<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:75640.wais]
MARINE MAMMAL PROTECTION ACT
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
October 11, 2001
__________
Serial No. 107-65
__________
Printed for the use of the Committee on Resources
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana James P. McGovern, Massachusetts
Greg Walden, Oregon Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho Hilda L. Solis, California
Thomas G. Tancredo, Colorado Brad Carson, Oklahoma
J.D. Hayworth, Arizona Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Allen D. Freemyer, Chief of Staff
Lisa Pittman, Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeff Petrich, Democrat Chief Counsel
------
SUBCOMMITTE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
WAYNE T. GILCHREST, Maryland, Chairman
ROBERT A. UNDERWOOD, Guam, Ranking Democrat Member
Don Young, Alaska Eni F.H. Faleomavaega, American
W.J. ``Billy'' Tauzin, Louisiana Samoa
Jim Saxton, New Jersey, Neil Abercrombie, Hawaii
Vice Chairman Solomon P. Ortiz, Texas
Richard W. Pombo, California Frank Pallone, Jr., New Jersey
Walter B. Jones, Jr., North
Carolina
------
C O N T E N T S
----------
Page
Hearing held on October 11, 2001................................. 1
Statement of Members:
Abercrombie, Hon. Neil, a Representative in Congress from the
State of Hawaii, prepared statement of..................... 248
Cunningham, Hon. Randy ``Duke,'' a Representative in Congress
from the State of California, prepared statement of........ 126
Gilchrest, Hon. Wayne T., a Representative in Congress from
the State of Maryland...................................... 1
Prepared statement of.................................... 2
Jones, Hon. Walter B., a Representative in Congress from the
State of North Carolina, prepared statement of............. 70
Miller, Hon. George, a Representative in Congress from the
State of California, prepared statement of................. 10
Mink, Hon. Patsy, a Representative in Congress from the State
of Hawaii.................................................. 4
Prepared statement of.................................... 6
Underwood, Hon. Robert A., a Delegate to Congress from Guam.. 2
Prepared statement of.................................... 3
Statement of Witnesses:
Fletcher, Bob, President, Sportfishing Association of
California................................................. 140
Prepared statement of.................................... 141
Fristrup, Dr. Kurt, Bioacoustics Research Program, Cornell
Laboratory of Ornithology.................................. 200
Prepared statement of.................................... 202
Responses to questions submitted for the record.......... 319
Gaffney, Kaitilin, California Central Coast Program Manager,
The Ocean Conservancy...................................... 160
Prepared statement of.................................... 161
Responses to questions submitted for the record.......... 311
Hayes, Margaret, Director of Office of Ocean Affairs, Bureau
of Oceans and International Environmental and Scientific
Affairs, U.S. Department of State.......................... 55
Prepared statement of.................................... 56
Response to question submitted for the record............ 285
Hogarth, Dr. William T., Assistant Administrator for
Fisheries, National Marine Fisheries Service, U.S.
Department of Commerce..................................... 11
Prepared statement of.................................... 13
Responses to questions submitted for the record.......... 258
Johnson, Charlie, Executive Director, Alaska Nanuuq
Commission, Indigenous Peoples Council on Marine Mammals... 78
Prepared statement of.................................... 80
Responses to questions submitted for the record.......... 285
Jones, Marshall, Acting Director, Fish and Wildlife Service,
U.S. Department of the Interior............................ 20
Prepared statement of.................................... 22
Responses to questions submitted for the record.......... 266
Ketten, Dr. Darlene, Associate Scientist in Biology, Woods
Hole Oceanographic Institution, Assistant Professor in
Otolaryngology, Harvard Medical School..................... 207
Prepared statement of.................................... 210
Responses to questions submitted for the record.......... 323
Mannina, George, American Zoo and Aquarium Association and
the Alliance of Marine Mammal Parks, and Aquariums......... 94
Prepared statement of.................................... 95
Responses to questions submitted for the record.......... 295
Marks, Rick, Member of Take Reduction Teams, Garden State
Seafood Association........................................ 109
Prepared statement of.................................... 111
Responses to questions submitted for the record.......... 301
McGinn, Vice Admiral Dennis V., Deputy Chief of Naval
Operations, WarfareRequirements and Programs, OPNAV (N7),
U.S. Navy.................................................. 229
Prepared statement of.................................... 232
Rebuck, Steve, Member, Sea Otter Technical Consultant Group,
Southern Sea Otter Recovery Team........................... 146
Prepared statement of.................................... 148
Reynolds, Dr. John E., III, Chairman, Marine Mammal
Commission................................................. 26
Prepared statement of.................................... 28
Responses to questions submitted for the record.......... 271
Rose, Dr. Naomi, Marine Mammal Scientist, The Humane Society
of the United States....................................... 193
Prepared statement of.................................... 195
Responses to questions submitted for the record.......... 315
Scordino, Dr. Joe, Deputy Director, Northwest Region,
National Marine Fisheries Service, U.S. Department of
Commerce................................................... 129
Prepared statement of.................................... 132
Responses to questions submitted for the record.......... 303
Thompson, Steve, Acting Manager, California-Nevada
Operations, Fish and Wildlife Service, U.S. Department of
the Interior............................................... 154
Prepared statement of.................................... 155
Responses to questions submitted for the record.......... 307
Whitehead, Dr. Hal, Killam Professor of Biology, Dalhousie
University................................................. 190
Prepared statement of.................................... 192
Responses to questions submitted for the record.......... 314
Young, Sharon, Field Director for Marine Issues, The Humane
Society of the United States............................... 81
Prepared statement of.................................... 83
Responses to questions submitted for the record.......... 290
Additional materials supplied:
Gipson, Dr. Chester, Acting Deputy Administrator for Animal
Care, Animal & Plant Health Inspection Service, U.S.
Department of Agriculture, statement submitted for the
record..................................................... 256
Responses to questions submitted for the record.......... 326
Humane Society of the United States, statement submitted for
the record................................................. 181
Phillips, David, The International Marine Mammal Project,
Earth Island Institute, statement submitted for the record. 70
Sinkin, Lanny, Attorney at Law, Hilo, Hawai'i, statement
submitted for the record................................... 7
OVERSIGHT HEARING ON THE MARINE MAMMAL PROTECTION ACT
----------
Thursday, October 11, 2001
U.S. House of Representatives
Subcommittee on Fisheries Conservation, Wildlife and Oceans
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to call, at 10:05 a.m., in
Room 1324, Longworth House Office Building, Hon. Wayne
Gilchrest [Chairman of the Subcommittee] presiding.
STATEMENT OF THE HON. WAYNE GILCHREST, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Mr. Gilchrest. Good morning, everyone. The Subcommittee on
Fisheries Conservation, Wildlife and Oceans will come to order.
