.
Fish and Wildlife Service (FWS), is responsible for walruses, sea otters, polar bears, manatees,
and dugongs. This division of authority derives from agency responsibilities as they existed when
the MMPA was enacted. Title II of the MMPA established an independent Marine Mammal
Commission (MMC) and its Committee of Scientific Advisors on Marine Mammals to oversee
and recommend actions necessary to meet the requirements of the MMPA. Title III authorized the
International Dolphin Conservation Program. Title IV authorized the Marine Mammal Health and
Stranding Response Program. Title V implemented the Agreement Between the United States and
the Russian Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear
Population.
Prior to passage of the MMPA, states were responsible for managing marine mammals on lands
and in waters under their jurisdiction. The MMPA shifted all marine mammal management
authority to the federal government. It provides, however, that management authority, on a
species-by-species basis, could be returned to a state that adopts conservation and management
programs consistent with the purposes and policies of the MMPA.13 It also provides that the
moratorium on taking can be waived by the federal government or states with management
authority for specific purposes, if the taking will not disadvantage the affected species or
population. Permits may be issued to take or import any marine mammal species, including
depleted species, for scientific research or to enhance the survival or recovery of the species or
stock. Non-depleted species may be taken or imported for purposes of public display. The MMPA
allows U.S. citizens to apply for and obtain authorization for taking small numbers of mammals
incidental to activities other than commercial fishing (e.g., offshore oil and gas exploration and
development), if the taking would have a negligible impact on any marine mammal species or
stock, and if monitoring requirements and other conditions are met.
11
Some consider this action a ban or prohibition, rather than a moratorium, because it was (and is) permanent.
12
Under the MMPA, in 16 U.S.C. §1362(13), take means “to harass, hunt, capture, or kill, or attempt to harass, hunt,
capture, or kill.”
13
Although the State of Alaska began the process to request management authority for some marine mammal species,
no state has been granted such management authority.
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The MMPA’s moratorium on taking does not apply to any resident Alaskan Indian, Aleut, or
Eskimo who dwells on the coast of the North Pacific (including the Bering Sea) or Arctic Oceans
(including the Chukchi and Beaufort Seas), if such taking is for subsistence purposes14 or for
creating and selling authentic Native articles of handicrafts and clothing, and is not done
wastefully. However, such taking can be regulated or even prohibited if the Secretary determines
a stock is depleted. The MMPA also provides for co-management of marine mammal subsistence
use by Alaska Native groups, under which authority Native commissions have been established.
The MMPA also authorizes the taking of marine mammals incidental to commercial fishing
operations. In 1988, most U.S. commercial fish harvesters were exempted from otherwise
applicable regulations and permit requirements for five years, pending development of an
improved system to govern the incidental taking of marine mammals in the course of commercial
fishing operations.15 The taking of marine mammals incidental to the eastern tropical Pacific tuna
fishery is governed by specific and separate provisions in Title III of the MMPA.
The Endangered Species Act of 1973 (ESA; P.L. 93-205, as amended; 16 U.S.C. §§1531, et seq.)
provides additional protection for some marine mammal species that have been determined to be
threatened or endangered with extinction. When protective actions are taken under both ESA and
MMPA authorities, interactions between implementation efforts under these two statutes may
increase management complexity and legal uncertainty in dealing with some species, such as the
southern sea otter in California.
1994 MMPA Reauthorization
The 1988 commercial fishing exemption expired at the end of FY1993, and new provisions were
enacted in P.L. 103-238, which reauthorized the MMPA through FY1999.16 These new provisions
indefinitely authorized the taking of marine mammals incidental to commercial fishing operations
and provided for (1) preparing assessments for all marine mammal stocks in waters under U.S.
jurisdiction, (2) developing and implementing Take Reduction Plans for stocks that may be
reduced or are being maintained below their optimum sustainable population levels due to
interactions with commercial fisheries, and (3) studying pinniped17-fishery interactions. In
addition, the 1994 amendments substantially changed provisions relating to public display of
marine mammals, authorized imports of polar bear trophies from Canada, authorized the limited
lethal removal of pinnipeds, and enacted a general authorization for research involving only low
levels of harassment.
14
Section 109(f)(2) defines subsistence uses as “the customary and traditional uses by rural Alaska residents of marine
mammals for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the
making and selling of handicraft articles out of nonedible byproducts of marine mammals taken for personal or family
consumption; and for barter, or sharing for personal or family consumption.”
15
Subsequently, the MMPA Amendments of 1994 established a new regime to govern the incidental taking of marine
mammals by commercial fishing operations.
16
For more information, see CRS Report 94-751 ENR, Marine Mammal Protection Act Amendments of 1994, by
(name redacted).
17
Pinnipeds include seals, sea lions, and walrus.
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Implementation of the 1994 Amendments
Implementation of the 1994 MMPA amendments by NMFS and FWS has been controversial on
several issues. In some cases, implementation of new provisions took more than the full five
years of the authorization to complete. One of the most difficult and controversial amendments to
implement was the convening of Take Reduction Teams (TRTs)18 and the development of Take
Reduction Plans by these TRTs. Critics believe an insufficient number of TRTs have been
convened and that development of plans is far behind schedule.
NMFS has convened nine TRTs to reduce bycatch of strategic stocks of marine mammals in
selected commercial fisheries. One of these, the Atlantic Offshore Cetacean TRT, was disbanded
in August 2001 due to changes in the affected fisheries. Another, the Mid-Atlantic TRT, became
the Mid-Atlantic Harbor Porpoise TRT, because of priority given to particularly vulnerable harbor
porpoise. Six of the remaining TRTs address bycatch issues on the Atlantic Coast, while the
remaining TRT addresses marine mammal bycatch in the Pacific driftnet fishery for swordfish
and sharks.19
Several TRTs have yet to be convened and plans developed. Although NMFS recognizes that
fishery-related mortality exceeds the PBR level in some marine mammal stocks, no new TRTs are
to be convened until additional funds are appropriated or redirected from existing Take Reduction
Plans that have been declared successful. Congress recognized that funds would be limited and
established criteria for prioritization of this effort in 16 U.S.C. §1387(f)(3).
Overall, NMFS believes that the time allowed by the MMPA to convene a TRT and develop a
plan has been adequate. However, NMFS found it difficult to publish a final rule based on a plan
in the time allotted by the MMPA, due primarily to the complexity and difficulty of implementing
regulations that minimize impacts to the industry as required by the MMPA, and by the economic
analyses and requirements of other statutes. The difficulties in meeting statutory deadlines and
implementing plans for these strategic stocks has been both frustrating to many, sometimes
resulting in litigation, and satisfying to others in that serious bycatch/fishery issues have been
addressed.
In response to the 1994 MMPA amendments at 16 U.S.C. §1386, NMFS and FWS have
completed reports assessing more than 170 different marine mammal stocks as required by the
MMPA,20 and have developed a list of fisheries that monitor their annual takes of marine
mammals by stock. These lists are frequently being revised and are also the target of controversy
as new information is incorporated into the assessments. However, some of the stock assessments
conducted by FWS have been criticized for using outdated (e.g., decades old) data. In addition,
Alaska Native interests continue to be concerned that some stock assessment reports have little
information on incidental take from commercial fishing operations. The sparse information in
these reports, based on data collected during the 1988-1992 exemption, was the result of an
18
Members of TRTs “include representatives of federal agencies, each coastal state which has fisheries which interact
with the species or stock, appropriate Regional Fishery Management Councils, interstate fisheries commissions,
academic and scientific organizations, environmental groups, all commercial and recreational fisheries groups and gear
types which incidentally take the species or stock, Alaska Native organizations or Indian tribal organizations, and
others as the Secretary deems appropriate” (16 U.S.C. §1387(f)(6)(C)).
19
For additional background on TRTs, see http://www.nmfs.noaa.gov/pr/interactions/trt/.
20
For individual stock assessment reports, see http://www.nmfs.noaa.gov/pr/sars/species.htm.
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emphasis on some U.S. fisheries having interactions with marine mammals at a rate that was
considered more serious than that occurring in fisheries of concern to Native Alaskans. An
observer program was therefore not initiated in Alaska until 1998. NMFS anticipates becoming
better able to address the concerns of Alaska Natives.
The 1994 amendments also directed the federal government to undertake an ecosystem-based
research and monitoring program for the Bering Sea to identify the causes of ecosystem decline.
There is controversy over the extent to which this provision has been fulfilled. Meanwhile, the
Alaska Native community would like to initiate a complimentary effort to understand Bering Sea
ecological processes by drawing upon traditional Native knowledge and wisdom. The Alaska
Native community was unable to obtain public funding to convene meetings among affected
villages to review the draft federal Bering Sea research plan, and eventually sought independent
funding to support a March 1999 Bering Sea conference.
Miscellaneous MMPA Amendments
Subsequent to the 1994 reauthorization, several additional MMPA amendments were enacted
separately:
•
Section 405(b)(3) of P.L. 104-297 amended the MMPA’s definition of the term
“waters under the jurisdiction of the United States.”
•
In P.L. 105-18, §2003 provided a “good samaritan” exemption allowing
individuals to free marine mammals entangled in fishing gear or debris, while
§5004 modified the requirements for the importation of polar bear parts from
polar bears legally harvested in Canada before the MMPA Amendments of 1994
were enacted.
•
P.L. 105-42 modified dolphin conservation provisions of the MMPA applicable to
the eastern tropical Pacific tuna seine fishery and specified under what conditions
tuna products can be labeled “dolphin-safe.”
•
Administrative provisions for the U.S. Fish and Wildlife Service in P.L. 105-277
clarified that polar bear trophy permit fees remain available until expended for
cooperative research and management programs.
•
Title II of P.L. 106-555 authorized grants to benefit marine mammal stranding
programs.
•
Section 149 of P.L. 108-108 permitted the importation of polar bears from
Canada harvested prior to the enactment of final regulations.
•
Section 319 of P.L. 108-136 modified the MMPA’s definition of harassment and
provisions relating to taking marine mammals as they relate to military readiness
activities and federal scientific research. 21
•
Title IX of P.L. 109-479 implemented the Agreement Between the United States
and the Russian Federation on the Conservation and Management of the AlaskaChukotka Polar Bear Population.
21
For additional information, see CRS Report RS22149, Exemptions from Environmental Law for the Department of
Defense (DOD), by (name redacted).
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In compliance with the International Dolphin Conservation Program Act (P.L. 105-42), the
Secretary of Commerce, on April 29, 1999, made an initial finding that there was insufficient
evidence of significant adverse impact from chase and encirclement of dolphins during tuna
fishing. 22 Subsequently, NMFS promulgated a new standard for dolphin-safe tuna in January
2000.23 However, this standard was challenged by environmental groups and overturned by the
U.S. District Court for the Northern District of California on April 11, 2000.24 Although the
Department of Commerce appealed this ruling, the 9th Circuit Court of Appeals affirmed the
lower court decision in July 2001.25
Issues for Congress
The remainder of this report reviews issues that may be raised during discussions on
reauthorizing the MMPA. The major issue categories include commercial fishing interactions
with marine mammals, marine mammals in captivity, Native Americans and marine mammals,
permits and authorizations, and program management and administration. Some of these issues
could be addressed administratively, in regulations implemented by NMFS, FWS, or the Animal
and Plant Health Inspection Service (APHIS, Department of Agriculture). Others would require
legislative action.
Commercial Fishing Interactions with Marine Mammals
Optimum Sustainable Population
Optimum sustainable population (OSP) is defined in 16 U.S.C. §1362(9) as “the number of
animals which will result in the maximum productivity of the population or the species, keeping
in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a
constituent element.” However, the variable nature of populations in marine ecosystems makes it
nearly impossible to determine carrying capacity. In addition, for many species, the limiting
habitat factors that govern carrying capacity are not known or well understood.26
Animal protection, scientific, and environmental interests generally agree that OSP is an
important concept for assessing the viability of a population or stock. Some scientists, however,
express concern that, if current rather than historic population data are used to calculate OSP, OSP
levels may be calculated too low for some marine mammal stocks.27 Some in the commercial
fishing industry, however, argue that OSP, as currently defined, is complex and vague in concept.
22
64 Fed. Reg. 24590-24592 (May 7, 1999).
65 Fed. Reg. 30-59 (Jan. 3, 2000).
24
Brower v. Evans, 93 F. Supp 2d 1071, 2000 U.S. Dist. LEXIS 4624 (N.D. Cal. 2000).
25
Brower v. Evans, 257 F. 3d 1058, 2001 U.S. App. LEXIS 16504 (9th Cir. 2001).
23
26
Some scientists have attempted to define OSP for a population based on the carrying capacity for an ecosystem that
may no longer exist for many reasons, both human-caused and natural.
27
These scientists are concerned that, since most marine mammal species have suffered dramatic population decreases
over the last two centuries, the true carrying capacity of the environment is unknown. In addition, they believe that
carrying capacity for some species would increase if certain commercial fish harvests were curtailed and other human
uses of the marine environment were modified.
