Order Code RL30120
CRS Report for Congress
Received through the CRS Web
Marine Mammal Protection Act:
Reauthorization Issues for the 107th Congress
Updated January 9, 2001
Eugene H. Buck
Senior Analyst in Natural Resources Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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Marine Mammal Protection Act:
Reauthorization Issues for the 107th Congress
Summary
The Marine Mammal Protection Act was reauthorized in 1994. This Act’s
authorization for appropriations expired at the end of FY1999. At issue for the 107th
Congress are the terms and conditions of any provisions designed to reauthorize and
amend the Act to address concerns relating to marine mammal management. The
Congressional Research Service queried commercial fishing, scientific research, public
display, animal protection, Native American, and environmental interests to identify
issues that might be brought before Congress during a reauthorization debate.
Several issues 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, improving
care for stranded marine mammals, and appropriating adequate funding for 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 Animal and Plant Health Inspection Service,
others likely would require changes to the statute.
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 Act itself did not expire. Eventually, however, an
extension of funding authority will need to be considered to continue federal program
operations. Most of the issues associated with this law are not time-sensitive, and
oversight hearings may be scheduled to increase understanding of various positions
and possibilities.
This report lays out the issues likely to be raised during any reauthorization
debate, the reasons behind them, and possible proposals that could be offered to
address these concerns.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Constituency Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commercial Fishing Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Environmental Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Public Display Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Animal Protection Advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Native Americans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Marine Mammal Scientists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Marine Mammal Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Marine Mammal Protection Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1994 MMPA Reauthorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Implementation of the 1994 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues for the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Commercial Fishing Interactions with Marine Mammals . . . . . . . . . . . . . . . 8
Optimum Sustainable Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Calculating Potential Biological Removal . . . . . . . . . . . . . . . . . . . . . . 9
Zero Mortality Rate Goal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Stock Assessment Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Reinstate Limited Authority for Intentional Lethal Taking . . . . . . . . 14
Integration with Fishery Management . . . . . . . . . . . . . . . . . . . . . . . . 14
Fishery Impacts and Southern Sea Otters . . . . . . . . . . . . . . . . . . . . . 15
Marine Mammals in Captivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Return Authority for Captive Marine Mammals to NMFS/FWS . . . . 16
Export of Captive Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Import of Captive Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Scientific Research on Captive Marine Mammals . . . . . . . . . . . . . . . 18
More Extensive Medical Exams for Transferred Animals . . . . . . . . . 19
Necropsies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Genetic Mixing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Wild Versus Captive Survivorship . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Air Quality and Noise at Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Rehabilitation and Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Quality of Captive Environments . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Programs Promoting Human Interaction with Captive Dolphins . . . . 25
Insurance Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Native Americans and Marine Mammals . . . . . . . . . . . . . . . . . . . . . . . . . 26
Co-Management with Native American Tribes . . . . . . . . . . . . . . . . . 26
Reporting Subsistence Takes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Limitation on the Sale of Edible Subsistence Takes . . . . . . . . . . . . . . 27
Definition of Subsistence Whaling . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Definition of Subsistence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Cultural Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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Permits and Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Polar Bear Sport Hunting in Alaska . . . . . . . . . . . . . . . . . . . . . . . . . 30
Large Incidental Takes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Noise and Its Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Research Permits for NMFS and FWS Scientists . . . . . . . . . . . . . . . 33
Scientific Research Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
State Approval of Federal MMPA Permits . . . . . . . . . . . . . . . . . . . . 34
Program Management and Administration . . . . . . . . . . . . . . . . . . . . . . . . 35
Definition of “Take” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Trade in Marine Mammal Parts and Products . . . . . . . . . . . . . . . . . . 35
Management of Robust Stocks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Fostering International Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . 37
Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Management Consistency Between FWS and NMFS . . . . . . . . . . . . 39
Directed Research Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Stranded Marine Mammals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Federal Agency Roles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Agency Delays in Compliance with MMPA Deadlines . . . . . . . . . . . 40
Appropriation of Agency Funding . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Congressional Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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Marine Mammal Protection Act:
Reauthorization Issues for the 107th Congress
Introduction
The Marine Mammal Protection Act (MMPA) of 1972 (P.L. 92-522, as
amended; 16 U.S.C. 1361, et seq.) was reauthorized in 1994 (P.L. 103-238). The
authorization for appropriations under this Act expired at the end of FY1999. The
104th, 105th, and 106th Congresses enacted additional amendments.1 At issue for the
107th Congress are the terms and conditions of any provisions to reauthorize and
amend the Act to address concerns related to marine mammal management.
Legislation introduced, but not enacted, in the 105th and 106th Congresses suggests
a number of issues that may be discussed during a reauthorization debate in the 107th
Congress. To identify relevant concerns, the Congressional Research Service queried
commercial fishing, scientific research, public display,2 animal protection, Native
American, and environmental interests to identify additional 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, are likely to influence whether and how
Congress addresses 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 Administration
has not released any comprehensive proposals related to MMPA reauthorization.
Congress has been active and supportive of marine mammal protection issues in
recent years, responding primarily to balancing concerns of the commercial fishing
industry and environmental interests. Congress generally views this Act as working
well, but possibly needing changes to address several concerns that have arisen since
1MMPA 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, and
Title II of P.L. 106-555 (Marine Mammal Rescue Assistance Act of 2000). For additional
information, see archived CRS Report IB98020, Fishery, Aquaculture, and Marine Mammal
Legislation in the 105th Congress and CRS Report IB10010, Fishery, Aquaculture, and
Marine Mammal Legislation in the 106th Congress.
2Zoos and aquariums holding marine mammals for public education and entertainment.
3To 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.

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the 1994 amendments. In the House, the Committee on 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.
In the 106th Congress, the House Resources Subcommittee on Fisheries
Conservation, Wildlife, and Oceans held a general oversight hearing on June 29, 1999,
to review MMPA implementation.4 The same Subcommittee held a second oversight
hearing on April 6, 2000, on implementation of the 1994 amendments related to Take
Reduction Plans, cooperative agreements with Alaska Native organizations, and co-
management of subsistence use of marine mammals by Alaska Native communities.5
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 mammal populations and maintaining healthy marine
ecosystems. These groups, however, sometimes disagree about how best to achieve
these goals and use our 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.6
Commercial Fishing Industry. In 1998, there were more than 75,000
commercial fishing vessels estimated to be operating in U.S. marine fisheries,7 and
4,733 processor and wholesale plants employing 85,735 individuals.8 In 1999, the
total catch of marine fish was 9.3 billion pounds, with an estimated ex-vessel value9
4A list of witnesses appearing at and selected testimony presented at this hearing can be found
at [http://www.house.gov/resources/106cong/fisheries/99jun29/agenda990629.htm].
5U.S. Congress. House. Committee on Resources. Subcommittee on Fisheries Conservation,
Wildlife, and Oceans. Hearing on the Marine Mammal Protection Act (Sections 118 and
119). 106th Congress, 2d session, April 6, 2000. Serial No. 106-79. 266 p.
6These 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 as objective independent analysts or
serve as advocates for a specific sector.
7NMFS. Fisheries of the United States, 1999. Current Fishery Statistics No. 9900. October
2000. p. 94.
8Id., p. 95. 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.
9Ex-vessel value is the money paid to the harvester for fish, shellfish, and other aquatic plants
and animals, i.e., dollar value of the harvest as it is offloaded from the boat.

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of $3.5 billion.10 For 1999, the overall economic contribution of commercial fishing
to gross national product (in value added) was estimated to be $27.2 billion.11
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. 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, catcher-processor, processor); type of fishing gear used (trawl,
longline, gillnet, pots, seine); and location (inshore or offshore).
Environmental Groups. More than 50 U.S. environmental 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 129 U.S. marine life
parks, aquariums, and zoos dedicated to the conservation of marine mammals and
their environments through public display, education, and 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 are represented by Commissions 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
10Supra note 6, p. iv.
11Id., p. v.

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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 authorizations to fund data collection
and research.
Marine Mammal Protection Act
Due in part to the high level of dolphin mortality (estimated at more than
400,000 animals per year in the late 1960s) in the eastern tropical Pacific tuna fishery,
Congress enacted the Marine Mammal Protection Act (MMPA) in 1972. The Act
established a moratorium12 on the “taking” of marine mammals in U.S. waters and by
U.S. nationals on the high seas.13 The Act also established a moratorium on importing
marine mammals and marine mammal products into the United States. This Act
protected 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 Act, the Secretary of Commerce, acting through the National
Marine Fisheries Service (NMFS, in the National Oceanic and Atmospheric
Administration), 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 Act
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 Act.
Prior to passage of the MMPA, states were responsible for 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 Act. It also provides that the moratorium on taking can be waived by
the federal government or states with management authority for specific purposes, if
12Some consider this action a ban or prohibition, rather than a moratorium, because it was
(and is) permanent.
13Under the MMPA, in 16 USC §1362(13), take means “to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill.”