What I would like to do this morning, just before we begin,
if we could have a moment of reverent silence, the tragedy that
has occurred a month ago today. There will be, as you all know,
memorial services in New York and at the Pentagon. A moment of
silence.
[Moment of silence.]
Mr. Gilchrest. I am pleased to convene today's hearing.
This will be a comprehensive review of the Marine Mammal
Protection Act and issues for its reauthorization. We have a
great number of witnesses scheduled to testify, and therefore
we will quickly move through our opening statements.
The Marine Mammal Protection Act was first enacted in 1972,
to ensure that marine mammals are either restored or maintained
at healthy population levels. The act was last amended in 1994,
and we will hear testimony on how the agencies have implemented
these changes.
There are a number of topics before us today. We will hear
testimony on two marine populations, California sea lions and
Pacific harbor seals, whose population numbers have increased
to the point where there is growing concern about their
interactions with humans. We will also discuss success or
failure of the experimental sea otter population off the coast
of California and what, if anything, needs to be done to
address this matter.
We will be enlightened on the issue of Take Reduction Teams
and how they have worked to develop management plans to reduce
interactions between commercial fishing activities and marine
mammal populations. I am interested to hear about the efforts
being take to disentangle whales from fishing gear, as well as
the need for a new Polar Bear Treaty, and issues of concern to
the environmental and public display communities.
The last topic of discussion will be on the sonar
technology used by the Navy, specifically the use of
Surveillance Towed Array Sensor System Low Frequency Array, or
SURTASS LFA. The use of this sonar has been controversial due
to its possible adverse effects on marine mammal populations. I
hope the discussion will shed some light on the issue and help
us to understand what type of research has been done to assess
the effects of this sonar on marine mammals and on other marine
life.
I look forward to the testimony this morning and this
afternoon as a very positive exchange of information. We can
learn from your testimony, and hopefully you can learn from the
interactions with us, as well, and move forward in a better
understanding of the life as we know it in many various ways to
be very fragile, and how we can be very positive in our efforts
to protect that fragility in the ecosystems and also especially
in the area of the economy of many communities and the defense
of this country. We can not only find a middle ground on all of
these issues, but we can find the highest plane, the best
direction to proceed.
I now yield to the gentleman, Mr. Underwood.
[The prepared statement of Mr. Gilchrest follows:]
Statement of the Honorable Wayne Gilchrest, A Representative in
Congress from the State of Maryland
Good morning, I am pleased to convene today's hearing. This will be
a comprehensive review of the Marine Mammal Protection Act and issues
for its reauthorization. We have a great number of witnesses scheduled
to testify and, therefore, I will quickly go through my opening
statement.
The Marine Mammal Protection Act was first enacted in 1972 to
ensure that marine mammals are either restored to or maintained at
healthy populations levels. The Act was last amended in 1994 and we
will hear testimony on how the agencies have implemented these changes.
There are a number of topics before us today, we will hear
testimony on two marine mammal populations, California sea lions and
Pacific Harbor seals, whose populations numbers have increased to the
point, where there is growing concern about their interactions with
humans. We will also discuss the success or failure of the experimental
sea otter population off the coast of California and what, if anything,
needs to be done to address this matter.
We will be enlightened on the use of Take Reduction Teams, and how
they have worked to develop management plans to reduce interactions
between commercial fishing activities and marine mammal populations. I
am interested to hear about the efforts being taken to disentangle
whales from fishing gear as well as the need for a new Polar Bear
Treaty and issues of concern to the environmental and the public
display communities.
The last topic of discussion will be on the sonar technology used
by the Navy, specifically the use of Surveillance Towed Array Sensor
System Low Frequency Array (SURTASS LFA) sonar. The use of this sonar
has been controversial due its possible adverse affects on marine
mammal populations. I hope the discussion will shed some light on the
issue and help us understand what type of research has been done to
assess the affects of this sonar on marine mammals and other marine
life.
I now recognize the Ranking Member, Mr. Underwood, for his opening
statement.
______
STATEMENT OF THE HON. ROBERT UNDERWOOD, A REPRESENTATIVE IN
CONGRESS FROM GUAM
Mr. Underwood. Thank you, Mr. Chairman, and I am impressed
by the turnout today, both in the number of witnesses that we
have scheduled and in the number of people in the audience. I
think this turnout again demonstrates the deep and abiding
interests of millions of Americans in the long-term protection
and well-being of marine mammals.
Panel by panel, we will move from general oversight to more
specific issues, some controversial, others less so. But that
there is some controversy is not surprising to me, for very few
species of wildlife generate the same type of passion among
human beings as whales, sea lions, and sea otters, to name only
a handful of the more charismatic species.
Congress passed the Marine Mammal Protection Act in 1972 to
rectify our Nation's sorry historical record of marine mammal
management, a record punctuated more frequently by episodes of
unregulated massacre than by attempts at thoughtful and
sustainable conservation. Today we will review what the act has
done in order to help recover marine mammal populations.
And certainly we should all take pride in the recovery of
some populations such as the Pacific gray whales and California
sea lions. But ironically, we will also learn that despite
these successes, other problems, either perceived or real, have
arisen through the recovery of formerly depleted marine mammal
populations.
We cannot escape the looming human paradox that confronts
this Committee. For if we, as the ultimate users of ocean
resources, are going to coexist sustainably with recovered or
robust populations of marine mammals, we are going to need to
find new ways to restrain ourselves, not marine mammals. If we
ever hope to meet both the demands of a growing human
population and the overarching need to maintain a healthy
marine environment on which both humans and marine mammals are
mutually dependent, we must meet this challenge.
With that thought in mind, I will conclude simply by saying
that I look forward to hearing from everyone this morning. I
hope to work with all of you and with all other stakeholders as
we begin the important process to reauthorize the Marine Mammal
Protection Act. Thank you.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Underwood follows:]
Statement of the Honorable Robert Underwood, A Delegate to Congress
from Guam
Thank you, Mr. Chairman. I'm impressed by the turnout today, both
in the number of witnesses we have scheduled, and in the number of
people in the audience. I think this turnout again demonstrates the
deep and abiding interest of millions of Americans in the long-term
protection and well-being of marine mammals.
Panel by panel, we will move from general oversight to more
specific issues - some controversial, others less so. But that there is
some controversy is not surprising to me, for very few species of
wildlife generate the same type of passion among human beings as
whales, sea lions and sea otters, to name only a handful of the more
charismatic species.
Congress passed the Marine Mammal Protection Act in 1972 to rectify
our Nation's sorry historical record of marine mammal management - a
record punctuated more frequently by episodes of unregulated massacre,
than by attempts at thoughtful and sustainable conservation.