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They contend that “maximum productivity” is difficult to determine and imprecise, 28 and
complicates work on developing Take Reduction Plans for marine mammal stocks. The
difficulties in declaring that a species is at OSP (1) frustrate fishing industry interests by impeding
the ability of the federal government to transfer management authority to states and (2) prevent or
delay fishermen from gaining authority to deliberately kill marine mammals. In addition,
commercial fishing interests chafe when the MMPA, through OSP, grants marine mammals
priority access to certain fish stocks and allocates marine mammals de facto “harvest quotas” in
direct competition with and to the detriment of the fishing industry. Environmental and scientific
interests counter that marine mammals are part of the marine ecosystem and should have their
prey species protected from excessive fishing. These interests also believe that critics within the
commercial fishing industry may be too quick to blame marine mammals for reductions in target
fish populations where predator-prey relationships are incompletely understood.
Commercial fishing interests would like to see the MMPA amended to modify, simplify, and
clarify the definition of OSP as the objective for marine mammal management. Scientific, animal
protection, and environmental interests believe that OSP, as the central “core” innovation of the
MMPA, should be retained and improved. Other suggestions include directing the MMC to host a
workshop, involving marine ecologists, oceanographers, and climatologists, to further examine
the methods for determining OSP and its derivative potential biological removal (see section
below). Appropriation of funds necessary for this task would probably be required.
Calculating Potential Biological Removal
The potential biological removal (PBR) level is used to establish limits on incidental marine
mammal mortality for commercial fishing operations. It is defined in 16 U.S.C. §1362(20) as “the
maximum number of animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its optimum sustainable
population.” PBR is calculated by multiplying a stock’s minimum population estimate by half the
known or presumed maximum net productivity of the stock. This product is multiplied by a
fractional multiplier known as the recovery factor.29 Take Reduction Plans are based on two
assumptions: (1) that a stock or population currently within its OSP range will remain so, and (2)
that any stock or population below its maximum net productivity level will increase to that level
if the total human-caused mortality is kept below the PBR level. However, some scientists believe
that both these assumptions might be questionable in light of today’s much better information.
MMPA critics in the fishing industry and Native Alaskan community believe that NMFS has been
so restrictive in calculating PBRs that the economic viability of certain fisheries (e.g., the New
England and mid-Atlantic gillnet fisheries, Bering Sea pollock fishery) is being compromised.
NMFS and FWS managers counter that the lack of critical data used in PBR calculations limits
their ability to calculate precise PBR values for many species. These issues are particularly acute
for Alaskan species where population surveys, productivity rates, and harvest data are absent or
based on crude estimates several decades old. Some scientific and animal protection interests,
however, are concerned that, if the method for calculating them is changed, PBRs could be set too
28
Maximum productivity is based on inexact population surveys subject to natural fluctuations and can be derived
scientifically in several ways. Improving survey techniques with more advanced technology holds promise for
improving the precision of these variables. Full realization of this potential may be dependent upon increased funding.
29
The recovery factor accounts for uncertainty in population estimates and reproductive rates.
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high to provide adequate incentive for commercial fishermen to develop better ways of targeting
and catching certain species of fish (e.g., phasing out indiscriminate harvesting methods).
Segments of the commercial fishing industry would like to have the concept or definition of PBR
revised to be less restrictive by, for example, manipulating one of the multipliers (particularly the
recovery factor). Scientific, animal protection, and environmental interests believe that PBR is an
extremely important concept and an excellent management tool that should be maintained.30
Without a way to calculate concrete limits on take, they argue, NMFS would have no way of
adequately determining the impact of human-caused mortality on marine mammal stocks or of
adequately enforcing regulations. Some scientists contend that the necessary monitoring and
research to accurately calculate useful PBRs is lacking. These critics suggest that a deadline be
set for completing development of models to address these concerns.
As mentioned in the previous section, suggestions for MMPA reauthorization include directing
the MMC to host a workshop, involving marine ecologists, oceanographers, and climatologists, to
further examine the methods for determining OSP and its derivative PBR. Considerations for
such a workshop might include (1) multiple mortality factors such as subsistence harvest,
commercial fishery interactions (including entanglement in net discards), and industrial activities
(e.g., noise, contaminants); (2) standardized guidelines for using the recovery factor (e.g.,
endangered species that continue to decline should use 0.1 or less; endangered but increasing
should use 0.2); and (3) variability in natural mortality due to extreme events (e.g., mass
stranding, El Niño). Appropriation of funds necessary for this task would probably be required.
Zero Mortality Rate Goal
In 16 U.S.C. §1387(b)(3), the MMPA requires “the immediate goal that incidental kill or
incidental serious injury of marine mammals permitted in the course of commercial fishing
operations be reduced to insignificant levels approaching a zero mortality and serious injury rate
within 7 years after April 30, 1994.” In July 2004, NMFS defined insignificant levels approaching
the ZMRG as 10% or less of the PBR for any stock.31
The animal protection and environmental communities believe the objective of approaching the
ZMRG must be maintained. However, while marine mammal mortality in many fisheries has
been reduced (in some cases, substantially), animal protection and environmental interests do not
consider these reductions to be significant. They believe that the ZMRG can be implemented in
ways that do not impose burdensome costs on the fishing industry, and that promote marine
ecosystem sustainability that is in the interest of all parties. Similar to their reasoning on PBRs,
they believe ZMRG must be maintained as a means of encouraging the development and use of
more risk-averse fishing methods.
The fishing industry is concerned that ZMRG be implemented in a manner that recognizes a
reasonable balance between marine mammal protection and economically viable fisheries, and
that can be seen as having been already achieved in many instances. Animal protection and
30
These interests see PBR as a means of invoking the precautionary principle in marine mammal management—by
which the federal government takes action to avert possible harm to marine mammals, even when the causal link
between human behavior and those damages is not completely clear. For additional information on the precautionary
principle, see http://www.sehn.org/pdf/putvaluesfirst.pdf.
31
69 Fed. Reg. 43338-43345 (July 20, 2004).
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environmental communities generally are supportive of the NMFS definition of approaching the
ZMRG—that is, 10% of the PBR or less.
Stock Assessment Process
The MMPA outlines a stock assessment process in 16 U.S.C. §1386. Several scientists and
managers contend that this process is insufficient to assess most marine mammal populations
with a reasonable degree of certainty. In addition, these critics as well as various advocacy groups
believe that federal funding is insufficient to improve species-specific methods for assessing
marine mammal stocks, 32 and that Congress should authorize specific and substantial multi-year
funding to improve our basic knowledge of marine mammal populations, especially for Arctic
species. 33 Alaskan Native interests suggest that the MMPA (16 U.S.C. §1386(d)) be amended to
confer greater authority to Regional Scientific Review Groups, authorizing these groups to
exercise more power in addressing concerns of where research is needed, rather than be only
advisory. In addition, they suggest amendments to 16 U.S.C. §1386(c) to alter the timing of stock
assessment reviews, feeling that healthy stocks may not need review every three years—every
five years would be more reasonable. They believe that three years may be too short an interval to
detect meaningful trends and can be burdensome on the agency performing the assessments. For
most strategic stocks, since little new information is gathered to necessitate an annual review,
they believe an assessment every two years might be sufficient.
Deterrence
In 16 U.S.C. §1371(a)(4), the MMPA allows the use of deterrents to discourage marine mammals
from damaging fish catch or gear. Currently, the burden falls on the federal government to prove
that a deterrent is harmful before it can be prohibited. For example, the long-term effects on
marine mammals of acoustical harassment devices (AHDs), such as “seal bombs” and “seal
scarers,” are not known.34 NMFS and the Marine Mammal Commission sponsored a 1996
scientific workshop that raised significant concerns about AHDs and recommended that their use
be severely limited. NMFS proposed35 but never finalized deterrence regulations because of the
difficulty in identifying measures for safely deterring endangered and threatened marine
mammals, 36 and the use of AHDs has increased substantially in recent years. Similarly, some
32
New methodology might include both population numbers and ecological relationships as well as review by
independent scientists.
33
“For updated stock assessments to be meaningful, this absence of sound scientific data needs to be addressed by
providing for enhanced capability to conduct high priority population surveys, and studies for development of
alternative population indices.” Marshall Jones, Acting Deputy Director, U.S. Fish and Wildlife Service, June 29, 1999,
hearing before the House Resources Subcommittee on Fisheries Conservation, Wildlife, and Oceans.
34
Marine mammals are persistent when they discover a food source. They may habituate to acoustic devices unless
these devices are quite loud, in which case the animal’s hearing could become impaired. The ways and extent to which
widespread use of acoustic alarms and deterrents may affect the natural ability of marine mammals to find food and use
the full extent of their foraging range is not well known, but may have unintended consequences. For example, the loss
of hearing due to loud noise might increase the dependancy of marine mammals upon fishing boats and fish farms for
food. In addition, AHDs could displace non-target species (such as porpoises) several miles (e.g., Retreat Passage,
British Columbia).
35
Guidelines and regulations for use of deterrents were proposed at 60 Fed. Reg. 22345-22348 (May 5, 1995), but
NMFS never promulgated final regulations.
36
See congressional testimony by Dr. William T. Hogarth, Assistant Administrator for Fisheries, NMFS, NOAA, at
http://www.ogc.doc.gov/ogc/legreg/testimon/107f/hogarth1011.htm.
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scientists are concerned that there has been insufficient research37 to determine at what threshold
a deterrent device might become harmful to marine mammals. 38
With huge gaps of knowledge in marine mammal science,39 some animal protection advocates
argue that it would be prudent to allow only proven harmless deterrents for use on marine
mammals interacting with fishing vessels and/or fish farms. Some have argued for reliance on the
precautionary principle that would require manufacturers to prove that a deterrent does not cause
permanent harm to any age/sex class of affected marine mammal species before allowing its
use. 40 In addition, some scientists and managers believe that not enough emphasis has been
placed on encouraging fishermen to change their fishing practices, rather than use a proven
deterrent, to reduce interactions with marine mammals.41 However, fishermen are likely to make
their choice between deterrents and changes in fishing practice on the basis of their relative cost.
Some parties critical of the current situation may endorse proposals to alter the burden of proof
for deterrents found in 16 U.S.C. §1371(a)(4)(C); others may support efforts to direct NMFS to
study the causes of fishery-marine mammal interaction problems to develop a different basis for
regulating deterrents. Others suggest that the MMPA be revised to require permits for AHD users,
allowing NMFS to better monitor the amount of ocean noise generated by these devices. 42 NMFS
has recommended that Congress consider (1) removing impediments to testing non-lethal
deterrent technologies and (2) funding additional research, development, and evaluation of
innovative non-lethal pinniped deterrence techniques. 43 Some managers and scientists as well as
certain interest groups caution, however, that considerable care must be taken to fully assess the
“side effects” of noise and other emissions of non-lethal deterrents to identify any potential for
damage to targeted and non-targeted marine mammals, fish that may be more sensitive to noise
(e.g., herring, cod, other schooling fish), and divers. Any potential for damage will need to be
weighed against the benefits of these deterrents before their use becomes even more widespread.
37
Some of this research has been conducted on captive marine mammals, which may have limited applicability to the
behavior of wild, free-ranging animals.
38
Even low-sound-output devices (e.g., “pingers”) may displace animals from critical feeding habitat.
39
For example, the physiology of different species interacting in a particular habitat, sensory processes, ecosystem
implications, stock assessments, and specific behavioral characteristics/region. Studies that have been conducted are
inconclusive with respect to (1) effects of a single deterrent device on multiple species inhabiting a given area
(including fish); (2) audiological and physiological understanding of the marine mammal ear (and hearing thresholds);
(3) impacts of both broad- and narrow-band spectra signals on the marine mammal auditory system; (4) frequency,
intensity levels, and duty cycles of such devices with respect to ambient noise, vessel operations, etc.; and (5) acoustic
behavior of the animals.
40
Others assert that it is an extreme standard to be required to prove a negative—that an AHD does not cause harm.
They claim a much more reasonable standard might be to prohibit the use of AHDs that have been shown to cause any
kind of permanent damage.
41
Some fishery practices (e.g., discarding bycatch and fish waste) invite marine mammals into close proximity with
humans. In addition, an increase of fishery interactions with sperm whales in Alaskan waters appears to have coincided
with the change from a “derby fishery” (where the whole fleet fished for a short period of time) to an individual fishing
quota (IFQ) system (where individual fishermen choose when to fish during most of the year). The IFQ system may
have enabled sperm whales to develop their skill in taking fish from fishermen. Before the change to IFQs, whales had,
at most, two weeks to interact with longline fisheries and, since all vessels were fishing at the same time, not every
vessel experienced problems with the whales. Now, sperm whales apparently go from boat to boat in time and space,
practicing their skills most of the year.
42
A simplified permit process might address the impacts on non-target species, and a research program could be
established to assess the long-term impacts on target and non-target species from the use of AHDs.
43
National Marine Fisheries Service. Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and West
Coast Ecosystems, Report to Congress (Feb. 10, 1999), p. 15.
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Reinstate Limited Authority for Intentional Lethal Taking
Prior to the 1994 MMPA amendments, commercial fishermen were allowed to kill certain
pinnipeds as a last resort to protect their gear and catch. The 1994 amendments eliminated
authorization for such lethal taking and replaced it with authority to use deterrence measures that
do not kill or seriously injure marine mammals. However, conflicts between fishermen and
pinnipeds have become more frequent, and economic losses have increased. NMFS has
recommended that Congress consider authorizing the intentional lethal taking of California sea
lions and Pacific harbor seals in specific areas and fisheries to protect gear and catch until
effective non-lethal methods are developed. 44 Critics oppose reinstating this authority, fearing that
allowing fishermen to kill California sea lions and Pacific harbor seals could reduce the incentive
to modify fishing practices or develop non-lethal deterrents, and would likely result in accidental
kills of similar-appearing species that are endangered, such as the ESA-listed Steller sea lion.45
These critics suggest that more attention be given to modifying fishing practices and fishery
management policies to reduce contact between commercial fishermen and marine mammals.
