Order Code RL30120
CRS Report for Congress
Received through the CRS Web
The Marine Mammal Protection Act:
Reauthorization Issues
Updated June 18, 2004
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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The Marine Mammal Protection Act:
Reauthorization Issues
Summary
The Marine Mammal Protection Act (MMPA) was last reauthorized in 1994.
The MMPA’s authorization for appropriations expired at the end of FY1999. At
issue for Congress are the terms and conditions of provisions designed to reauthorize
and amend the MMPA to address 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 the range of 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, and appropriating adequate funding for federal agency programs. While
some of these issues could be addressed administratively, in regulations proposed and
promulgated by NOAA Fisheries (formerly the National Marine Fisheries Service),
the U.S. Fish and Wildlife Service, or the USDA Animal and Plant Health Inspection
Service, others likely would require statutory changes.
Most potential participants in the reauthorization debate anticipate extended
negotiations on some of these issues. Although the authorization for appropriations
expired at the end of FY1999, the MMPA itself did not expire. Eventually, however,
an extension of funding authority may need to be considered to continue federal
program operations. Most of the issues associated with this law are not time-
sensitive, and a number of oversight hearings have been held to increase
understanding of various positions and possibilities.
This report lays out the range of issues likely to be raised during any
reauthorization debate, the reasons behind them, and possible proposals that could
be offered to address these concerns. This report will be updated as warranted to
reflect the evolution of these issues.

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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Marine Mammal Protection Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1994 MMPA Reauthorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Implementation of the 1994 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Miscellaneous MMPA Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Commercial Fishing Interactions with Marine Mammals . . . . . . . . . . . . . . 10
Optimum Sustainable Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Calculating Potential Biological Removal . . . . . . . . . . . . . . . . . . . . . . 11
Zero Mortality Rate Goal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stock Assessment Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Reinstate Limited Authority for Intentional Lethal Taking . . . . . . . . . 15
Integration with Fishery Management . . . . . . . . . . . . . . . . . . . . . . . . . 16
Fishery Impacts and Southern Sea Otters . . . . . . . . . . . . . . . . . . . . . . 17
Marine Mammals in Captivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Authority for Captive Marine Mammals . . . . . . . . . . . . . . . . . . . . . . . 18
Export of Captive Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Import of Captive Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Scientific Research on Captive Marine Mammals . . . . . . . . . . . . . . . . 21
More Extensive Medical Exams for Transferred Animals . . . . . . . . . 22
Necropsies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Genetic Mixing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Wild Versus Captive Survivorship . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Air Quality and Noise at Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Rehabilitation and Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Quality of Captive Environments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Programs Promoting Human Interaction with Captive Dolphins . . . . 27
Insurance Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Prohibition of Traveling Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Prohibition of Wild Captures for Public Display . . . . . . . . . . . . . . . . . 28
Native Americans and Marine Mammals . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Co-Management with Native American Tribes . . . . . . . . . . . . . . . . . . 29
Reporting Subsistence Takes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Limitation on the Sale of Edible Subsistence Takes . . . . . . . . . . . . . . 30

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Definition of Subsistence Whaling . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Definition of Subsistence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Cultural Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Permits and Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Polar Bear Sport Hunting in Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Large Incidental Takes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Noise and Its Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Research Permits for NOAA Fisheries and FWS Scientists . . . . . . . . 37
Scientific Research Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
State Approval of Federal MMPA Permits . . . . . . . . . . . . . . . . . . . . . 39
Program Management and Administration . . . . . . . . . . . . . . . . . . . . . . . . . 39
Definition of “Take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Trade in Marine Mammal Parts and Products . . . . . . . . . . . . . . . . . . . 39
Management of Robust Stocks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Fostering International Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Management Consistency Between FWS and NOAA Fisheries . . . . . 43
Directed Research Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Federal Agency Roles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Agency Delays in Compliance with MMPA Deadlines . . . . . . . . . . . . 45
Appropriation of Agency Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Congressional Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Oceans Commissions Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

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The Marine Mammal Protection Act:
Reauthorization Issues
Introduction
The Marine Mammal Protection Act (MMPA) of 1972 (P.L. 92-522, as
amended; 16 U.S.C. §§1361, et seq.) was last reauthorized in 1994 by P.L. 103-238.
The authorization for appropriations under the MMPA expired at the end of FY1999.
The 104th, 105th, 106th, and 108th Congresses enacted additional amendments
addressing single or limited issues (see “Miscellaneous MMPA Amendments”); no
MMPA amendments were enacted by the 107th Congress.1 At issue for Congress are
the terms and conditions of provisions to reauthorize and amend the MMPA to
address concerns related to marine mammal management. Legislation introduced,
but not enacted, in the 105th, 106th, and 107th Congresses suggests a number of issues
that may be discussed during a reauthorization debate. 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, may be considered as Congress determines whether and how to address
MMPA reauthorization.
Other than recommendations contained in reports to Congress mandated by the
MMPA Amendments of 1994 (discussed later in this report) and in testimony
presented at a June 29, 1999 oversight hearing before the House Resources
Subcommittee on Fisheries Conservation, Wildlife, and Oceans, the Clinton
Administration did not release any comprehensive proposals related to MMPA
reauthorization. In the 108th Congress, the reauthorization proposal of the Bush
Administration was introduced as H.R. 2693. Congress has been active on marine
1 MMPA amendments were included in P.L. 104-297 (§405(b)(3)), P.L. 105-18 (§2003 and
§5004), P.L. 105-42 (International Dolphin Conservation Program Act), P.L. 105-277, P.L.
106-555 (Title II, Marine Mammal Rescue Assistance Act of 2000), P.L. 108-108 (§149),
and P.L. 108-136 (§319). For additional information, see CRS Issue Brief IB10109,
Fishery, Aquaculture, and Marine Mammal Legislation in the 108th Congress, by Eugene
H. Buck. Archived issue briefs covering legislation in previous Congresses are also
available from this author.
2 Zoos and aquariums holding marine mammals for public education and entertainment.
3 To facilitate a candid discussion of issues, individual respondents were guaranteed they
would not be identified by name. Opinions of individuals and groups may not accurately
reflect the opinion of the majority. Presentation of constituent opinion in this report
represents a sampling, and is not a quantitative assessment.

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mammal protection issues in recent years, responding primarily to balancing concerns
of the commercial fishing industry and environmental interests. Congress generally
views the MMPA as working well, but possibly needing changes to address an
increasing number of concerns that have arisen since the 1994 amendments. In the
House, the Committee on Resources has jurisdiction over any MMPA reauthorization
legislation. In the Senate, the Committee on Commerce, Science, and Transportation
has jurisdiction over any legislation on this issue.
Constituency Groups
An array of groups and individuals hold common and conflicting interests in our
nation’s marine mammals. Despite their diversity, they generally share the goals of
ensuring sustainable marine 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.4
Commercial Fishing Industry. In 2001, there were more than 65,000
commercial fishing vessels estimated to be operating in U.S. marine fisheries,5 and
3,410 processor and wholesale plants employing 71,533 individuals.6 In 2002, the
total catch of marine fish was 9.4 billion pounds, with an estimated ex-vessel value7
of $3.1 billion.8 For 2002, the overall economic contribution of commercial fishing
to gross national product (in value added) was estimated to be $28.4 billion.9
This sector is chiefly concerned with ensuring sustainable fisheries that balance
environmental protection with the continued short-term and long-term viability of the
industry. An additional concern is how best to manage conflicts between
increasingly abundant marine mammals and commercial fishing. Within this sector
is a diverse group of interests, each with specific concerns regarding the rational use
of living marine resources and the allocation of resources among user groups. These
sectors divide according to scale of operation; type of activity (fishermen, catcher-
4 These are general characterizations. There is enormous variability and crossover of
membership in these groups, which often blurs the distinction among the concerns within
each group. For example, marine mammal scientists may act both as objective independent
analysts and serve as advocates for a specific sector.
5 National Marine Fisheries Service, Fisheries of the United States, 2002, Current Fishery
Statistics No. 2002 (Sept. 2003), p. 94.
6 Id., 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.
7 Ex-vessel value is the money paid to the harvester for fish, shellfish, and other aquatic
plants and animals, i.e., the dollar value of the harvest when it is offloaded from the boat.
8 Supra note 7, p. iv.
9 Id., p. v.

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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 and conservation
organizations focus primarily or largely on marine issues. Membership in these
groups ranges into the millions. With respect to the MMPA, environmental groups
are principally concerned with the lack of assessment data for many managed stocks,
the direct and indirect harm to less resilient marine species (including marine
mammals), the protection of marine biodiversity, and the continuing loss of marine
habitat.
Public Display Community. This community includes 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 Alaska Native groups are represented by Commissions
(e.g., Eskimo Walrus Commission, Alaska Eskimo Whaling Commission, Harbor
Seal Commission, Aleut Marine Mammal Commission) that coordinate management
of certain species with federal agencies. The long-term goals of tribes and
indigenous groups generally include economic stability, resource sustainability, and
regulatory certainty. Of particular concern during MMPA reauthorization will be
cooperative management of marine mammals, which they believe fosters economic
vitality, environmental health, and rational management of natural resources.
Marine Mammal Scientists. Scientists from academia, the private sector,
and state and federal agencies are principally involved in analyzing the ecological,
social, and economic effects of MMPA provisions and marine mammal management
policy. Like the other groups, they are concerned with the health and integrity of
marine ecosystems and the rational use of marine resources. Specifically, they are
interested in the availability of adequate funding and accurate data to perform the
necessary analyses. Such scientists are also often members of or associated with
other constituent groups.
Marine Mammal Managers. Federal and state marine mammal managers
are charged with implementing the MMPA and complementary state programs.
Because of this responsibility, their interests and concerns are more keenly focused
on the pragmatic aspects of the MMPA. Specifically, they are interested in clarity

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in the intent of management requirements and in authorizations of appropriations to
fund data collection and research.
Marine Mammal Protection Act
Due in part to the high level of dolphin mortality in the eastern tropical
Pacific tuna fishery (estimated at more than 400,000 animals per year in the late
1960s), Congress enacted the Marine Mammal Protection Act (MMPA) in 1972. The
MMPA established a moratorium10 on the “taking” of marine mammals in U.S.
waters and by U.S. nationals on the high seas.11 The MMPA also established a
moratorium on importing marine mammals and marine mammal products into the
United States. The MMPA protects marine mammals from “clubbing, mutilation,
poisoning, capture in nets, and other human actions that lead to extinction.” It also
expressly authorized the Secretaries of Commerce and the Interior to issue permits
for the “taking” of marine mammals for certain purposes, such as scientific research
and public display.
Under the MMPA, the Secretary of Commerce, acting through the National
Marine Fisheries Service (NMFS, in the National Oceanic and Atmospheric
Administration, also referred to as “NOAA Fisheries”), is responsible for the
conservation and management of whales, dolphins, porpoises, seals, and sea lions.
The Secretary of the Interior, acting through the U.S. Fish and Wildlife Service
(FWS), is responsible for walruses, sea otters, polar bears, manatees, and dugongs.
This division of authority derives from agency responsibilities as they existed when
the MMPA was enacted. Title II of the MMPA established an independent Marine
Mammal Commission (MMC) and its Committee of Scientific Advisors on Marine
Mammals to oversee and recommend actions necessary to meet the requirements of
the MMPA. Title III authorizes the International Dolphin Conservation Program.
Title IV authorizes the Marine Mammal Health and Stranding Response Program.
Prior to passage of the MMPA, states were responsible for managing marine
mammals on lands and in waters under their jurisdiction. The MMPA shifted all
marine mammal management authority to the federal government. It provides,
however, that management authority, on a species-by-species basis, could be returned
to a state that adopts conservation and management programs consistent with the
purposes and policies of the MMPA.12 It also provides that the moratorium on taking
can be waived by the federal government or states with management authority for
specific purposes, if the taking will not disadvantage the affected species or
population. Permits may be issued to take or import any marine mammal species,
including depleted species, for scientific research or to enhance the survival or
10 Some consider this action a ban or prohibition, rather than a moratorium, because it was
(and is) permanent.
11 Under the MMPA, in 16 U.S.C. §1362(13), take means “to harass, hunt, capture, or kill,
or attempt to harass, hunt, capture, or kill.”
12 Although the State of Alaska began the process to request management authority for some
marine mammal species, no state has been granted such management authority.

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recovery of the species or stock. Non-depleted species may be taken or imported for
purposes of public display. The MMPA allows U.S. citizens to apply for and obtain
authorization for taking small numbers of mammals incidental to activities other than
commercial fishing (e.g., offshore oil and gas exploration and development), if the
taking would have a negligible impact on any marine mammal species or stock, and
the monitoring requirements and other conditions are met.
The MMPA’s moratorium on taking does not apply to any resident Alaskan
Indian, Aleut, or Eskimo who dwells on the coast of the North Pacific or Arctic
Oceans, if such taking is for subsistence purposes13 or for creating and selling
authentic Native articles of handicrafts and clothing, and is not done wastefully.
However, such taking can be regulated or even prohibited if the Secretary determines
a stock is depleted. The MMPA also provides for co-management of marine
mammal subsistence use by Alaska Native groups, under which authority Native
commissions have been established.
The MMPA also authorizes the taking of marine mammals incidental to
commercial fishing operations. In 1988, most U.S. commercial fish harvesters were
exempted from otherwise applicable regulations and permit requirements for five
years, pending development of an improved system to govern the incidental taking
of marine mammals in the course of commercial fishing operations.14 The taking of
marine mammals incidental to the eastern tropical Pacific tuna fishery is governed
by specific and separate provisions of the MMPA.
The Endangered Species Act of 1973 (ESA; P.L. 93-205, as amended; 16
U.S.C. §§1531, et seq.) provides additional protection for marine mammal species
that have been determined to be threatened or endangered with extinction. When
protective actions are taken under both ESA and MMPA authorities, interactions
between implementation efforts under these two statutes may increase management
complexity and legal uncertainty in dealing with some species, such as the southern
sea otter in California.
1994 MMPA Reauthorization
The 1988 commercial fishing exemption expired at the end of FY1993, and
new provisions were enacted in P.L. 103-238, which reauthorized the MMPA
through FY1999.15 These new provisions indefinitely authorized the taking of
13 Section 109(f)(2) defines subsistence uses as “the customary and traditional uses by rural
Alaska residents of marine mammals for direct personal or family consumption as food,
shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft
articles out of nonedible byproducts of marine mammals taken for personal or family
consumption; and for barter, or sharing for personal or family consumption.”
14 Subsequently, the MMPA Amendments of 1994 established a new regime to govern the
incidental taking of marine mammals by commercial fishing operations.
15 For more information, see CRS Report 94-751 ENR, Marine Mammal Protection Act
(continued...)