Today, we will review what the Act has done to help recover marine
mammal populations. And certainly we should all take pride in the
recovery of some populations such as Pacific gray whales and California
sea lions. But ironically, we also will a learn that despite these
successes, other problems, either perceived or real, have arisen
through the recovery of formerly depleted marine mammal populations.
We cannot escape the looming human paradox that confronts this
committee. For if we, as the ultimate users of ocean resources, are
going to co-exist sustainably with recovered or robust populations of
marine mammals, we are going to need find new ways to restrain
ourselves, not marine mammals. If we ever hope to meet both the demands
of a growing human population and the overarching need to maintain a
healthy marine environment on which both humans and marine mammals are
mutually dependent, we must meet this challenge.
With that thought in mind, I will conclude simply by saying that I
look forward to hearing from everyone this morning. I hope to work with
all of you and all other stakeholders as we begin the important process
to reauthorize the Marine Mammal Protection Act. Thank you.
______
Mr. Gilchrest. Thank you, Mr. Underwood. I want to thank
Mr. Pombo from California for joining us this morning.
We will first recognize The Honorable Patsy Mink from the
great State of Hawaii. Welcome, Mrs. Mink, for coming to
testify this morning.
STATEMENT OF THE HON. PATSY MINK, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF HAWAII
Mrs. Mink. Thank you very much, Mr. Chairman, Ranking
Member Underwood, Mr. Pombo, members of the Subcommittee. I am
enormously grateful for this opportunity to testify before this
Subcommittee on your embarking on very, very important
oversight hearings about the efficacy of the Marine Mammal
Protection Act and how it is being administered.
I am especially grateful because included in your oversight
hearings, you have included a panel that will discuss the U.S.
Navy's Surveillance Towed Array Sensor System Low Frequency
Active sonar, that we refer to as SURTASS LFA, and its impact
on our marine environment. I am deeply concerned about the
potential harm that the deployment of this technology could
have on marine mammals.
Never in my 23 years of service in the Congress has there
been such an enormous outpouring of concern from citizens all
over the country, but primarily those from my district. I had
my staff this morning sort of look through the computer
statistics on the number of times that we have been contacted
about this issue, and the number exceeds 3,500, which is far
more than what we received during impeachment or any of the
other controversial issues. So the concerns are there and I
think are very real.
The Navy's final EIS statement acknowledges that they
really don't know how this technology is affecting, or will
affect ultimately, marine life in the areas where they are
conducting this experiment. We do have instances where we have
seen the consequences, in the Bahamas and elsewhere, and other
witnesses on panel five will undoubtedly discuss and explore
those ramifications where the use of sonar has resulted in
deaths of whales and strandings and other kinds of physical
manifestations of the impact on them. During the testing in
Hawaii in 1998, numerous witnesses reported that the whales
fled the area where the sonar testing was being conducted.
Sound is an integral part of the daily life of marine
mammals. Low-frequency broadcasts such as the Navy's SURTASS
LFA sonar could endanger the delicate balance between the
habitat and these species.
Research suggests that the first indicator of physical
damage to the whales from low-frequency sound is a temporary
hearing loss. At higher levels, there is tissue damage to the
lungs, heart, and nervous system.
The unusual feature of this sonar is not its volume or its
loudness, but the low frequency at which it operates, 100 to
150 Hz. Sound energy in the high frequencies, typical of most
sonar, is absorbed by seawater, but low frequency sounds can
travel and be detected hundreds of miles away. Not only does
this sonar disrupt the behavior of animals at relatively low
levels, the behavioral disruption can occur over a large
proportion of the species' habitat, and it could have very
strange behavioral changes and could impact on the breeding and
raising of the young.
Disruption of behavior of endangered marine mammals and the
assault on their habitat is a violation of the Marine Mammal
Protection Act, which is designed to protect the habitat of
these species. More egregious is that some of these species
that frequent the waters of Hawaii are endangered, so there is
a double responsibility on the part of the protectors that have
been commissioned as responsible under the Federal Government
to protect the humpback whale, not only endangered but the
Congress established a national sanctuary for these species
because they are so highly endangered.
It is true that the sonar experiment does not engage itself
within the sanctuary, but there is no traffic cop there to tell
the endangered species specifically the zone which they may
occupy at any given time. So we are very concerned that even
with the exclusion of the testing within the zone area excluded
as a sanctuary, its mere permission in the area, and in the
area which the humpback whale transverses between Hawaii and
its northern climates, is an area of tremendous concern.
I would like to submit for the record extensive research as
conducted by one of my constituents, Mr. Lanny Sinkin of the
Big Island, Hawaii. I would like to have permission to include
this material as part of my testimony today.
Mr. Gilchrest. Without objection, so ordered.
Mrs. Mink. Thank you very much.
Furthering my inquiry in this whole subject as to the
responsibility of the Federal agencies, I have asked the
General Accounting Office to undertake a study, and I hope that
this study will be available to Members of Congress and others
within a year. They have Committee themselves to conduct this
investigation, and I would certainly be happy to have this
Committee join in that inquiry and perhaps have them expand on
it.
Under the act, the Secretary of Commerce, acting through
the National Marine Fisheries Service, is responsible for the
conservation and management of whales, dolphins, all of the
marine mammals, and it is vital for this agency to stand up and
exercise its responsibility of protection, not to concur in the
EIS documents that are being proffered by the Navy to permit it
to conduct its experiments.
So I think that this Committee can have a very large impact
on the adherence of our numerous, various national agencies, on
their responsibilities to marine mammals. I would hope that
this Committee would engage itself in looking specifically at
areas in which those responsibilities commissioned to these
various agencies cam be tightened up, made more specific, and
indeed in the preparing of EIS's, to assume full responsibility
for their content, direction, and recommendations, rather than
to simply be added on as a concurrent partner.
So, with those remarks I certainly leave with you a
tremendous appreciation on the part of thousands of my
constituents, and the hope that as a result of these oversight
hearings we will have a better view of what this particular
experiment is doing to our marine mammal population, and to be
ever vigilant if there should be others that are proposed,
recognizing, of course, that there are two responsibilities
that are colliding.
We have the national security argument which we explored in
the Government Reform Committee, where the Navy insisted that
this was absolutely essential for them to do. And so you have
really a struggle of responsibilities here, and I look upon
this Committee to be able to work through it and come up with
some way in which the species that we are commissioned to
protect will indeed have better protection.
Thank you very much.