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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
Act 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 the monitoring
requirements and other conditions are met.
The Act’s moratorium on taking does not apply to any resident Alaskan
Indian, Aleut, or Eskimo who dwells on the coast of the North Pacific or Arctic
Oceans, 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 Act also provides for co-management of marine mammal
subsistence use by Alaska Native groups, under which authority Native commissions
have been established.
The Act 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 5 years,
pending development of an improved system to govern the incidental taking of marine
mammals in the course of commercial fishing operations.15
The Endangered Species Act of 1973 (ESA; P.L. 93-205, as amended; 16
U.S.C. 1531, et seq.) provides additional protection for marine mammal species that
are 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
14Section 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.

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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, provisions relating to public display of marine mammals were substantially
changed, imports of polar bear trophies from Canada were authorized, the limited
lethal removal of pinnipeds was authorized, and a general authorization for research
involving only low levels of harassment was enacted.
The taking of marine mammals incidental to the eastern tropical Pacific tuna
fishery is governed by separate provisions of the MMPA, and was not considered as
part of revisions to the incidental take regimes enacted in 1988 or 1994. Additional
MMPA amendments enacted in 1997 (P.L. 105-42) modified dolphin conservation
provisions of the MMPA applicable to the eastern tropical Pacific tuna seine fishery.
In addition, a “good samaritan” exemption allowing individuals to free marine
mammals entangled in fishing gear or debris was separately enacted as §2003 of P.L.
105-18.
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 has
either not been completed or has taken almost the full 5 years of the authorization to
complete. One of the most difficult and controversial amendments to implement was
the convening of Take Reduction Teams (TRTs) 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. In addition, no
formal mechanism provides for interaction between TRTs and the committees that
develop marine mammal stock assessments as well as those that consider total
allowable catch and other fishery management decisions.
As of mid-1999, NMFS had convened 5 TRTs to reduce bycatch of strategic
stocks of marine mammals in selected commercial fisheries. Four of the TRTs
addressed bycatch issues on the Atlantic Coast while another TRT addressed marine
mammal bycatch in the Pacific driftnet fishery for swordfish and sharks. In addition,
the Steller Sea Lion Recovery Team appears to have served as a de facto TRT.
Two separate TRTs were convened to reduce bycatch of harbor porpoise in
the Gulf of Maine sink-gillnet fishery and several coastal gillnet fisheries in the mid-
Atlantic region. The bycatch reduction measures for porpoise in the Gulf of Maine
accompanied serious reductions in fishing to rebuild groundfish stocks under the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801, et
seq. ). The Plan developed by this TRT tried to combine measures that would both
16For more information, see CRS Report 94-751 ENR, Marine Mammal Protection Act
Amendments of 1994.
17Pinnipeds include seals, sea lions, and walrus.

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reduce porpoise bycatch and rebuild groundfish stocks. Also, the Plan developed by
the mid-Atlantic TRT was combined with that of the Gulf of Maine TRT to arrive at
bycatch reduction measures throughout the range of the harbor porpoise population
as well as the fisheries that take this species as bycatch. The result was several years
of discussions and revisions by several TRTs, which led to litigation, but also an
eventual resolution which was published as a final rule in December 1998,18 and which
is intended to reduce bycatch to below the required potential biological removal
(PBR) throughout the range of the species.
The most contentious TRT and Plan was proposed by NMFS to reduce the
bycatch of right whales in the sink gillnet and lobster fisheries in the Gulf of Maine.
The discussions by this TRT were also clouded by litigation not related to the
convening of the TRT, but related to its outcome. After nearly 2 years of discussion,
NMFS published a Plan that established a Gear Advisory Group to work with the
industry to reduce mortality of large whales due to entanglement, an expanded
disentanglement network throughout New England, and expanded survey efforts.19
Meanwhile, some critics who were involved in the TRT process alleged that NMFS
changed TRT recommendations unilaterally and without explanation.
Several TRTs have yet to be convened and Plans developed. The highest
priority TRT on the Atlantic Coast that has yet to be convened will address the
bycatch of coastal bottlenose dolphin in state/coastal gillnet fisheries. Because these
are not offshore federal fisheries, there were no bycatch data and little effort data
upon which to base discussions on bycatch reduction, despite the belief by some
experts that the PBR for coastal bottlenose dolphin is exceeded considerably by these
coastal fisheries. NMFS spent 3 years collecting data and hopes to initiate this TRT’s
discussions by spring 2000.
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 Act, due primarily to the
complexity and difficulty of implementing an action while minimizing impacts to the
industry as required by the Act, 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 in that the most serious of the bycatch/fishery issues have
been addressed.
In response to the 1994 MMPA amendments at 16 USC 1386, by early 1999,
NMFS and FWS had completed more than 100 stock assessment reports for different
marine mammal stocks as required by the Act, and developed a list of fisheries that
monitor the annual takes of marine mammals by stock in each of these fisheries.
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 the FWS have been criticized for using outdated (e.g.,
decades old) data. In addition, Alaska Native interests continue to be concerned that
1863 Federal Register 66464-66490 (Dec. 2, 1998).
1964 Federal Register 7529-7556 (Feb. 16, 1999).

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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 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
soon being able to better 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.
Issues for the 107th Congress
The remainder of this report reviews issues that may be raised during
discussions of reauthorizing the MMPA in the 107th Congress. The major issue
categories include: commercial fishing interactions with marine mammals, marine
mammals in captivity, Native Americans and marine mammals, and other
miscellaneous issues. Some of these issues could be addressed administratively, in
regulations implemented by NMFS, the 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 USC §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.20
Conservation, 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
20Some 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-made and
natural.

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too low for some marine mammal stocks.21 Some in the commercial fishing industry,
however, argue that OSP, as currently defined, is complex and vague in concept.
They contend that “maximum productivity” is difficult to determine and imprecise,22
and complicates work on developing take reduction plans for marine mammal stocks.
The difficulties in declaring that a species is at OSP frustrate fishing industry interests
by impeding the ability of the federal government to transfer management authority
to states and prevents or delays 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. Conservation 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, conservation, 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 USC §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.23 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
21These 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.
22Maximum 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.
23The recovery factor accounts for uncertainty in population estimates and reproductive rates.

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CRS-10
total human-caused mortality is kept below PBR. However, some scientists believe
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) are 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, in changing the method for calculating them, PBRs
could be set too 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). They are further worried about changes that
might retard the process of approaching the MMPA’s zero mortality rate goal
(ZMRG), especially if PBR is used as the basis for determining attainment of the
ZMRG.
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, conservation, animal
protection, and environmental interests believe that PBR is an extremely important
concept and excellent management tool that should be maintained.24 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 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.
24These 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 100% clear. For additional information on the precautionary principle, see
[http://www.eel.nl/virtue/precprin.htm].

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CRS-11
Zero Mortality Rate Goal. In 16 USC §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.” As of September 1999,
NMFS was more than 16 months late in delivering a mandatory report to Congress
on the progress of all commercial fisheries in reducing incidental mortality and serious
injury to levels approaching the ZMRG. NMFS has tentatively defined insignificant
levels approaching the ZMRG as 10% or less of the PBR for any stock.
The animal protection and conservation communities believe the objective of
approaching the ZMRG must be maintained, and that the criteria for satisfying this
objective can be set at a level greater than zero for most species.25 However, while
marine mammal mortality in many fisheries has been reduced (in some cases,
substantially), animal protection and conservation 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.
The fishing industry is concerned that ZMRG not be interpreted as requiring
absolute zero mortality and is expected to argue strongly for a reasonable balance
between marine mammal protection and economically viable fisheries. Thus, the
fishing industry may propose to include in the MMPA the current NMFS working
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 USC §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 believe federal funding is insufficient to improve
species-specific methods for assessing marine mammal stocks,26 and that Congress
should authorize specific and substantial multi-year funding to improve our basic
knowledge of marine mammal populations, especially for Arctic species.27 Alaskan
Native interests suggest that the MMPA (16 USC §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 USC §1386(c) to alter
the timing of stock assessment reviews, feeling that healthy stocks may not need
review every 3 years — every 5 years would be more reasonable. 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
25The only possible exception being extremely rare animals, such as north Atlantic right
whales.
26New methodology might include both population numbers and ecological relationships and
be reviewed by independent scientists.
27“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.