One possible means for accomplishing this might involve the creation of marine protected areas
that encompass key marine mammal habitats.46 In particular, animal protection advocates strongly
oppose any reinstatement of intentional lethal taking, fearing the increased risks of merely
injuring animals and causing significant suffering as shown by the number of live-stranded sea
lions that are sent to rehabilitation centers after having been illegally shot.
With regard to sea otters rather than pinnipeds, Washington State sea urchin fishermen are
becoming more concerned about harmful interactions by increasingly abundant sea otters, and
may seek some means for limiting or controlling sea otter abundance to benefit the sea urchin
fishery. The state lists sea otters as endangered, but no federal protection is afforded this
population under the ESA. However, a 1996 stock assessment report prepared under MMPA
authority indicated this population was below OSP. In addition, Alaskans who blame sea otters, in
part, for declining fish catch may advocate a more liberal killing of sea otters by Alaska Natives
interested in expanding commercial trade in handicrafts made from their fur. Others, however, are
concerned about reported recent declines in Alaska sea otter abundance. Animal protection groups
rigorously oppose proposals to lethally take sea otters.
Integration with Fishery Management
On several issues, observers suggest that better integration between the management programs
under the MMPA and the Magnuson-Stevens Fishery Conservation and Management Act might
be helpful.47 Currently, no formal mechanism exists for interaction between Take Reduction
Teams (TRTs) and the regional fishery management council committees, established under the
Magnuson-Stevens Act, which assess fish stocks, determine total allowable catch (TAC), and
44
Ibid., p. 15-16.
The federal courts have ruled that the federal government cannot issue permits to kill an abundant animal when they
know that a protected animal is also likely to be killed. See Kokechik Fishermen’s Association v. Secretary of
Commerce, 839 F.2d 795 (D.C. Cir. 1988) cert denied, 488 U.S. 1004 (1989).
46
For more information on marine protected areas, see CRS Report RS10810, Marine Protected Areas: An Overview,
by (name redacted) and (name redacted).
47
It has been suggested that some actions could be administrative (e.g., NMFS consultation on designating “essential
fish habitat”) such that protection of sensitive fish habitat might also acknowledge the importance of critical foraging
areas for sub-adult and reproductively active female marine mammals.
45
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make other fishery management decisions. However, marine mammal take reduction is clearly an
essential part of reducing fishery bycatch and other incidental mortalities associated with
fisheries. The Steller Sea Lion Recovery Team has so far been the only quasi-TRT that has been
included in formulating fishery management plans (i.e., by the North Pacific Fishery
Management Council for Gulf of Alaska groundfish and for Bering Sea/Aleutian Islands
groundfish). Some marine mammal scientists suggest amending the MMPA and the MagnusonStevens Act to require TRT input in fishery management planning, to better address marine
mammal-fisheries interaction problems.
Fishery Impacts and Southern Sea Otters
Because vessels conducting trap and other inshore fisheries off southern California are often too
small to carry observers, monitoring the impacts of these fisheries on southern sea otters has been
especially challenging. Without evidence that significant mortality results from these particular
fishing activities, funds provided to NMFS under the MMPA are not available to identify and
monitor potential sources of mortality for southern sea otters, much less to evaluate how trap
design might affect sea otter entrapment or otherwise help identify means to minimize conflicts.
Some scientists and managers suggest amending the MMPA to facilitate monitoring in small
vessel fisheries and to authorize funding to address potential interactions.
Southern sea otters appear to be attempting to extend their range southward. Such behavior may
be significant to the long-term survival of this population, scientists contend. However, the
commercial fishing industry opposes any expansion of the southern sea otter’s range. When FWS
was authorized to establish an experimental population of southern sea otters at San Nicolas
Island, one of Southern California’s Channel Islands, in 1986, the agency was required to limit
the potential impacts of translocated southern sea otters on existing commercial fisheries and
remove sea otters from a management zone south of Point Conception. 48 In late 2005, FWS
proposed that this translocation program be terminated.49 Commercial fishermen suggest that the
MMPA and the ESA might be amended to impose more stringent requirements on managing
populations to limit their potential to conflict with existing uses. Opposing this, some
environmental and animal protection interests suggest that language establishing the 1986
experimental population and translocation be repealed, eliminating the management zone and
allowing sea otters to expand their range naturally to meet their recovery needs.
Marine Mammals in Captivity
While some issues involving marine mammals in captivity discussed in this section may require
amendment of the MMPA, many of these issues could also be addressed under the authority of
the Animal Welfare Act (AWA) or be addressed administratively in regulations implemented by
APHIS (Department of Agriculture). Procedurally, Congress faces the decision on whether to
treat these issues within the MMPA reauthorization process, to treat them as AWA issues and
consider them concurrently with MMPA reauthorization, or to address these issues as strictly
AWA concerns to be considered at another time. Congressional oversight of agency
implementation of the MMPA and the AWA in some of these issue areas may identify regulatory
48
Section 1 of P.L. 99-625. However, FWS decided in January 2001 to halt the removal of southern sea otters from the
management zone. For more information on this decision, see http://pacific.fws.gov/news/2001/2001-23.htm.
49
See http://www.fws.gov/pacific/news/2005/seaotterNR.pdf.
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concerns where further direction from Congress may be helpful in refocusing federal agency
implementation of existing law. 50
Many of the issues in this section reflect the contentious relationship between animal protection
interests and holders of captive marine mammals. These constituencies often disagree on whether,
and if so under what conditions, marine mammals should be held in captivity.51
Authority for Captive Marine Mammals
Prior to the 1994 MMPA amendments, NMFS, FWS, and APHIS shared responsibility for the
care and maintenance of marine mammals held by public display facilities. However, the 1994
MMPA amendments delegated primary authority for captive marine mammals to APHIS for
regulation under provisions of the Animal Welfare Act.52 APHIS conducted a negotiated
rulemaking process to revise requirements for the humane handling, care, treatment, and transport
of marine mammals in captivity. 53 It involved representatives of animal protection groups, marine
mammal facilities, veterinary professionals, trainers, and government managers working
cooperatively.
The animal protection community, believing that APHIS’s expertise and experience is primarily
with non-aquatic species, may propose to return jurisdiction to NMFS and FWS, which they feel
are better qualified to monitor marine mammal care and maintenance.54 On the other hand, some
in the public display community see no basis for stripping APHIS of primary authority for captive
marine mammals, since they contend that APHIS has a long history of developing and enforcing
standards of animal health and care and has vigorously exercised its jurisdiction.55 This has
included conducting broad rulemaking proceedings on revised requirements for marine mammals
in captivity. In contrast, the public display community views NMFS and FWS as not typically
dealing with or being involved in the animal husbandry sector and having limited expertise in the
50
Coordinated oversight on this issue can be complicated by committee jurisdiction, since APHIS and the AWA fall
under the jurisdiction of the House Committee on Agriculture and Senate Committee on Agriculture, Nutrition, and
Forestry while NMFS and the MMPA are under the jurisdiction of the House Committee on Resources and Senate
Committee on Commerce, Science, and Transportation.
51
Various aspects of this issue were recently highlighted in a five-part series, “Below the Surface,” published in the
South Florida Sun-Sentinel, May 16-19, 2004, available at http://www.sun-sentinel.com/news/sflmarinestorygallery,0,2119297.storygallery?coll=sfla-home-dots-utility.
52
In August 1998, NMFS, FWS, and APHIS signed a memorandum of understanding (MOU) outlining their respective
independent and collaborative roles. This MOU provides implementation strategies to ensure priority care for marine
mammals, and formalizes information sharing among the agencies to promote enforcement and compliance.
53
APHIS began the process of amending marine mammal regulations under the AWA in 1990. Subsequently, APHIS
published an advanced notice of proposed rulemaking at 58 Fed. Reg. 39458 (July 23, 1993). Proposed regulations
were published at 64 Fed. Reg. 8735-8755 (Feb. 23, 1999), and final regulations at 66 Fed. Reg. 239-257 (Jan. 3,
2001).
54
Animal protection advocates report that APHIS employs only one veterinarian with marine mammal expertise among
a staff of approximately 106 inspectors. These 106 inspectors are responsible for 8,800 licensed zoos, circuses, and
trucks/airlines that transport animals. Although the AWA requires one unannounced inspection per year, animal
protection groups contend that overworked inspectors visit some marine parts and aquaria only once every three years,
or only after the filing of public complaints.
55
APHIS has more than 20 years’ experience in monitoring and regulating the humane care and treatment of marine
mammals in captivity, employing a professional veterinary staff to inspect facilities. APHIS was given authority under
the AWA to regulate warm-blooded animals, including marine mammals, for public display in the early 1970s, and first
published regulations on marine mammals in 1979. APHIS resources include a National Animal Health Monitoring
System, National Veterinary Services Laboratories, and a Veterinarian-in-Charge in every state.
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captive maintenance and care of marine mammals.56 Critics further assert that giving NMFS and
FWS jurisdiction in this area would necessitate an expensive program duplicating what APHIS
already administers. Some in the public display community further assert that the majority of
problems concerning the quality of care provided captive marine mammals occurred prior to the
1994 MMPA amendments and in privately operated facilities that were not regulated, rather than
in regulated public display facilities.
Regardless of who regulates these facilities, some marine mammal scientists and animal
protection advocates believe that regulations need to be brought more closely into accord with the
physical, psychological, and social needs of marine mammals. In addition, they suggest that
existing regulations need to be enforced with more rigor and with less influence from the
facilities being regulated.57 They argue that reliance on the public display community to be
forthcoming when explaining the application of particular husbandry practices may be open to
question, particularly when public display facilities fear that proprietary interest related to
husbandry techniques (e.g., successful captive breeding techniques) might be revealed to
competitors. They suggest that Congress consider ways in which successful husbandry techniques
might be made more openly available in the interest of benefitting the care of marine mammals
throughout the public display industry. Under such conditions, husbandry practices might be
standardized to better protect animals.
Export of Captive Animals
The 1994 MMPA amendments repealed export permit and public notification requirements,
replacing them with a 15-day federal agency notification requirement prior to export.58 NMFS has
interpreted export provisions as requiring a letter of comity59 from the foreign government
certifying that the standards of the MMPA are upheld in foreign facilities. In addition, NMFS
requires a letter of comity for any further transfer of a marine mammal of U.S. origin by one
foreign nation to another foreign nation. Animal protection advocates claim that the current status
of some of the marine mammals (dolphins, in particular) shipped from the United States to
Honduras, China, Portugal, Tahiti, and other countries since the 1994 repeal is not known. The
animal protection community is concerned and may seek to amend the MMPA to restore the
export requirements to their original condition (i.e., requiring a permit, with a public comment
period as part of the process).60 Some scientists agree that a requirement for export permits should
be reinstated,61 but believe that MMC and NMFS/FWS review of export permits might make
56
Critics suggest NMFS and FWS are already overburdened with serious problems concerning declining stocks of wild
animals and a deteriorating environment.
57
Critics cite examples where APHIS appears content to wait for facilities to fix recurring problems rather than taking
more aggressive action, and where APHIS is alleged to have accepted a facility’s tank measurements rather than taking
independent measurements.
58
NMFS’s Marine Mammal Inventory Report now catalogs export and facility transfer notifications as required by 16
U.S.C. §1374(c)(10)(F).
59
Comity is the legal doctrine under which countries recognize and enforce each others’ legal decrees.
60
Animal protection advocates have serious concerns regarding the ability of NMFS/FWS under the short notification
regime and without public input to ensure the well-being of marine mammals leaving this country for foreign, and often
substandard, facilities. They are concerned that the brief window of notification eliminates any and all opportunity for
public notification and comment and also limits the time available for the agencies to review the documentation that
must accompany an export.
61
The scientific issue is one of detailed and open record keeping, so that scientists know where animals have gone and
are able to compare wild to captive mortality rates, birth rates, etc.
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public comment unnecessary. Some suggest that Congress require a full accounting from
NMFS/FWS for all past exported marine mammals before allowing any further U.S. animals to
be exported. In addition, they suggest the MMPA be amended to require a $25,000 surety bond or
insurance policy per exported marine mammal to cover emergency medical and transfer costs in
the event of financial or natural disaster at a foreign facility. Animal protection advocates
recommend mandatory on-site inspections of foreign facilities before any U.S. marine mammal
can be exported. Elements of the public display community, however, believe the current process
includes extensive safeguards,62 and that the prior law requirements were outmoded and
cumbersome. Some in the public display community may suggest further amending the MMPA to
eliminate the 15-day prior agency notification requirement for exports.63
Import of Captive Animals
Some in the public display community may seek to amend the MMPA to treat the import of
marine mammals the same way exports are treated (i.e., agency notification required but no
permit required and no public comment solicited). They argue that the current process is
cumbersome and unnecessary. The animal protection community would likely oppose such an
amendment, desiring to retain and possibly strengthen federal agency review of imports as well as
the option for public comment. They believe that a public process with agency review would
better protect marine mammals, discouraging the import of certain marine mammals such as those
captured specifically for the importing facility.