[The prepared statement of Mrs. Mink follows:]
Statement of the Honorable Patsy T. Mink, a Representative in Congress
form the State of Hawaii
Mr. Chairman,
I want to thank you for the opportunity to testify today before the
Subcommittee on Fisheries Conservation, Wildlife, and Oceans as part of
the oversight hearings on Reauthorization of the Marine Mammal
Protection Act.
I especially want to thank you for including a panel to look at the
impact of deployment of the U.S. Navy's Surveillance Towed Array Sensor
System Low Frequency Active Sonar (SURTASS LFA) on our marine
environment. And I thank you for inviting Dr. Hal Whitehead of
Dalhousie University to testify before the Subcommittee.
I am deeply concerned about the potential harm that deployment of
this technology could have on marine mammals. In the Navy's Final EIS,
it acknowledges that they really do not know how this technology will
affect marine life. But we do know that there have been several
instances, in the Bahamas and elsewhere, where use of sonar has
resulted in whale deaths and strandings. During the testing in Hawaii
in 1998, numerous witnesses reported that whales fled the area when
sonar testing began.
Sound is an integral part of the daily life of whales, dolphins,
and other marine life. Low-frequency broadcasts, such as the Navy's
SURTASS LFA sonar, could endanger the delicate balance between the
natural habitat and these species.
Research suggests that the first indicator of physical damage to
whales from low-frequency sounds is temporary hearing loss, which can
occur from exposures to 185-200 dB. At higher levels, tissue damage in
the lungs, heart, and nervous system can occur.
The unusual feature of this sonar is not its volume, but the low
frequency at which it operates (100-150 Hz). Sound energy at the high
frequencies typical of most sonar is absorbed by seawater, but low
frequency sounds can travel and be detected hundreds of miles away.
Not only does this sonar disrupt the behavior of animals at
relatively low levels, the behavioral disruption can occur over a large
proportion of a species' habitat. It could change behaviors related to
breeding and raising. of young.
Disruption of the behavior of endangered marine mammals and the
assault on their habitat is a violation of the Marine Mammal Protection
Act, which is designed to protect these species from man-made harm.
The Navy claims that the effect of LFA sonar on marine animals is
negligible. I frankly worry about having the agency that is committed
to deploying a technology so intimately involved in deciding whether it
is environmentally safe.
I submit for the record a statement and detailed critique of the
Navy's Environmental Impact Statement prepared by one of my
constituents, Lanny Sinkin of Hilo, Hawaii. Mr. Sinkin is an attorney
whose legal work has been in the areas of the environment, national
security, and civil rights. From his research, Mr. Sinkin has gained a
broad knowledge of the history of the LFA program and of the evidence
that SURTASS LFA is too dangerous to deploy. Mr. Sinkin's research
supports the conclusion that had the Navy complied with environmental
laws early in the LFA process, they-would have avoided expenditure of
hundreds of millions of dollars on the development of LFA and pursued
other technologies that have, in fact, proven capable of achieving the
same purpose.
I have asked the General Accounting Office to undertake a study of
the Navy's SURTASS LFA sonar program. I asked them to investigate the
potential environmental costs of deploying this technology and to
examine whether the close relationship between the Navy and the
National Marine Fisheries Service (NMFS) in preparing the EIS
represents a conflict of interest.
Under the Act, the Secretary of Commerce, acting through the
National Marine Fisheries Service, is responsible for the conservation
and management of whales, dolphins, porpoises, seals, and sea lions. It
is vital that the agency responsible for protecting these species
maintain the highest possible standards in assessing possible harmful
effects. Perhaps another agency, like the National Ocean Service, which
has more of a conservation focus and manages our National Marine
Sanctuaries, should be given responsibility for conservation and
management of these species.
Clearly, the Navy's first responsibility is to protect our nation
from attack. And they have invested millions of dollars in developing
and testing this technology. We all support a strong national defense,
especially in light of the horrific events of a month ago today. But
this does not mean that we can shirk our responsibilities as stewards
of our environment. We must ask ourselves: Is' deployment of LFA sonar
truly essential to protect us from the security challenges facing our
nation today? Wouldn't these funds be better spent on improved
intelligence and on deployment of a environmentally safer passive sonar
system? Must we endanger the well-being of our magnificent marine
mammals--a heritage that belongs to all the world--to effectively
protect ourselves?
Hawaii is home to many endangered species. We are host to the
largest Pacific population of the endangered humpback whale during the
months of November through May. The Navy's application specifically
excludes deployment of SURTASS LFA in the Penguin Banks area of the
Hawaiian Islands during this period, but they would still be able to
deploy the system beyond the 12-mile limit surrounding the islands.
Many other endangered species are found in the waters surrounding
Hawaii, including the Hawaiian Monk seal, several species of dolphins,
and endangered and threatened sea turtles.
I oppose deployment or further testing of SURTASS LFA Sonar in the
open oceans surrounding Hawaii. I urge the Subcommittee to maintain and
strengthen our commitment to protecting marine mammals from harassment
and harm as you study how to improve the Marine Mammal Protection Act.
______
[The statement of Mr. Sinkin follows:]
Statement of Lanny Sinkin, Attorney at Law, Hilo, Hawai'i
As an attorney, I have filed three separate legal actions
challenging the U.S. Navy's testing and planned deployment of its
Surveillance Towed Array Sensor System Low Frequency Active Sonar
(SURTASS LFAS). In the course of preparing and pursuing that
litigation, I have extensively researched the history of this program,
the evidence available regarding potential impacts from deployment of
this system, and the regulatory actions of agencies having a legal
responsibility to conduct oversight of this program. I have also spent
well over 100 hours analyzing the draft and final Overseas
Environmental Impact Statement/Environmental Impact Statement (OEIS/
EIS).
I am also aware of the U.S. military's campaign to convince
Congress that environmental laws are hampering military preparedness
and that the controversy over SURTASS LFA is cited as an example.
I understand that in these terrible times the military has strong
support in Congress and that there is a reluctance to question any
program the military says is necessary to national security. I consider
the health of the marine environment essential to national security. I
urge the subcommittee to remain objective about this particular
technology and exercise its legitimate oversight function.
Based on my research, I believe that SURTASS LFA demonstrates quite
clearly the value of having the military obey current environmental
laws. Had the U.S. Navy conducted a full environmental evaluation of
the potential harm from SURTASS LFA prior to investing $350 million in
this technology, I am convinced the Navy would have looked harder at
alternative technology that could achieve the same purpose without the
adverse effects on marine life. In fact, the Navy did develop passive
alternatives capable of achieving the stated purpose of SURTASS LFA -
the detection of silent submarines in the littoral environment.