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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 pinniped16-
fishery interactions. In addition, the 1994 amendments substantially changed
provisions relating to public display of marine mammals, authorized imports of polar
bear trophies from Canada, authorized the limited lethal removal of pinnipeds, and
enacted a general authorization for research involving only low levels of harassment.
Implementation of the 1994 Amendments
Implementation of the 1994 MMPA amendments by NOAA Fisheries and
FWS has been controversial on several issues. In some cases, implementation of new
provisions took more than the full five years of the authorization to complete. One
of the most difficult and controversial amendments to implement was the convening
of Take Reduction Teams (TRTs)17 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.
As of early 2004, NOAA Fisheries had convened six TRTs to reduce bycatch
of strategic stocks of marine mammals in selected commercial fisheries. One of
these, the Atlantic Offshore Cetacean TRT, was disbanded in August 2001 due to
changes in the affected fisheries. Four of the remaining TRTs address bycatch issues
on the Atlantic Coast, while the remaining TRT addresses marine mammal bycatch
in the Pacific driftnet fishery for swordfish and sharks.18
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
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
15 (...continued)
Amendments of 1994, by Eugene H. Buck.
16 Pinnipeds include seals, sea lions, and walrus.
17 Members of TRTs “include representatives of federal agencies, each coastal state which
has fisheries which interact with the species or stock, appropriate Regional Fishery
Management Councils, interstate fisheries commissions, academic and scientific
organizations, environmental groups, all commercial and recreational fisheries groups and
gear types which incidentally take the species or stock, Alaska Native organizations or
Indian tribal organizations, and others as the Secretary deems appropriate” (16 U.S.C.
1387(f)(6)(C)).
18 Final rule published at 62 Federal Register 51805-51814 (Oct. 3, 1997).

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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 1998,19 and
which is intended to reduce bycatch to below the potential biological removal (PBR)
level throughout the range of the species.
The most contentious TRT and plan was proposed by NOAA Fisheries to
reduce the bycatch of North Atlantic right whales20 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 two years of discussion, NOAA Fisheries published a plan that established (1)
a Gear Advisory Group to work with the industry to reduce mortality of large whales
due to entanglement, (2) an expanded disentanglement network throughout New
England, and (3) expanded survey efforts.21 Meanwhile, some critics who were
involved in the TRT process alleged that NOAA Fisheries changed TRT
recommendations unilaterally and without explanation. Final regulations, developed
by consensus through the Atlantic Large Whale TRT and issued on August 26,
2003,22 completed action under this plan, which included the seasonal area
management program (67 Federal Register 1142, January 9, 2002; 67 Federal
Register 65722, October 28, 2002), expanded gear modifications (67 Federal
Register 1300, January 10, 2002; 67 Federal Register 15493, April 2, 2002), and the
dynamic area management program (67 Federal Register 1133, January 9, 2002; 67
Federal Register 65722, October 28, 2002).
NOAA Fisheries convened an Atlantic Offshore Cetacean TRT to reduce
mortality and serious injury of marine mammals incidental to pair trawl, drift gillnet,
and longline fisheries for swordfish and tuna in the Atlantic Ocean. Since the TRT
submitted a draft Take Reduction Plan to NOAA Fisheries, the pair trawl fishery has
not reopened,23 and NOAA Fisheries closed the drift gillnet fishery for fishery
management purposes. In addition, the conduct of the longline fishery has been
substantially revised to reduce incidental bycatch of billfish and sea turtles. Given
the major restrictions on fishing activity and the requirement to use observers in the
longline fishery to collect protected species data, NOAA Fisheries disbanded this
TRT in August 2001.
The most recent TRT to be convened on the Atlantic Coast addresses 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 data on fishing
19 63 Federal Register 66464-66490 (Dec. 2, 1998).
20 For more information on this species, see CRS Report RL30907, The North Atlantic Right
Whale: Federal Management Issues, by Eugene H. Buck. In addition to fishing gear
entanglement, individual whales can be injured or killed from being struck by large ships.
These latter threats are being addressed under the authority of the Endangered Species Act,
rather than the MMPA.
21 64 Federal Register 7529-7556 (Feb. 16, 1999).
22 68 Federal Register 51195-51201 (Aug. 26, 2003).
23 The pair trawl fishery was experimental and was not active when the TRT met.

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CRS-8
effort 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. NOAA Fisheries spent four years collecting data and
convened this TRT in 2001. This TRT’s plan is currently being drafted.
The Pacific Offshore Cetacean TRT is considered quite successful, with
consensus plans developed and recommended regulations appearing successful in
reducing incidental takes of cetaceans to biologically sustainable levels in the
California/Oregon drift gillnet fishery for thresher shark and swordfish. NOAA
Fisheries managers attribute this success to the absence of a quota system for Pacific
swordfish that might create an accelerated “derby” fishery.24 The Pacific Offshore
Cetacean TRT rejected several possible management approaches as too restrictive,
too costly, or too difficult to enforce (e.g., marine mammal bycatch limit, 100%
observer coverage, time/area closures, set allocation scheme). This TRT rejected
time/area closures, feeling that this strategy might encourage fishermen to fish during
poor weather and place fishermen at a greater safety risk and would be difficult and
costly to enforce.
Several TRTs have yet to be convened and plans developed. Although
NOAA Fisheries recognizes that fishery-related mortality exceeds the PBR level in
some marine mammal stocks, no new TRTs are to be convened until additional funds
are appropriated or redirected from existing Take Reduction Plans that have been
declared successful. Congress recognized that funds would be limited and
established criteria for prioritization of this effort in 16 U.S.C. §1387(f)(3).
Overall, NOAA Fisheries believes that the time allowed by the MMPA to
convene a TRT and develop a plan has been adequate. However, NOAA Fisheries
found it difficult to publish a final rule based on a plan in the time allotted by the
MMPA, due primarily to the complexity and difficulty of implementing regulations
that minimize impacts to the industry as required by the MMPA, and by the
economic analyses and requirements of other statutes. The difficulties in meeting
statutory deadlines and implementing plans for these strategic stocks has been both
frustrating to many, sometimes resulting in litigation, and satisfying to others in that
serious bycatch/fishery issues have been addressed.
In response to the 1994 MMPA amendments at 16 U.S.C. §1386, by early
2001, NOAA Fisheries and FWS had completed more than 150 stock assessment
reports for different marine mammal stocks as required by the MMPA, and
developed a list of fisheries that monitor their annual takes of marine mammals by
stock. These lists are frequently being revised and are also the target of controversy
as new information is incorporated into the assessments. However, some of the stock
assessments conducted by the FWS have been criticized for using outdated (e.g.,
decades old) data. In addition, Alaska Native interests continue to be concerned that
some stock assessment reports have little information on incidental take from
commercial fishing operations. The sparse information in these reports, based on
24 A derby fishery occurs under restrictive harvest quotas when individual fishermen fish
more intensively earlier in the season to maximize their shares of the overall catch before
the quota is reached and the season is closed.

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CRS-9
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.
NOAA Fisheries anticipates becoming better able to address the concerns of Alaska
Natives.
The 1994 amendments also directed the federal government to undertake an
ecosystem-based research and monitoring program for the Bering Sea to identify the
causes of ecosystem decline. There is controversy over the extent to which this
provision has been fulfilled. Meanwhile, the Alaska Native community would like
to initiate a complimentary effort to understand Bering Sea ecological processes by
drawing upon traditional Native knowledge and wisdom. The Alaska Native
community was unable to obtain public funding to convene meetings among affected
villages to review the draft federal Bering Sea research plan, and eventually sought
independent funding to support a March 1999 Bering Sea conference.
Miscellaneous MMPA Amendments
Subsequent to the 1994 reauthorization, several additional MMPA
amendments were enacted separately. Section 405(b)(3) of P.L. 104-297 amended
the MMPA’s definition of the term “waters under the jurisdiction of the United
States.” In P.L. 105-18, §2003 provided a “good samaritan” exemption allowing
individuals to free marine mammals entangled in fishing gear or debris, while §5004
modified the requirements for the importation of polar bear parts from polar bears
legally harvested in Canada before the MMPA Amendments of 1994 were enacted.
P.L. 105-42 modified dolphin conservation provisions of the MMPA applicable to
the eastern tropical Pacific tuna seine fishery and specified under what conditions
tuna products can be labeled “dolphin-safe.” Administrative provisions for the U.S.
Fish and Wildlife Service in P.L. 105-277 clarified that polar bear trophy permit fees
remain available until expended for cooperative research and management programs.
Title II of P.L. 106-555 authorized grants to benefit marine mammal stranding
programs. Section 149 of P.L. 108-108 permitted the importation of polar bears from
Canada harvested prior to the enactment of final regulations. Section 319 of P.L.
108-136 modified the MMPA’s definition of harassment and provisions relating to
taking marine mammals as they relate to military readiness activities and federal
scientific research.25
In compliance with the International Dolphin Conservation Program Act (P.L.
105-42), the Secretary of Commerce, on April 29, 1999, made an initial finding that
there was insufficient evidence of significant adverse impact from chase and
encirclement of dolphins during tuna fishing.26 Subsequently, NOAA Fisheries
25 For additional information, see “Military Readiness and Environmental Exemptions,” in
CRS Report RL32183, Defense Cleanup and Environmental Programs: Authorization and
Appropriations for FY2004, by David M. Bearden.
26 64 Federal Register 24590-24592 (May 7, 1999).

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CRS-10
promulgated a new standard for dolphin-safe tuna in January 2000.27 However, this
standard was challenged by environmental groups and overturned by the U.S. District
Court for the Northern District of California on April 11, 2000.28 Although the
Department of Commerce appealed this ruling, the 9th Circuit Court of Appeals
affirmed the lower court decision in July 2001.29
Issues for Congress
The remainder of this report reviews issues that may be raised during
discussions on reauthorizing the MMPA. The major issue categories include
commercial fishing interactions with marine mammals, marine mammals in captivity,
Native Americans and marine mammals, permits and authorizations, and program
management and administration. Some of these issues could be addressed
administratively, in regulations implemented by NOAA Fisheries, 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 U.S.C. §1362(9) as “the number of animals which will result
in the maximum productivity of the population or the species, keeping in mind the
carrying capacity of the habitat and the health of the ecosystem of which they form
a constituent element.” However, the variable nature of populations in marine
ecosystems makes it nearly impossible to determine carrying capacity. In addition,
for many species, the limiting habitat factors that govern carrying capacity are not
known or well understood.30
Animal protection, scientific, and environmental interests generally agree that
OSP is an important concept for assessing the viability of a population or stock.
Some scientists, however, express concern that, if current rather than historic
population data are used to calculate OSP, OSP levels may be calculated too low for
some marine mammal stocks.31 Some in the commercial fishing industry, however,
argue that OSP, as currently defined, is complex and vague in concept. They contend
27 65 Federal Register 30-59 (Jan. 3, 2000).
28 Brower v. Evans, 93 F. Supp 2d 1071, 2000 U.S. Dist. LEXIS 4624 (N.D. Cal. 2000).
29 Brower v. Evans, 257 F. 3d 1058, 2001 U.S. App. LEXIS 16504 (9th Cir. 2001).
30 Some scientists have attempted to define OSP for a population based on the carrying
capacity for an ecosystem that may no longer exist for many reasons, both human-caused
and natural.
31 These scientists are concerned that, since most marine mammal species have suffered
dramatic population decreases over the last two centuries, the true carrying capacity of the
environment is unknown. In addition, they believe that carrying capacity for some species
would increase if certain commercial fish harvests were curtailed and other human uses of
the marine environment were modified.

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CRS-11
that “maximum productivity” is difficult to determine and imprecise,32 and
complicates work on developing Take Reduction Plans for marine mammal stocks.
The difficulties in declaring that a species is at OSP (1) frustrate fishing industry
interests by impeding the ability of the federal government to transfer management
authority to states and (2) prevent or delay fishermen from gaining authority to
deliberately kill marine mammals. In addition, commercial fishing interests chafe
when the MMPA, through OSP, grants marine mammals priority access to certain
fish stocks and allocates marine mammals de facto “harvest quotas” in direct
competition with and to the detriment of the fishing industry. Environmental and
scientific interests counter that marine mammals are part of the marine ecosystem
and should have their prey species protected from excessive fishing. These interests
also believe that critics within the commercial fishing industry may be too quick to
blame marine mammals for reductions in target fish populations where predator-prey
relationships are incompletely understood.
Commercial fishing interests would like to see the MMPA amended to
modify, simplify, and clarify the definition of OSP as the objective for marine
mammal management. Scientific, animal protection, and environmental interests
believe that OSP, as the central “core” innovation of the MMPA, should be retained
and improved. Other suggestions include directing the MMC to host a workshop,
involving marine ecologists, oceanographers, and climatologists, to further examine
the methods for determining OSP and its derivative potential biological removal (see
section below). Appropriation of funds necessary for this task would probably be
required.
Calculating Potential Biological Removal. The potential biological
removal (PBR) level is used to establish limits on incidental marine mammal
mortality for commercial fishing operations. It is defined in 16 U.S.C. §1362(20) as
“the maximum number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach or maintain
its optimum sustainable population.” PBR is calculated by multiplying a stock’s
minimum population estimate by half the known or presumed maximum net
productivity of the stock. This product is multiplied by a fractional multiplier known
as the recovery factor.33 Take Reduction Plans are based on two assumptions: (1)
that a stock or population currently within its OSP range will remain so, and (2) that
any stock or population below its maximum net productivity level will increase to
that level if the total human-caused mortality is kept below the PBR level. However,
some scientists believe that both these assumptions might be questionable in light of
today’s much better information.
MMPA critics in the fishing industry and Native Alaskan community believe
that NOAA Fisheries has been so restrictive in calculating PBRs that the economic
32 Maximum productivity is based on inexact population surveys subject to natural
fluctuations and can be derived scientifically in several ways. Improving survey techniques
with more advanced technology holds promise for improving the precision of these
variables. Full realization of this potential may be dependent upon increased funding.
33 The recovery factor accounts for uncertainty in population estimates and reproductive
rates.

