# The Marine Mammal Protection Act: Reauthorization Issues > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3ARL30120 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** June 11, 2007 - **Citation:** RL30120 ## Text 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. Congressional Research Service 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 Congressional Research Service 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 Congressional Research Service 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. Congressional Research Service 1 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 2 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 3 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 4 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 5 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 6 The Marine Mammal Protection Act: Reauthorization Issues 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). Congressional Research Service 7 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 8 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 9 The Marine Mammal Protection Act: Reauthorization Issues 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). Congressional Research Service 10 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 11 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 12 The Marine Mammal Protection Act: Reauthorization Issues 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 Congressional Research Service 13 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 14 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 15 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 16 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 17 The Marine Mammal Protection Act: Reauthorization Issues 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). Congressional Research Service 18 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 19 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 20 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 21 The Marine Mammal Protection Act: Reauthorization Issues 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 Congressional Research Service 22 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 23 The Marine Mammal Protection Act: Reauthorization Issues 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 Congressional Research Service 24 The Marine Mammal Protection Act: Reauthorization Issues 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...) Congressional Research Service 25 The Marine Mammal Protection Act: Reauthorization Issues 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. Congressional Research Service 26 The Marine Mammal Protection Act: Reauthorization Issues 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...) Congressional Research Service 27 The Marine Mammal Protection Act: Reauthorization Issues 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). Congressional Research Service 28 The Marine Mammal Protection Act: Reauthorization Issues 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 In [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL30120. Public record. Not legal advice.