The Navy ignored numerous environmental laws and made their
investment in design, engineering, construction, testing, and other
activities designed to produce a deployable LFA system. With the
investment made, the Navy prepared an OEIS/EIS that is replete with
false statements, contradictions, misuse of science, and other
indicators of a document structured to justify a past decision, rather
than an objective analysis prior to making major commitments. Cf. 42
U.S.C. Sec. 4332(C)(v) (prohibiting irreversible and irretrievable
commitments of resources prior to the preparation of an EIS).
I have prepared an extensive analysis of the flaws in the OEIS/EIS
that will be submitted for the record of this hearing. As illustrations
of the nature of the OEIS/EIS, I offer two examples:
1. Faced with potential litigation, the Navy agreed to prepare an
OEIS/EIS. As part of that process, the Navy agreed to study the
potential impact of SURTASS LFA on whales. In the subsequent Scientific
Research Program (SRP), the Navy identified four species of whales as
indicator species for all the others. One of the four is the Gray
Whale. OEIS/EIS at pages 1-20. 4.2-27 and 28, and Comment Response 4-
5.2 on page 10-100. The selection of these four species ``was a
critical element of the logic of the LFS SRP.'' OEIS/EIS at 4.2-27.
When a comment filed on the draft OEIS/EIS raised the evidence that
Gray Whales avoid sound at 115 to 120 decibels - far below acceptable
levels for LFA deployment - the OEIS/EIS took the position that
``[tg]ray whales inhabit a unique environment, and all research
conducted to date indicates that their behavior does not generalize to
other species.'' Comment 4-4.18 at page 10-96.
The selection of the four indicator species was a ``critical
element of the logic'' of the SRP because the Navy needed to answer
criticism that studying so few species in such a limited fashion did
not provide adequate information to reach conclusions about the impacts
on other species. When one of those species, however, turned out to be
very sensitive to sound, suddenly that species was not an indicator any
more.
2. The OEIS/EIS section titled ``Definition of Biological Risk and
Determination of Risk Function'' states: ``Based on the MMPA
(Subchapter 1.3.3.1), the potential for biological risk was defined as
the probability for injury or behavioral--harassment of marine
mammals.'' OEIS/EIS at 4.2-20 (emphasis added).
Subchapter 1.3.3.1 accurately states that the MMPA contains two
categories of harassment. Ibid. at 1-16. The first is injury (Level A).
Id. The second is disruption of important behavioral patterns. (Level
B).--Id.
The OEIS/EIS ``defines the potential for biological risk as
``potentially caus[ing] hearing, behavioral, psychological, or
physiological effects.'' Ibid. at 4.2-20.
The OEIS/EIS then states that the analysis of biological risk
assumes ``all marine mammals exposed to RLs [the level received by the
marine mammal] > 180 dB are evaluated as if they are injured.'' Id.
(emphasis added).
What the OEIS/EIS has done is to combine Level A and Level B
harassment into one risk assessment and address mitigation of injury
only. The underlying assumption must be that mitigating injury will
also mitigate disruption of important behavioral patterns.
This assumption is the exact reverse of the correct assumption.
Mitigation preventing disruption of behavioral patterns would
significantly mitigate the potential for injury. Mitigation preventing
injury takes effect long after the biological effects level is passed.
Disruption of singing, mating, feeding, migration, and other
biological activities will take place well below the physical injury
level.
In the Section titled ``Determining Risk Function,'' the OEIS/EIS
provides a graph (Figure 4.2-2b at 4.2-24) that purports to show the
Single Ping Equivalent Risk Function. The x axis of the graph is the
``Received Level (RL) SPE - dB.'' The y axis is ``Risk of Significant
Change in Biologically Important Behavior.'' This graph uses the 180 dB
RL as the point of 95% probability of changing a biologically
significant behavior. As noted above, however, that level is the 95%
probability level for injury, not for causing a significant change in
biologically important behavior. As also noted above, the 95% level for
such potential behavioral change takes place well below 180 dB. The
graph's y axis, therefore, falsely represents that the graph shows the
probability of changing biologically important behavior.
The false analysis continues with the following statement: ``The
risk continuum modeled a smooth increase in risk that culminates in a
95 percent level of risk of significant change in biologically
important behavior at 180 dB.'' OEIS/EIS at 4.2-29. Again, the sound
pressure level creating a 95 percent probability of injury is very
different from the level creating a 95 percent probability of changing
biologically important behaviors.
Obviously the chart presents an increase in risk until the level
that the Navy defined as injury , not the level of significant change
in biologically important behavior. This single instance of attempting
to conceal the actual science on the central question calls the
integrity of this entire process into question.
These flaws in the OEIS/EIS represent the best efforts of those
preparing the document to avoid the obvious evidence that SURTASS LFA
poses a significant threat to marine life. This avoidance simply
mirrors the experiences we had during and after the litigation in
Hawaii.
The Navy came to Hawaii to test SURTASS LFA in March of 1998. Soon
after the testing began, I began receiving reports that the Humpback
Whales had left the test area. Eventually, I accumulated 14 different
observer reports from people who have spent much of their lives
observing whales in the area. This response by the whales is highly
significant because the test area is a prime breeding and birthing area
for this endangered species.
I received other reports of unusual activity in the test area, such
as hammerhead sharks schooling in areas where such behavior had never
been seen before.
I also received a report of a snorkeler exposed to an LFA
broadcast, who suffered physiological and psychological damage compared
by a doctor to that of a trauma patient in a hospital.
We brought all this information to the Navy (and NMFS). The Navy
never made any attempt to contact the whale watch captains and shore
observers who had noted the departure of the whales from the test area.
Instead, the Navy issued an ``information paper'' claiming that there
was no scientific data to support the claim that the whales left the
test area. I had provided declarations from the observers. Had the Navy
wished to follow up to determine the accuracy of their observations,
the Navy could have contacted these observers. The Navy made no attempt
to do so.
Similarly with the injured snorkeler, the Navy never contacted her,
never sought to have their medical officers examine her, and never
inquired as to her health subsequent to the exposure.
A truly objective scientific research project would have pursued
further information on both these serious indicators of adverse
effects.
From the refusal to pursue such information, a clear picture
emerges of an agency that prematurely invested in a technology only to
find the technology unacceptably hazardous. The OEIS/EIS attempts to
justify this mistake by ignoring the evidence.
______
[An attachment to Mr. Sinkin's statement, ``Comments of
Lanny Sinkin on National Marine Fisheries Service Proposed
Rule, Docket No. 990927266-0240-02,'' has been retained in the
Committee's official files.]
Mr. Gilchrest. Thank you very much, Mrs. Mink. We can
assure you that this Committee will be vigilant. We would be
happy to continue to pursue this issue in all the avenues that
you have suggested.