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CRS-12
viability of certain fisheries (e.g., the New England and mid-Atlantic gillnet fisheries,
Bering Sea pollock fishery) is being compromised. NOAA Fisheries and FWS
managers counter that the lack of critical data used in PBR calculations limits their
ability to calculate precise PBR values for many species. These issues are
particularly acute for Alaskan species where population surveys, productivity rates,
and harvest data are absent or based on crude estimates several decades old. Some
scientific and animal protection interests, however, are concerned that, if the method
for calculating them is changed, PBRs could be set too 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, animal protection, and
environmental interests believe that PBR is an extremely important concept and an
excellent management tool that should be maintained.34 Without a way to calculate
concrete limits on take, they argue, NOAA Fisheries would have no way of
adequately determining the impact of human-caused mortality on marine mammal
stocks or of adequately enforcing regulations. Some scientists contend that the
necessary monitoring and research to accurately calculate useful PBRs is lacking.
These critics suggest that a deadline be set for completing development of models to
address these concerns.
As mentioned in the previous section, suggestions for MMPA reauthorization
include directing the MMC to host a workshop, involving marine ecologists,
oceanographers, and climatologists, to further examine the methods for determining
OSP and its derivative PBR. Considerations for such a workshop might include (1)
multiple mortality factors such as subsistence harvest, commercial fishery
interactions (including entanglement in net discards), and industrial activities (e.g.,
noise, contaminants); (2) standardized guidelines for using the recovery factor (e.g.,
endangered species that continue to decline should use 0.1 or less; endangered but
increasing should use 0.2); and (3) variability in natural mortality due to extreme
events (e.g., mass stranding, El Niño). Appropriation of funds necessary for this task
would probably be required.
Zero Mortality Rate Goal. In 16 U.S.C. §1387(b)(3), the MMPA requires
“the immediate goal that incidental kill or incidental serious injury of marine
mammals permitted in the course of commercial fishing operations be reduced to
insignificant levels approaching a zero mortality and serious injury rate.” NOAA
34 These interests see PBR as a means of invoking the precautionary principle in marine
mammal management — by which the federal government takes action to avert possible
harm to marine mammals, even when the causal link between human behavior and those
damages is not completely clear. For additional information on the precautionary principle,
see [http://www.eel.nl/virtue/precprin.htm], visited on June 2, 2004.

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CRS-13
Fisheries has proposed defining insignificant levels approaching the ZMRG as 10%
or less of the PBR for any stock.35
The animal protection and environmental 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.36 However, while
marine mammal mortality in many fisheries has been reduced (in some cases,
substantially), animal protection and environmental interests do not consider these
reductions to be significant. They believe that the ZMRG can be implemented in
ways that do not impose burdensome costs on the fishing industry, and that promote
marine ecosystem sustainability that is in the interest of all parties. Similar to their
reasoning on PBRs, they believe ZMRG must be maintained as a means of
encouraging the development and use of more risk-averse fishing methods.
The fishing industry is concerned that ZMRG 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 suggests that the concept of ZMRG either be removed from the
MMPA or be defined in such a way that it can be seen as having been already
achieved in many instances. On the other hand, the animal protection and
environmental communities are supportive of a NOAA Fisheries 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 U.S.C. §1386. Several scientists and managers contend that this
process is insufficient to assess most marine mammal populations with a reasonable
degree of certainty. In addition, these critics as well as various advocacy groups
believe that federal funding is insufficient to improve species-specific methods for
assessing marine mammal stocks,37 and that Congress should authorize specific and
substantial multi-year funding to improve our basic knowledge of marine mammal
populations, especially for Arctic species.38 Alaskan Native interests suggest that the
MMPA (16 U.S.C. §1386(d)) be amended to confer greater authority to Regional
Scientific Review Groups, authorizing these groups to exercise more power in
addressing concerns of where research is needed, rather than be only advisory. In
addition, they suggest amendments to 16 U.S.C. §1386(c) to alter the timing of stock
assessment reviews, feeling that healthy stocks may not need review every three years
35 69 Federal Register 23477-23491 (Apr. 29, 2004).
36 The only possible exception is extremely rare animals, such as the North Atlantic right
whale.
37 New methodology might include both population numbers and ecological relationships
as well as review by independent scientists.
38 “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-14
— every five years would be more reasonable. They believe that three years may be
too short an interval to detect meaningful trends and can be burdensome on the
agency performing the assessments. For most strategic stocks, since little new
information is gathered to necessitate an annual review, they believe an assessment
every two years might be sufficient.
Deterrence. In 16 U.S.C. §1371(a)(4), the MMPA allows the use of
deterrents to discourage marine mammals from damaging fish catch or gear.
Currently, the burden falls on the federal government to prove that a deterrent is
harmful before it can be prohibited. For example, the long-term effects on marine
mammals of acoustical harassment devices (AHDs), such as “seal bombs” and “seal
scarers,” are not known.39 NOAA Fisheries 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,40 and the use of AHDs has increased substantially in
recent years. Similarly, some scientists are concerned that there has been insufficient
research41 to determine at what threshold a deterrent device might become harmful
to marine mammals.42
With huge gaps of knowledge in marine mammal science,43 some animal
protection advocates argue that it would be prudent to allow only proven harmless
deterrents for use on marine mammals interacting with fishing vessels and/or fish
farms. Some have argued for reliance on the precautionary principle that would
require manufacturers to prove that a deterrent does not cause permanent harm to any
39 Marine mammals are persistent when they discover a food source. They may habituate
to acoustic devices unless these devices are quite loud, in which case the animal’s hearing
could become impaired. The ways and extent to which widespread use of acoustic alarms
and deterrents may affect the natural ability of marine mammals to find food and use the full
extent of their foraging range is not well known, but may have unintended consequences.
For example, the loss of hearing due to loud noise might increase the dependancy of marine
mammals upon fishing boats and fish farms for food. In addition, AHDs could displace non-
target species (such as porpoises) several miles (e.g., Retreat Passage, British Columbia).
40 Guidelines and regulations for use of deterrents were proposed at 60 Federal Register
22345-22348 (May 5, 1995), but NOAA Fisheries has not yet promulgated final regulations.
41 Some of this research has been conducted on captive marine mammals, which may have
limited applicability to the behavior of wild, free-ranging animals.
42 Even low-sound-output devices (e.g., “pingers”) may displace animals from critical
feeding habitat.
43 For example, the physiology of different species interacting in a particular habitat,
sensory processes, ecosystem implications, stock assessments, and specific behavioral
characteristics/region. Studies that have been conducted are inconclusive with respect to
(1) effects of a single deterrent device on multiple species inhabiting a given area (including
fish); (2) audiological and physiological understanding of the marine mammal ear (and
hearing thresholds); (3) impacts of both broad- and narrow-band spectra signals on the
marine mammal auditory system; (4) frequency, intensity levels, and duty cycles of such
devices with respect to ambient noise, vessel operations, etc.; and (5) acoustic behavior of
the animals.

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CRS-15
age/sex class of affected marine mammal species before allowing its use.44 In
addition, some scientists and managers believe that not enough emphasis has been
placed on encouraging fishermen to change their fishing practices, rather than use a
proven deterrent, to reduce interactions with marine mammals.45 However,
fishermen are likely to make their choice between deterrents and changes in fishing
practice on the basis of their relative cost.
Some parties critical of the current situation may endorse proposals to alter
the burden of proof for deterrents found in 16 U.S.C. §1371(a)(4)(C); others may
support efforts to direct NOAA Fisheries to study the causes of fishery-marine
mammal interaction problems to develop a different basis for regulating deterrents.
Others suggest that the MMPA be revised to require permits for AHD users, allowing
NOAA Fisheries to better monitor the amount of ocean noise generated by these
devices.46 NOAA Fisheries has recommended that Congress consider (1) removing
impediments to testing non-lethal deterrent technologies and (2) funding additional
research, development, and evaluation of innovative non-lethal pinniped deterrence
techniques.47 Some managers and scientists as well as certain interest groups caution,
however, that considerable care must be taken to fully assess the “side effects” of
noise and other emissions of non-lethal deterrents to identify any potential for
damage to targeted and non-targeted marine mammals, fish that may be more
sensitive to noise (e.g., herring, cod, other schooling fish), and divers. Any potential
for damage will need to be weighed against the benefits of these deterrents before
their use becomes even more widespread.
Reinstate Limited Authority for Intentional Lethal Taking. Prior to
the 1994 MMPA amendments, commercial fishermen were allowed to kill certain
pinnipeds as a last resort to protect their gear and catch. The 1994 amendments
eliminated authorization for such lethal taking and replaced it with authority to use
deterrence measures that do not kill or seriously injure marine mammals. However,
conflicts between fishermen and pinnipeds have become more frequent, and
44 Others assert that it is an extreme standard to be required to prove a negative — that an
AHD does not cause harm. They claim a much more reasonable standard might be to
prohibit the use of AHDs that have been shown to cause any kind of permanent damage.
45 Some fishery practices (e.g., discarding bycatch and fish waste) invite marine mammals
into close proximity with humans. In addition, an increase of fishery interactions with
sperm whales in Alaskan waters appears to have coincided with the change from a “derby
fishery” (where the whole fleet fished for a short period of time) to an individual fishing
quota (IFQ) system (where individual fishermen choose when to fish during most of the
year). The IFQ system may have enabled sperm whales to develop their skill in taking fish
from fishermen. Before the change to IFQs, whales had, at most, two weeks to interact with
longline fisheries and, since all vessels were fishing at the same time, not every vessel
experienced problems with the whales. Now, sperm whales apparently go from boat to boat
in time and space, practicing their skills most of the year.
46 A simplified permit process might address the impacts on non-target species, and a
research program could be established to assess the long-term impacts on target and non-
target species from the use of AHDs.
47 National Marine Fisheries Service. Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems, Report to Congress (Feb. 10, 1999), p. 15.

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CRS-16
economic losses have increased. NOAA Fisheries has recommended that Congress
consider authorizing the intentional lethal taking of California sea lions and Pacific
harbor seals in specific areas and fisheries to protect gear and catch until effective
non-lethal methods are developed.48 Critics oppose reinstating this authority, fearing
that allowing fishermen to kill California sea lions and Pacific harbor seals could
reduce the incentive to modify fishing practices or develop non-lethal deterrents, and
would likely result in accidental kills of similar-appearing species that are
endangered, such as the ESA-listed Steller sea lion.49 These critics suggest that more
attention be given to modifying fishing practices and fishery management policies to
reduce contact between commercial fishermen and marine mammals. One possible
means for accomplishing this might involve the creation of marine protected areas
that encompass key marine mammal habitats.50 In particular, animal protection
advocates strongly oppose any reinstatement of intentional lethal taking, fearing the
increased risks of merely injuring animals and causing significant suffering as shown
by the number of live-stranded sea lions that are sent to rehabilitation centers after
having been illegally shot.
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 ESA. However, a
1996 stock assessment report prepared under MMPA authority indicated this
population was below OSP. In addition, Alaskans who blame sea otters, in part, for
declining fish catch may advocate a more liberal killing of sea otters by Alaska
Natives interested in expanding commercial trade in handicrafts made from their fur.
Others, however, are concerned about reported recent declines in Alaska sea otter
abundance. Animal protection groups rigorously oppose proposals to lethally take
sea otters.
Integration with Fishery Management. On several issues, observers
suggest that better integration between the management programs under the MMPA
and the Magnuson-Stevens Fishery Conservation and Management Act might be
helpful.51 Currently, no formal mechanism exists providing for interaction between
Take Reduction Teams (TRTs) and the regional fishery management council
committees, established under the Magnuson-Stevens Act, which assess fish stocks,
48 Ibid, p. 15-16.
49 The federal courts have ruled that the federal government cannot issue permits to kill an
abundant animal when they know that a protected animal is also likely to be killed. See
Kokechik Fishermen’s Association v. Secretary of Commerce, 839 F.2d 795 (D.C. Cir. 1988)
cert denied, 488 U.S. 1004 (1989).
50 For more information on marine protected areas, see CRS Report RS10810, Marine
Protected Areas: An Overview, by Jeffrey A. Zinn and Eugene H. Buck.
51 It has been suggested that some actions could be administrative (e.g., NOAA Fisheries
consultation on designating “essential fish habitat”) such that protection of sensitive fish
habitat might also acknowledge the importance of critical foraging areas for sub-adult and
reproductively active female marine mammals.

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CRS-17
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 mortalities associated with fisheries.
The Steller Sea Lion Recovery Team has so far been the only quasi-TRT that has
been included in formulating fishery management plans (i.e., by the North Pacific
Fishery Management Council for Gulf of Alaska groundfish and for Bering
Sea/Aleutian Islands groundfish). Some marine mammal scientists suggest amending
the MMPA and the 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 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 NOAA Fisheries under the
MMPA are not available to identify and monitor potential sources of mortality for
southern sea otters, much less to evaluate how trap design might affect sea otter
entrapment or otherwise help identify means to minimize conflicts. Some scientists
and managers suggest amending the MMPA to facilitate monitoring in small vessel
fisheries and to authorize funding to address potential interactions.
Southern sea otters appear to be attempting to extend their range southward.
Such behavior may be significant to the long-term survival of this population,
scientists contend. However, the commercial fishing industry opposes any expansion
of the southern sea otter’s range. When the FWS was authorized to establish an
experimental population of southern sea otters at San Nicolas Island, one of Southern
California’s Channel Islands, in 1986, the agency was required to limit the potential
impacts of translocated southern sea otters on existing commercial fisheries and
remove sea otters from a management zone south of Point Conception.52
Commercial fishermen suggest that the MMPA and the ESA might be amended to
impose more stringent requirements on managing populations to limit their potential
to conflict with existing uses. Opposing this, some environmental and animal
protection interests suggest that language establishing the 1986 experimental
population and translocation be repealed, eliminating the management zone and
allowing sea otters to expand their range naturally to meet their recovery needs.
Marine Mammals in Captivity
While some issues involving marine mammals in captivity discussed in this
section may require amendment of the MMPA, many of these issues could also be
addressed under the authority of the Animal Welfare Act (AWA) or be addressed
administratively in regulations implemented by APHIS (Department of Agriculture).
Procedurally, Congress faces the decision on whether to treat these issues within the
MMPA reauthorization process, to treat them as AWA issues and consider them
52 Section 1 of P.L. 99-625. However, the FWS decided in January 2001 to halt the removal
of southern sea otters from the management zone. For more information on this decision,
see [http://pacific.fws.gov/news/2001/2001-23.htm], visited on June 3, 2004.