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CRS-12
information is gathered to necessitate an annual review, every 2 years might be
sufficient.
Deterrence. In 16 USC §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.28 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. Action has not yet been taken on these
recommendations,29 although the use of AHDs has increased substantially in recent
years. Similarly, some scientists are concerned that there has been insufficient
research30 to determine at what threshold a deterrent device might become harmful
to marine mammals.31
With huge gaps of knowledge in marine mammal science,32 some animal
protection advocates argue that it would be prudent to allow only proven harmless
deterrents 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.33 In
28Marine 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, if the sense of hearing is impaired by loud noise, this 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 away from the devices when they
are used (e.g., Retreat Passage, British Columbia).
29Guidelines and regulations for use of deterrents were proposed at 60 Federal Register
22345-22348 (May 5, 1995), but NMFS has not yet promulgated final regulations.
30Some of this research has been conducted on captive marine mammals, which may have
limited applicability to the behavior of wild, free-ranging animals.
31Even low-sound-output devices (e.g., “pingers”) may displace animals from critical feeding
habitat.
32 For example, in physiology of different species interrelated within 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
stocks); 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.
33Others assert that it is an extreme standard to be required to prove a negative — that an
(continued...)

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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.34 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 USC §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, thus allowing
NMFS to better monitor the amount of ocean noise generated by these devices.35
NMFS has recommended that Congress consider removing impediments to testing
non-lethal deterrent technologies and funding additional research, development, and
evaluation of innovative non-lethal pinniped deterrence techniques.36 Some managers
and scientists 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 stocks 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.
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 or 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 recommends that Congress consider authorizing the
intentional lethal taking of California sea lions and Pacific harbor seals in specific areas
33(...continued)
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.
34Some fishery practices (e.g., discarding bycatch and fish waste) invite the 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 a 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.
35A simplified permit process might address the impacts to non-target species and establish
a research program to assess the long-term impacts to target and non-target species from the
use of AHDs.
36NMFS. Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and West
Coast Ecosystems. Report to Congress, Feb. 10, 1999. p. 15.

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and fisheries to protect gear or catch until effective non-lethal methods are
developed.37 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 lions.38 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 reserves or protected areas
around key marine mammal habitats.
Relating 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 Endangered Species
Act. 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, although
others are concerned about reported recent declines in Alaska sea otter abundance.
Integration with Fishery Management. On several issues, better integration
between the management programs under MMPA and the Magnuson-Stevens Fishery
Conservation and Management Act might be helpful.39 Currently, no formal
mechanism exists providing for interaction between Take Reduction Teams (TRTs)
and the regional fishery management council committees which assess fish stocks,
determine total allowable catch (TAC), and make other fishery management decisions.
However, marine mammal take reduction is clearly an essential part of reducing
fishery bycatch and other incidental mortality 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 Magnuson-Stevens 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
37Ibid, p. 15-16.
38The federal courts 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).
39It has been suggested that some actions could be administrative (e.g., NMFS consultation
on designating “essential fish habitat”) such that protection for sensitive fish habitat might
also acknowledge the importance of critical foraging areas for sub-adult and reproductively
active female marine mammals.

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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 southern sea otter range. When FWS was authorized to establish an experimental
population of southern sea otters in 1986, the agency was required to limit the
potential impacts of the translocated southern sea otters on existing commercial
fisheries.40 However, southern sea otters are now reportedly leaving the translocation
zone and are increasingly affecting commercial fisheries. Commercial fishermen
suggest that the MMPA and the Endangered Species Act might be amended to
impose more stringent requirements on managing this and other experimental
populations to limit the potential for 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.
40Section 1 of P.L. 99-625.

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Marine Mammals in Captivity
While some issues involving marine mammals in captivity discussed in this
section may require amendment of the MMPA, many could be addressed
administratively in regulations implemented by APHIS (Department of Agriculture).
Congressional oversight of agency implementation of the MMPA and Animal Welfare
Act (AWA) in some of these issue areas may identify regulatory concerns where
further direction from Congress may be helpful in refocusing federal agency
implementation of existing law.
Many issues relating to the care and maintenance of captive marine mammals
also could be addressed under the authority of the AWA. 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.
Many of the issues in this section reflect the contentious situation between
animal protection interests and holders of captive marine mammals. The scientific and
public display communities view some animal protection advocates as extremists
conducting a concerted lobbying campaign of misrepresentation to unfairly harass
institutions which maintain animals in captivity for research, education, or public
display. Animal protection advocates claim a right to use a variety of means to secure
better conditions for animals.
Return Authority for Captive Marine Mammals to NMFS/FWS. 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 to regulate under provisions of the Animal Welfare Act.41
APHIS has conducted a negotiated rulemaking process to revise requirements for the
humane handling, care, treatment, and transport of marine mammals in captivity.42 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, who they feel are better qualified to monitor marine mammal care
and maintenance. On the other hand, some in the public display community see no
41In 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.
42APHIS began the process of amending marine mammal regulations under the AWA in 1990.
Subsequently, APHIS published an advanced notice of proposed rulemaking at 58 Federal
Register 39458 (July 23, 1993). Proposed regulations were published at 64 Federal Register
8735-8755 (Feb. 23, 1999). APHIS anticipates issuing a final rule after reviewing comments
on the proposed regulations.

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basis for stripping APHIS of primary authority for captive marine mammals, since
APHIS has a long history of developing and enforcing standards of animal health and
care and has vigorously exercised its jurisdiction.43 This has included conducting
broad rulemaking proceedings on revised requirements for marine mammals in
captivity. In contrast, NMFS and FWS do not typically deal with or involve the
animal husbandry sector and have limited expertise in the captive maintenance and
care of marine mammals.44 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 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 welfare 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.45 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 “secrets” 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.46 NMFS has interpreted export
provisions as requiring a letter of comity47 from the foreign government ensuring the
43APHIS 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. One measure of successful APHIS administration has been the advances in
achieving self-sustaining captive populations (reflecting high quality of captive care and
breeding success), with a concurrent declining demand for taking animals from the wild.
44Critics suggest NMFS and FWS are already overburdened with serious problems concerning
declining stocks of wild animals and a deteriorating environment.
45Critics 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.
46NMFS’s Marine Mammal Inventory Report now catalogs export and facility transfer
notifications as required by 16 USC §1374(c)(10)(F).
47Comity is the legal doctrine under which countries recognize and enforce each others’ legal
(continued...)

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CRS-18
standards of the MMPA are upheld in foreign facilities. In addition, NMFS requires
any further transfer of a marine mammal to other foreign nations to also require a
letter of comity. 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. Some scientists agree
that a requirement for export permits should be reinstated,48 with some believing that
MMC and NMFS/FWS review of export permits might make 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. Elements of the public display community, however, believe the current
process includes extensive safeguards,49 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.50
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 and 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.51 Some scientists assert that research on
47(...continued)
decrees.
48The 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.
49The 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 USC §1374(c)(9)). While
some critics suggest that stronger regulatory criteria might be imposed by NMFS/FWS in
implementing this provision, such action may require congressional direction.
5016 USC §1374(c)(8)(B)(i)(II).
51For example, see [http://www.cerf.bc.ca/pubs/biblio/marmam_biblio.html]. Prior to the
establishment of marine mammal facilities, most of what was learned about marine mammals
(continued...)

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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).52 Some
scientists have proposed that more research be conducted on how human activities
might affect marine animals.53 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 used to determine management criteria for wild populations.
Many of these scientists believe the MMPA 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.54
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,55 even if the animal
may have been exposed to Morbillivirus — a highly contagious, distemper-like
disease harmful to some marine mammal species.56 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
51(...continued)
resulted from whaling and sealing activities, rather than field research.
52Some 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
increasing legitimate research access to captive marine mammals. Authority for similar
efforts has been provided in 16 USC §1380.
53Some scientists report that research on captive animals is also constrained by economics.
For example, current estimates of the cost of obtaining a young healthy dolphin range from
$100,000 to $150,000.
54However, captive marine mammals used for research often are orphaned, stranded, or
disabled animals that are not physically able to be returned to the wild.
55Again, it may be an extreme standard to be required to prove a negative.
56This disease is prevalent in wild animals, but has never been reported in a non-stranded
captive animal.