Mrs. Mink. I would especially welcome your joining in on
the GAO report, because I do think that they will provide an
impartial kind of view and analysis of what is going on, and
the degree to which this test that the Navy is conducting is in
fact essential for national security.
Mr. Gilchrest. We will be happy to be a part of that.
Mrs. Mink. Thank you very much.
Mr. Gilchrest. Mr. Underwood, any questions?
Mr. Underwood. I don't have any questions, but I certainly
want to thank Mrs. Mink for bringing these issues to the
surface. And I understand that she would like to join us at
some point in time, perhaps in one of the panels.
Mrs. Mink. When the Committee takes up panel five, I would
like to return to the Committee room to listen to the
statements at that time.
Mr. Gilchrest. We will be sure to let you know about that.
Mrs. Mink. If it is all right.
Mr. Gilchrest. Yes, ma'am.
Mrs. Mink. Thank you.
Mr. Underwood. Thank you very much, and it is a critical
issue that we find a way to balance the need for national
security as well as to obey our own laws, the laws that we have
passed, and I certainly look forward to joining in that
challenge. Thank you.
Mr. Gilchrest. Thank you very much, Mrs. Mink.
Mrs. Mink. Thank you.
[The prepared statement of Mr. Miller follows:]
Statement of the Hon. George Miller, a Representative in Congress from
the State of California
polar bears. no ice
``It is strange to envision polar bears in Puerto Rico. But they
are top attractions in the traveling Suarez Circus. The U.S. Fish and
Wildlife Service and the Animal and Plant Health Inspection Service
(APHIS), have approved permits which allow the Suarez Circus to keep
these huge and powerful animals in transient facilities without
adequate access to water or cool air. This is disturbing.
``Empowered by CITES to regulate the import and exports of animals
into the United States, the Fish and Wildlife Service approved a permit
in May to import seven polar bears, of dubious origin, into Puerto Rico
despite numerous concerns raised by the Marine Mammal Commission and
animal welfare organizations. In August, the Puerto Rican Department of
Natural Resource (DNR) filed charges with Suarez Circus regarding the
mistreatment of these polar bears. According to the DNR, polar bears
were held for approximately 24 hours in 113 degree heat without water
or air conditioning to cool themselves.
``Despite documentation of substandard care for these magnificent
animals, the circus maintains it's permit. It is my understanding that
APHIS is adding to this problem by issuing a variance to this permit
allowing for a transient facility.
``It is disturbing that the two federal agencies responsible for
protecting polar bears would allow arctic animals to be held captive in
tropical climates. If lax enforcement of federal standards meant to
ensure the humane care of these animals is compounding the problem,
then this situation cries out for better congressional oversight. Even
if you don't care about the humane treatment of wild animals, everyone
on this committee should be concerned about government accountability.
We need a thorough review of current compliance with law and
regulations. I hope to work with the majority in addressing this
issue.''
______
Mr. Gilchrest. Our next panel, Dr. Bill Hogarth, the
Administrator of the National Marine Fisheries Service,
accompanied by Dr. Don Knowles, Director, Office of Protected
Resources; Mr. Marshall Jones, Acting Director, U.S. Fish and
Wildlife Service; Dr. John Reynolds III, Chairman, Marine
Mammal Commission; Ms. Margaret Hayes, Director of Office of
Ocean Affairs, Bureau of Oceans and International Environmental
and Scientific Affairs, U.S. Department of State.
You may come forward, lady and gentlemen. The next time we
have this hearing, we may have to hold it in the Ways and Means
Committee hearing room.
[Laughter.]
We want to welcome all of you here this morning, appreciate
very much your attendance, and look forward to your testimony.
Dr. Hogarth, you may begin.
STATEMENT OF WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR FOR
FISHERIES, NATIONAL MARINE FISHERIES SERVICE, ACCOMPANIED BY
DON KNOWLES, DIRECTOR, OFFICE OF PROTECTED RESOURCES
Mr. Hogarth. Thank you, Mr. Chairman, members of the
Subcommittee. I appreciate being here today and testifying on
the Marine Mammal Protection Act, MMPA. I am Bill Hogarth, the
Assistant Administrator for Fisheries in the Department of
Commerce.
NMFS and the Fish and Wildlife Service jointly administer
the MMPA, under which NMFS is responsible for the management
and conservation of over 140 stocks of marine mammals. Today I
will discuss NMFS's implementation of the 1994 amendments, and
areas of MMPA that could be addressed to improve the agency's
ability to fulfill its responsibilities.
In passing the MMPA in 1972, Congress found that certain
species and population stocks of marine mammals were or may be
in danger of extinction or depletion as a result of man's
activities. Additionally, Congress found that marine mammals
have proven to be international resources of great aesthetic,
recreational, economic, and ecosystem significance. These
findings and objectives still guide NMFS in implementation of
the MMPA.
While there have been numerous changes to the MMPA since
1972, the 1994 amendments were the most comprehensive. They
included provisions directed toward the entire spectrum of
marine mammal programs that NMFS conducts.
NMFS has made significant progress in implementing the
amendments. However, there continue to be a few issues that
still need to be resolved and areas that we continue to work to
improve. We have made significant progress in governing the
take of marine mammals incidental to commercial fisheries,
through the use of stock assessments, fishery monitoring,
vessel registration and authorization, and take reduction
plans.
Take reduction plans have been completed for Pacific
offshore cetaceans, Atlantic large whales, the harbor porpoise
in the Mid-Atlantic and Gulf of Maine. We will also be
convening a team to address the take of bottlenose dolphin in
the Atlantic.
Through the dedication of participants from a wide range of
stakeholder groups, we are seeing real progress. Specifically,
the Pacific offshore cetacean and the harbor porpoise take
reduction plans have significantly reduced the take of marine
mammals.
Unfortunately, other plans have not been as successful. For
example, we are struggling to find an effective strategy to
reduce the take of right whales through the Atlantic Large
Whale Take Reduction Plan. We are also looking for ways to
improve the take reduction process through the development of
new gear technologies, expanded stakeholder participation, and
providing more technical and outreach expertise to the
participants during their deliberations.
NMFS believes that the take reduction team approach is the
right way to reduce marine mammal backcatch and maintain stable
fisheries. Marine mammal stock assessment reports are vital to
the success of take reduction efforts. By 1996, NMFS scientists
had completed 140 assessment reports for marine mammal stocks
in U.S. waters.
However, these assessments revealed that for many marine
mammal stocks, information critical to managers, such as
abundance and distribution patterns, is virtually nonexistent.
With the funds Congress has provided, we have focused on about
20 stocks that are of the highest priority due to their
interaction with fisheries. We have varying levels of
information for the remaining stocks, and we are exploring ways
to improve our capabilities with new and more cost-effective
technologies.