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concurrently with MMPA reauthorization, or to address these issues as strictly AWA
concerns to be considered at another time. Congressional oversight of agency
implementation of the MMPA and the AWA in some of these issue areas may
identify regulatory concerns where further direction from Congress may be helpful
in refocusing federal agency implementation of existing law.53
Many of the issues in this section reflect the contentious relationship between
animal protection interests and holders of captive marine mammals. These
constituencies often disagree on whether, and if so under what conditions, marine
mammals should be held in captivity.54
Authority for Captive Marine Mammals. Prior to the 1994 MMPA
amendments, NOAA Fisheries, FWS, and APHIS shared responsibility for the care
and maintenance of marine mammals held by public display facilities. However, the
1994 MMPA amendments delegated primary authority for captive marine mammals
to APHIS for regulation under provisions of the Animal Welfare Act.55 APHIS
conducted a negotiated rulemaking process to revise requirements for the humane
handling, care, treatment, and transport of marine mammals in captivity.56 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 NOAA Fisheries and FWS, which they feel are better qualified to monitor marine
mammal care and maintenance.57 On the other hand, some in the public display
53 Coordinated oversight on this issue can be complicated by committee jurisdiction, since
APHIS and the AWA fall under the jurisdiction of the House Committee on Agriculture and
Senate Committee on Agriculture, Nutrition, and Forestry while NOAA Fisheries and the
MMPA are under the jurisdiction of the House Committee on Resources and Senate
Committee on Commerce, Science, and Transportation.
54 Various aspects of this issue were recently highlighted in a 5-part series “Below the
Surface” published in the South Florida Sun-Sentinel, May 16-19, 2004. This series was
available at [http://www.sun-sentinel.com/news/sfl-marinestorygallery.storygallery], visited
on June 16, 2004.
55 In August 1998, NOAA Fisheries, 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.
56 APHIS began the process of amending marine mammal regulations under the AWA in
1990. Subsequently, APHIS published an advanced notice of proposed rulemaking at 58
Federal Register 39458 (July 23, 1993). Proposed regulations were published at 64 Federal
Register 8735-8755 (Feb. 23, 1999), and final regulations at 66 Federal Register 239-257
(Jan. 3, 2001).
57 Animal protection advocates report that APHIS employs only one veterinarian with
marine mammal expertise among a staff of approximately 106 inspectors. These 106
inspectors are responsible for 8,800 licensed zoos, circuses, and trucks/airlines that transport
animals. Although the AWA requires one unannounced inspection per year, animal
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community see no basis for stripping APHIS of primary authority for captive marine
mammals, since they contend that APHIS has a long history of developing and
enforcing standards of animal health and care and has vigorously exercised its
jurisdiction.58 This has included conducting broad rulemaking proceedings on
revised requirements for marine mammals in captivity. In contrast, the public display
community views NOAA Fisheries and FWS as not typically dealing with or being
involved in the animal husbandry sector and having limited expertise in the captive
maintenance and care of marine mammals.59 Critics further assert that giving NOAA
Fisheries and FWS jurisdiction in this area would necessitate an expensive program
duplicating what APHIS already administers. Some in the public display community
further assert that the majority of problems concerning the quality of care provided
captive marine mammals occurred prior to the 1994 MMPA amendments and in
privately operated facilities that were not regulated, rather than in regulated public
display facilities.
Regardless of who regulates these facilities, some marine mammal scientists
and animal protection advocates believe that regulations need to be brought more
closely into accord with the physical, psychological, and social needs of marine
mammals. In addition, they suggest that existing regulations need to be enforced
with more rigor and with less influence from the facilities being regulated.60 They
argue that reliance on the public display community to be forthcoming when
explaining the application of particular husbandry practices may be open to question,
particularly when public display facilities fear that proprietary interest related to
husbandry techniques (e.g., successful captive breeding techniques) might be
revealed to competitors. They suggest that Congress consider ways in which
successful husbandry techniques might be made more openly available in the interest
of benefitting the care of marine mammals throughout the public display industry.
Under such conditions, husbandry practices might be standardized to better protect
animals.
Export of Captive Animals. The 1994 MMPA amendments repealed
export permit and public notification requirements, replacing them with a 15-day
57 (...continued)
protection groups contend that overworked inspectors visit some marine parts and aquaria
only once every three years, or only after the filing of public complaints.
58 APHIS has more than 20 years’ experience in monitoring and regulating the humane care
and treatment of marine mammals in captivity, employing a professional veterinary staff to
inspect facilities. APHIS was given authority under the AWA to regulate warm-blooded
animals, including marine mammals, for public display in the early 1970s, and first
published regulations on marine mammals in 1979. APHIS resources include a National
Animal Health Monitoring System, National Veterinary Services Laboratories, and a
Veterinarian-in-Charge in every state.
59 Critics suggest NOAA Fisheries and FWS are already overburdened with serious
problems concerning declining stocks of wild animals and a deteriorating environment.
60 Critics cite examples where APHIS appears content to wait for facilities to fix recurring
problems rather than taking more aggressive action, and where APHIS is alleged to have
accepted a facility’s tank measurements rather than taking independent measurements.

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federal agency notification requirement prior to export.61 NOAA Fisheries has
interpreted export provisions as requiring a letter of comity62 from the foreign
government certifying that the standards of the MMPA are upheld in foreign
facilities. In addition, NOAA Fisheries requires a letter of comity for any further
transfer of a marine mammal of U.S. origin by one foreign nation to another foreign
nation. Animal protection advocates claim that the current status of some of the
marine mammals (dolphins, in particular) shipped from the United States to
Honduras, China, Portugal, Tahiti, and other countries since the 1994 repeal is not
known. The animal protection community is concerned and may seek to amend the
MMPA to restore the export requirements to their original condition (i.e., requiring
a permit, with a public comment period as part of the process).63 Some scientists
agree that a requirement for export permits should be reinstated,64 but believe that
MMC and NOAA Fisheries/FWS review of export permits might make public
comment unnecessary. Some suggest that Congress require a full accounting from
NOAA Fisheries/FWS for all past exported marine mammals before allowing any
further U.S. animals to be exported. In addition, they suggest the MMPA be
amended to require a $25,000 surety bond or insurance policy per exported marine
mammal to cover emergency medical and transfer costs in the event of financial or
natural disaster at a foreign facility. Animal protection advocates recommend
mandatory on-site inspections of foreign facilities before any U.S. marine mammal
can be exported. Elements of the public display community, however, believe the
current process includes extensive safeguards,65 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.66
61 NOAA Fisheries’ Marine Mammal Inventory Report now catalogs export and facility
transfer notifications as required by 16 U.S.C. §1374(c)(10)(F).
62 Comity is the legal doctrine under which countries recognize and enforce each others’
legal decrees.
63 Animal protection advocates have serious concerns regarding the ability of NOAA
Fisheries/FWS under the short notification regime and without public input to ensure the
well-being of marine mammals leaving this country for foreign, and often substandard,
facilities. They are concerned that the brief window of notification eliminates any and all
opportunity for public notification and comment and also limits the time available for the
agencies to review the documentation that must accompany an export.
64 The scientific issue is one of detailed and open record keeping, so that scientists know
where animals have gone and are able to compare wild to captive mortality rates, birth rates,
etc.
65 The primary safeguard is the requirement, certified by the recipient nation’s agency
responsible for marine mammals, that the receiving facility meets the same criteria for
holding such animals as were required of the originating U.S. facility (16 U.S.C.
§1374(c)(9)). While some critics suggest that stronger regulatory criteria might be imposed
by NOAA Fisheries/FWS in implementing this provision, they believe such action may
require congressional direction, either through a statement in committee report language or
as a specific MMPA amendment.
66 16 U.S.C. §1374(c)(8)(B)(i)(II).

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Import of Captive Animals. Some in the public display community may
seek to amend the MMPA to treat the import of marine mammals the same way
exports are treated (i.e., agency notification required but no permit required and no
public comment solicited). They argue that the current process is cumbersome and
unnecessary. The animal protection community would likely oppose such an
amendment, desiring to retain and possibly strengthen federal agency review of
imports as well as the option for public comment. They believe that a public process
with agency review would better protect marine mammals, discouraging the import
of certain marine mammals such as those captured specifically for the importing
facility.
Scientific Research on Captive Marine Mammals. Research on
captive marine mammals has provided critical information and a substantial body of
literature on many aspects of marine mammal biology.67 Some scientists assert that
research on captive marine mammals may be more useful for certain disciplines (e.g.,
physiology, immunology, nutrition, hearing sensitivity, and cognitive and acoustic
abilities) than others (e.g., acoustic behavior and intra- and inter-species
interactions).68 Some scientists have proposed that more research be conducted on
how human activities might affect marine animals.69 They further contend that
research on and observation of marine mammals in captivity affords scientists the
opportunity to conduct studies with live animals that are not always possible or
practical to do in the wild, and contributes valuable data useful in determining
management criteria for wild populations. Many of these scientists believe the
MMPA has placed an unreasonable burden on scientific research (e.g., invasive
research is seriously impeded).
Other scientists as well as parts of the animal protection community question
how much of the research conducted on captive marine mammals actually benefits
marine mammals in the wild. These critics may suggest that the MMPA be amended
to require that more attention to benefits be given by federal agencies that review
permits for scientific research on captive marine mammals. Other scientists are
likely to oppose any amendment that might increase their regulatory burden or curtail
access to potential research animals. As an alternative to greater restrictions, some
scientists suggest amending the MMPA to impose a research requirement on all
regulated facilities holding marine mammals, with mandatory peer review of these
67 For example, see [http://cerf.bc.ca/pubs/biblio/marmam_biblio.html], visited June 2, 2004.
Prior to the establishment of marine mammal facilities, most of what was learned about
marine mammals resulted from whaling and sealing activities, rather than from field
research.
68 Some scientists suggest that a workshop of experts be convened to provide guidance on
better defining what might be considered valid research on captive marine mammals, and
on increasing opportunities for legitimate research access to captive marine mammals.
Similar efforts have been conducted under the authority provided in 16 U.S.C. §1380.
69 Some scientists report that research on captive animals is also constrained by economics.
For example, estimates of the cost of obtaining a young healthy dolphin range from
$100,000 to $150,000.

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research programs to ensure that the capture and holding of marine mammals for
research is justified.70
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 NOAA
Fisheries nor FWS requires an exporter to prove that an animal harbors no
infections,71 even if the animal may have been exposed to Morbillivirus — a highly
contagious, distemper-like disease harmful to some marine mammal species.72
Therefore, critics assert that some disease-carrying marine mammals could be
exported to countries where they might infect marine mammals in that region.
Animal protection advocates suggest that the MMPA or the AWA may need to be
amended to require more safeguards against transferring pathogens (including
antibiotic-resistant pathogens) (a) among captive populations when animals are
moved; and (b) to wild populations when captive animals are moved to sea-pens73 or
when a public display facility discharges untreated effluents into the marine
environment.74 More extreme scientific critics suggest that transferred animals
should be prohibited from ever being placed in a sea pen or other open enclosure, and
that imported and exported marine mammals should be treated like parrots and other
exotic birds, with quarantines and thorough medical examinations required at each
end of the transfer.
Individuals at some public display facilities believe that these matters have
been addressed sufficiently in regulations finalized by APHIS.75 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.76 They further state that, since humans are
70 However, captive marine mammals used for research often are orphaned, stranded, or
disabled animals that are not physically able to be returned to the wild.
71 Again, some believe it may be an extreme standard to be required to prove a negative.
72 This disease is prevalent in wild animals, but has never been reported in a non-stranded
captive animal.
73 This concern may arise when private organizations, often affiliated with animal protection
groups, promote the release of captive animals, as well as with some foreign public display
facilities.
74 For individual public display facilities discharging waste to a publicly owned treatment
works, local municipalities enforce wastewater treatment standards and effluent discharge
permits under the authority of the federal Clean Water Act. If the facility discharges directly
to the environment, standards and permits under this same act are administered by the
Environmental Protection Agency (EPA) or qualified states to which EPA has delegated
responsibility.
75 66 Federal Register 239-257 (Jan. 3, 2001).
76 In rare instances, such as hazardous situations or removal of an animal from imminent
(continued...)

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CRS-23
not required to be proven disease-free before traveling, it would be ridiculous to
impose a higher standard for marine mammals. Managers of public display facilities
are exceedingly hesitant to accept any animal that could pose a potential pathogenic
threat because of their interest in their investment and the difficulty in replacing
animals that die. Furthermore, they assert that there is no documented case where
release of a captive marine mammal to the wild or to an open ocean pen, or discharge
of facility effluent has contributed to an epidemiological episode in the wild.77
Necropsies. Currently necropsies on dead marine mammals are performed
in-house by public display facility veterinarians.78 Prior to the 1994 MMPA
amendments, necropsy reports were required to be submitted to NOAA Fisheries and
FWS. Current APHIS standards require such reports to be completed and kept on
file at the public display facility for three years.79 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 NOAA Fisheries and FWS the “date of death of the marine mammal and the
cause of death when determined.”80 Thus, necropsies, which formerly were available
to the public under the Freedom of Information Act, are no longer public records.81
Animal protection advocates believe that public access to necropsy
information is important to protecting the well-being of marine mammals in
captivity, and they object to the 1994 changes in necropsy policy. They also fear that
captive holding facilities minimize the impact of animal deaths by under-reporting
findings of a necropsy, performing an inadequate necropsy, or failing to report actual
findings.82 These critics would like to see the MMPA amended to again require that
76 (...continued)
danger, it may be in the sick or threatened animal’s best interests to be transported to a
quarantined location where it can be treated. Animal protection interests are concerned to
ensure that cumbersome paperwork and bureaucracy do not jeopardize an animal’s life in
these situations.
77 In the reverse situation, cases have been reported where receipt of a stranded wild animal
or inadequate treatment of influent water has allowed pathogens from the wild to infect
captive marine mammals.
78 Necropsies are routinely performed as soon as possible, normally within hours of death.
Histopathological samples are collected and a full spectrum of tests are conducted by
independent laboratories outside the facility. A full report of test results is normally
received within two to three weeks, with preliminary results usually available within a week.
79 9 C.F.R. 3.110(d).
80 16 U.S.C. §1374(c)(10}(H). NOAA Fisheries requires, by policy, that deaths be reported
within 30 days, and has announced its intent to put this policy into regulation.
81 With few exceptions, zoos and aquaria claim to be open regarding the disposition of
marine mammals within their care, with records available for public review. Animal
protection advocates dispute this claim, suggesting that a majority of facilities refuse to
share such information, considering it proprietary.
82 Animal protection advocates believe that considerable incentive exists for public display
facilities to provide false or incomplete information on the cause of death of marine
(continued...)

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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 from liability and claims of negligence.83 They assert that there is no
evidence that such care is suspect. Furthermore, they point out that necropsies were
the subject of a 2001 APHIS rulemaking;84 because these rules are still being
implemented, the need for legislation is unclear for now. If more expensive
necropsies were required, the issue of who would pay for them is likely to be
controversial. Animal protection interests believe that captive holding facilities
should pay for supervised necropsies as part of the costs of captive care; managers
of captive animals contend that the federal government should bear the costs if
additional outside veterinary services were required.
Genetic Mixing. Some federal managers have criticized release programs
for captive animals on genetic-mixing grounds. Similar concerns have not been
stated about husbandry practices related to the movement of animals between captive
facilities. The U.S. Navy’s use of Atlantic bottlenose dolphins in open-ocean training
exercises in the Pacific where they occasionally integrate with local populations of
wild Pacific bottlenose dolphins also has been criticized. Scientists, animal
protection advocates, and environmentalists question whether it is responsible
management to mix animals originating from different oceans, especially if there is
the possibility that they or their offspring might be inadvertently or intentionally
82 (...continued)
mammals, asserting that these institutions are unlikely to provide evidence that would lead
to accusations of wrongdoing, with subsequent scrutiny and possible fine.
83 Supporters of supervised or independent necropsies contend that requirements for such
might further protect facilities from liability and claims of negligence, whereas the current
unsupervised necropsies may leave them unprotected.
84 66 Federal Register 239-257 (Jan. 3, 2001).