Scientific Research on Captive Marine Mammals
Research on captive marine mammals has provided critical information and a substantial body of
literature on many aspects of marine mammal biology. 64 Some scientists assert that research on
captive marine mammals may be more useful for certain disciplines (e.g., physiology,
immunology, nutrition, hearing sensitivity, and cognitive and acoustic abilities) than others (e.g.,
acoustic behavior and intra- and inter-species interactions).65 Some scientists have proposed that
more research be conducted on how human activities might affect marine animals.66 They further
contend that research on and observation of marine mammals in captivity affords scientists the
opportunity to conduct studies with live animals that are not always possible or practical to do in
the wild, and contributes valuable data useful in determining management criteria for wild
62
The primary safeguard is the requirement, certified by the recipient nation’s agency responsible for marine mammals,
that the receiving facility meets the same criteria for holding such animals as were required of the originating U.S.
facility (16 U.S.C. §1374(c)(9)). While some critics suggest that stronger regulatory criteria might be imposed by
NMFS/FWS in implementing this provision, they believe such action may require congressional direction, either
through a statement in committee report language or as a specific MMPA amendment.
63
16 U.S.C. §1374(c)(8)(B)(i)(II).
64
For example, see http://cerf.bc.ca/pubs/biblio/marmam_biblio.html. Prior to the establishment of marine mammal
facilities, most of what was learned about marine mammals resulted from whaling and sealing activities, rather than
from field research.
65
Some scientists suggest that a workshop of experts be convened to provide guidance on better defining what might
be considered valid research on captive marine mammals, and on increasing opportunities for legitimate research
access to captive marine mammals. Similar efforts have been conducted under the authority provided in 16 U.S.C.
§1380.
66
Some scientists report that research on captive animals is also constrained by economics. For example, estimates of
the cost of obtaining a young healthy dolphin range from $100,000 to $150,000.
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populations. Many of these scientists believe the MMPA has placed an unreasonable burden on
scientific research (e.g., invasive research is seriously impeded).
Other scientists as well as parts of the animal protection community question how much of the
research conducted on captive marine mammals actually benefits marine mammals in the wild.
These critics may suggest that the MMPA be amended to require that more attention to benefits
be given by federal agencies that review permits for scientific research on captive marine
mammals. Other scientists are likely to oppose any amendment that might increase their
regulatory burden or curtail access to potential research animals. As an alternative to greater
restrictions, some scientists suggest amending the MMPA to impose a research requirement on all
regulated facilities holding marine mammals, with mandatory peer review of these research
programs to ensure that the capture and holding of marine mammals for research is justified. 67
More Extensive Medical Exams for Transferred Animals
Although both APHIS and FWS require a health certificate from a licensed veterinarian prior to
transporting a marine mammal, the United States does not require any blood tests be made on
marine mammals destined for export. In addition, neither NMFS nor FWS requires an exporter to
prove that an animal harbors no infections,68 even if the animal may have been exposed to
Morbillivirus—a highly contagious, distemper-like disease harmful to some marine mammal
species. 69 Therefore, critics assert that some disease-carrying marine mammals could be exported
to countries where they might infect marine mammals in that region. Animal protection advocates
suggest that the MMPA or the AWA may need to be amended to require more safeguards against
transferring pathogens (including antibiotic-resistant pathogens) (a) among captive populations
when animals are moved; and (b) to wild populations when captive animals are moved to seapens70 or when a public display facility discharges untreated effluents into the marine
environment.71 More extreme scientific critics suggest that transferred animals should be
prohibited from ever being placed in a sea pen or other open enclosure, and that imported and
exported marine mammals should be treated like parrots and other exotic birds, with quarantines
and thorough medical examinations required at each end of the transfer.
Individuals at some public display facilities believe that these matters have been addressed
sufficiently in regulations finalized by APHIS.72 In addition, an individual associated with the
public display community relates that medical examinations prior to transporting marine
mammals, regardless of their destination, have been a long-standing practice for many zoos and
aquaria. Under such practice and before an animal is transferred, a veterinarian conducts an
67
However, captive marine mammals used for research often are orphaned, stranded, or disabled animals that are not
physically able to be returned to the wild.
68
Again, some believe it may be an extreme standard to be required to prove a negative.
69
This disease is prevalent in wild animals, but has never been reported in a non-stranded captive animal.
70
This concern may arise when private organizations, often affiliated with animal protection groups, promote the
release of captive animals, as well as with some foreign public display facilities.
71
For individual public display facilities discharging waste to a publicly owned treatment works, local municipalities
enforce wastewater treatment standards and effluent discharge permits under the authority of the federal Clean Water
Act. If the facility discharges directly to the environment, standards and permits under this same act are administered
by the Environmental Protection Agency (EPA) or qualified states to which EPA has delegated responsibility.
72
66 Fed. Reg. 239-257 (Jan. 3, 2001).
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examination and certifies the animal’s healthy condition.73 They further state that, since humans
are not required to be proven disease-free before traveling, it would be ridiculous to impose a
higher standard for marine mammals. Managers of public display facilities are exceedingly
hesitant to accept any animal that could pose a potential pathogenic threat because of their
interest in their investment and the difficulty in replacing animals that die. Furthermore, they
assert that there is no documented case where release of a captive marine mammal to the wild or
to an open ocean pen, or discharge of facility effluent has contributed to an epidemiological
episode in the wild. 74
Necropsies
Currently necropsies on dead marine mammals are performed in-house by public display facility
veterinarians.75 Prior to the 1994 MMPA amendments, necropsy reports were required to be
submitted to NMFS and FWS. Current APHIS standards require such reports to be completed and
kept on file at the public display facility for three years.76 Such medical records are available to
APHIS inspectors on-site when requested, but are not submitted to, nor kept on file at, APHIS or
any centralized point. The only requirement under the MMPA is to report to NMFS and FWS the
“date of death of the marine mammal and the cause of death when determined.”77 Thus,
necropsies, which formerly were available to the public under the Freedom of Information Act,
are no longer public records. 78
Animal protection advocates believe that public access to necropsy information is important to
protecting the well-being of marine mammals in captivity, and they object to the 1994 changes in
necropsy policy. They also fear that captive holding facilities minimize the impact of animal
deaths by under-reporting findings of a necropsy, performing an inadequate necropsy, or failing to
report actual findings.79 These critics would like to see the MMPA amended to again require that
necropsy reports, in standardized format, be submitted to a federal agency, thus guaranteeing
public access to them. In addition, animal protection interests may propose a requirement that
necropsies be performed by independent/impartial veterinarians (federally employed, appointed,
or contracted veterinarians) and that institutions experiencing a marine mammal death report to
APHIS within 48 hours, upon which an official examiner would be dispatched to perform the
73
In rare instances, such as hazardous situations or removal of an animal from imminent danger, it may be in the sick
or threatened animal’s best interests to be transported to a quarantined location where it can be treated. Animal
protection interests are concerned to ensure that cumbersome paperwork and bureaucracy do not jeopardize an animal’s
life in these situations.
74
In the reverse situation, cases have been reported where receipt of a stranded wild animal or inadequate treatment of
influent water has allowed pathogens from the wild to infect captive marine mammals.
75
Necropsies are routinely performed as soon as possible, normally within hours of death. Histopathological samples
are collected and a full spectrum of tests are conducted by independent laboratories outside the facility. A full report of
test results is normally received within two to three weeks, with preliminary results usually available within a week.
76
9 C.F.R. 3.110(d).
77
16 U.S.C. §1374(c)(10}(H). NMFS requires, by policy, that deaths be reported within 30 days, and has announced its
intent to put this policy into regulation.
78
With few exceptions, zoos and aquaria claim to be open regarding the disposition of marine mammals within their
care, with records available for public review. Animal protection advocates dispute this claim, suggesting that a
majority of facilities refuse to share such information, considering it proprietary.
79
Animal protection advocates believe that considerable incentive exists for public display facilities to provide false or
incomplete information on the cause of death of marine mammals, asserting that these institutions are unlikely to
provide evidence that would lead to accusations of wrongdoing, with subsequent scrutiny and possible fine.
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necropsy or review the tissue samples and examine the carcass. Scientists, however, point out that
the more time that passes between death and necropsy, the less there is to learn from the necropsy.
Thus, this suggests that, in addition to raising costs, the logistics of implementing an external
review also may frustrate the ability to gain worthwhile information. Some scientists suggest an
alternative approach that would direct veterinarians employed by the public display facilities to
conduct necropsies, but allow veterinarians representing animal protection groups to have access
to replicate tissue samples from necropsies, if requested. Critics of current policy may also
propose that the MMPA be amended to require submission of necropsies on all animals
transferred or exported under MMPA authority. In addition, some critics suggest that APHIS be
required to conduct more intensive inspections of facilities holding captive marine mammals
whenever mortalities at such facilities exceed a certain annual minimum, such as the deaths of
either 2 adult animals or 1 juvenile.
Managers of captive holding facilities state that they ensure good healthcare for their animals by
providing licensed veterinary care, thus also protecting themselves from liability and claims of
negligence. 80 They assert that there is no evidence that such care is suspect. Furthermore, they
point out that necropsies were the subject of a 2001 APHIS rulemaking;81 because these rules are
still being implemented, the need for legislation is unclear for now. If more expensive necropsies
were required, the issue of who would pay for them is likely to be controversial. Animal
protection interests believe that captive holding facilities should pay for supervised necropsies as
part of the costs of captive care; managers of captive animals contend that the federal government
should bear the costs if additional outside veterinary services were required.
Genetic Mixing
Some federal managers have criticized release programs for captive animals on genetic-mixing
grounds. Similar concerns have not been stated about husbandry practices related to the
movement of animals between captive facilities. The U.S. Navy’s use of Atlantic bottlenose
dolphins in open-ocean training exercises in the Pacific where they occasionally integrate with
local populations of wild Pacific bottlenose dolphins also has been criticized. Scientists, animal
protection advocates, and environmentalists question whether it is responsible management to
mix animals originating from different oceans, especially if there is the possibility that they or
their offspring might be inadvertently or intentionally released into a wild breeding population.
These interests suggest that the MMPA should be amended to address the genetic mixing that
invariably occurs when captive animals are moved from one facility to another. MMPA
provisions requiring attention to this concern might engender greater confidence if such captive
animals later became candidates for release programs.82 An opposing view encourages genetic
mixing within captive populations, especially for species with small populations, as an
appropriate husbandry practice to maintain genetic diversity, counter inbreeding within the
captive population, and reduce the demand for acquiring new animals from the wild.83 Some
scientists believe that the incidental mixing of captive animals with wild stocks is rare and likely
80
Supporters of supervised or independent necropsies contend that requirements for such might further protect facilities
from liability and claims of negligence, whereas the current unsupervised necropsies may leave them unprotected.
81
66 Fed. Reg. 239-257 (Jan. 3, 2001).
82
Alternatively, it could be required that genetically mixed offspring be neutered before release.
83
Some scientists contend that, while encouraging breeding among groups of animals taken from the same general
population may be appropriate, encouraging mixing between populations makes little sense given what is known about
the movements and social isolation of many species of marine mammals.
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insignificant from an evolutionary perspective. However, they suggest that additional research
may be required on these issues before appropriate policy can be determined, recommending a
government workshop be convened on the topic.84
Wild Versus Captive Survivorship
Claims differ on whether marine mammals live longer, similar, or shorter lifespans in captivity
compared to the same species in the wild. 85 Animal protection advocates suggest that the MMPA
be amended to direct and fund a government workshop to review the status of knowledge on
survivorship in captive and wild marine mammal populations.86 Such a workshop might
determine what, if any, concerns are relevant to the performance of facilities holding such animals
and influence the development of appropriate captive care and maintenance standards. Since only
a few wild populations are reported to have been studied well enough to provide confident data
on survivorship, such a workshop likely would identify additional areas for research on wild
populations to obtain data necessary for comparison.
Air Quality and Noise at Facilities
Based on speculation from human studies as well as limited reactivity research on wild cetaceans,
local environmental conditions may cause stress in individual animals. Some animal protection
advocates suggest that the MMPA be amended to mandate a study of the effect of the local
environment (e.g., urban noise, vibrations, air pollution) on animals at captive holding facilities,
to identify and substantiate any effect on their life expectancy and general health. Such a study
might define abusive levels and help determine appropriate captive care and maintenance
standards. Some in the public display community, however, suggest that this concern be
addressed administratively, and observe that some aspects already were the subject of APHIS
rulemaking.87 Procedures for monitoring environmental effects on marine mammals also have
been incorporated in American Zoo and Aquarium Association guidelines and facility operations
manuals.
Rehabilitation and Release
Closures of at least 21 North American marine parks since 1990, a diminishing emphasis on
marine mammal exhibits in remaining parks, reductions in the military use of marine mammals,
and increasingly successful captive breeding programs have led to a surplus of marine mammals
in captivity. Because of this surplus, interest has increased concerning the rehabilitation and
release to the wild of marine mammals that have spent significant time in captivity,88 recognizing
84
Similar efforts have been conducted under the authority provided in 16 U.S.C. §1380.