Through the Fishery Observer Program we have collected
detailed information on fishery and protected resource
interactions by use of the take reduction process. We have
focused our observer programs and coverage on the fisheries
experiencing frequent interactions with marine mammals. We have
also been discussing the alternative monitoring techniques that
will allow for expanded coverage and improved data collection.
We have made strides since 1994 to implement the changes to
the public display, scientific research and enhancement
provisions of MMPA. One outstanding issue has been
clarification of the public display requirements. I am happy to
report that earlier this year we published a proposed rule to
implement the amendments affecting marine mammals held captive
for public display. The comment period on this proposed rule
ends on November the 2nd.
One area of difficulty for NMFS is the implementation and
enforcement of the definition of ``harassment'' as an element
of ``taking.'' The two-tiered definition is complex and
somewhat ambiguous. For example, the definition equates changes
in individuals with profound changes in populations. In some
cases scientists or photographers must obtain permits, while
other activities which would more likely have an adverse impact
on marine mammals are not necessarily controlled if they are
not clear acts of ``pursuit, torment or annoyance.''
The 1994 amendments also provide for cooperative agreements
between NMFS and Alaska native organizations to co-manage
subsistence use by Alaska natives. Over the years, NMFS has
worked with the Alaska native organizations to conserve marine
mammals. However, a general shortcoming with the existing
system is that co-management agreements will be successful only
if all hunters voluntarily abide by them, or if the native
organizations entering into the agreement can effectively exert
control over all native hunters.
In addition, we are working to assure that applications for
small take and harassment incidental to defense and energy-
related activities are processed as quickly as possible.
Mr. Chairman, over the years the benefits of the MMPA on
marine mammal stocks in the U.S. have been significant, and its
impacts around the world are surely immeasurable. However, I am
concerned that the MMPA remains unauthorized.
NMFS is working with both the Fish and Wildlife Service and
the Marine Mammal Commission to develop an administration
proposal to amend the MMPA. We hope to transmit legislation to
Congress as soon as the proposal is reviewed by all affected
agencies. In the interim, I welcome the opportunity to discuss
the issues that I raised today with you and with all
stakeholders, to work toward an effective resolution of these
and other important marine mammal conservation issues.
Mr. Chairman, this concludes my testimony. I look forward
to answering any questions you or other members of the
Subcommittee may have. Thank you.
[The prepared statement of Mr. Hogarth follows:]
Statement of Dr. William T. Hogarth, Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
Mr. Chairman and members of the Subcommittee, thank you for
inviting me to testify before the Subcommittee today on the Marine
Mammal Protection Act (MMPA). I am William Hogarth, Assistant
Administrator for Fisheries in the National Oceanic and Atmospheric
Administration, Department of Commerce.
The National Marine Fisheries Service (NMFS), along with the U.S.
Fish and Wildlife Service (FWS), administers the MMPA, which is the
principal Federal legislation that guides marine mammal protection and
conservation policy in U.S. waters. Under the provisions of the MMPA,
NMFS is responsible for the management and conservation of over 140
stocks of whales, dolphins and porpoises, as well as seals, sea lions
and fur seals. The remaining marine mammal species (polar bears,
walruses, manatees, dugongs, and sea and marine otters) are under the
jurisdiction of the FWS.
I welcome the opportunity to discuss with you NMFS' implementation
of the 1994 amendments and the positive impacts this legislation has
had on marine mammal conservation and management. I will also discuss
those areas of the MMPA that could be addressed to improve the Agency's
ability to fulfill its responsibilities.
Background of the MMPA
The MMPA was enacted in 1972, largely due to public response to the
high levels of dolphin mortality in the Eastern Tropical Pacific tuna
purse seine fishery, the harvest of harp seals in Canada, and
continuation of commercial whaling.
In passing the MMPA, Congress found that certain species and
population stocks of marine mammals were or may be in danger of
extinction or depletion as a result of man's activities. Additionally,
it was found that marine mammal species and population stocks should
not be permitted to diminish beyond the point at which they cease to be
a significant functioning element in the ecosystem of which they are a
part. Consistent with the major objective of preventing this stock
depletion, Congress found that the populations should not be permitted
to diminish below their optimum sustainable population level, and
measures should be taken immediately to replenish any species or
population stock which had already been diminished below this level.
Congress also found that there was inadequate knowledge of the ecology
and population dynamics of such marine mammals and of the factors which
bear upon their ability to reproduce themselves successfully. Finally,
Congress found that marine mammals have proven themselves to be
international resources of great aesthetic, recreational and economic
significance. These findings and objectives still guide NMFS in its
implementation of the MMPA.
While there have been numerous changes to the MMPA since 1972, the
MMPA Amendments of 1994 were by far the most comprehensive. They
required NMFS to establish a long-term regime for protecting marine
mammals in U.S. waters and included provisions directed toward the
entire spectrum of marine mammal programs that NMFS conducts. These
requirements included determining the status of marine mammal stocks,
establishing new requirements for categorizing commercial fisheries,
registering and reporting of vessels relative to their level of serious
injury and mortality of marine mammals, monitoring incidental take
through observer programs, and developing take reduction plans. The
MMPA Amendments of 1994 also prohibited intentional lethal take during
commercial fishing operations, and mandated changes to many of the
Act's permit provisions.
Implementation of these changes has required a substantial amount
of additional work from the Agency. NMFS has made significant progress
in fulfilling these and other mandates of the MMPA. However, there
continue to be a few implementation issues that still need to be
resolved and areas that we continue to work to improve.
Highlights of The Marine Mammal Protection Act Amendments of 1994 and
Its Implementation
Commercial Fisheries Incidental Take Regime (Sections 117 and 118)
The new approach to govern the taking of marine mammals incidental
to commercial fisheries, developed in cooperation with governmental
agencies, the commercial fishing industry, and environmental
organizations, reaffirmed the MMPA goal to reduce incidental mortality
and serious injury to insignificant levels. This section directs the
Secretary to authorize the taking of marine mammals incidental to
commercial fishing, with restrictions where necessary to ensure that
such mortality and serious injury would not prevent marine mammal
stocks from recovery to their optimum sustainable population levels.
There are a number of elements that contribute to effective management
of this regime: stock assessment, fishery monitoring, vessel
registration and authorization, and take reduction plans.
Marine Mammal Stock Assessments
Under section 117, NMFS has carried out the 1994 requirements to
assess the status of marine mammal stocks and increase stakeholder
involvement in the decision-making process through the development of a
series of scientific review groups. These groups review agency research
and management needs relative to marine mammals. NMFS, in consultation
with these groups and the public, prepares and revises stock assessment
guidelines.