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released into a wild breeding population. These interests suggest that the MMPA
should be amended to address the genetic mixing that invariably occurs when captive
animals are moved from one facility to another. MMPA provisions requiring
attention to this concern might engender greater confidence if such captive animals
later became candidates for release programs.85 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.86 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.87
Wild Versus Captive Survivorship. Claims differ on whether marine
mammals live longer, similar, or shorter lifespans in captivity compared to the same
species in the wild.88 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.89 Such
a workshop might determine what, if any, concerns are relevant to the performance
of facilities holding such animals and influence the development of appropriate
captive care and maintenance standards. Since only a few wild populations are
reported to have been studied well enough to provide confident data on survivorship,
such a workshop likely would identify additional areas for research on wild
populations to obtain data necessary for comparison.
Air Quality and Noise at Facilities. Based on speculation from human
studies as well as limited reactivity research on wild cetaceans, local environmental
conditions may cause stress in individual animals. Some animal protection advocates
suggest that the MMPA be amended to mandate a study of the effect of the local
environment (e.g., urban noise, vibrations, air pollution) on animals at captive
holding facilities, to identify and substantiate any effect on their life expectancy and
general health. Such a study might define abusive levels and help determine
appropriate captive care and maintenance standards. Some in the public display
85 Alternatively, it could be required that genetically mixed offspring be neutered before
release.
86 Some scientists contend that, while encouraging breeding among groups of animals taken
from the same general population may be appropriate, encouraging mixing between
populations makes little sense given what is known about the movements and social
isolation of many species of marine mammals.
87 Similar efforts have been conducted under the authority provided in 16 U.S.C. §1380.
88 Some public display interests and managers suggest that captive care and maintenance
practices are constantly evolving and improving such that historic survivorship data might
have limited relevance to the current situation. In addition, others suggest that survivorship
is so highly variable that it would be difficult to compare populations, captive and/or wild,
and come to any statistically significant conclusions.
89 Similar efforts have been conducted under the authority provided in 16 U.S.C. §1380.

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community, however, suggest that this concern be addressed administratively, and
observe that some aspects already were the subject of APHIS rulemaking.90
Procedures for monitoring environmental effects on marine mammals also have been
incorporated in American Zoo and Aquarium Association guidelines and facility
operations manuals.
Rehabilitation and Release. Closures of at least 21 North American
marine parks since 1990, a diminishing emphasis on marine mammal exhibits in
remaining parks, reductions in the military use of marine mammals, and increasingly
successful captive breeding programs have led to a surplus of marine mammals in
captivity. Because of this surplus, interest has increased concerning the rehabilitation
and release to the wild of marine mammals that have spent significant time in
captivity,91 recognizing the need to prevent the spread of disease and release of unfit
animals. Some animal protection advocates may propose MMPA amendments
authorizing oversight of rehabilitation and release activities, requiring federal agency
definition of rehabilitation/release protocols,92 and establishing a scientific research
permit for rehabilitation and release activities as well as for establishing
rehabilitation/release facilities for long-captive marine mammals.93 Such facilities
might also engage in captive rotation programs, where animals are brought into
captivity for predetermined amounts of time or are maintained in enclosures where
they have periodic access to the open ocean. Proponents contend that the existence
and operation of such facilities under strict guidelines would promote the welfare of
captive and free-living marine mammals, including threatened and endangered
species. Some public display interests and a few scientists, however, assert that
rehabilitation and release does not work.94 These critics cite research indicating that
animals held in captivity for any length of time and those born in captivity are more
likely to die upon release because they do not or are not able to make the necessary
adjustments to life in the wild. They would oppose efforts that encourage the release
of long-captive animals. Other opponents include those worried about the federal
cost of financing such a program. A parallel concern relates to discouraging and
preventing unregulated releases of captive marine mammals by the more proactive
animal protection advocates.
90 66 Federal Register 239-257 (Jan. 3, 2001).
91 Animal protection advocates cite several instances where dolphins and pilot whales are
alleged to have been successfully released, with subsequent observation of apparently
successful social integration with wild animals over a period of time.
92 A scientific workshop might be convened to develop the protocols for conducting
rehabilitation/release projects.
93 How such facilities and programs might interact with existing marine mammal stranding
networks would need to be defined. These networks along the Atlantic, Gulf of Mexico, and
Pacific Coasts involve dozens of facilities that provide short-term assistance to beached and
stranded marine mammals when necessary to improve their condition sufficiently to be able
to return a healthy animal to the wild.
94 These critics suggest that veterinary examinations are unlikely to be able to pronounce
captive animals disease-free, and that released animals are unlikely to be accepted easily or
smoothly into the social structure of wild populations.

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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 world95 of marine mammals — social animals that have
evolved to exploit the complex and expansive natural marine environment.96
Furthermore, they claim that our increased understanding of the complex social,
psychological, and behavioral requirements of marine mammals reveals how lacking
most captive environments are in providing sufficient space for animals to make
normal postural and social adjustments or in allowing adequate freedom of
movement. These critics would like the MMPA to be amended to require APHIS to
define minimum acceptable levels of environmental and social stimuli for marine
mammals. The physical and social environment of any animal regulated by the
MMPA, it is argued, should conform to some standard for what is minimally
acceptable and strive for enrichment to fulfill animals’ needs. However, establishing
standards to respond to the differing requirements of various species may be
complex. For example, while some contend that overall size of the captive
environment is much more important than its features for cetaceans, others believe
that pinnipeds require more emphasis on geotopical elements in their artificial habitat
rather than a large enclosure. In addition, it may be difficult or impossible to provide
situations in captivity that permit the complex social systems, groupings, and bonding
normal among marine mammals.
Programs Promoting Human Interaction with Captive Dolphins.
Various facilities holding captive dolphins promote interactive petting and feeding
pools as well as programs for swimming with or wading with these animals. Animal
protection advocates as well as some scientists and managers claim that these
programs place both dolphins and humans at risk, and believe that APHIS regulation
of such activities is inappropriately minimal. Early in 1999, APHIS suspended
enforcement of all AWA regulations dealing with “swim-with-the-dolphin” programs
to solicit further public comment on expanding regulations to encompass activities
involving shallow water interactive programs with dolphins.97 Some animal
95 While some coastal species may inhabit a topographically diverse physical environment,
the open ocean is almost featureless. Some scientists suggest that emphasis should be
placed on cleanliness, space, and behavioral responses, rather than what humans might
assume constitutes a “quality” environment, since most marine mammals get their
stimulation from social interaction, feeding, etc.
96 Generally, captive holding facilities and marine mammal trainers assume responsibility
for providing environmental enrichment in the form of playtime, toys, and other stimulating
objects or activities. In addition, facility design criteria have changed substantially to where
habitats currently under construction incorporate innovative shapes and varying rockwork
for alternating surfaces, providing swim-through areas (arches and tunnels) as well as areas
for rubbing and scratching.
97 64 Federal Register 15918-15920 (Apr. 2, 1999). On May 30, 2002, APHIS sought
comments on standards for interactive swim-with-the-dolphin programs (67 Federal
Register 37731-37732). As of early June 2004, no final rule had been published. For
(continued...)

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protection interests would like the MMPA and/or AWA to either prohibit all
interactive programs, including petting and feeding pools which they claim have
never been regulated, or require more stringent regulation of these programs by
APHIS. These critics also suggest an inconsistency in policy and confusion of the
public wherein swimming with and feeding of wild dolphins is prohibited to protect
them from harassment while swimming with and feeding of captive dolphins, which
could be less able to escape interaction, is promoted by marine parks. Those
conducting interactive programs, however, argue that their activities are safe and
well-managed, with adequate measures enforced to protect both dolphins and
humans.
Insurance Requirement. Since 1990, at least 21 North American marine
parks are reported to have closed. Animal protection advocates suggest that
measures need be taken to assure that the welfare of captive marine mammals is
protected should research programs terminate or parks close. These interests may
propose amending the MMPA to require that a minimum of $25,000 per marine
mammal be placed in escrow or be covered by insurance as an additional permit
requirement for each marine mammal transfer, import, and export. In addition, such
a requirement might be imposed in permits covering each marine mammal born in
captivity. Such financial resources would be used if the federal government were
required to assume temporary responsibility for animals from closed parks or pay
transfer expenses for moving animals to new facilities.
Prohibition of Traveling Exhibits. Animal protection advocates believe
that circuses and traveling shows cannot maintain the highly specialized conditions
necessary to ensure the health and well-being of marine mammals. They cite the
recent experience with the Mexican-based Suarez Brothers Circus in Puerto Rico,
where performing polar bears were confiscated by the FWS. Dolphin traveling
circuses exist and move throughout Latin America and the Caribbean, and could
potentially enter U.S. territories or use marine mammals from U.S. facilities. Animal
protection groups seek to amend the MMPA to prohibit these traveling exhibits.
Prohibition of Wild Captures for Public Display. The International
Union for Conservation of Nature and Natural Resources’ Dolphins, Whales, and
Porpoises: Conservation Action Plan for the World’s Cetaceans, 2002-201098 notes
that the removal of live cetaceans from the wild for captive display is equivalent to
incidental or deliberate killing, as the animals brought into captivity (or killed during
capture) are no longer available to contribute to maintaining their populations.
Concerned that, when unmanaged and undertaken without a rigorous program of
research and monitoring, live capture can be fatally stressful to animals and pose a
serious threat to cetacean populations, animal protection interests support an
97 (...continued)
additional background on these programs, see Quantitative Behavioral Study of Bottlenose
Dolphins in Swim-With-The-Dolphin Programs in the United States at [http://www.nmfs.
noaa.gov/prot_res/readingrm/quantbehave.pdf], visited on June 4, 2004.
98 This document was available at [http://www.iucn.org/themes/ssc/actionplans/cetaceans/
cetaceans.pdf], visited on June 4, 2004.

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amendment to the MMPA to prohibit wild captures of marine mammals for public
display.
Native Americans and Marine Mammals
Co-Management with Native American Tribes. Some federal
managers believe that co-management agreements, when accompanied by dedicated
funding, have dramatically improved communication among Native subsistence
users, Alaska Native organizations, and the FWS. However, Native Alaskan interests
assert that NOAA Fisheries has been slower to enter into cooperative agreements to
implement co-management for marine mammals in Alaska (authorized under 16
U.S.C. §1388), and that federal appropriations to provide grants to Native
organizations under this section have not been forthcoming.99 Some Native
American interests are likely to propose amending the MMPA to provide additional
opportunities for Native Americans to participate in co-managing marine mammal
populations, especially those that have subsistence value. Particular need is seen for
coordinating federal and Alaska Native priorities in the Bering Sea region, due to
ongoing concerns to better understand this marine ecosystem’s apparent decline.
Countering the view in support of additional co-management opportunities are some
in the scientific and environmental communities who fear the potential for
overhunting by Natives seeking economic gain, and who believe that current MMPA
co-management provisions are more than adequate (if not excessively lenient). These
critics believe co-management works well only when the federal government
supports a multi-year national program to assess population abundance, habitat
conditions, and ecological relationships to provide a sound basis for such co-
management, as has been done since the 1970s for bowhead whales. Similar national
programs have not been conducted on most other species. Some animal protection
advocates are concerned that reporting of subsistence kill levels often lags by five
years of more and is based on self-reporting, making it difficult to determine the
impact of the subsistence on a particular stock until well after the fact. Animal
protection interests also believe current cooperative agreements lack some
transparency and provide little opportunity for public comment before the agreement
is negotiated.
Reporting Subsistence Takes. Knowledge of the number of animals
killed is necessary for managing any harvested resource. Nevertheless, many marine
mammal stock assessment reports lack substantial information on subsistence takes.
In 16 U.S.C. §1379(i), the MMPA states that “the Secretary may prescribe
regulations requiring the marking, tagging, and reporting of animals taken pursuant
to section 101(b).” 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.100 NOAA Fisheries does not have a similar program, even though
comparable information could be useful for managing species of special concern such
99 Some managers suggest this is due, in part, to limited funds appropriated by Congress to
the various agencies, especially NOAA Fisheries.
100 These MTRPs do not collect data useful for accurately assessing the age/sex composition
of the harvest, nor for establishing annual productivity. Although it might require additional
agency funding, MTRPs could be restructured to obtain these data.

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CRS-30
as Steller sea lions and harbor seals.101 Although NOAA Fisheries has awarded
contracts for the development of harvest estimates, their accuracy has been
questioned by some scientists.102 Some Alaska Native organizations conduct
biosampling programs on marine mammals taken for subsistence through cooperative
agreements developed under the authority of 16 U.S.C. §1388. Despite this, some
in the Alaska Native and environmental communities continue to call for NOAA
Fisheries 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 managers
and environmental interests believe the level of detail available on subsistence takes
for many Alaska species could be improved. In particular, some animal protection
interests, scientists, and managers do not consider the FWS program “well run” and
would like to see this program improved. Some scientists believe that a program for
each species should include a well-designed harvest survey based on structured
hunter samples from different communities that intensively exploit the targeted
species, with data analysis by good statistical methods to adequately fulfill
management needs. Other scientific and environmental interests suggest that the
MMPA be amended to require reporting, marking, tagging, and sampling of all
marine mammals taken by Alaska Natives for subsistence.103 Others in the
environmental and animal protection communities believe such reporting should be
required for seal hunting and for any subsistence takes of marine mammals by Native
Americans in the contiguous states (e.g., Washington, Oregon, and California).
Some scientists, however, contend that tagging of subsistence kills may not be
practical for species taken in large numbers, such as some seals, and that the sheer
volume of individuals’ subsistence activities may lead to under-reporting. In
addition, some scientists and managers believe that better subsistence estimates need
to be factored into the PBR process (see “Calculating Potential Biological
Removal”), especially in situations where (1) subsistence harvest may account for the
majority of the total number of animals removed and (2) subsistence harvest may
approach or exceed the PBR level.104
Limitation on the Sale of Edible Subsistence Takes. In 16 U.S.C.
§1371(b)(2), the MMPA states that “any edible portion of marine mammals may be
sold in native villages and towns in Alaska or for native consumption.” There are
101 On May 24, 1999, NOAA Fisheries published an interim final rule requiring the marking
and reporting of beluga whales harvested from Cook Inlet (64 Federal Register 27925-
27928).
102 The nature of human relationships in small rural Alaskan communities makes obtaining
consistently accurate data extremely difficult. Thus, the precision and accuracy of
retrospective household surveys for marine mammal harvest is questioned by some critics,
especially where such work has not been independently peer-reviewed. Such retrospective
surveys for marine mammal harvest might be considered minimum estimates.
103 Exemptions from reporting might be granted when or where stocks are not in decline, not
listed under the ESA, and not harvested at levels exceeding 10% of the PBR level.
104 Some critics fear that federal managers may be pressured to set PBR levels higher than
the subsistence harvest levels for some Alaskan species (e.g., Pacific walrus).