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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 sea-pens57 or when a public display facility discharges untreated
effluents into the marine environment.58 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 the recent regulations proposed by APHIS.59 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
examination and certifies the animal’s healthy condition.60 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 where discharge of facility effluent has contributed to an
epidemiological episode in the wild.61
Necropsies. Currently necropsies on dead marine mammals are performed in-
house by public display facility veterinarians.62 Prior to the 1994 MMPA
amendments, necropsy reports were required to be submitted to NMFS and FWS.
57This is a concern with private organizations, often affiliated with animal protection groups,
that promote the release of captive animals, as well as with some foreign public display
facilities.
58For 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, the state enforces standards and permits under this same Act.
5964 Federal Register 8735-8755 (Feb. 23, 1999).
60In 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. At such times, cumbersome paperwork and
bureaucracy could jeopardize an animal’s life.
61In 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.
62Necropsies 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 2 to 3 weeks, with preliminary results usually available within a week.

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Current APHIS standards require such reports to be completed and kept on file at the
public display facility for 3 years.63 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.”64 Thus, necropsies, which formerly were available to the public
under the Freedom of Information Act, are no longer public records.65
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, not performing an adequate necropsy, or failing to report actual findings.66
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 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
639 CFR 3.110(d).
6416 USC §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 in the near future.
65With few exceptions, zoos and aquaria claim to be open regarding the disposition of marine
mammals within their care, with records available for public review.
66Animal protection advocates believe that considerable incentive exists for public display
facilities to provide false or incomplete information on the cause of death of marine mammals,
asserting that these institutions are unlikely to provide evidence that would lead to accusations
of wrongdoing, with subsequent scrutiny and possible fine.

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from liability and claims of negligence.67 They assert that there is no evidence that
such care is suspect. Furthermore, they point out that necropsies are the subject of
current APHIS rulemaking,68 and thus need not be considered in legislation at this
time. If more expensive necropsies were required, the issue of who would pay for
them might be controversial. Animal protection interests believe the 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, conservationists,
and animal protection advocates 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 become candidates for
release programs.69 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.70 Some
scientists believe that the incidental mixing of captive animals with wild stocks is rare
and likely 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.71
Wild Versus Captive Survivorship. Claims differ on whether captive marine
mammals live longer, similar, or shorter lifespans in captivity compared to the same
67Supporters 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.
6864 Federal Register 8735-8755 (Feb. 23, 1999).
69Alternatively, it could be required that genetically mixed offspring be neutered before
release.
70Some 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.
71Authority for similar efforts has been provided in 16 USC §1380.

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species in the wild.72 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.73 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. Marine mammals typically inhabit
environments far from human civilization. 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 are
the subject of current APHIS rulemaking.74 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 an increasing 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,75 recognizing the need to prevent the spread of disease and release of unfit
animals. Some animal protection advocates may propose MMPA amendments
requiring federal agency definition of rehabilitation/release protocols76 and a scientific
72Some 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.
73Authority for similar efforts has been provided in 16 USC §1380.
7464 Federal Register 8735-8755 (Feb. 23, 1999).
75Animal 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. A parallel concern
relates to preventing unregulated releases of marine mammals by more proactive animal
protection advocates.
76A scientific workshop might be convened to develop the protocols for conducting
(continued...)

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CRS-24
research permit for rehabilitation and release activities and for establishing
rehabilitation/release facilities for long-captive marine mammals, as well as authorizing
oversight of these activities.77 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 access to the open ocean for
recreation and “sabbaticals.” 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.78 These critics cite research indicating that animals held in
captivity for any length of time and those born in captivity die because they do not
make the necessary adjustments to life in the wild. They would oppose efforts that
encourage release of long-captive animals. Other sources of opposition would include
those worried about the federal cost of financing such a program.
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 world79 of marine mammals — social animals that have
evolved to exploit the complex and expansive natural marine environment.80
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.
76(...continued)
rehabilitation/release projects.
77How such programs might interact with existing marine mammal stranding networks would
need to be defined. These networks along the Atlantic, Gulf, and Pacific Coasts involve
dozens of facilities that provide short-term assistance to beached or stranded marine mammals
when necessary to improve their condition sufficiently to be able to return a healthy animal
to the wild.
78These 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.
79While 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 interactions, feeding, etc.
80Generally, 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.

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These critics would like the MMPA 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 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 are promoting 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 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-the-dolphin” programs to solicit
further public comment on expanding regulations to encompass activities involving
shallow water interactive programs with dolphins.81 Some animal protection interests
would like the law to either prohibit all interactive programs, including petting and
feeding pools which they claim have never been regulated, or require more stringent
regulation of them 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 are likely 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 parks close or fail or research programs terminate. 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 on 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.
Native Americans and Marine Mammals
Co-Management with Native American Tribes. Some federal managers
believe that co-management agreements, when accompanied by dedicated funding,
8164 Federal Register 15918-15920 (Apr. 2, 1999).

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have dramatically improved communication among Native subsistence users, Alaska
Native organizations, and the FWS. However, Native Alaskan interests assert that
NMFS has been very slow to enter into co-management agreements to implement
marine mammal cooperative agreements in Alaska (authorized under 16 USC §1388),
and that federal appropriations to provide grants to Native organizations under this
section have not been forthcoming.82 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 may be of 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 animal protection,
scientific, and conservation communities who fear the potential for overhunting by
Natives for economic gain, and 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, such as has been done
since the 1970s for bowhead whales. Similar national programs have not been
conducted on most other species.
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 sufficient information on subsistence takes.
In 16 USC §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).” The FWS has promulgated regulations and instituted a marking, tagging,
and reporting program (MTRP) for polar bears, walrus, and sea otters taken by
Alaska Natives.83 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.84 Instead, NMFS has awarded contracts for harvest
estimates whose accuracy has been questioned by some scientists.85 Some Alaska
Native organizations conduct biosampling programs for research on marine mammals
taken for subsistence through cooperative agreements developed under the authority
of 16 USC §1388. Despite this, some in the Alaska Native and conservation
82Some managers suggest this is due, in part, to limited funds appropriated by Congress to the
various agencies, especially NMFS.
83These MTRPs do not collect data useful for accurately assessing the age/sex composition
of the harvest, nor for establishing annual productivity. With additional funding, the MTRPs
could be restructured to obtain these data.
84On May 24, 1999, NMFS published an interim final rule requiring the marking and
reporting of beluga whales harvested from Cook Inlet (64 Federal Register 27925-27928).
85The 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. Retrospective surveys
for marine mammal harvest might be considered minimum estimates.

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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 providing useful data. However, some federal
managers and conservation interests are not satisfied with the level of detail available
on subsistence takes for many Alaska species. 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 well-designed
harvest survey, using structured hunter samples from different communities that
intensively exploit the targeted species, backed by good statistical methods, would
fulfill management needs. Other scientific and conservation interests suggest that the
MMPA be amended to require reporting, marking, tagging, and sampling of all marine
mammals taken by Alaska Natives for subsistence.86 Others in the conservation and
animal protection communities believe such reporting should also be required 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 pages 9-
10), especially in situations where subsistence harvest may account for the great
majority of the total animal removal and where that number may approach or exceed
the PBR.87
Limitation on the Sale of Edible Subsistence Takes. In 16 USC
§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.88 However, the current interpretation of the
MMPA’s §101(b)(2) is that all Alaska locales, including Anchorage, qualify as native
villages and towns. Certain markets in Anchorage sell large quantities of marine
mammal meat and muktuk,89 with a few Alaska Natives allegedly hunting primarily
to supply this commercial market.90 This is seen as a particular problem for the Cook
86Exemptions 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 PBR.
87Some federal managers have felt considerable pressure to ensure that PBR levels are set
higher than the subsistence harvest levels for some Alaskan species, e.g., Pacific walrus.
88Many 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.
89Whale skin and adhering blubber.
90Associated Press. Regulators to Consider Protections for Cook Inlet Belugas. Sept. 27,
1998; Associated Press. Biologists Say Beluga Population Shrinking Fast in Cook Inlet.
(continued...)