Some public display interests and managers suggest that captive care and maintenance practices are constantly
evolving and improving such that historic survivorship data might have limited relevance to the current situation. In
addition, others suggest that survivorship is so highly variable that it would be difficult to compare populations, captive
and/or wild, and come to any statistically significant conclusions.
86
Similar efforts have been conducted under the authority provided in 16 U.S.C. §1380.
87
66 Fed. Reg. 239-257 (Jan. 3, 2001).
85
88
Animal protection advocates cite several instances where dolphins and pilot whales are alleged to have been
successfully released, with subsequent observation of apparently successful social integration with wild animals over a
period of time.
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the need to prevent the spread of disease and release of unfit animals. Some animal protection
advocates may propose MMPA amendments authorizing oversight of rehabilitation and release
activities, requiring federal agency definition of rehabilitation/release protocols,89 and
establishing a scientific research permit for rehabilitation and release activities as well as for
establishing rehabilitation/release facilities for long-captive marine mammals.90 Such facilities
might also engage in captive rotation programs, where animals are brought into captivity for
predetermined amounts of time or are maintained in enclosures where they have periodic access
to the open ocean. Proponents contend that the existence and operation of such facilities under
strict guidelines would promote the welfare of captive and free-living marine mammals, including
threatened and endangered species. Some public display interests and a few scientists, however,
assert that rehabilitation and release does not work.91 These critics cite research indicating that
animals held in captivity for any length of time and those born in captivity are more likely to die
upon release because they do not or are not able to make the necessary adjustments to life in the
wild. They would oppose efforts that encourage the release of long-captive animals. Other
opponents include those worried about the federal cost of financing such a program. A parallel
concern relates to discouraging and preventing unregulated releases of captive marine mammals
by the more proactive animal protection advocates.
Quality of Captive Environments
Under present MMPA regulations, captive marine mammals can be relocated anywhere that
complies with APHIS regulations on captivity enclosure characteristics (e.g., bare concrete tanks
are acceptable). Some scientists and animal protection interests assert that the captive
environment of some U.S. marine parks is almost devoid of the features, richness, or dimensions
of the natural world92 of marine mammals—social animals that have evolved to exploit the
complex and expansive natural marine environment.93 Furthermore, they claim that our increased
understanding of the complex social, psychological, and behavioral requirements of marine
mammals reveals how lacking most captive environments are in providing sufficient space for
animals to make normal postural and social adjustments or in allowing adequate freedom of
movement. These critics would like the MMPA to be amended to require APHIS to define
minimum acceptable levels of environmental and social stimuli for marine mammals. The
physical and social environment of any animal regulated by the MMPA, it is argued, should
conform to some standard for what is minimally acceptable and strive for enrichment to fulfill
89
A scientific workshop might be convened to develop the protocols for conducting rehabilitation/release projects.
How such facilities and programs might interact with existing marine mammal stranding networks would need to be
defined. These networks along the Atlantic, Gulf of Mexico, and Pacific Coasts involve dozens of facilities that provide
short-term assistance to beached and stranded marine mammals when necessary to improve their condition sufficiently
to be able to return a healthy animal to the wild.
91
These critics suggest that veterinary examinations are unlikely to be able to pronounce captive animals disease-free,
and that released animals are unlikely to be accepted easily or smoothly into the social structure of wild populations.
92
While some coastal species may inhabit a topographically diverse physical environment, the open ocean is almost
featureless. Some scientists suggest that emphasis should be placed on cleanliness, space, and behavioral responses,
rather than what humans might assume constitutes a “quality” environment, since most marine mammals get their
stimulation from social interaction, feeding, etc.
93
Generally, captive holding facilities and marine mammal trainers assume responsibility for providing environmental
enrichment in the form of playtime, toys, and other stimulating objects or activities. In addition, facility design criteria
have changed substantially to where habitats currently under construction incorporate innovative shapes and varying
rockwork for alternating surfaces, providing swim-through areas (arches and tunnels) as well as areas for rubbing and
scratching.
90
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animals’ needs. However, establishing standards to respond to the differing requirements of
various species may be complex. For example, while some contend that overall size of the captive
environment is much more important than its features for cetaceans, others believe that pinnipeds
require more emphasis on geotopical elements in their artificial habitat rather than a large
enclosure. In addition, it may be difficult or impossible to provide situations in captivity that
permit the complex social systems, groupings, and bonding normal among marine mammals.
Programs Promoting Human Interaction with Captive Dolphins
Various facilities holding captive dolphins promote interactive petting and feeding pools as well
as programs for swimming with or wading with these animals. Animal protection advocates as
well as some scientists and managers claim that these programs place both dolphins and humans
at risk, and believe that APHIS regulation of such activities is inappropriately minimal. Early in
1999, APHIS suspended enforcement of all AWA regulations dealing with “swim-with-thedolphin” programs to solicit further public comment on expanding regulations to encompass
activities involving shallow water interactive programs with dolphins.94 Some animal protection
interests would like the MMPA and/or AWA to either prohibit all interactive programs, including
petting and feeding pools which they claim have never been regulated, or require more stringent
regulation of these programs by APHIS. These critics also suggest an inconsistency in policy and
confusion of the public wherein swimming with and feeding of wild dolphins is prohibited to
protect them from harassment while swimming with and feeding of captive dolphins, which could
be less able to escape interaction, is promoted by marine parks. Those conducting interactive
programs, however, argue that their activities are safe and well-managed, with adequate measures
enforced to protect both dolphins and humans.
Insurance Requirement
Since 1990, at least 21 North American marine parks are reported to have closed. Animal
protection advocates suggest that measures need be taken to assure that the welfare of captive
marine mammals is protected should research programs terminate or parks close. These interests
may propose amending the MMPA to require that a minimum of $25,000 per marine mammal be
placed in escrow or be covered by insurance as an additional permit requirement for each marine
mammal transfer, import, and export. In addition, such a requirement might be imposed in
permits covering each marine mammal born in captivity. Such financial resources would be used
if the federal government were required to assume temporary responsibility for animals from
closed parks or pay transfer expenses for moving animals to new facilities.
Prohibition of Traveling Exhibits
Animal protection advocates believe that circuses and traveling shows cannot maintain the highly
specialized conditions necessary to ensure the health and well-being of marine mammals. They
cite the recent experience with the Mexican-based Suarez Brothers Circus in Puerto Rico, where
performing polar bears were confiscated by FWS. Dolphin traveling circuses exist and move
94
64 Fed. Reg. 15918-15920 (Apr. 2, 1999). On May 30, 2002, APHIS sought comments on standards for interactive
swim-with-the-dolphin programs (67 Fed. Reg. 37731-37732). No final rule has yet been published. For additional
background on these programs, see Quantitative Behavioral Study of Bottlenose Dolphins in Swim-With-The-Dolphin
Programs in the United States at http://www.nmfs.noaa.gov/pr/pdfs/health/swimwithdolphins.pdf.
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throughout Latin America and the Caribbean, and could potentially enter U.S. territories or use
marine mammals from U.S. facilities. Animal protection groups seek to amend the MMPA to
prohibit these traveling exhibits.
Prohibition of Wild Captures for Public Display
The International Union for Conservation of Nature and Natural Resources’ Dolphins, Whales,
and Porpoises: Conservation Action Plan for the World’s Cetaceans, 2002-201095 notes that the
removal of live cetaceans from the wild for captive display is equivalent to incidental or
deliberate killing, as the animals brought into captivity (or killed during capture) are no longer
available to contribute to maintaining their populations. Concerned that, when unmanaged and
undertaken without a rigorous program of research and monitoring, live capture can be fatally
stressful to animals and pose a serious threat to cetacean populations, animal protection interests
support an amendment to the MMPA to prohibit wild captures of marine mammals for public
display.
Native Americans and Marine Mammals
Co-Management with Native American Tribes
Some federal managers believe that co-management agreements, when accompanied by dedicated
funding, have dramatically improved communication among Native subsistence users, Alaska
Native organizations, and FWS. However, Native Alaskan interests assert that NMFS has been
slower to enter into cooperative agreements to implement co-management for marine mammals in
Alaska (authorized under 16 U.S.C. §1388), and that federal appropriations to provide grants to
Native organizations under this section have not been forthcoming. 96 Some Native American
interests are likely to propose amending the MMPA to provide additional opportunities for Native
Americans to participate in co-managing marine mammal populations, especially those that have
subsistence value. Particular need is seen for coordinating federal and Alaska Native priorities in
the Bering Sea region, due to ongoing concerns to better understand this marine ecosystem’s
apparent decline. Countering the view in support of additional co-management opportunities are
some in the scientific and environmental communities who fear the potential for overhunting by
Natives seeking economic gain, and who believe that current MMPA co-management provisions
are more than adequate (if not excessively lenient). These critics believe co-management works
well only when the federal government supports a multi-year national program to assess
population abundance, habitat conditions, and ecological relationships to provide a sound basis
for such co-management, as has been done since the 1970s for bowhead whales. Similar national
programs have not been conducted on most other species. Some animal protection advocates are
concerned that reporting of subsistence kill levels often lags by five years of more and is based on
self-reporting, making it difficult to determine the impact of the subsistence on a particular stock
until well after the fact. Animal protection interests also believe current cooperative agreements
lack some transparency and provide little opportunity for public comment before the agreement is
negotiated.
95
This document was available at http://iucn.org/dbtw-wpd/edocs/2003-009.pdf.
Some managers suggest this is due, in part, to limited funds appropriated by Congress to the various agencies,
especially NMFS.
96
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Reporting Subsistence Takes
Knowledge of the number of animals killed is necessary for managing any harvested resource.
Nevertheless, many marine mammal stock assessment reports lack substantial information on
subsistence takes. In 16 U.S.C. §1379(i), the MMPA states that “the Secretary may prescribe
regulations requiring the marking, tagging, and reporting of animals taken pursuant to section
101(b).” FWS has promulgated regulations and instituted a marking, tagging, and reporting
program (MTRP) for polar bears, walrus, and sea otters taken by Alaska Natives.97 NMFS does
not have a similar program, even though comparable information could be useful for managing
species of special concern such as Steller sea lions and harbor seals.98 Although NMFS has
awarded contracts for the development of harvest estimates, their accuracy has been questioned
by some scientists.99 Some Alaska Native organizations conduct biosampling programs on marine
mammals taken for subsistence through cooperative agreements developed under the authority of
16 U.S.C. §1388. Despite this, some in the Alaska Native and environmental communities
continue to call for NMFS to develop an MTRP similar to that conducted by FWS, desiring more
research on marine mammals taken for subsistence use.
The Alaska Native community generally accepts the FWS program, considering it to be well-run
and to provide useful data. However, some managers and environmental interests believe the
level of detail available on subsistence takes for many Alaska species could be improved. In
particular, some animal protection interests, scientists, and managers do not consider the FWS
program “well-run” and would like to see this program improved. Some scientists believe that a
program for each species should include a well-designed harvest survey based on structured
hunter samples from different communities that intensively exploit the targeted species, with data
analysis by good statistical methods to adequately fulfill management needs. Other scientific and
environmental interests suggest that the MMPA be amended to require reporting, marking,
tagging, and sampling of all marine mammals taken by Alaska Natives for subsistence. 100 Others
in the environmental and animal protection communities believe such reporting should be
required for seal hunting and for any subsistence takes of marine mammals by Native Americans
in the contiguous states (e.g., Washington, Oregon, and California). Some scientists, however,
contend that tagging of subsistence kills may not be practical for species taken in large numbers,
such as some seals, and that the sheer volume of individuals’ subsistence activities may lead to
under-reporting. In addition, some scientists and managers believe that better subsistence
estimates need to be factored into the PBR process (see “Calculating Potential Biological
Removal”), especially in situations where (1) subsistence harvest may account for the majority of
the total number of animals removed and (2) subsistence harvest may approach or exceed the
PBR level. 101
97
These MTRPs do not collect data useful for accurately assessing the age/sex composition of the harvest, nor for
establishing annual productivity. Although it might require additional agency funding, MTRPs could be restructured to
obtain these data.
98
On May 24, 1999, NMFS published an interim final rule requiring the marking and reporting of beluga whales
harvested from Cook Inlet (64 Fed. Reg. 27925-27928).
99
The nature of human relationships in small rural Alaskan communities makes obtaining consistently accurate data
extremely difficult. Thus, the precision and accuracy of retrospective household surveys for marine mammal harvest is
questioned by some critics, especially where such work has not been independently peer-reviewed. Such retrospective
surveys for marine mammal harvest might be considered minimum estimates.
100
Exemptions from reporting might be granted when or where stocks are not in decline, not listed under the ESA, and
not harvested at levels exceeding 10% of the PBR level.
101
Some critics fear that federal managers may be pressured to set PBR levels higher than the subsistence harvest
(continued...)