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CRS-31
legitimate reasons why Alaska Natives purchase legally taken parts of marine
mammals for their consumption.105 The current interpretation of the MMPA
language is that all Alaska locales, including the city of Anchorage, qualify as Native
villages and towns. Certain markets in Anchorage sell large quantities of marine
mammal meat and muktuk,106 with a few Alaska Natives allegedly hunting primarily
to supply this commercial market.107
Scientists, animal protection advocates, and environmentalists suggest
amending the MMPA to limit or restrict the sale of edible parts from marine
mammals taken for subsistence, such as prohibiting commercial sales in cities or in
communities where Native residents are in the minority. Others suggest amending
the MMPA to prohibit the commercial sale of marine mammal products from any
stock that is declining in abundance. Alternatively, NOAA Fisheries and/or FWS
already have the authority to make administrative determinations that species are
depleted under the MMPA or are threatened/endangered under the ESA, allowing
them to take regulatory action to limit subsistence take without legislation.108
Alaskan Natives, however, believe that the Native community itself should
take the initiative to deal with these problems, using existing models that have
proven workable in similar Alaska Native situations. They suggest approaches
similar to those used in the allocation of strikes109 among various whaling crews in
the North Slope Borough or the Sitka Tribe’s management of sea otter take in
traditional territory.110 Others are concerned about the potential cultural costs of
limiting access to subsistence foods for individuals living in urban areas and the
possibility that these costs could outweigh the benefits to marine mammal stocks.
105 Many Native Alaskans, regardless of where they reside, are employed full-time with
limited opportunity to continue hunting and gathering to support their traditional subsistence
lifestyle and diet. Thus, the commercial marketplace may provide their only access to
traditional foods, which is part of maintaining a cultural identity.
106 Whale skin and adhering blubber.
107 In the late 1990s, this was seen as a particular problem for the Cook Inlet beluga whale
stock, which was small and had been overharvested, largely because of market hunting. A
significant percentage of the Cook Inlet beluga whale stock was killed each year — between
98 and 147 animals were reportedly taken in 1996, with another 49 to 98 animals struck and
lost. This stock declined almost 50% in abundance from an estimated 653 animals in 1994
to 347 animals in 1998, and its summer range contracted.
108 In the Cook Inlet beluga whale example, Congress acted in section 3022 of P.L. 106-31
to prohibit subsistence hunting of Cook Inlet beluga whales during FY2000 to give NOAA
Fisheries time to take administrative action. Subsequently, NOAA Fisheries conducted a
status review of this stock and designated it as depleted under the MMPA (65 Federal
Register 34590-34597, May 31, 2000), but determined that listing the stock as endangered
under the ESA was not warranted (65 Federal Register 38778-38790, June 22, 2000).
109 A “strike” means hitting a whale with a harpoon, lance, or explosive device.
110 However, in the example of the Cook Inlet beluga whales, critics fault NOAA Fisheries
for relying upon the Cook Inlet Marine Mammal Council to develop some mechanism for
self-regulation, which it was slow to do.

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CRS-32
Definition of Subsistence Whaling. With the support of the U.S.
government, the Makah Tribe of Washington State petitioned the International
Whaling Commission (IWC) in 1996 for an allocation to harvest eastern Pacific gray
whales, to exercise whaling rights as part of their cultural heritage negotiated in the
1855 Treaty of Neah Bay between the Makah and the United States. In October
1997, a bilateral agreement between Russia and the United States on aboriginal quota
sharing resulted in the Makah gaining access to IWC aboriginal quota sufficient to
kill an average of four gray whales from the North Pacific stock annually from 1998
through 2002.111 Disagreement continues, both domestically and internationally,
concerning the appropriateness and legitimacy of the action taken on this issue.112
While bowhead whaling by Native villagers along Alaska’s Beaufort and
Chukchi Sea coasts is seen as truly for the subsistence, animal protection advocates
are concerned that the Makah seek to kill whales without demonstrable proof of
nutritional need, but with an eye to the possibility of commercial trade in whale
products. To animal protection interests, this has the potential for reversing the
whale’s recovery and for inviting a return to whaling by all northern cultures which
claim whaling as part of their cultural tradition. In fact, after the Makah situation,
Native peoples in Canada demanded their “cultural right” to return to whaling.
Although Norwegians, Icelandics, Faroese, Irish, Japanese, Russian, and others assert
cultural traditions in whaling, their situations and that of Canadian aboriginal groups
differ from the Makah in that no “right to whale” has been acknowledged by treaty.113
Animal protection and some scientific interests suggest amending the MMPA to
make a clear distinction between non-subsistence and subsistence whaling and to
establish more stringent criteria for non-subsistence whaling, allowing only minimal
token quotas/takes of those stocks determined to be fully recovered. Others suggest
the MMPA be amended to require that the United States take no action that might
“diminish the effectiveness” of the IWC, similar to language in the Pelly Amendment
to the Fishermen’s Protective Act (22 U.S.C. §1978) that is applicable to foreign
nations with whom the United States trades. However, it is uncertain whether
111 Makah whaling was suspended on June 9, 2000, by the Ninth Circuit Court of Appeals
(Metcalf v. Daley, No. 98-36135), with NOAA Fisheries ordered to begin the National
Environmental Policy Act (NEPA) process afresh and prepare a new environmental
assessment. Subsequently, NOAA Fisheries set the Makah gray whale quota at zero (65
Federal Register 75186, Dec. 1, 2000), pending completion of the NEPA analysis. On
December 20, 2002, the Ninth Circuit Court of Appeals reversed a district court ruling that
upheld NOAA Fisheries’ issuance of a quota to the Makah in 2001 and 2002 (Anderson v.
Evans, 314 F.3d 1006 (9th Cir. 2002)). The federal government is considering whether to
request rehearing of Anderson v. Evans. Subject to the outcome of a possible rehearing,
NOAA Fisheries is preparing an environmental impact statement on the issuance of annual
quotas to the Makah for the years 2003 through 2007 (68 Federal Register 10703-10704,
Mar. 6, 2003).
112 Marine Mammal Commission, Annual Report to Congress, 1998 (Washington, DC: Jan.
31, 1999), p. 29-32.
113 Some of these cultures might not elect to kill whales for strictly cultural benefits if
commercial trade in whale products, domestically and/or internationally, was not also
permitted.

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CRS-33
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.114 This
confusion was exacerbated by the interaction of western technologies and economies
on traditional beliefs and practices. For example, reported annual walrus kills for the
St. Lawrence Island communities of Gambell (1,300 animals) and Savoonga (700
animals), composed mostly of females, appears excessive and questionable as
“subsistence” to some managers, scientists, and animal protection groups. FWS
regulations on the use of meat, skin, etc., are minimal and result in significant waste
in a harvest that focuses on obtaining ivory. Some scientists and managers suggest
that the MMPA be amended to base subsistence policy more firmly within the
context of a species’ biological and ecological requirements, with social/cultural
values taken into secondary account within that framework.
Cultural Exchange. While the 1994 MMPA amendments appeared to
have improved cultural exchange among Inuit peoples as far as imports of marine
mammal products by Alaskan Natives are concerned, problems remain with the
export of marine mammal products by Alaska Natives for these purposes. In
addition, problems arose in July 1999 when handicraft whalebone and sealskin
marionettes used in portraying traditional Inuit legends were intercepted and seized
by the U.S. Customs Service as violating the MMPA. The marionettes had been
shipped by Canadian Inuit to a U.S. craftsperson for finishing-detail adjustments.
Native and some scientific interests suggest that the MMPA might be amended to be
less restrictive of cultural exchanges involving marine mammal products.
Permits and Authorizations
Polar Bear Sport Hunting in Alaska. After the 1994 amendment of the
MMPA to permit the import of polar bear trophies from Canada,115 the sport hunting
community may seek further amendment to allow polar bear sport hunting in Alaska
under a strict, conservative quota. Proponents of such an amendment suggest that
this action might promote better polar bear management and could result in
additional funding for polar bear research and management. The animal protection
community almost certainly would oppose such a proposal, and some may even seek
repeal of the 1994 amendments allowing the import of polar bear trophies from
Canada. Animal protection advocates substantively disagree with the theory that
114 Background on the federal/state conflict in Alaska over subsistence use can be found at
[http://www.subsistence.adfg.state.ak.us/download/subupd00.pdf], visited on June 2, 2004.
115 A subsequent amendment in §5004 of P.L. 105-18 relaxed criteria that needed to be met
before polar bear trophies taken in Canada prior to the 1994 MMPA amendments could be
imported to the United States.

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CRS-34
sport hunting promotes sound or sustainable management and that quotas in
Canada’s hunts are strict or conservative.116
Large Incidental Takes. MMPA provisions (16 U.S.C. §1371(a)(5)(A))
authorize federal managers to issue permits for U.S. citizens to incidentally take
small numbers of marine mammals.117 However, the MMPA lacks a comparable
program to deal with large incidental takes, other than those by the commercial
fishing industry (for more information, see “Commercial Fishing Interactions with
Marine Mammals”). Related to this, the regulatory burden for protecting marine
mammals appears to fall inequitably on different industries. For example, while
small incidental take permits are regularly required by NOAA Fisheries for offshore
oil and gas exploration and development activities, NOAA Fisheries does not
regulate large commercial vessel traffic under the small incidental take program,118
despite concerns that serious injury and mortality of cetaceans due to vessel strikes
may be significant. Other activities that may “take” large numbers of marine
mammals by harassment include whale-watching vessels, high-speed ferries,
recreational jet skis, and other sources of anthropogenic noise. By statute, small take
permits may be issued for periods of as long as five years under regulations, or one
year under incidental harassment permits, with congressional report language
indicating an intent that such permits be renewable. NOAA Fisheries claims that
most permits limit taking to small numbers of animals119 by harassment because
mitigation measures imposed by NOAA Fisheries on the activity prevent serious
injury or mortality to marine mammals. If it were proposed that the MMPA be
amended to address this issue, individuals who might be required to comply with
these modified permitting procedures (e.g., jet skis, whale-watching vessels, ocean
transport vessels) would likely oppose such a change if the new requirements were
viewed as imposing additional or burdensome restrictions on their activities. Some
environmentalists and animal protection advocates recognize that the permitting
process is a relatively inefficient way to mitigate impacts from vessel traffic and
116 Canada is the only nation inhabited by polar bears that allows sport hunting. In January
2001, an emergency interim rule halted imports of polar bears taken from Canada’s
M’Clintock Channel population after the previously approved harvest was found to be
unsustainable (66 Federal Register 1901-1907, Jan. 10, 2001). A final rule was adopted in
October 2001 (66 Federal Register 50843-50851, Oct. 5, 2001).
117 Provided that these takings do not cause unmitigable damage to marine mammal
populations and have no more than a negligible effect on subsistence needs.
118 NOAA Fisheries 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.
119 NOAA Fisheries had interpreted this to mean a portion of a marine mammal stock whose
taking would have a negligible effect on that stock. However, the ruling in NRDC v. Evans
(279 F. Supp. 1129 (N.D. Cal. 2003)) concluded that NOAA Fisheries improperly collapsed
two standards and eliminated the possibility that the two standards could serve as separate
safeguards restricting the extent of takes. NOAA Fisheries was directed to redefine “small
numbers” as a separate standard.

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CRS-35
suggest that a separate management scheme, protective of marine mammals, would
be more appropriate to address both vessel-strike and anthropogenic noise concerns.
Noise and Its Effects. Noise as a category of potential harm to marine
mammals is unique in that sound propagates both horizontally (near/at the surface)
and vertically (down to substantial depths). Anthropogenic acoustics (e.g., ship
traffic, military active sonar, seismic exploration, explosives trials, acoustic
harassment devices used by fishermen) permeate the water column and have the
potential to affect numerous unseen marine mammals, fish, diving birds, and other
marine life. Although it is difficult to measure the potential that noise has to harm
or harass unseen animals, the U.S. Navy, the Minerals Management Service, and
other agencies have invested considerable time and funds on research to develop
monitoring capabilities and to document and quantify the impact from specific noise
sources on certain species under known conditions.120 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. The FWS and NOAA Fisheries have reacted to issue- or site-
specific concerns, generally through the permit process, but they have not issued any
guidance or regulations concerning anthropogenic noise, nor have they implemented
any systematic monitoring or enforcement programs.
Some scientists,121 believing that the benefits of acoustic research may
outweigh any potential effect on marine mammals, may propose amending the
MMPA to simplify procedures for federal authorization of incidental taking from
acoustic noise. As one approach, these scientists suggest that the MMPA might be
amended to authorize the regulation of impacts collectively as broad categories or
classes of sound-producing activity rather than separate individual actions.122 Other
proposals might include revising the definition of level B harassment (16 U.S.C.
§1362(18)(A)(ii)) to be applicable to actions that can reasonably be expected to
constitute a significant threat only to marine mammal stocks rather than also to small
numbers of individual animals. Reasons offered by some in the scientific community
for change include (1) some of the most prevalent anthropogenic noisemakers,
120 Measurements 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/suction.htm],
visited on June 2, 2004. 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.
121 This includes scientists using noise in their research as well as scientists consulting for
industries and agencies (e.g., the U.S. Navy) that release large amounts of noise into the
ocean.
122 These advocates also assert that various activities with the potential to kill, injure, and
harass marine mammals are regulated inconsistently and inequitably, with commercial
fishing given much more liberal treatment (e.g., liberal PBRs and use of deterrents) than
anthropogenic noise (e.g., concern over course deviations and other short-term behavioral
changes).