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Inlet beluga whale stock, which is small and is being over harvested,91 largely because
of market hunting.
Scientists, animal protection advocates, and conservationists suggest
amending the MMPA to limit or restrict the sale of edible parts from marine mammals
taken for subsistence. The situation in Cook Inlet may elicit proposals to authorize
federal agencies to either limit the demand (e.g., prohibit sales in cities or in
communities where Native residents are in the minority) or restrict the number or type
of animals that can be taken for sale (e.g., prohibit sales of Cook Inlet beluga whale
parts or set a strict quota on animals killed). In the latter case, if NMFS made a
regulatory determination that Cook Inlet beluga whales were depleted under the
MMPA or threatened/endangered under the Endangered Species Act,92 they could
take regulatory action to limit subsistence take without legislation. Others suggest
amending the MMPA to prohibit the commercial sale of marine mammal products
from any stock that is declining in abundance.
Alaskan Natives, however, believe the Native community itself, through the
Alaska Beluga Whale Committee and the Cook Inlet Marine Mammal Council, should
take the initiative to deal with this problem, using existing models that have proven
workable in similar Alaska Native situations.93 They suggest approaches similar to
those used in the allocation of strikes94 among various whaling crews in the North
Slope Borough or the Sitka Tribe’s management of sea otter take in traditional
territory. Others are concerned about the potential cultural costs of limiting access
to subsistence foods for individuals living in urban areas and the possibility that this
could outweigh benefits to marine mammal stocks.
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
90(...continued)
Nov. 19, 1998.
91A significant percentage of the Cook Inlet beluga stock is killed each year — between 98 and
147 animals were reportedly taken in 1996, with another 49 to 98 animals struck and lost.
This stock has declined almost 50% in abundance from an estimated 653 individuals in 1994
to 347 individuals in 1998, and its summer range has contracted in recent years. Marine
Mammal Commission. Annual Report to Congress, 1998. Washington, DC: Jan. 31, 1999.
p. 33-34.
92NMFS announced at 63 Federal Register 64228-64229 (Nov. 19, 1998) that it was
initiating a status review of Cook Inlet beluga whales. On Mar. 3, 1999, a coalition of
conservation groups and a former whale hunter petitioned NMFS to list the Cook Inlet beluga
whale as endangered.
93Some critics fault NMFS for reliance upon the Cook Inlet Marine Mammal Council to
develop some mechanism for self-regulation, which it has not.
94Strike means hitting a whale with a harpoon, lance, or explosive device.

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sharing resulted in the Makah gaining access to IWC aboriginal quota sufficient to kill
an average of 4 gray whales from the North Pacific stock annually from 1998 through
2002.95 Disagreement continues, both domestically and internationally, concerning
the appropriateness and legitimacy of the action taken on this issue.96
While bowhead whaling by Native Alaskan Arctic villagers is seen as truly for
the subsistence of the Natives, 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.97 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 USC §1978) that is applicable to foreign nations with whom the United States
trades. However, it is not certain that 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.98 This
confusion was exacerbated by the interaction of western technologies and economies
on traditional beliefs and practices. For example, the last reported annual walrus kill
for the St. Lawrence Island communities of Gambell (1,300 animals) and Savoonga
(700 animals) was mostly females and appears excessive and questionable as
“subsistence” to some managers and scientists. FWS regulations on the use of meat,
skin, etc. are minimal and result in significant waste in a harvest that focuses on
95Makah whaling was suspended on June 9, 2000, by 9th Circuit Court of Appeals (Metcalf
v. Daley, No. 98-36135), with NMFS ordered to begin the National Environmental Protection
Act process afresh and prepare a new environmental assessment.
96Marine Mammal Commission. Annual Report to Congress, 1998. Washington, DC: Jan.
31, 1999. p. 29-32.
97Some 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.
98Background on the federal/state conflict in Alaska over subsistence use can be found at
[http://www2.polarnet.com/users/outdoor/images/subak.html].

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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 when some of these marionettes were shipped by
Canadian Inuit to a U.S. craftsperson for finishing detail adjustments and returned.
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,99 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.
Large Incidental Takes. MMPA provisions (16 USC §1371(a)(5)(A))
authorize federal managers to issue permits for U.S. citizens to incidentally take small
numbers of marine mammals.100 However, the MMPA lacks a comparable program
to deal with large incidental takes, other than by the commercial fishing industry. (See
earlier section “Commercial Fishing Interactions with Marine Mammals.”) Related
to this, the regulatory burden for protecting marine mammals appears to fall
inequitably on different industries. For example, while small incidental take
authorizations are regularly required by NMFS for offshore oil and gas exploration
and development activities, NMFS does not regulate large commercial vessel traffic
under the small incidental take program,101 despite concerns that serious injury and
99A 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.
100Provided that these takings do not cause unmitigable damage to marine mammal
populations and have no more than a negligible effect on subsistence needs.
101NMFS justification for not regulating this activity includes the large numbers of vessels,
the lack of identified cost-effective mitigation measures, the lack of authority over
international vessels to implement effective mitigation measures to decrease noise effects on
marine mammals, and the economic disadvantage potentially falling on those U.S. vessels that
might be required to implement costly mitigation.

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mortality of cetaceans due to vessel strikes may be significant. Other activities that
may “take” large numbers of marine mammals by harassment include whale watching,
high-speed ferries, recreational jet skis, and other sources of anthropogenic noise. By
statute, small take authorizations may be issued for periods of as long as 5 years under
regulations, or 1 year under incidental harassment authorizations, with congressional
report language indicating an intent that such authorizations be renewable. NMFS
claims that most authorizations limit taking to small numbers of animals102 by
harassment because mitigation measures imposed by NMFS on the activity prevent
serious injury or mortality to marine mammals. Conservationists and animal
protection advocates agree that use of the small incidental take provisions for
activities such as ocean vessel traffic would be contrary to these provisions’ original
intent, and suggest that the MMPA be amended to specifically authorize and establish
criteria for a management program, including incorporating some concept promoting
a reduction of serious injury and mortality to insignificant levels, to deal with requests
for more extensive and longer term taking of marine mammals. If the MMPA were
amended in the proposed manner, individuals who might be required to comply with
these modified permitting procedures (e.g., jet skis, whale-watching vessels, ocean
transport vessels) might oppose such a change if the new requirements were seen as
burdensome or as imposing additional restrictions on their activities.
Noise and Its Effects. Noise as a category of potential harm to marine
mammals is unique in that sound propagates both horizontally (near/at the surface)
and vertically (down to substantial depths). Anthropogenic acoustics permeate the
water column and have the potential to affect numerous unseen marine mammals, fish,
diving birds, and other marine life. Although it is difficult to measure the potential
that noise has to harm or harass unseen animals, the U.S. Navy, the Minerals
Management Service, and other agencies have invested considerable time and funds
on research to develop monitoring capabilities and to document and quantify the
impact from specific noise sources on certain species under known conditions.103
However, significant information remains lacking on sound impacts on cetaceans, on
behavioral and physiological reactions of marine mammals, and on which species are
exposed at what depths and distances from sound sources. For this reason, the effect
of noise on marine mammals is subject to much speculation, presumption, and
misinformation. Thus, FWS and NMFS have reacted to issue- or site-specific
concerns, but have appeared reluctant to issue guidance or regulations concerning
anthropogenic noise and hesitant to implement any systematic monitoring or
enforcement program.
102NMFS interprets this to mean a portion of a marine mammal stock whose taking would
have a negligible effect on that stock.
103Measurements are obtained by attaching time-depth recorders to animals which are then
exposed to the sounds. For details, consult [http://is.dal.ca/~whitelab/rwb/robin.htm]. Others
have used autonomous seafloor acoustic recorders that record all sounds for as long as 22
days or until batteries fail. Using such methods, whale vocalization rates have been observed
to be influenced by airgun pulses from seismic surveys. See also an Office of Naval Research
report at [http://www.onr.navy.mil/sci_tech/engineering/onrpgank.htm].

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Some scientists,104 believing that the benefits of acoustic research may
outweigh any potential effect on marine mammals,105 may propose amending the
MMPA to provide for simplified procedures for federal authorization of incidental
taking from acoustic noise. As one approach, these scientists suggest that the MMPA
might be amended to authorize the regulation of impacts collectively as broad
categories or classes of sound-producing activity rather than separate individual
actions.106 Other proposals might include revising the definition of level B harassment
(16 USC §1362(18)(A)(ii)) to be applicable to actions that can reasonably be
expected to constitute a significant threat only to marine mammal stocks rather than
also to small numbers of individual animals. Reasons offered by some in the scientific
community for changes include: (1) the loudest anthropogenic noisemakers are
unregulated, including personal watercraft (e.g., jet skis), large high-speed oceangoing
ships, and whale watching vessels;107 (2) a disproportionate “harassment” burden is
placed on scientists using acoustics for research (i.e., direct research into the potential
effects of sound on marine life is subject to a higher regulation and compliance burden
than any other man-made ocean acoustic activity); and (3) human-made sound in
almost all cases is neither as loud nor as constant as naturally-occurring ocean activity
(e.g., subsea earthquakes, rain on sea surfaces, volcanic eruptions, and whale calls
themselves).
Animal protection advocates, conservationists, and some scientists, however,
characterize many sources of anthropogenic noise in the ocean as increasingly
persistent and regular. Thus believing that too little is known about the effects of
noise on marine mammals, these critics oppose any action that could be interpreted
as liberalizing regulation of anthropogenic sources.108 In addition, these critics are
especially concerned with low frequency sound used in acoustic research that is
produced at very high pressure levels and is designed to travel thousands of miles
104This includes scientists using noise in their research and scientists consulting for industries
and agencies (e.g., the U.S. Navy) that release large amounts of noise into the ocean.
105This might be tempered somewhat by the unexplained mass stranding and death of Cuvier’s
beaked whales in May 1996 in the eastern Mediterranean Sea (Ionian Sea) coincidental to
low-frequency active sonar tests conducted by a NATO research vessel in the vicinity.
Reported in “Scientific Correspondence,” Nature, Mar. 5, 1998. However, no mass
strandings or other whale deaths have been reported or observed coincidental to oceanic tests
of the U.S. Navy’s low-frequency active sonar.
106These advocates also assert that various activities with the potential to kill, injure, and
harass marine mammals are regulated inconsistently and inequitably, with commercial fishing
given much more liberal treatment (e.g., liberal PBRs and use of deterrents) than
anthropogenic noise (e.g., concern over course deviations and other short-term behavioral
changes).
107See the previous section “Large Incidental Takes,” which considers whether the MMPA
should be amended to regulate these activities.
108Some scientists assert that little has been published on this topic because insufficient
resources to address the problem have been provided by funding agencies. They further
question, if funding were provided, whether permits from NMFS and various Institutional
Animal Care and Utilization Committees mandated by the Animal Welfare Act would allow
necessary research to be conducted.