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Limitation on the Sale of Edible Subsistence Takes
In 16 U.S.C. §1371(b)(2), the MMPA states that “any edible portion of marine mammals may be
sold in native villages and towns in Alaska or for native consumption.” There are legitimate
reasons why Alaska Natives purchase legally taken parts of marine mammals for their
consumption.102 The current interpretation of the MMPA language is that all Alaska locales,
including the city of Anchorage, qualify as Native villages and towns. Certain markets in
Anchorage sell large quantities of marine mammal meat and muktuk,103 with a few Alaska
Natives allegedly hunting primarily to supply this commercial market. 104
Scientists, animal protection advocates, and environmentalists suggest amending the MMPA to
limit or restrict the sale of edible parts from marine mammals taken for subsistence, such as
prohibiting commercial sales in cities or in communities where Native residents are in the
minority. Others suggest amending the MMPA to prohibit the commercial sale of marine mammal
products from any stock that is declining in abundance. Alternatively, NMFS and/or FWS already
have the authority to make administrative determinations that species are depleted under the
MMPA or are threatened/endangered under the ESA, allowing them to take regulatory action to
limit subsistence take without legislation. 105
Alaskan Natives, however, believe that the Native community itself should take the initiative to
deal with these problems, using existing models that have proven workable in similar Alaska
Native situations. They suggest approaches similar to those used in the allocation of strikes106
among various whaling crews in the North Slope Borough or the Sitka Tribe’s management of sea
otter take in traditional territory. 107 Others are concerned about the potential cultural costs of
limiting access to subsistence foods for individuals living in urban areas and the possibility that
these costs could outweigh the benefits to marine mammal stocks.
(...continued)
levels for some Alaskan species (e.g., Pacific walrus).
102
Many Native Alaskans, regardless of where they reside, are employed full-time with limited opportunity to continue
hunting and gathering to support their traditional subsistence lifestyle and diet. Thus, the commercial marketplace may
provide their only access to traditional foods, which is part of maintaining a cultural identity.
103
Whale skin and adhering blubber.
104
In the late 1990s, this was seen as a particular problem for the Cook Inlet beluga whale stock, which was small and
had been overharvested, largely because of market hunting. A significant percentage of the Cook Inlet beluga whale
stock was killed each year—between 98 and 147 animals were reportedly taken in 1996, with another 49 to 98 animals
struck and lost. This stock declined almost 50% in abundance from an estimated 653 animals in 1994 to 347 animals in
1998, and its summer range contracted.
105
In the Cook Inlet beluga whale example, Congress acted in section 3022 of P.L. 106-31 to prohibit subsistence
hunting of Cook Inlet beluga whales during FY2000 to give NMFS time to take administrative action. Subsequently,
NMFS conducted a status review of this stock and designated it as depleted under the MMPA (65 Fed. Reg. 3459034597, May 31, 2000), but determined that listing the stock as endangered under the ESA was not warranted (65 Fed.
Reg. 38778-38790, June 22, 2000).
106
A “strike” means hitting a whale with a harpoon, lance, or explosive device.
107
However, in the example of the Cook Inlet beluga whales, critics fault NMFS for relying upon the Cook Inlet
Marine Mammal Council to develop some mechanism for self-regulation, which it was slow to do.
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Definition of Subsistence Whaling
With the support of the U.S. government, the Makah Tribe of Washington State petitioned the
International Whaling Commission (IWC) in 1996 for an allocation to harvest eastern Pacific
gray whales, to exercise whaling rights as part of their cultural heritage negotiated in the 1855
Treaty of Neah Bay between the Makah and the United States. In October 1997, a bilateral
agreement between Russia and the United States on aboriginal quota sharing resulted in the
Makah gaining access to IWC aboriginal quota sufficient to kill an average of four gray whales
from the North Pacific stock annually from 1998 through 2002.108 Disagreement continues, both
domestically and internationally, concerning the appropriateness and legitimacy of the action
taken on this issue. 109
While bowhead whaling by Native villagers along Alaska’s Beaufort and Chukchi Sea coasts is
seen as truly for the subsistence, animal protection advocates are concerned that the Makah seek
to kill whales without demonstrable proof of nutritional need, but with an eye to the possibility of
commercial trade in whale products. To animal protection interests, this has the potential for
reversing the whale’s recovery and for inviting a return to whaling by all northern cultures which
claim whaling as part of their cultural tradition. In fact, after the Makah situation, Native peoples
in Canada demanded their “cultural right” to return to whaling. Although Norwegians, Icelandics,
Faroese, Irish, Japanese, Russian, and others assert cultural traditions in whaling, their situations
and that of Canadian aboriginal groups differ from the Makah in that no “right to whale” has been
acknowledged by treaty.110 Animal protection and some scientific interests suggest amending the
MMPA to make a clear distinction between non-subsistence and subsistence whaling and to
establish more stringent criteria for non-subsistence whaling, allowing only minimal token
quotas/takes of those stocks determined to be fully recovered. Others suggest the MMPA be
amended to require that the United States take no action that might “diminish the effectiveness”
of the IWC, similar to language in the Pelly Amendment to the Fishermen’s Protective Act (22
U.S.C. §1978) that is applicable to foreign nations with whom the United States trades. However,
it is uncertain whether Congress has the authority to take any action that might alter or limit the
terms of the 1855 Treaty of Neah Bay.
Definition of Subsistence
Several parties suggest that policy relating to “subsistence” is confused and needs clarification,
requiring attention to both ethics/tradition and biology/ecology for resolution. Some of the
confusion was created when the MMPA waived the moratorium on taking of marine mammals by
Alaska Natives, placing federal and Alaskan law and regulations in conflict.111 This confusion
108
Makah whaling was suspended on June 9, 2000, by the Ninth Circuit Court of Appeals (Metcalf v. Daley, No. 9836135), with NMFS ordered to begin the National Environmental Policy Act (NEPA) process afresh and prepare a new
environmental assessment. Subsequently, NMFS set the Makah gray whale quota at zero (65 Fed. Reg. 75186, Dec. 1,
2000), pending completion of the NEPA analysis. On December 20, 2002, the Ninth Circuit Court of Appeals reversed
a district court ruling that upheld NMFS’s issuance of a quota to the Makah in 2001 and 2002 (Anderson v. Evans, 314
F.3d 1006 (9th Cir. 2002)). The federal government is considering whether to request rehearing of Anderson v. Evans.
Subject to the outcome of a possible rehearing, NMFS is preparing an environmental impact statement on the issuance
of annual quotas to the Makah for the years 2003 through 2007 (68 Fed. Reg. 10703-10704, Mar. 6, 2003).
109
Marine Mammal Commission, Annual Report to Congress, 1998 (Washington, DC: Jan. 31, 1999), p. 29-32.
110
Some of these cultures might not elect to kill whales for strictly cultural benefits if commercial trade in whale
products, domestically and/or internationally, was not also permitted.
111
Background on the federal/state conflict in Alaska over subsistence use can be found at
(continued...)
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was exacerbated by the interaction of western technologies and economies on traditional beliefs
and practices. For example, reported annual walrus kills for the St. Lawrence Island communities
of Gambell (1,300 animals) and Savoonga (700 animals), composed mostly of females, appears
excessive and questionable as “subsistence” to some managers, scientists, and animal protection
groups. FWS regulations on the use of meat, skin, etc., are minimal and result in significant waste
in a harvest that focuses on obtaining ivory. Some scientists and managers suggest that the
MMPA be amended to base subsistence policy more firmly within the context of a species’
biological and ecological requirements, with social/cultural values taken into secondary account
within that framework.
Cultural Exchange
While the 1994 MMPA amendments appeared to have improved cultural exchange among Inuit
peoples as far as imports of marine mammal products by Alaskan Natives are concerned,
problems remain with the export of marine mammal products by Alaska Natives for these
purposes. In addition, problems arose in July 1999 when handicraft whalebone and sealskin
marionettes used in portraying traditional Inuit legends were intercepted and seized by the U.S.
Customs Service as violating the MMPA. The marionettes had been shipped by Canadian Inuit to
a U.S. craftsperson for finishing-detail adjustments. Native and some scientific interests suggest
that the MMPA might be amended to be less restrictive of cultural exchanges involving marine
mammal products.
Permits and Authorizations
Polar Bear Sport Hunting in Alaska
After the 1994 amendment of the MMPA to permit the import of polar bear trophies from
Canada,112 the sport hunting community may seek further amendment to allow polar bear sport
hunting in Alaska under a strict, conservative quota. Proponents of such an amendment suggest
that this action might promote better polar bear management and could result in additional
funding for polar bear research and management. The animal protection community almost
certainly would oppose such a proposal, and some may even seek repeal of the 1994 amendments
allowing the import of polar bear trophies from Canada. Animal protection advocates
substantively disagree with the theory that sport hunting promotes sound or sustainable
management and that quotas in Canada’s hunts are strict or conservative. 113 In early 2007, FWS
proposed that polar bears be listed as threatened species under the Endangered Species Act. 114
(...continued)
http://www.subsistence.adfg.state.ak.us/download/subupd00.pdf.
112
A subsequent amendment in §5004 of P.L. 105-18 relaxed criteria that needed to be met before polar bear trophies
taken in Canada prior to the 1994 MMPA amendments could be imported to the United States.
113
Canada is the only nation inhabited by polar bears that allows sport hunting. In January 2001, an emergency interim
rule halted imports of polar bears taken from Canada’s M’Clintock Channel population after the previously approved
harvest was found to be unsustainable (66 Fed. Reg. 1901-1907, Jan. 10, 2001). A final rule was adopted in October
2001 (66 Fed. Reg. 50843-50851, Oct. 5, 2001).
114
For additional background on this proposal, see CRS Report RL33941, Polar Bears: Listing Under the Endangered
Species Act, by (name redacted), (name redacted), and (name redacted).
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Large Incidental Takes
MMPA provisions (16 U.S.C. §1371(a)(5)(A)) authorize federal managers to issue permits for
U.S. citizens to incidentally take small numbers of marine mammals.115 However, the MMPA
lacks a comparable program to deal with large incidental takes, other than those by the
commercial fishing industry (for more information, see “Commercial Fishing Interactions with
Marine Mammals”). Related to this, the regulatory burden for protecting marine mammals
appears to fall inequitably on different industries. For example, while small incidental take
permits are regularly required by NMFS for offshore oil and gas exploration and development
activities, NMFS does not regulate large commercial vessel traffic under the small incidental take
program, 116 despite concerns that serious injury and mortality of cetaceans due to vessel strikes
may be significant. Other activities that may “take” large numbers of marine mammals by
harassment include whale-watching vessels, high-speed ferries, recreational jet skis, and other
sources of anthropogenic noise. By statute, small take permits may be issued for periods of as
long as five years under regulations, or one year under incidental harassment permits, with
congressional report language indicating an intent that such permits be renewable. NMFS claims
that most permits limit taking to small numbers of animals117 by harassment because mitigation
measures imposed by NMFS on the activity prevent serious injury or mortality to marine
mammals. If it were proposed that the MMPA be amended to address this issue, individuals who
might be required to comply with these modified permitting procedures (e.g., jet skis, whalewatching vessels, ocean transport vessels) would likely oppose such a change if the new
requirements were viewed as imposing additional or burdensome restrictions on their activities.
Some environmentalists and animal protection advocates recognize that the permitting process is
a relatively inefficient way to mitigate impacts from vessel traffic and suggest that a separate
management scheme, protective of marine mammals, would be more appropriate to address both
vessel-strike and anthropogenic noise concerns.
Noise and Its Effects
Noise as a category of potential harm to marine mammals is unique in that sound propagates both
horizontally (near/at the surface) and vertically (down to substantial depths). Anthropogenic
acoustics (e.g., ship traffic, military active sonar, seismic exploration, explosives trials, acoustic
harassment devices used by fishermen) permeate the water column and have the potential to
affect numerous unseen marine mammals, fish, diving birds, and other marine life. Although it is
difficult to measure the potential that noise has to harm or harass unseen animals, the U.S. Navy,
the Minerals Management Service, and other agencies have invested considerable time and funds
on research to develop monitoring capabilities and to document and quantify the impact from
specific noise sources on certain species under known conditions.118 However, significant
115
Provided that these takings do not cause unmitigable damage to marine mammal populations and have no more than
a negligible effect on subsistence needs.
116
NMFS justification for not regulating this activity includes the large numbers of vessels, the lack of identified costeffective mitigation measures, the lack of authority over international vessels to implement effective mitigation
measures to decrease noise effects on marine mammals, and the economic disadvantage potentially falling on those
U.S. vessels that might be required to implement costly mitigation.
117
NMFS had interpreted this to mean a portion of a marine mammal stock whose taking would have a negligible
effect on that stock. However, the ruling in NRDC v. Evans (279 F. Supp. 1129 (N.D. Cal. 2003)) concluded that
NMFS improperly collapsed two standards and eliminated the possibility that the two standards could serve as separate
safeguards restricting the extent of takes. NMFS was directed to redefine “small numbers” as a separate standard.
118
Measurements are obtained by attaching time-depth recorders to animals which are then exposed to the sounds. For
(continued...)
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information remains lacking on sound impacts on cetaceans, on behavioral and physiological
reactions of marine mammals, and on which species are exposed at what depths and distances
from sound sources. For this reason, the effect of noise on marine mammals is subject to much
speculation, presumption, and misinformation. FWS and NMFS have reacted to issue- or sitespecific concerns, generally through the permit process, but they have not issued any guidance or
regulations concerning anthropogenic noise, nor have they implemented any systematic
monitoring or enforcement programs.
Some scientists,119 believing that the benefits of acoustic research may outweigh any potential
effect on marine mammals, may propose amending the MMPA to simplify procedures for federal
authorization of incidental taking from acoustic noise. As one approach, these scientists suggest
that the MMPA might be amended to authorize the regulation of impacts collectively as broad
categories or classes of sound-producing activity rather than separate individual actions.120 Other
proposals might include revising the definition of level B harassment (16 U.S.C.