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CRS-36
including personal watercraft (e.g., jet skis), large high-speed oceangoing ships, and
whale-watching vessels, are unregulated;123 (2) a disproportionate “harassment”
burden is placed on scientists using acoustics for research (i.e., direct research into
the potential effects of sound on marine life is subject to a higher regulation and
compliance burden than any other human-made ocean acoustic activity); and (3)
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 the sea surface,
volcanic eruptions, and whale calls themselves).
The effects on marine mammals by active sonar development and deployment
by the military has been of intense concern. Coincident with low-frequency active
(LFA) sonar tests conducted by a NATO research vessel in the vicinity, a mass
stranding and death of 12 Cuvieri’s beaked whales was observed in May 1996 in the
eastern Mediterranean Sea (Ionia Sea).124 The mass stranding of at least 15 whales
of four species (at least 7 of these animals died) in the Bahama Islands on March 15,
2000, occurred coincidental to U.S. Navy transit and activities in the area.125
Additional strandings of beaked whales have been observed in conjunction with mid-
frequency active sonar exercises in Madeira (2000) and the Canary Islands (2002).
A September 2002 beaked whale stranding in the Gulf of California occurred
concurrently when a vessel operated by Columbia University’s Lamont-Doherty
Earth Observatory pulsed the ocean with high-powered sound waves to map the
lithosphere beneath the ocean floor.126 More than five years of regulatory attention
to deployment of low frequency active sonar by the U.S. Navy, with accompanying
legal challenges, culminated in publication of a final rule in July 2002,127 with letters
of authorization required for subsequent deployment.128 In addition and in
recognition of concerns raised in federal court129 over use of the LFA system and to
further its commitment to responsible stewardship of the marine environment, the
Navy is preparing a supplemental environmental impact statement on this
technology.130
Some animal protection advocates, environmentalists, and scientists
characterize many sources of anthropogenic noise in the ocean as increasingly
persistent and regular. These critics point to a growing body of evidence, particularly
the mass mortalities of beaked whales associated with military active sonar use, as
indicative that current mitigation practices are insufficiently protective of marine
mammals. Believing that too little is known about the long-term effects of noise on
123 See the previous section, “Large Incidental Takes,” which considers whether the MMPA
should be amended to regulate these activities.
124 Reported in “Scientific Correspondence,” Nature, Mar. 5, 1998.
125 For more details, see [http://www.nmfs.noaa.gov/prot_res/overview/Interim_Bahamas_
Report.pdf], visited on June 2, 2004
126 See [http://www.geotimes.org/jan03/NN_whales.html], visited on June 10, 2004.
127 See 67 Federal Register 467121-46789 (July 16, 2002).
128 For example, see 68 Federal Register 50123-50124 (Aug. 20, 2003).
129 See Natural Resources Defense Council v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003).
130 See 68 Federal Register 44311 (July 28, 2003).

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CRS-37
marine mammals,131 these critics believe a precautionary approach is necessary and
oppose any action that could be interpreted as liberalizing the regulation of
anthropogenic sources. In addition, these critics are especially concerned with low-
frequency sound that is produced at very high pressure levels and is designed to
travel thousands of miles through the ocean, as opposed to other anthropogenic noise
that dissipates relatively quickly in the ocean. Furthermore, these critics suggest that,
rather than exempting acoustic scientists from regulation and permitting additional
sources of ocean noise, other sources of non-research-related noise should be more
aggressively regulated to reduce this harassment. A variety of constituencies132 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 NOAA Fisheries and FWS Scientists. The
MMPA (16 U.S.C. §1374(c)(3)(A)) provides a lengthy process for issuing scientific
research permits. NOAA Fisheries and FWS are funded by Congress to study marine
mammals as necessary to provide a sound basis for their conservation and
management. Some federal scientists would like to see the MMPA amended to
facilitate federal research on marine mammals by eliminating the cumbersome
process of obtaining scientific research permits. These federal researchers question
the necessity of requiring federal agency personnel to request permits from another
part of their own agency before they can do their work. These critics suggest that the
MMPA be amended to provide scientists within the federal management agencies
with a blanket authorization for research. Others suggest that relief from the lengthy
permitting process be extended to all those involved in conducting federally funded
research. This could include an exemption from permits or an expedited permit
review procedure offering a simpler issuance or renewal of permits for studies
unchallenged by public comment. It might also be applicable to state wildlife
agencies when their scientists work in direct cooperation with one of the federal
agencies. Some nonfederal scientists, animal protection advocates, and
environmentalists argue that regular reporting as well as outside peer and/or public
review are especially necessary for government scientists who could be influenced
by political considerations. They also would object to preferential treatment of
federal researchers as discriminatory, arguing that federal research should be required
to meet the same standards, requirements, and scrutiny as non-federal research.133
131 Some scientists assert that little has been published on this topic because insufficient
resources to address the problem have been provided by funding agencies. They further
question, if funding were provided, whether permits from NOAA Fisheries and various
Institutional Animal Care and Utilization Committees mandated by the Animal Welfare Act
would allow necessary research to be conducted.
132 Other than, perhaps, taxpayer groups.
133 Some critics allege bias and/or conflict of interest in current federal agency permitting
procedures, wherein applications for highly controversial research pass quickly and quietly
through the review process when forwarded by field staff within the permitting agency,
while comparable proposals by non-agency researchers can take months or longer to receive
action.

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CRS-38
Scientific Research Permits. Several issues concern the administration
of scientific research permits by federal management agencies. Some scientists
criticize the FWS and NOAA Fisheries permit offices for delays in processing
requests for scientific research permits, even though the MMPA mandates a 30-day
deadline for agency action.134 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.135 To assist the agencies in expediting the permit review process,
they suggest that the MMPA be amended to authorize committees of scientists that
would review scientific research permit applications in the same fashion that
committees review proposed research on human and animal subjects.136 Such
committees 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, some scientists believe congressional direction might be helpful or
even necessary if administrative action is not forthcoming. Scientists are also
concerned with permit restrictions that they interpret as constraining their ability to
conduct manipulative and invasive research on marine mammals, albeit with
adequate safeguards.
Some scientists suggest that the entire scientific research permit process needs
to be streamlined, especially what are seen as (1) restrictive, burdensome, and
unreasonable procedural requirements (i.e., level of specificity and amount of
paperwork) related to justify level B harassment (see also the discussion of
“Harassment”) for bona fide research; and (2) unduly tedious and specific
requirements of the annual reporting process. Scientists feel they are subjected to a
much more stringent regulatory regime (e.g., see also the discussion of “Noise and
Its Effects”) than is imposed on activities that appear to be potentially more harmful
to marine mammals (e.g., commercial fishing).
On the other hand, animal protection advocates assert that permit processes
and requirements are not too restrictive when it comes to invasive research, and both
they and environmentalists argue that there is little justification for treating the
research community as privileged. While certain amendments might streamline the
permitting process for certain research with a low harassment potential or to establish
streamlined programmatic permitting for certain kinds of research, the environmental
and animal protection communities both disagree that research should be seen as
having less of an impact on the marine environmental and marine mammals as a
general matter when compared to fishing or other human activities.
134 16 U.S.C. §1374 (c)(3)(C).
135 Some agency managers suggest three days between receipt of a permit application and
publication in the Federal Register is reasonable and attainable.
136 Some, but not all, of this research may already be reviewed by institutional animal
committees required by 7 U.S.C. §2143 or by animal care committees required by 42 U.S.C.
§289d.

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CRS-39
State Approval of Federal MMPA Permits. Under the authority of the
federal Coastal Zone Management Act, three states (Hawaii, Washington, and
Alabama)137 include in their state coastal plans the requirement that the state approve
federal permits granted under the authority of the MMPA. Some scientists are
concerned that state review of federal marine mammal permits is duplicative and
burdensome for marine mammal researchers and circumvents the procedures in the
MMPA (16 U.S.C. §1379) for granting state management authority over marine
mammals.138 These critics suggest that Congress may wish to review whether this
action improves protection for marine mammals.
Program Management and Administration
Definition of “Take.” Some scientists suggest it might be worthwhile to
re-evaluate the MMPA definition of take in their belief that the current definition
may be overly broad and encompassing, as well as unenforceable in many situations.
These critics suggest that the MMPA be amended to incorporate a new definition of
take that establishes an enforceable, biologically significant standard for interactions
with individual marine mammals (for ESA-listed and depleted species) and for
marine mammal populations (for all other species). With such a standard, they argue,
management will focus specifically on interactions which are likely to have adverse
biological significance for these animals. However, animal protection advocates and
environmental groups might be anticipated to oppose any effort to redefine take that
might be perceived as reducing the scope of activities prohibited or regulated under
the MMPA.
Trade in Marine Mammal Parts and Products. The U.S. government
has experienced pressure from the World Trade Organization (WTO) regarding the
trade barriers inherent in many U.S. environmental statutes. Importing marine
mammals and their products into the United States is prohibited by 16 U.S.C.
§1371(a), except under special permits for scientific research, public display,
photography for education or commercial purposes, or enhancing the survival or
recovery of a species or stock. Permits also may be granted to import polar bear
parts, other than internal organs, taken in legal Canadian sport hunts. In addition, the
ESA and the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES, the international agreement implemented through the ESA)
impose additional restrictions on trade of certain listed marine mammals. Given the
desire of several nations to commercially trade in marine mammal products
(particularly whalemeat and pinniped products), some suggest that Congress could
act to possibly forestall a WTO challenge to U.S. prohibition of such trade by
amending the MMPA to allow limited trade139 or in some other limited manner to
137 Also, Guam and the Northern Mariana Islands exercise similar authority.
138 Although the State of Alaska began the process to request management authority for
some marine mammal species, no state has been granted such management authority.
139 Some suggest a limited MMPA amendment to permit importing of “byproducts of
aboriginal subsistence activities,” allowing, for example, ringed seal skins from Canadian
and Greenland Inuit subsistence hunters to enter U.S. markets.

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CRS-40
make the MMPA more compatible with WTO rules.140 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.141 They further assert
that, if such a proposal were enacted, U.S. policy would be inconsistent, prohibiting
domestic commercial exploitation of marine mammals while encouraging or
allowing foreign commerce in these same protected animals’ products in the United
States. They also argue that the availability of foreign marine mammal products on
the U.S. market could encourage the illegal harvest of domestic marine mammals for
these same markets. An alternative, although likely more difficult, approach seeks
to broaden WTO rules such that the MMPA could be found compatible.
Management of Robust Stocks. Populations of California sea lions and
Pacific harbor seals have been increasing along the Washington, Oregon, and
California coasts, leading to more frequent interactions between these animals and
fishermen and the general public (particularly the marina/boating public). On
February 10, 1999, in response to the requirements of 16 U.S.C. §1389(f), NOAA
Fisheries 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.142 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.143
While some local residents and fishermen fear that these pinniped stocks may
be “over-populating,” scientists, environmentalists, and animal protection advocates
counter that populations may be merely returning to their historic carrying capacities
after over-exploitation diminished their abundance earlier in the 20th Century.
Fishing industry or local government officials may propose that the MMPA be
amended to permit selective culling or additional lethal nuisance animal control.
NOAA Fisheries 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
140 The main concern by the WTO appears to be that the MMPA prohibits trade in marine
mammal products regardless of a species’ conservation status. Thus, the United States may
encounter difficulties in justifying the expansive MMPA ban on imports as necessary for
responding to legitimate conservation concerns. For those species where conservation is a
concern, listing under the ESA provides trade restrictions under CITES.
141 Elements of acceptable harvest management might include a sustainable kill based on
sound science with adequate animal welfare standards. However, some U.S. scientists and
managers might argue that, for the United States to be able to certify that our own science
meets these standards, substantial expansion of U.S. research programs might be required.
142 National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems, Report to Congress (Feb. 10, 1999).
143 Such adverse effects include competition for fish stocks and fecal contamination of
shellfish areas near seal and sea lion haulout areas.

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CRS-41
harbor seals.144 In this report, NOAA Fisheries suggests that a streamlined approach
provide procedures for lethal removal of these species where they are harming
severely depleted salmonids (including some populations listed as threatened or
endangered under the ESA), where they are harming salmonid populations identified
as being of special concern by states, and where they are in conflict with human
activities. While the MMPA in 16 U.S.C. §1389 already provides for the lethal
removal of pinnipeds to protect human safety and fish stocks, federal and state
managers view the process for implementing the existing provisions as lengthy and
overly cumbersome. Environmental, animal protection, and scientific critics,
however, condemn the idea of culls and lethal nuisance animal control as excessive.
They believe that such an approach deflects resources from addressing other
expensive and contentious human activities that contribute to fish stock declines
(e.g., habitat degradation, siltation, water diversions, fish passage at dams,
overfishing)145 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.146 In addition, these critics are adamant that nuisance animal
control not be authorized for human activities (e.g., aquaculture) that can and should
be sited so as to avoid areas of potential conflict with marine mammals.
Fostering International Cooperation. Although the MMPA established
an international program (16 U.S.C. §1378), little framework exists to foster
international cooperation between the United States and foreign countries on marine
mammal issues. Under the MMPA, international cooperation — funding, exchange
programs, and cooperative research — has been limited largely to the
industry-centered dolphin/tuna issue.147 MMPA funds for such activities are at least
an order of magnitude less than the millions of dollars in federal U.S. endangered
species funds that are used to foster international cooperation to protect elephants,
tigers, rhinoceros, great apes, and other species.148 Proponents of increased
international cooperation argue that no similar program for marine mammals is
provided in the MMPA or elsewhere in U.S. law. For example, although the U.S.-
managed North Atlantic right whale is endangered and its population is not
rebounding, the southern right whale population is flourishing. A Brazilian right
whale project focuses on reducing human/whale interactions where ship strikes have
been a major cause of death. Cooperative activities that might be promoted include
sharing whale monitoring and collision avoidance procedures as well as whale
reproduction, health, and population information with Latin American authorities.
144 National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems, Report to Congress (Feb. 10, 1999). p. 13-
15.
145 In addition, some of these changes may also alter conditions determining where pinnipeds
congregate and feed, possibly increasing predation on juvenile salmon.
146 16 U.S.C. §1361.
147 In addition, international dialogue on whale conservation has occurred under the auspices
of the International Whaling Commission.
148 For more information, see CRS Report RS21157, Multinational Species Conservation
Fund, by M. Lynne Corn and Pervaze A. Sheikh.

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CRS-42
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.
Some also suggest there may be a critical need for expanding international
cooperative programs for Arctic species because of the virtual total demise of
Russian research and management programs, and the increasing pressure by protein-
impoverished Native peoples to take these species for subsistence purposes. Many
of these species are “shared” because their ranges include the waters of both the
United States and the Russian Federation. A decline of Russian management effort
has hampered population assessment programs for these shared species.
Critics, however, warn that, if Congress acts in this area, specific language
might need to be incorporated to prevent potential abuse (i.e., expenditure of funds
intended to recover and protect U.S. marine mammal stocks on questionable studies
of exotic marine mammals in interesting places) and to require appropriate guidance
and accountability to ensure that international efforts are reciprocal and relevant.
Harassment. The 1994 MMPA amendments revised the definition of
harassment to distinguish between two levels of interaction — those with the
potential to injure (level A harassment) and those with the potential to disturb (level
B harassment).149 Some federal managers have found the new definition of level B
harassment to be particularly difficult to enforce,150 and potentially harmful human
interaction with marine mammals continues.151 Other critics suggest whale-watching
vessels are insufficiently monitored for compliance with MMPA regulations.152
Animal protection advocates suggest that the MMPA should be amended to require
specific and more strictly enforced regulations concerning swimmer,153 kayaker, and
149 16 U.S.C. §1362(18).
150 In addition, some scientists believe the current definition is meaningless and possibly
counterproductive. These critics suggest that an expert panel be convened to redefine this
term.
151 For example, animal protection advocates report that a pod of perhaps 50-75 spinner
dolphins in Calexico Bay, Hawaii, can be surrounded on some days by as many as 50
swimmers, 35 kayaks, and several motor-propelled boats. On other days, no more than
about 20 dolphins come into the Bay, where they are pursued from early morning until late
afternoon when they leave the bay. NOAA Fisheries doesn’t have an enforcement agent on
the Big Island (where these violations occur), and an agent from the Hawaii Department of
Land and Natural Resources is responsible for responding to possible violations.
152 Others suggest the problem is regulatory, wondering why U.S. agencies do not adopt an
approach similar to that of Mexico where the number of vessels that can be in the proximity
of any whale or group of whales is strictly limited and enforced. Some suggest that the
revised operational guidelines for whale-watching vessels in the northeastern United States
(64 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.
153 Others, however, find MMPA management inconsistent in making it illegal to swim with
(continued...)