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through the ocean, as opposed to other anthropogenic noise that dissipates relatively
quickly in the ocean. Furthermore, these critics suggest that, rather than exempting
acoustic scientists from regulation and permitting additional sources of ocean noise,
other sources of non-research-related noise should be more aggressively regulated to
reduce this harassment. Most constituencies109 might support a proposal to authorize
and fund a major research effort directed at increasing understanding of the potential
effects of anthropogenic noise sources on marine mammals.
Research Permits for NMFS and FWS Scientists. The MMPA (16 USC
§1374(c)(3)(A)) provides a lengthy process for issuing scientific research permits.
NMFS and FWS are funded by Congress to study marine mammals as necessary for
their conservation and management. Some federal agency personnel would like to see
the MMPA amended to facilitate federal research on marine mammals without going
through the cumbersome process of obtaining scientific research permits. These
federal researchers question the necessity of requiring federal agency personnel to
request permits from another part of their own agency before they can do their work.
These critics suggest that the MMPA be amended to provide scientists within the
federal management agencies with a blanket authorization for research. Others
suggest that relief from the bureaucratic permitting process be extended to all those
involved in conducting federally funded research. This could include an exemption
from permits, multi-year permits, or an expedited review procedure offering a simpler
renewal of permits for studies unchallenged by public comment. It might also be
applicable to state wildlife agencies when working in direct cooperation with one of
the federal agencies. Non-federal scientists, animal protection advocates, and some
conservationists argue that regular reporting as well as outside peer and/or public
review are especially necessary for government scientists who could be influenced by
political considerations. They also would object to preferential treatment of federal
researchers as discriminatory, arguing that federal research should be required to meet
the same standards, requirements, and scrutiny as non-federal research.110
Scientific Research Permits. Several issues concern the administration of
scientific research permits by federal management agencies. Some scientists criticize
the FWS and NMFS permit offices for delays in processing requests for scientific
research permits, even though the MMPA mandates a 30-day deadline for agency
action.111 While some permits are processed quickly, others may take many months
longer, they charge, with no explanation or obvious differences between them. Critics
report that the delay between submission of a permit application and its publication
in the Federal Register for public comment can be six weeks or more.112 To assist the
109Other than, perhaps, taxpayer groups.
110Some critics allege the existence of bias and/or conflict of interest in current federal agency
permitting procedures, wherein applications for highly controversial research passes quickly
and quietly through the review process when forwarded by field staff within the permitting
agency, while comparable proposals by non- agency researchers can take months or longer
to receive action.
11116 USC 1374 (c)(3)(C).
112Some agency managers suggest 3 days between receipt of a permit application and
(continued...)

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agencies in expediting the permit review process, they suggest that the MMPA be
amended to establish a commission of scientists to review scientific research permit
applications in the same fashion that science commissions review proposed research
on human and animal subjects. Such a commission might also be helpful in addressing
concerns about alleged misuse of scientific research permits by whale watching
operators, dolphin encounter tour brokers, and others wherein “paying volunteers”
are recruited to help conduct “research” of questionable value. Although this latter
issue could be addressed administratively, congressional direction might be seen as
helpful or even necessary if administrative action was not forthcoming. Scientists are
also concerned with permit restrictions that they interpret as constraining their ability
to conduct manipulative and invasive research on marine mammals, albeit with
adequate safeguards.
Some scientists suggest that the entire scientific research permit process needs
to be streamlined, especially what are seen as: 1) restrictive, burdensome, and
unreasonable procedural requirements (i.e., level of specificity and amount of
paperwork) related to justify level B harassment (see also the discussion of
“Harassment” on pages 37-38) for bona fide research; and 2) unduly tedious and
specific requirements of the annual reporting process. Scientists feel they are
subjected to a much more stringent regulatory regime (e.g., see also the discussion of
“Noise and Its Effects” beginning on page 30) than is imposed on activities that
appear to be potentially more harmful to marine mammals (e.g., commercial fishing).
State Approval of Federal MMPA Permits. Under the authority of the
federal Coastal Zone Management Act, three states (Hawaii, Washington, and
Alabama)113 include in their state coastal plans the requirement that the state approve
federal permits granted under the authority of the MMPA. Some scientists are
concerned that state review of federal marine mammal permits is duplicative and
burdensome for marine mammal researchers and circumvents the procedures in the
MMPA for granting state management authority over marine mammals. These critics
suggest that Congress may wish to review whether this action improves protection
for marine mammals.
Program Management and Administration
Definition of “Take.” Some scientists suggest it might be worthwhile to re-
evaluate the MMPA definition of “take” in their belief that the current definition may
be overly broad and encompassing, as well as unenforceable in many situations.
These critics suggest that the MMPA be amended to incorporate a new definition of
“take” that establishes an enforceable, biologically significant standard for interactions
with individual marine mammals (for ESA-listed and depleted species) or marine
mammal populations (for all other species). With such a standard, they argue,
management will focus specifically on interactions which are likely to have adverse
biological significance for these animals. However, animal protection advocates might
112(...continued)
publication in the Federal Register is reasonable and attainable.
113Also, Guam and the Northern Mariana Islands exercise similar authority.

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be anticipated to oppose any effort to redefine take that might be perceived as
reducing the scope of activities prohibited or regulated under the MMPA.
Trade in Marine Mammal Parts and Products. The U.S. government has
experienced pressure from the World Trade Organization (WTO) regarding the trade
barriers inherent in many U.S. environmental statutes. Importing marine mammals
and their products into the United States is prohibited by 16 USC §1371(a), except
under special permits for scientific research, public display, photography for education
or commercial purposes, or enhancing the survival or recovery of a species or stock.
Permits also may be granted to import polar bear parts, other than internal organs,
taken in legal Canadian sport hunts. In addition, the Endangered Species Act (ESA)
and the Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES, the international agreement implemented via the ESA) impose
additional restrictions on trade of certain listed marine mammals. Given the desire of
several nations to commercially trade in marine mammal products (particularly
whalemeat and pinniped products), the Administration may attempt to forestall a
WTO challenge to U.S. prohibition of such trade by proposing MMPA amendments
to allow limited trade114 or address this issue in some other limited manner to make
the MMPA more compatible with WTO rules.115 Such a proposed change would
likely be vigorously opposed by some in the environmental, scientific, and animal
protection communities who fear that opening U.S. markets could promote increased
kills in nations less protective of marine mammals.116 They further assert that, if such
a proposal were enacted, U.S. policy would be inconsistent, prohibiting domestic
commercial exploitation of marine mammals while encouraging or allowing foreign
commerce in these same protected animals’ products in the United States. They also
argue that the availability of foreign marine mammal products on the U.S. market
could encourage the illegal harvest of domestic marine mammals for these same
markets. An alternative, although likely more difficult, approach seeks to broaden
WTO rules during the next round of WTO negotiations in 2000 such that the MMPA
could be found compatible.
Management of Robust Stocks. Populations of California sea lions and
Pacific harbor seals have been increasing along the Washington, Oregon, and
California coasts, leading to more frequent interactions between these animals and
fishermen and the general public (particularly the marina/boating public). On
February 10, 1999, in response to the requirements of 16 USC §1389(f), NMFS
114Some suggest a limited MMPA amendment to permit importing of “byproducts of
aboriginal subsistence activities,” allowing, for example, ringed seal skins from Canadian and
Greenland Inuit subsistence hunters to enter U.S. markets.
115The main concern with the WTO appears to be that the MMPA prohibits trade in marine
mammal products regardless of a species’ conservation status. Thus, the United States finds
it difficult to justify the expansive MMPA import ban as necessary for responding to
legitimate conservation concerns. For those species for which conservation is a concern,
listing under the ESA provides trade restrictions under CITES.
116Elements of acceptable harvest management might include a sustainable kill based on sound
science with adequate animal welfare standards. However, some U.S. scientists and managers
might argue that, for the United States to be able to certify that our own science meets these
standards, substantial expansion of U.S. research programs might be required.