§1362(18)(A)(ii)) to be applicable to actions that can reasonably be expected to constitute a
significant threat only to marine mammal stocks rather than also to small numbers of individual
animals. Reasons offered by some in the scientific community for change include (1) some of the
most prevalent anthropogenic noisemakers, including personal watercraft (e.g., jet skis), large
high-speed oceangoing ships, and whale-watching vessels, are unregulated;121 (2) a
disproportionate “harassment” burden is placed on scientists using acoustics for research (i.e.,
direct research into the potential effects of sound on marine life is subject to a higher regulation
and compliance burden than any other human-made ocean acoustic activity); and (3) humanmade sound in almost all cases is neither as loud nor as constant as naturally-occurring ocean
activity (e.g., subsea earthquakes, rain on the sea surface, volcanic eruptions, and whale calls
themselves).
The effects on marine mammals by active sonar development and deployment by the military has
been of intense concern. Coincident with low-frequency active (LFA) sonar tests conducted by a
NATO research vessel in the vicinity, a mass stranding and death of 12 Cuvieri’s beaked whales
was observed in May 1996 in the eastern Mediterranean Sea (Ionia Sea).122 The mass stranding of
at least 15 whales of four species (at least 7 of these animals died) in the Bahama Islands on
March 15, 2000, occurred coincidental to U.S. Navy transit and activities in the area.123
Additional strandings of beaked whales have been observed in conjunction with mid-frequency
active sonar exercises in Madeira (2000) and the Canary Islands (2002). A September 2002
beaked whale stranding in the Gulf of California occurred concurrently when a vessel operated by
(...continued)
details, consult http://is.dal.ca/~whitelab/rwb/suction.htm. Others have used autonomous seafloor acoustic recorders
that record all sounds for as long as 22 days or until batteries fail. Using such methods, whale vocalization rates have
been observed to be influenced by airgun pulses from seismic surveys.
119
This includes scientists using noise in their research as well as scientists consulting for industries and agencies (e.g.,
the U.S. Navy) that release large amounts of noise into the ocean.
120
These advocates also assert that various activities with the potential to kill, injure, and harass marine mammals are
regulated inconsistently and inequitably, with commercial fishing given much more liberal treatment (e.g., liberal PBRs
and use of deterrents) than anthropogenic noise (e.g., concern over course deviations and other short-term behavioral
changes).
121
See the previous section, “Large Incidental Takes” which considers whether the MMPA should be amended to
regulate these activities.
122
Reported in “Scientific Correspondence,” Nature, Mar. 5, 1998.
123
For more details, see http://www.nmfs.noaa.gov/pr/pdfs/health/stranding_bahamas2000.pdf.
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Columbia University’s Lamont-Doherty Earth Observatory pulsed the ocean with high-powered
sound waves to map the lithosphere beneath the ocean floor.124 More than five years of regulatory
attention to deployment of low frequency active sonar by the U.S. Navy, with accompanying
legal challenges, culminated in publication of a final rule in July 2002,125 with letters of
authorization required for subsequent deployment.126 In addition and in recognition of concerns
raised in federal court127 over use of the LFA system and to further its commitment to responsible
stewardship of the marine environment, the Navy is preparing a supplemental environmental
impact statement on this technology.128
Some animal protection advocates, environmentalists, and scientists characterize many sources of
anthropogenic noise in the ocean as increasingly persistent and regular. These critics point to a
growing body of evidence, particularly the mass mortalities of beaked whales associated with
military active sonar use, as indicative that current mitigation practices are insufficiently
protective of marine mammals. Believing that too little is known about the long-term effects of
noise on marine mammals,129 these critics believe a precautionary approach is necessary and
oppose any action that could be interpreted as liberalizing the regulation of anthropogenic
sources. In addition, these critics are especially concerned with low-frequency sound that is
produced at very high pressure levels and is designed to travel thousands of miles through the
ocean, as opposed to other anthropogenic noise that dissipates relatively quickly in the ocean.
Furthermore, these critics suggest that, rather than exempting acoustic scientists from regulation
and permitting additional sources of ocean noise, other sources of non-research-related noise
should be more aggressively regulated to reduce this harassment. A variety of constituencies130
might support a proposal to authorize and fund a major research effort directed at increasing
understanding of the potential effects of anthropogenic noise sources on marine mammals.
Research Permits for NMFS and FWS Scientists
The MMPA (16 U.S.C. §1374(c)(3)(A)) provides a lengthy process for issuing scientific research
permits. NMFS and FWS are funded by Congress to study marine mammals as necessary to
provide a sound basis for their conservation and management. Some federal scientists would like
to see the MMPA amended to facilitate federal research on marine mammals by eliminating the
cumbersome process of obtaining scientific research permits. These federal researchers question
the necessity of requiring federal agency personnel to request permits from another part of their
own agency before they can do their work. These critics suggest that the MMPA be amended to
provide scientists within the federal management agencies with a blanket authorization for
research. Others suggest that relief from the lengthy permitting process be extended to all those
involved in conducting federally funded research. This could include an exemption from permits
or an expedited permit review procedure offering a simpler issuance or renewal of permits for
124
See http://www.geotimes.org/jan03/NN_whales.html.
See 67 Fed. Reg. 467121-46789 (July 16, 2002).
126
For example, see 68 Fed. Reg. 50123-50124 (Aug. 20, 2003).
127
See Natural Resources Defense Council v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003).
128
See 68 Fed. Reg. 44311 (July 28, 2003).
129
Some scientists assert that little has been published on this topic because insufficient resources to address the
problem have been provided by funding agencies. They further question, if funding were provided, whether permits
from NMFS and various Institutional Animal Care and Utilization Committees mandated by the Animal Welfare Act
would allow necessary research to be conducted.
130
Other than, perhaps, taxpayer groups.
125
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studies unchallenged by public comment. It might also be applicable to state wildlife agencies
when their scientists work in direct cooperation with one of the federal agencies. Some
nonfederal scientists, animal protection advocates, and environmentalists argue that regular
reporting as well as outside peer and/or public review are especially necessary for government
scientists who could be influenced by political considerations. They also would object to
preferential treatment of federal researchers as discriminatory, arguing that federal research
should be required to meet the same standards, requirements, and scrutiny as non-federal
research.131
Scientific Research Permits
Several issues concern the administration of scientific research permits by federal management
agencies. Some scientists criticize FWS and NMFS permit offices for delays in processing
requests for scientific research permits, even though the MMPA mandates a 30-day deadline for
agency action. 132 While some permits are processed quickly, others may take many months
longer, they charge, with no explanation or obvious differences between them. Critics report that
the delay between submission of a permit application and its publication in the Federal Register
for public comment can be six weeks or more. 133 To assist the agencies in expediting the permit
review process, they suggest that the MMPA be amended to authorize committees of scientists
that would review scientific research permit applications in the same fashion that committees
review proposed research on human and animal subjects.134 Such committees might also be
helpful in addressing concerns about alleged misuse of scientific research permits by whalewatching operators, dolphin encounter tour brokers, and others wherein “paying volunteers” are
recruited to help conduct “research” of questionable value. Although this latter issue could be
addressed administratively, some scientists believe congressional direction might be helpful or
even necessary if administrative action is not forthcoming. Scientists are also concerned with
permit restrictions that they interpret as constraining their ability to conduct manipulative and
invasive research on marine mammals, albeit with adequate safeguards.
Some scientists suggest that the entire scientific research permit process needs to be streamlined,
especially what are seen as (1) restrictive, burdensome, and unreasonable procedural
requirements (i.e., level of specificity and amount of paperwork) related to justify level B
harassment (see also the discussion of “Harassment”) for bona fide research; and (2) unduly
tedious and specific requirements of the annual reporting process. Scientists feel they are
subjected to a much more stringent regulatory regime (e.g., see also the discussion of “Noise and
Its Effects”) than is imposed on activities that appear to be potentially more harmful to marine
mammals (e.g., commercial fishing).
131
Some critics allege bias and/or conflict of interest in current federal agency permitting procedures, wherein
applications for highly controversial research pass quickly and quietly through the review process when forwarded by
field staff within the permitting agency, while comparable proposals by non-agency researchers can take months or
longer to receive action.
132
16 U.S.C. §1374 (c)(3)(C).
133
Some agency managers suggest three days between receipt of a permit application and publication in the Federal
Register is reasonable and attainable.
134
Some, but not all, of this research may already be reviewed by institutional animal committees required by 7 U.S.C.
§2143 or by animal care committees required by 42 U.S.C. §289d.
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On the other hand, animal protection advocates assert that permit processes and requirements are
not too restrictive when it comes to invasive research, and both they and environmentalists argue
that there is little justification for treating the research community as privileged. While certain
amendments might streamline the permitting process for certain research with a low harassment
potential or to establish streamlined programmatic permitting for certain kinds of research, the
environmental and animal protection communities both disagree that research should be seen as
having less of an impact on the marine environmental and marine mammals as a general matter
when compared to fishing or other human activities.
State Approval of Federal MMPA Permits
Under the authority of the federal Coastal Zone Management Act, three states (Hawaii,
Washington, and Alabama)135 include in their state coastal plans the requirement that the state
approve federal permits granted under the authority of the MMPA. Some scientists are concerned
that state review of federal marine mammal permits is duplicative and burdensome for marine
mammal researchers and circumvents the procedures in the MMPA (16 U.S.C. §1379) for
granting state management authority over marine mammals.136 These critics suggest that
Congress may wish to review whether this action improves protection for marine mammals.
Program Management and Administration
Definition of “Take”
Some scientists suggest it might be worthwhile to re-evaluate the MMPA definition of take in
their belief that the current definition may be overly broad and encompassing, as well as
unenforceable in many situations. These critics suggest that the MMPA be amended to
incorporate a new definition of take that establishes an enforceable, biologically significant
standard for interactions with individual marine mammals (for ESA-listed and depleted species)
and for marine mammal populations (for all other species). With such a standard, they argue,
management will focus specifically on interactions which are likely to have adverse biological
significance for these animals. However, animal protection advocates and environmental groups
might be anticipated to oppose any effort to redefine take that might be perceived as reducing the
scope of activities prohibited or regulated under the MMPA.
Trade in Marine Mammal Parts and Products
The U.S. government has experienced pressure from the World Trade Organization (WTO)
regarding the trade barriers inherent in many U.S. environmental statutes. Importing marine
mammals and their products into the United States is prohibited by 16 U.S.C. §1371(a), except
under special permits for scientific research, public display, photography for education or
commercial purposes, or enhancing the survival or recovery of a species or stock. Permits also
may be granted to import polar bear parts, other than internal organs, taken in legal Canadian
sport hunts. In addition, the ESA and the Convention on International Trade in Endangered
135
Also, Guam and the Northern Mariana Islands exercise similar authority.
Although the State of Alaska began the process to request management authority for some marine mammal species,
no state has been granted such management authority.
136
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Species of Wild Fauna and Flora (CITES, the international agreement implemented through the
ESA) impose additional restrictions on trade of certain listed marine mammals. Given the desire
of several nations to commercially trade in marine mammal products (particularly whalemeat and
pinniped products), some suggest that Congress could act to possibly forestall a WTO challenge
to U.S. prohibition of such trade by amending the MMPA to allow limited trade137 or in some
other limited manner to make the MMPA more compatible with WTO rules.138 Such a proposed
change would likely be vigorously opposed by some in the environmental, scientific, and animal
protection communities who fear that opening U.S. markets could promote increased kills in
nations less protective of marine mammals. 139 They further assert that, if such a proposal were
enacted, U.S. policy would be inconsistent, prohibiting domestic commercial exploitation of
marine mammals while encouraging or allowing foreign commerce in these same protected
animals’ products in the United States. They also argue that the availability of foreign marine
mammal products on the U.S. market could encourage the illegal harvest of domestic marine
mammals for these same markets. An alternative, although likely more difficult, approach seeks
to broaden WTO rules such that the MMPA could be found compatible.
Management of Robust Stocks
Populations of California sea lions and Pacific harbor seals have been increasing along the
Washington, Oregon, and California coasts, leading to more frequent interactions between these
animals and fishermen and the general public (particularly the marina/boating public). On
February 10, 1999, in response to the requirements of 16 U.S.C. §1389(f), NMFS delivered an
18-page report to Congress and released a supporting 84-page scientific document on
management conflicts related to rapidly increasing populations of West Coast harbor seals and
California sea lions.140 How to manage these stocks is expected to be an issue during MMPA
reauthorization. The issue is seen by some as whether an increasing human population on the
West Coast can co-exist with a truly robust pinniped population or whether these pinnipeds will
be adversely affected by coastal development and marine resource exploitation or will themselves
have an adverse effect on coastal resources.141
While some local residents and fishermen fear that these pinniped stocks may be “overpopulating,” scientists, environmentalists, and animal protection advocates counter that
populations may be merely returning to their historic carrying capacities after over-exploitation
diminished their abundance earlier in the 20th Century. Fishing industry or local government
officials may propose that the MMPA be amended to permit selective culling or additional lethal
137
Some suggest a limited MMPA amendment to permit importing of “byproducts of aboriginal subsistence activities,”
allowing, for example, ringed seal skins from Canadian and Greenland Inuit subsistence hunters to enter U.S. markets.