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CRS-43
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,154
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.
Changes to the harassment definition applicable to military readiness
operations and to scientific research activities conducted by or on behalf of the
federal government were enacted in §319(a) of P.L. 108-136. The new language
defines harassment as any action that “injures” or “has the significant potential to
injure” marine mammals, rather than any action that has the “potential to injure.”
Environmental and animal protection organizations generally oppose the modified
definition of harassment, arguing that it raises the burden of proof that a military
readiness activity would affect a marine mammal, making it more difficult to protect
them.155 These interests believe that such changes are premised on an unrealistically
high assessment of our ability to differentiate between biologically significant and
insignificant responses. By doing so, they believe the modified definition effectively
reverses the precautionary burden of proof that has been the hallmark of the MMPA
since its inception. Supporters of the modified definition believe that it ensures that
activities are restricted only when scientific evidence demonstrates that such
protection is necessary. These changes remain highly controversial and could be
revisited during MMPA reauthorization.
Management Consistency Between FWS and NOAA Fisheries.
The division of responsibility for various marine mammal species between NOAA
Fisheries and FWS is provided for in 16 U.S.C. §1362(12) within the definition of
“Secretary.” When the MMPA was enacted in 1972, this division of species was
seen as artificial and temporary by many in Congress and the Administration,
awaiting the creation of a contemplated “Department of Environment and Natural
Resources.” In addition, the differing management approaches taken by NOAA
Fisheries and FWS have often confused the commercial fishing industry and Alaska
153 (...continued)
wild dolphins who willingly approach humans while allowing commercial ventures to hold
dolphins captive and charge humans for the chance to swim with them.
154 Current requirements for prosecuting harassment violations are stringent, requiring a
time-/date-stamped video of the incident and a court appearance by the complainant to
testify against the offender.
155 For additional information, see “Military Readiness and Environmental Exemptions” in
CRS Report RL32183, Defense Cleanup and Environmental Programs: Authorization and
Appropriations for FY2004, by David M. Bearden.

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CRS-44
Natives.156 Some Native American and scientific interests suggest that it may be time
for Congress to revisit this division of management responsibility and consider
amending the MMPA to promote greater consistency in marine mammal
management. Several approaches are suggested, including the current movement
toward an ecosystem approach to managing living resources and minimizing possible
conflicts of interest where marine mammals and fisheries interact, that may have a
bearing on which agency should manage which species or groups thereof. Others
suggest that NOAA Fisheries and FWS might be directed to develop joint regulations
for all their marine mammal programs to achieve greater consistency in management
policy.157
Directed Research Program. Although the MMPA emphasizes research,
it does not create a national integrated marine mammal research program.
Emphasizing this need, a recommendation in the Secretary of Commerce’s February
1999 report to Congress included a list of information needs, with no suggestion as
to how or by whom this research was to be pursued.158 Specific information needs
identified for this relatively narrowly focused issue include (1) site-specific
investigations on the impacts of pinniped predation on salmonid populations; (2)
state-by-state and river-by-river investigations of salmonid populations vulnerable
to pinniped predation; (3) studies of comparative skeletal anatomies of different
salmonid species so that prey may be identified in food habit studies using pinniped
scat and gastrointestinal tract analyses; (4) site-specific seasonal abundance and
distribution of pinnipeds north of Point Conception, California; (5) assessment and
evaluation of potential impacts of pinnipeds on specific fisheries and fishing areas;
(6) socioeconomic studies on impacts of pinnipeds on various commercial and
recreational fisheries; (7) ecosystem research where the impacts of pinniped
predation on non-salmonid resources can be addressed beginning with smaller
systems such as Puget Sound, Washington; and (8) collection of unbiased samples
for food habit studies. Some have suggested that Congress might wish to consider
whether these information needs should become the focus of an MMPA amendment
creating a national integrated research program, possibly under the direction of the
independent Marine Mammal Commission, with specific funding authorized.159
Federal Agency Roles. Some scientists suggest that conflicting federal
agency interests may hamper marine mammal protection and recovery. One example
of an interagency issue where conflicting agency authority may be problematic relates
to understanding and addressing the potential for endocrine disruption in marine
156 For example, FWS uses MTRP (see “Reporting Subsistence Takes”) while NOAA
Fisheries does not, and NOAA Fisheries uses “incidental harassment authorization” to
permit incidental taking while FWS does not.
157 Joint regulations relating to marine mammals have only been developed for the transfer
of management authority to states (50 C.F.R. Part 403).
158 National Marine Fisheries Service, Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems, Report to Congress (Feb. 10, 1999), p. 16-
17.
159 Such a program might be authorized as an extension of the Pacific Coast Task Force
provisions in 16 U.S.C. §1389.

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CRS-45
mammals.160 Some critics suggest that the MMPA be amended to direct an external
panel (e.g., the Marine Mammal Commission or the National Academy of Sciences)
to carefully review the programs and procedures of federal management agencies for
potential conflicting interests among their management, regulation, permit
administration, scientific research, and funding roles with respect to marine
mammals, and recommend actions that should be taken to address any problems
identified.
Agency Delays in Compliance with MMPA Deadlines. Various
constituencies were frustrated over federal agency delays in implementing provisions
of the 1994 MMPA amendments (see “1994 MMPA Reauthorization” for more
detail). This led to critics within the conservation and animal protection communities
as well as the fishing industry to seek additional means to force the NOAA Fisheries
and FWS to comply with MMPA deadlines.161 These agencies contend, in reply, that
the problem can be traced to limited funds provided by Congress to finance these
activities.162 For more information 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 NOAA Fisheries,
FWS, and the MMC might raise during reauthorization discussions is that, in an era
of stable or slightly declining federal appropriations, federal agency responsibilities
and duties have expanded much faster than their budgets. For example, requirements
for stock assessments of 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 NOAA Fisheries and FWS
as well as with the MMC. NOAA Fisheries and FWS may claim that they are
underfunded and that delays in implementing the 1994 MMPA amendments were
directly tied to budgetary constraints. In addition, some scientists, environmental
interests, and animal protection advocates 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. Some suggest that Congress might consider
160 For background on this issue, see CRS Report RL31267, Environmental Exposure to
Endocrine Disruptors: What Are the Human Health Risks? by Linda-Jo Schierow and
Eugene H. Buck.
161 For example, the Humane Society of the United States was a plaintiff in at least one
lawsuit pertaining to perceived NOAA Fisheries inaction on take reduction mandates in the
1994 MMPA amendments; the Center for Biological Diversity also has filed suit against
NOAA Fisheries for failure to convene a take reduction team.
162 On June 29, 1999, Marshall Jones, Acting Deputy Director, U.S. Fish and Wildlife
Service, testified before the House Resources Subcommittee on Fisheries Conservation,
Wildlife, and Oceans that “due to competing budget needs and limited funding, the Service
has been unable to fully implement provisions of certain amendments.”

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CRS-46
amending the MMPA to increase the authorization of appropriations for marine
mammal programs of NOAA Fisheries, 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 has enacted measures to protect marine mammals, including
specifically the Marine Mammal Protection Act. While the history of the MMPA’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 comprehensive reauthorization debate.
Recent public sentiment, always a strong factor in marine mammal issues, has
focused on concerns about 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 during the
reauthorization process is likely to identify additional issues. The requirements of
the MMPA itself did not expire when the authorization of appropriations expired at
the end of FY1999. If comprehensive reauthorization is delayed, Congress may
separately consider provisions to amend the MMPA on selected issues.
During the 106th Congress, 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
NOAA Fisheries, 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.
In the 107th Congress, the House Resources Subcommittee on Fisheries
Conservation, Wildlife, and Oceans held a general oversight hearing on October 11,
2001, on reauthorizing the Marine Mammal Protection Act.163 H.R. 4781 was the
only reauthorization bill that was introduced; the House Resources Subcommittee on
Fisheries Conservation, Wildlife, and Oceans held a hearing on this bill on June 13,
2002,164 and marked up this measure on July 25, 2002. No further action was taken.
163 U.S. Congress, House Committee on Resources, Subcommittee on Fisheries
Conservation, Wildlife, and Oceans, Marine Mammal Protection Act, 107th Cong., 1st sess.
(Oct. 11, 2001), Serial No. 107-65, 330 p.
164 U.S. Congress, House Committee on Resources, Subcommittee on Fisheries
(continued...)

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CRS-47
For updated information on legislative activities in the 108th Congress
concerning marine mammals, see CRS Report IB10109, Fishery, Aquaculture, and
Marine Mammal Legislation in the 108th Congress, by Eugene H. Buck.
Oceans Commissions Reports
Two ocean commissions recently released reports relating to marine
mammals. The Pew Oceans Commission report165 was released June 4, 2003, and
the U.S. Commission on Ocean Policy’s preliminary report166 was issued on April 20,
2004. Marine mammal issues are only one aspect of the comprehensive ocean policy
issues discussed in these reports; the larger context includes governance, education,
coastal development, human health, environmental quality, energy resources, and
ocean science, among others. For background on the reports and the larger context
of these issues, see the CRS issue brief Ocean Commissions: Ocean Policy Review
and Outlook (in preparation). Below is a table comparing the reports’
recommendations relating to marine mammals. CRS takes no position with respect
to either report’s recommendations.
164 (...continued)
Conservation, Wildlife, and Oceans, H.R. 4781, Marine Mammal Protection Act
Amendments of 2002, 107th Cong., 2d sess. (June 13, 2002), Serial No. 107-128, 94 p.
165 The Pew Oceans Commission’s report, America’s Living Oceans: Charting a Course for
Sea Change, was available at [http://www.pewoceans.org/oceans/index.asp] on Apr. 27,
2004.
166 The U.S. Commission on Ocean Policy’s preliminary report, Preliminary Report of the
U.S. Commission on Ocean Policy, was available at [http://oceancommission.gov/
documents/prelimreport/welcome.html] on Apr. 27, 2004.

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CRS-48
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Marine
Recommendation 20 — 1. Congress should
No similar recommendation.
Mammal
amend the Marine Mammal Protection Act to
Commission
require the Marine Mammal Commission,
while remaining independent, to coordinate
with all relevant federal agencies through the
National Ocean Council (NOC). The NOC
should consider whether there is a need for
similar oversight bodies for other marine
animals whose populations are at risk.
Agency
Recommendation 20 — 2. Congress should
Congress should establish a National Oceanic
jurisdiction
amend the Marine Mammal Protection Act to
and Atmospheric Agency as an independent
place the protection of all marine mammals
agency outside the Department of Commerce.
within the jurisdiction of the National
This agency should include the marine
Oceanic and Atmospheric Administration.
mammal programs of the Department of the
Interior to place all ocean wildlife under the
jurisdiction of the oceans agency.
Harassment
Recommendation 20 — 5. Congress should
No similar recommendation.
definition
amend the Marine Mammal Protection Act to
revise the definition of harassment to cover
only activities that meaningfully disrupt
behaviors that are significant to the survival
and reproduction of marine mammals.
Research on
Recommendation 20 — 7. The National
No similar recommendation.
effects of
Oceanic and Atmospheric Administration and
human
the U.S. Department of the Interior should
activities
promote an expanded research, technology,
and engineering program, coordinated
through the National Ocean Council, to
examine and mitigate the effects of human
activities on marine mammals and
endangered species.
Specifically,
Recommendation 20 — 8. Congress should
No similar recommendation.
acoustics and
increase support for research into ocean
noise
acoustics and the potential impacts of noise
on marine mammals. This funding should be
distributed across several agencies, including
the National Science Foundation, U.S.
Geological Survey, and Minerals
Management Service, to decrease the reliance
on U.S. Navy research in this area. The
research programs should be well coordinated
across the government and examine a range
of issues relating to noise generated by
scientific, commercial, and operational
activities.
and toxics
No similar recommendation.
Sufficient resources should be devoted to
studying the effects of toxic substances in the
marine environment. Needed research
includes the effects of polychlorinated
biphenyls (PCBs) and other toxic substances
on marine mammals — particularly in the
polar regions.

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CRS-49
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Conservation
No similar recommendation.
Core conservation decisions should be made
decision-
by the NOAA Fisheries, or a revamped
making
fishery service within a new independent
oceans agency. These decisions should
originate at the regional offices with oversight
by the national headquarters office. At a
minimum, these decisions include setting
specific protected species requirements
(threatened and endangered marine mammals,
sea turtles, seabirds, and fish).
Regulation of
No similar recommendation.
Activities that generate significant amounts of
sound
potentially harmful sound should be regulated
consistent with the requirements of federal
law, including the Marine Mammal
Protection Act.
Permits:
Streamline an
Recommendation 20 — 6. The National
No similar recommendation.
interagency
Marine Fisheries Service and the U.S. Fish
process
and Wildlife Service should implement
programmatic permitting for activities that
affect marine mammals, wherever possible.
More resource intensive case-by-case
permitting should be reserved for unique
activities or where circumstances indicate a
greater likelihood of harm to marine
mammals. The National Ocean Council
should create an interagency team to
recommend activities appropriate for
programmatic permitting, those that are
inappropriate, and those that are potentially
appropriate pending additional scientific
information. Enforcement efforts should also
be strengthened and the adequacy of penalties
reviewed.
Clarify what
Recommendation 20 — 4. Congress should
No similar recommendation.
activities
amend the Marine Mammal Protection Act to
require permits
require the National Oceanic and
Atmospheric Administration to more clearly
specify categories of activities that are
allowed without a permit, those that require a
permit, and those that are prohibited.
Attention to
Recommendation 19 — 25. The National
No similar recommendation.
bycatch
Oceanic and Atmospheric Administration,
reduction
working with the U.S. Fish and Wildlife
Service and the U.S. Department of State,
should design a National Plan of Action for
the United States that implements, and is
consistent with, the International Plans of
Action adopted by the United Nations Food
and Agriculture Organization and its 1995
Code of Conduct for Responsible Fisheries.
This National Plan should stress the
importance of reducing bycatch of
endangered species and marine mammals.

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