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delivered an 18-page report to Congress and released a supporting 84-page scientific
document on management conflicts related to rapidly increasing populations of West
Coast harbor seals and California sea lions.117 How to manage these stocks is
expected to be an issue during MMPA reauthorization. The issue is seen by some as
whether an increasing human population on the West Coast can co-exist with a truly
robust pinniped population or whether these pinnipeds will be adversely affected by
coastal development and marine resource exploitation or will themselves have an
adverse effect on coastal resources.118
Some local residents and fishermen fear that these pinniped stocks may be
“over-populating.” Scientists, conservationists, and animal protection advocates
counter that populations may be merely returning to their historic carrying capacities
after over-exploitation earlier in this century. Fishing industry or local government
officials may propose that the MMPA be amended to permit selective culling or
additional lethal nuisance animal control. NMFS has recommended that Congress
consider amending the MMPA to create a new framework that would allow state and
federal resource managers to immediately address site-specific conflicts involving
California sea lions and Pacific harbor seals.119 NMFS suggests that a streamlined
approach provide procedures for lethal removal of these species where they are
harming severely depleted salmonids (including some populations listed as threatened
or endangered under the ESA), where they are harming salmonid populations
identified as being of special concern by states, and where they are in conflict with
human activities. While the MMPA in 16 USC §1389 already provides for the lethal
removal of pinnipeds to protect human safety and fish stocks, managers view the
existing provisions as lengthy and overly cumbersome. Conservation, animal
protection, and scientific critics of this approach, however, condemn the idea of culls
and lethal nuisance animal control as excessive. They believe that it deflects resources
from addressing other expensive and contentious human activities that contribute to
fish stock declines (e.g., habitat degradation, siltation, water diversions, fish passage
at dams, overfishing)120 and that non-lethal deterrents have not been adequately
explored. Furthermore, they express concern that authorizing the killing of marine
mammals interacting with wild fish stocks appears counter to the MMPA’s mandate
to manage on an ecosystem basis.121 In addition, these critics are adamant that
nuisance animal control not be authorized for human activities (e.g., aquaculture) that
can and should be sited so as to avoid areas of potential conflict with marine
mammals.
117NMFS. Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and
West Coast Ecosystems. Report to Congress, Feb. 10, 1999.
118Such adverse effects include consumption of fish stocks and fecal contamination of shellfish
areas near seal and sea lion haulout areas.
119NMFS. Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and
West Coast Ecosystems. Report to Congress, Feb. 10, 1999. p. 13-15.
120In addition, some of these changes may also alter conditions determining where pinnipeds
congregate and feed, possibly increasing predation on juvenile salmon.
12116 USC §1361.

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Fostering International Cooperation. Although the MMPA established an
international program (16 USC §1378), little framework exists to foster international
cooperation between the United States and foreign countries on marine mammal
issues. Under the MMPA, international cooperation — funding, exchange programs,
and cooperative research — has been limited largely to the industry-centered
dolphin/tuna issue.122 This is in sharp contrast with endangered species policy, under
which millions of dollars in federal U.S. funds are used to foster international
cooperation to protect African elephants, tigers, rhinoceros, and other species.
Proponents of increased international cooperation argue that no similar program for
marine mammals is provided in the MMPA or elsewhere in U.S. law. For example,
although the U.S.-managed northern right whale is endangered and its population is
not rebounding, the southern right whale population is flourishing. A Brazilian right
whale project focuses on reducing human/whale interactions where ship strikes have
been a major cause of death. Cooperative activities that might be promoted include
sharing whale monitoring and collision avoidance procedures as well as whale
reproduction, health, and population information with Latin American authorities.
Marine mammal scientists suggest that Congress may want to consider the benefits
of encouraging international cooperative relationships on marine mammals by U.S.
agencies. Most marine mammal constituencies appear supportive of efforts to
encourage more international cooperation, as long as such action does not promote
invasive research or commercial ventures.
The need for expanding international cooperative programs for Arctic species
is especially critical because of the virtual total demise of Russian research and
management programs, and the increasing pressure to take these species for
subsistence purposes by protein-impoverished Native peoples. Many of these species
are “shared” because their ranges include the waters of both the United States and the
Russian Federation. The lack of Russian support has resulted in an almost total
paralysis of population assessment programs for these shared species.
Critics, however, warn that, if Congress acts in this area, specific language
might need to be incorporated to prevent potential abuse (i.e., expenditure of funds
intended to recover and protect U.S. marine mammal stocks on “boondoggles” to
study exotic marine mammals in interesting places) and to require appropriate
guidance and accountability to ensure that international efforts are reciprocal and
relevant.
Harassment. The 1994 MMPA amendments revised the definition of
“harassment” to distinguish between two levels of interaction — those with the
potential to injure (level A harassment) and those with the potential to disturb (level
B harassment).123 Some federal managers have found the new definition of level B
harassment to be particularly difficult to enforce,124 and potentially harmful human
122In addition, international dialogue on whale conservation has occurred under the auspices
of the International Whaling Commission.
12316 USC §1362(18).
124In addition, some scientists believe the current definition is meaningless and possibly
(continued...)

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interaction with marine mammals continues. For example, a pod of perhaps 50-75
spinner dolphins in Kealakekua Bay, Hawaii, can be surrounded on some days by as
many as 50 swimmers, 35 kayaks, and several motor-propelled boats. On other days,
animal protection advocates report that no more than about 20 dolphins come into the
Bay where they are pursued nonstop from early in the morning until late in the
afternoon when they leave the bay. NMFS does not have an enforcement agent on
the Big Island (where the violation occurred), and an agent from the Hawaii
Department of Land and Natural Resources is responsible for responding to possible
violations. Other critics suggest whale watching vessels are insufficiently monitored
for compliance with MMPA regulations.125 Animal protection advocates suggest that
the MMPA should be amended to require specific and more strictly enforced
regulations concerning swimmer,126 kayaker, and boater harassment of dolphins and
whales, including provisions to significantly increase the possible fines against
commercial operators who introduce large groups of swimmers into protected bays
where dolphins rest. Others suggest authorizing more funding specifically targeted
to better educate private watercraft operators concerning MMPA regulations and to
increase MMPA enforcement efforts,127 including additional observers aboard whale
watching vessels to assess compliance. Some scientists, on the other hand, would like
to see the definition of level B harassment revised to where it would be applicable
only to situations where actions would reasonably be expected to constitute a
significant threat to an entire marine mammal stock, rather than to just a few
individual animals.
Management Consistency Between FWS and NMFS. The division of
responsibility for various marine mammal species between NMFS and FWS is
provided for in 16 USC §1362(12) within the definition of “Secretary.” When the
MMPA was enacted in 1972, this division of species was seen as artificial and
temporary awaiting the creation of a contemplated “Department of Environment and
Natural Resources.” In addition, the differing management approaches taken by
NMFS and FWS have often confused the commercial fishing industry and Alaska
124(...continued)
counterproductive. These critics suggest that an expert panel be convened to redefine this
term.
125Others suggest the problem is regulatory, wondering why U.S. agencies do not adopt an
approach similar to that of Mexico where the number of vessels that can be in the proximity
of any whale or group of whales is strictly limited and enforced. Some suggest that the
revised operational guidelines for whale-watching vessels in the northeastern United States (64
Federal Register 29270-29271, June 1, 1999) are a positive step, and that additional region-
or area-specific guidelines or regulations of a similar nature should be developed.
126Others, however, find MMPA management inconsistent in making it illegal to swim with
wild dolphins who willingly approach humans while allowing commercial ventures to hold
dolphins captive and charge humans for the chance to swim with them.
127Current requirements for prosecuting harassment violations are stringent, requiring a time-
/date-stamped video of the incident and a court appearance by the complainant to testify
against the offender.