138
The main concern by the WTO appears to be that the MMPA prohibits trade in marine mammal products regardless
of a species’ conservation status. Thus, the United States may encounter difficulties in justifying the expansive MMPA
ban on imports as necessary for responding to legitimate conservation concerns. For those species where conservation
is a concern, listing under the ESA provides trade restrictions under CITES.
139
Elements of acceptable harvest management might include a sustainable kill based on sound science with adequate
animal welfare standards. However, some U.S. scientists and managers might argue that, for the United States to be
able to certify that our own science meets these standards, substantial expansion of U.S. research programs might be
required.
140
National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and
West Coast Ecosystems, Report to Congress (Feb. 10, 1999).
141
Such adverse effects include competition for fish stocks and fecal contamination of shellfish areas near seal and sea
lion haulout areas.
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nuisance animal control. NMFS has recommended that Congress consider amending the MMPA
to create a new framework that would allow state and federal resource managers to immediately
address site-specific conflicts involving California sea lions and Pacific harbor seals.142 In this
report, NMFS suggests that a streamlined approach provide procedures for lethal removal of these
species where they are harming severely depleted salmonids (including some populations listed as
threatened or endangered under the ESA), where they are harming salmonid populations
identified as being of special concern by states, and where they are in conflict with human
activities. While the MMPA in 16 U.S.C. §1389 already provides for the lethal removal of
pinnipeds to protect human safety and fish stocks, federal and state managers view the process for
implementing the existing provisions as lengthy and overly cumbersome. Environmental, animal
protection, and scientific critics, however, condemn the idea of culls and lethal nuisance animal
control as excessive. They believe that such an approach deflects resources from addressing other
expensive and contentious human activities that contribute to fish stock declines (e.g., habitat
degradation, siltation, water diversions, fish passage at dams, overfishing)143 and that non-lethal
deterrents have not been adequately explored. Furthermore, they express concern that authorizing
the killing of marine mammals interacting with wild fish stocks appears counter to the MMPA’s
mandate to manage on an ecosystem basis.144 In addition, these critics are adamant that nuisance
animal control not be authorized for human activities (e.g., aquaculture) that can and should be
sited so as to avoid areas of potential conflict with marine mammals.
Fostering International Cooperation
Although the MMPA established an international program (16 U.S.C. §1378), little framework
exists to foster international cooperation between the United States and foreign countries on
marine mammal issues. Under the MMPA, international cooperation—funding, exchange
programs, and cooperative research—has been limited largely to the industry-centered
dolphin/tuna issue.145 MMPA funds for such activities are at least an order of magnitude less than
the millions of dollars in federal U.S. endangered species funds that are used to foster
international cooperation to protect elephants, tigers, rhinoceros, great apes, and other species. 146
Proponents of increased international cooperation argue that no similar program for marine
mammals is provided in the MMPA or elsewhere in U.S. law. For example, although the U.S.managed North Atlantic right whale is endangered and its population is not rebounding, the
southern right whale population is flourishing. A Brazilian right whale project focuses on
reducing human/whale interactions where ship strikes have been a major cause of death.
Cooperative activities that might be promoted include sharing whale monitoring and collision
avoidance procedures as well as whale reproduction, health, and population information with
Latin American authorities. Marine mammal scientists suggest that Congress may want to
consider the benefits of encouraging international cooperative relationships on marine mammals
by U.S. agencies. Most marine mammal constituencies appear supportive of efforts to encourage
142
National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and
West Coast Ecosystems, Report to Congress (Feb. 10, 1999). p. 13-15.
143
In addition, some of these changes may also alter conditions determining where pinnipeds congregate and feed,
possibly increasing predation on juvenile salmon.
144
16 U.S.C. §1361.
145
In addition, international dialogue on whale conservation has occurred under the auspices of the International
Whaling Commission.
146
For more information, see CRS Report RS21157, Multinational Species Conservation Fund, by (name redacted)
and (name redacted).
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more international cooperation, as long as such action does not promote invasive research or
commercial ventures.
Some also suggest there may be a critical need for expanding international cooperative programs
for Arctic species because of the virtual total demise of Russian research and management
programs, and the increasing pressure by protein-impoverished Native peoples to take these
species for subsistence purposes. Many of these species are “shared” because their ranges include
the waters of both the United States and the Russian Federation. A decline of Russian
management effort has hampered population assessment programs for these shared species.
Critics, however, warn that, if Congress acts in this area, specific language might need to be
incorporated to prevent potential abuse (i.e., expenditure of funds intended to recover and protect
U.S. marine mammal stocks on questionable studies of exotic marine mammals in interesting
places) and to require appropriate guidance and accountability to ensure that international efforts
are reciprocal and relevant.
Harassment
The 1994 MMPA amendments revised the definition of harassment to distinguish between two
levels of interaction—those with the potential to injure (level A harassment) and those with the
potential to disturb (level B harassment).147 Some federal managers have found the new definition
of level B harassment to be particularly difficult to enforce,148 and potentially harmful human
interaction with marine mammals continues. 149 Other critics suggest whale-watching vessels are
insufficiently monitored for compliance with MMPA regulations.150 Animal protection advocates
suggest that the MMPA should be amended to require specific and more strictly enforced
regulations concerning swimmer,151 kayaker, and boater harassment of dolphins and whales,
including provisions to significantly increase the possible fines against commercial operators who
introduce large groups of swimmers into protected bays where dolphins rest. Others suggest
authorizing more funding specifically targeted to better educate private watercraft operators
concerning MMPA regulations and to increase MMPA enforcement efforts,152 including additional
observers aboard whale-watching vessels to assess compliance. Some scientists, on the other
147
16 U.S.C. §1362(18).
In addition, some scientists believe the current definition is meaningless and possibly counterproductive. These
critics suggest that an expert panel be convened to redefine this term.
149
For example, animal protection advocates report that a pod of perhaps 50-75 spinner dolphins in Calexico Bay,
Hawaii, can be surrounded on some days by as many as 50 swimmers, 35 kayaks, and several motor-propelled boats.
On other days, no more than about 20 dolphins come into the Bay, where they are pursued from early morning until
late afternoon when they leave the bay. NMFS doesn’t have an enforcement agent on the Big Island (where these
violations occur), and an agent from the Hawaii Department of Land and Natural Resources is responsible for
responding to possible violations.
150
Others suggest the problem is regulatory, wondering why U.S. agencies do not adopt an approach similar to that of
Mexico where the number of vessels that can be in the proximity of any whale or group of whales is strictly limited and
enforced. Some suggest that the revised operational guidelines for whale-watching vessels in the northeastern United
States (64 Fed. Reg. 29270-29271, June 1, 1999) are a positive step, and that additional region- or area-specific
guidelines or regulations of a similar nature should be developed.
151
Others, however, find MMPA management inconsistent in making it illegal to swim with wild dolphins who
willingly approach humans while allowing commercial ventures to hold dolphins captive and charge humans for the
chance to swim with them.
152
Current requirements for prosecuting harassment violations are stringent, requiring a time-/date-stamped video of
the incident and a court appearance by the complainant to testify against the offender.
148
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hand, would like to see the definition of level B harassment revised to where it would be
applicable only to situations where actions would reasonably be expected to constitute a
significant threat to an entire marine mammal stock, rather than to just a few individual animals.
Changes to the harassment definition applicable to military readiness operations and to scientific
research activities conducted by or on behalf of the federal government were enacted in §319(a)
of P.L. 108-136. The new language defines harassment as any action that “injures” or “has the
significant potential to injure” marine mammals, rather than any action that has the “potential to
injure.” Environmental and animal protection organizations generally oppose the modified
definition of harassment, arguing that it raises the burden of proof that a military readiness
activity would affect a marine mammal, making it more difficult to protect them. 153 These
interests believe that such changes are premised on an unrealistically high assessment of our
ability to differentiate between biologically significant and insignificant responses. By doing so,
they believe the modified definition effectively reverses the precautionary burden of proof that
has been the hallmark of the MMPA since its inception. Supporters of the modified definition
believe that it ensures that activities are restricted only when scientific evidence demonstrates that
such protection is necessary. These changes remain highly controversial and could be revisited
during MMPA reauthorization.
Management Consistency Between FWS and NMFS
The division of responsibility for various marine mammal species between NMFS and FWS is
provided for in 16 U.S.C. §1362(12) within the definition of “Secretary.” When the MMPA was
enacted in 1972, this division of species was seen as artificial and temporary by many in
Congress and the Administration, awaiting the creation of a contemplated “Department of
Environment and Natural Resources.” In addition, the differing management approaches taken by
NMFS and FWS have often confused the commercial fishing industry and Alaska Natives. 154
Some Native American and scientific interests suggest that it may be time for Congress to revisit
this division of management responsibility and consider amending the MMPA to promote greater
consistency in marine mammal management. Several approaches are suggested, including the
current movement toward an ecosystem approach to managing living resources and minimizing
possible conflicts of interest where marine mammals and fisheries interact, that may have a
bearing on which agency should manage which species or groups thereof. Others suggest that
NMFS and FWS might be directed to develop joint regulations for all their marine mammal
programs to achieve greater consistency in management policy.155
Directed Research Program
Although the MMPA emphasizes research, it does not create a national integrated marine
mammal research program. Emphasizing this need, a recommendation in the Secretary of
Commerce’s February 1999 report to Congress included a list of information needs, with no
153
For additional information, see “Military Readiness and Environmental Exemptions” in CRS Report RL32183,
Defense Cleanup and Environmental Programs: Authorization and Appropriations for FY2004, by (name redacted).
154
For example, FWS uses MTRP (see “Reporting Subsistence Takes”) while NMFS does not, and NMFS uses
“incidental harassment authorization” to permit incidental taking while FWS does not.
155
Joint regulations relating to marine mammals have only been developed for the transfer of management authority to
states (50 C.F.R. Part 403).
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suggestion as to how or by whom this research was to be pursued.156 Specific information needs
identified for this relatively narrowly focused issue include (1) site-specific investigations on the
impacts of pinniped predation on salmonid populations; (2) state-by-state and river-by-river
investigations of salmonid populations vulnerable to pinniped predation; (3) studies of
comparative skeletal anatomies of different salmonid species so that prey may be identified in
food habit studies using pinniped scat and gastrointestinal tract analyses; (4) site-specific seasonal
abundance and distribution of pinnipeds north of Point Conception, California; (5) assessment
and evaluation of potential impacts of pinnipeds on specific fisheries and fishing areas; (6)
socioeconomic studies on impacts of pinnipeds on various commercial and recreational fisheries;
(7) ecosystem research where the impacts of pinniped predation on non-salmonid resources can
be addressed beginning with smaller systems such as Puget Sound, Washington; and (8)
collection of unbiased samples for food habit studies. Some have suggested that Congress might
wish to consider whether these information needs should become the focus of an MMPA
amendment creating a national integrated research program, possibly under the direction of the
independent Marine Mammal Commission, with specific funding authorized.157
Federal Agency Roles
Some scientists suggest that conflicting federal agency interests may hamper marine mammal
protection and recovery. One example of an interagency issue where conflicting agency authority
may be problematic relates to understanding and addressing the potential for endocrine disruption
in marine mammals.158 Some critics suggest that the MMPA be amended to direct an external
panel (e.g., the Marine Mammal Commission or the National Academy of Sciences) to carefully
review the programs and procedures of federal management agencies for potential conflicting
interests among their management, regulation, permit administration, scientific research, and
funding roles with respect to marine mammals, and recommend actions that should be taken to
address any problems identified.
Agency Delays in Compliance with MMPA Deadlines
Various constituencies were frustrated over federal agency delays in implementing provisions of
the 1994 MMPA amendments (see “1994 MMPA Reauthorization” for more detail). This led to
critics within the conservation and animal protection communities as well as the fishing industry
to seek additional means to force NMFS and FWS to comply with MMPA deadlines. 159 These
agencies contend, in reply, that the problem can be traced to limited funds provided by Congress
to finance these activities. 160 For more information on funding concerns, see the following section
“Appropriation of Agency Funding.” Others suggest that the pattern of repeated failure to
156
National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and
West Coast Ecosystems, Report to Congress (Feb. 10, 1999), p. 16-17.
157
Such a program might be authorized as an extension of the Pacific Coast Task Force provisions in 16 U.S.C. §1389.
158
For background on this issue, see CRS Report RL31267, Environmental Exposure to Endocrine Disruptors: What
Are the Human Health Risks? by (name redacted) and (name redacted).
159
For example, the Humane Society of the United States was a plaintiff in at least one lawsuit pertaining to perceived
NMFS inaction on take reduction mandates in the 1994 MMPA amendments; the Center for Biological Diversity also
has filed suit against NMFS for failure to convene a take reduction team.
160
On June 29, 1999, Marshall Jones, Acting Deputy Director, U.S. Fish and Wildlife Service, testified before the
House Resources Subcommittee on Fisheries Conservation, Wildlife, and Oceans that “due to competing budget needs
and limited funding, the Service has been unable to fully implement provisions of certain amendments.”
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complete assigned tasks on time should first be addressed through an Office of Management and
Budget or similar study on overall agency administration.
Appropriation of Agency Funding
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