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Natives.128 Some Native American and scientific interests suggest it may be time for
Congress to revisit this division of management responsibility and amend the MMPA
to promote greater consistency in marine mammal management. Several approaches
are suggested, including the current movement toward an ecosystem approach to
managing living resources and minimizing possible conflicts of interest where marine
mammals and fisheries interact, that may have a bearing on which agency should
manage which species or groups thereof. Others suggest that NMFS and FWS might
be directed to develop joint regulations for all their marine mammal programs to
achieve greater consistency in management policy.129
Directed Research Program. Although the MMPA emphasizes research, it
does not create a national integrated marine mammal research program. Emphasizing
this need, a recommendation in the Secretary of Commerce’s February 1999 report
to Congress involved a list of information needs, with no suggestion as to how or by
whom this research was to be pursued.130 Specific information needs identified for
this relatively narrowly focused issue include: 1) site-specific investigations on the
impacts of pinniped predation on salmonid populations; 2) state-by-state and river-by-
river investigations of salmonid populations vulnerable to pinniped predation; 3)
studies of comparative skeletal anatomies of different salmonid species so that prey
may be identified in food habit studies using pinniped scat and gastrointestinal tract
analyses; 4) site-specific seasonal abundance and distribution of pinnipeds north of
Point Conception; 5) assessment and evaluation of potential impacts of pinnipeds on
specific fisheries and fishing areas; 6) socioeconomic studies on impacts of pinnipeds
on various commercial and recreational fisheries; 7) ecosystem research where the
impacts of pinniped predation on non-salmonid resources can be addressed beginning
with smaller systems such as Puget Sound; and 8) collection of unbiased samples for
food habit studies. Congress might wish to consider whether these information needs
should become the focus of an MMPA amendment creating a national integrated
research program, possibly under the direction of the independent Marine Mammal
Commission, with specific funding authorized.131
Stranded Marine Mammals. Sick or injured marine mammals occasionally
come ashore (i.e., strand) and are rehabilitated and released by a network of marine
stranding facilities along all coasts. Several concerns relate to dealing with stranded
marine mammals. The 106th Congress is considering legislation (H.R. 1934/S. 1216)
that would authorize a grant program to support marine mammal stranding programs.
During the first session of the 106th Congress, H.R. 1934 was passed by the House,
but no action was taken by the Senate on either of these measures. (For updated
information on actions taken on this legislation, see CRS Report IB10010, Fishery,
128For example, FWS uses MTRPs (see page 26) while NMFS doesn’t, and NMFS uses
“incidental harassment authorization” to permit incidental taking while FWS doesn’t.
129Joint regulations relating to marine mammals have only been developed for the transfer of
management authority to states (50 CFR Part 403).
130NMFS. Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids and
West Coast Ecosystems. Report to Congress, Feb. 10, 1999. p. 16-17.
131Such a program might be authorized as an extension of the Pacific Coast Task Force
provisions in 16 USC 1389.

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Aquaculture, and Marine Mammal Legislation in the 106th Congress.) While some in
the animal protection community express concern that APHIS regulations addressing
standards for care and maintenance are not directly applicable to stranding facilities,
APHIS is working with NMFS to determine when stranding facilities are subject to
the AWA, while NMFS is modifying letters of oversight it issues to stranding facilities
to ensure these letters are consistent with the spirit of AWA licensing standards.
More specifically, some animal protection advocates express concern that federal
agencies have not developed a standardized protocol for use by stranding facilities in
deciding whether and when to euthanize stranded animals. They suggest that
congressional oversight during reauthorization might encourage federal agencies to
address this concern. Alternatively, language could be incorporated into the MMPA
to direct that such a protocol be developed.
Federal Agency Roles. Some scientists suggest that conflicting federal
agency interests may hamper marine mammal protection and recovery. These critics
suggest that the MMPA be amended to direct an external panel (e.g., the Marine
Mammal Commission or the National Academy of Sciences) to carefully review the
programs and procedures of federal management agencies for potential conflicting
interests among their management, regulation, permit administration, scientific
research, and funding roles with respect to marine mammals, and recommend actions
that should be taken to address any problems identified.
Agency Delays in Compliance with MMPA Deadlines. There is frustration
over federal agency delays of several months to more than two years in implementing
provisions of the 1994 MMPA amendments (see “1994 MMPA Reauthorization” on
page 5 for more detail). This has led to critics within the conservation and animal
protection communities as well as the fishing industry to seek additional means to get
the NMFS and FWS to comply with MMPA deadlines. These agencies contend, in
reply, that the problem can be traced to limited funds provided to help them carry out
these activities.132 For more on funding concerns, see the following section
“Appropriation of Agency Funding.” Others suggest that the pattern of repeated
failure to complete assigned tasks on time should first be addressed through an Office
of Management and Budget or similar study on overall agency administration.
Appropriation of Agency Funding. An issue that NMFS, FWS, and the
MMC might raise during reauthorization discussions is that, in an era of stable or
slightly increasing federal appropriations, their responsibilities and duties have
expanded much faster than their budgets. For example, requirements for stock
assessments for all marine mammal populations, observer monitoring aboard the U.S.
commercial fishing fleet, and administration of an expanding MMPA permit program
place significant demands on federal agency resources. Specifically, implementing the
provisions of the MMPA is a significant undertaking, requiring the coordination
among headquarters and regional offices of NMFS and FWS as well as with the
MMC. NMFS and FWS may claim that they are underfunded and that delays in
132On June 29, 1999, Marshall Jones, Acting Deputy Director, U.S. Fish and Wildlife Service,
testified before the House Resources Subcommittee on Fisheries Conservation, Wildlife, and
Oceans that “[D]ue to competing budget needs and limited funding, the Service has been
unable to fully implement provisions of certain amendments.”

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implementing the 1994 MMPA amendments are directly tied to budgetary constraints.
In addition, some scientists and environmental interests assert that Congress’ will to
implement the MMPA through the appropriations process has not kept pace with the
desire expressed in the authorization process, providing insufficient funding for federal
management programs and thereby exposing federal agencies to harsh criticism when
they fail to meet public expectations. Congress might consider amending the MMPA
to increase the authorization of appropriations for marine mammal programs of
NMFS, FWS, and the MMC, increasing the actual funds appropriated under these
authorizations, or including specific instructions about how funds are to be used.
Congressional Outlook
Congress generally has been supportive of measures to protect marine
mammals, including specifically the Marine Mammal Protection Act. While the
history of this Act’s implementation includes numerous court challenges to agency
interpretation of congressional intent, Congress generally has been understanding of
the difficulties in providing protection for this specific group of living resources. The
issues discussed in this report set before Congress a varied array of concerns. It is not
yet clear which will gain prominence in any reauthorization debate. Recent public
sentiment, always a strong factor in marine mammal issues, has focused on concerns
for noise in the marine environment, enhanced protection for whales, the
appropriateness of Makah whaling, and humane care for captive animals. Specific
interests of Native Alaskans, fishermen, sport hunters, and animal protection groups
may call attention to additional issues. Congressional oversight in the early stages of
the reauthorization process might identify additional issues. At present, no issues
demand action and the requirements of the Act itself did not expire when the Act’s
authorization of appropriations expired at the end of FY1999, suggesting that the
reauthorization process will likely be delayed until sufficient congressional will is
mustered to deal with the multitude of issues. Additional delay in reauthorization
could be involved if inclusion of AWA and APHIS issues necessitates a joint referral
to the House and Senate Committees on Agriculture.
The House Resources Subcommittee on Fisheries Conservation, Wildlife, and
Oceans held a general oversight hearing on the Marine Mammal Protection Act on
June 29, 1999. Testimony presented by officials from NMFS, FWS, APHIS, and the
MMC described progress in implementing the 1994 MMPA amendments and outlined
possible areas for Committee attention during reauthorization. The same
Subcommittee held a second oversight hearing on April 6, 2000, specifically on the
implementation of the 1994 amendments related to the take reduction process,
cooperative agreements with Alaska Native organizations, and co-management of
subsistence use of marine mammals by Alaska Native communities. No other action
was taken on MMPA reauthorization in the 106th Congress. Independent of MMPA
reauthorization, Congress enacted legislation (Title II of P.L. 106-555) that would
authorize grant programs to benefit marine mammal stranding programs. Meanwhile,
congressional appropriations for federal marine mammal programs in FY2000 and
FY2001 appear stable, with increases for selected species of particular concern (e.g.,
northern right whales). (For further information on legislative activities in the 106th

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Congress concerning marine mammals, see CRS Report IB10010, Fishery,
Aquaculture, and Marine Mammal Legislation in the 106th Congress.)

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