NMFS is required to review stock assessments annually for strategic
stocks, at least once a year for stocks for which significant new
information is available, and at least once every three years for all
other stocks. A strategic stock is defined as one that is listed as
endangered or threatened under the Endangered Species Act (ESA),
declining and likely to be listed under the ESA in the foreseeable
future, designated as depleted under the MMPA, or for which human-
caused mortality exceeds the estimated Potential Biological Removal
(PBR) level. The PBR level is the number of animals that may be removed
from the stock while allowing it to reach or maintain its optimum
sustainable population level.
A marine mammal stock assessment incorporates several types of
information essential to carrying out the incidental take regime: an
estimation of abundance from surveys; an estimation of mortality and
serious injury from observer data and other sources; an estimation of
the stock's PBR level; and, determination of stock structure. Stock
structure can be analyzed using a variety of methods, including
telemetry, genetic analysis, and photo identification.
Within two years of enactment of the 1994 amendments, NMFS
completed over 140 marine mammal assessment reports for marine mammal
stocks in U.S. waters. These assessments revealed that for many marine
mammal stocks, information critical to managers, such as abundance and
distribution patterns, is virtually non-existent. For example,
abundance estimates are not available for 33 stocks (23%) of marine
mammals. Of the 144 stocks under NMFS jurisdiction (57 in the Atlantic
and Gulf of Mexico, 55 in the Pacific, and 32 in Alaska), 39 are
designated as strategic under the MMPA. Of the 39 strategic stocks, 22
are classified as endangered, two are classified as threatened, and
three others are classified as depleted.
Abundance and Stock Structure
In 1998 we developed a rotational schedule to conduct abundance
surveys for all stocks on a three - 10 year cycle. With the funds
provided, we have focused on about 20 stocks that are of highest
priority due to their interaction with fisheries. The information on
these stocks is limited B for many of the stocks we have gaps in
trends, population structure, and habitat needs.
Overall, we believe the stock assessment process, specifically the
abundance and trends analysis, and the underlying science and
methodologies for determining PBR are scientifically sound. We continue
to try to improve our stock assessment capabilities by utilizing more
cost-effective techniques, such as acoustic monitoring.
Fisheries Monitoring and Observer Programs
One challenge created by the MMPA Amendments of 1994 is the
requirement for NMFS to establish a program to monitor incidental
mortality and serious injury of marine mammals in the course of
commercial fishing operations. The purposes of fishery monitoring
programs are to obtain statistically reliable estimates of incidental
mortality and serious injury of marine mammals in commercial fisheries;
to determine the reliability of reports submitted by fishermen; and to
identify possible changes in fishing methods or technology that may
decrease incidental mortality and serious injury. NMFS' monitoring
programs are generally in the form of at-sea observer programs. These
programs collect marine mammal and environmental data, as well as
information on fishing technique characteristics, to help determine
factors that may contribute to these interactions. As a result of the
monitoring and observer programs established by the 1994 amendments,
NMFS has collected detailed information on fisheries for which few data
previously existed concerning protected species interactions.
Those fisheries experiencing frequent interactions with marine
mammals have received priority for observer program coverage. NOAA has
identified or classified over 30 fisheries that have a significant
impact on protected species based on observer information. We have
adequate estimates of the level or characteristics of this take for
eight of those fisheries. The impacts of the remaining 22 are poorly
understood.
Right now, the funding for marine mammal observer programs is
focused in the Alaskan salmon gillnet rotational observer program,
Northeast and Mid-Atlantic gillnet fisheries, the California/Oregon
drift gillnet fishery, the Monterey Bay set halibut gillnet fishery,
the southeast Atlantic shark drift gillnet/strike net fishery, the
Atlantic pelagic longline fishery, and the Atlantic squid, mackerel,
and butterfish trawl fishery.
NMFS has been discussing the exploration of new technologies for
alternative monitoring of fisheries. There are many instances where it
is either not practicable or possible to have an observer on board a
fishing vessel. This situation leads to reduced monitoring coverage and
inadequate data collection. The development of alternative remote
monitoring systems would allow for expanded coverage and improve data
collection.
Classification of Fisheries
The MMPA Amendments of 1994 also established new procedures to
address marine mammal interactions with commercial fisheries. The
Secretary is required to publish, and annually update, a list of
fisheries with frequent (Category I), occasional (Category II) or
remote likelihood (Category III) of incidental mortality and serious
injury of marine mammals. Those in Category I or II fisheries are
required to register and shall be issued an authorization to
incidentally take marine mammals. Category I and II fisheries are
required to carry an observer, if requested, and comply with any take
reduction plan regulations. All commercial fisheries, regardless of
category, must report takings of marine mammals. This fishery
classification system consists of a two-tiered, stock-specific approach
that first addresses the total impact of all fisheries on each marine
mammal stock, and then addresses the impact of individual fisheries on
each stock. Through this approach, NMFS can focus on species of
particular concern relative to fisheries interactions, and then examine
the various sources of injury or mortality.
Information collected about the fisheries includes the geographic
range of the fisheries, the seasons during which the fisheries operate,
what type of gear is used, how the gear is fished, the number of
participants in each fishery, what species of fish are targeted in each
fishery, and what type of management program exists for each fishery.
These data allow NMFS to more effectively manage fisheries while
minimizing the impacts to the overall industry. They also allow NMFS to
work with fishermen to identify and develop gear technologies that will
reduce their interactions with marine mammals. For instance, NMFS
worked closely with fishermen in the Gulf of Maine to develop acoustic
deterrence devices, ``pingers,'' that can be used by fishermen to
decrease marine mammal interactions with certain types of gear.
Registration and Reporting of Fisheries
Section 118 also requires fishermen to submit reports of marine
mammal injury and mortality, providing additional information about
marine mammal interactions with fisheries. Under this provision, all
fishermen must report to NMFS any marine mammal mortalities or injuries
that occur incidental to commercial fishing operations within 48 hours
of the vessel's return to port. Fishermen participating in Category I
or II fisheries must register under the Marine Mammal Authorization
Program to engage in lawful incidental take of marine mammals.
Although this process has been working reasonably well, in some
fisheries, not all vessel owners required to register have been doing
so. Also, inasmuch as the requirement to carry observers only applies
to registered vessels, the ability to monitor some fisheries has been
compromised by the lack of full compliance with the registration
requirement. In addition, compliance with the registration requirement
is inconsistent, making available data for some fisheries less than
complete. We may consider clarifying that it is a violation to engage
in a Category I or II fishery without having registered under Section
118(c)(2) to eliminate any ambiguity regarding this important aspect of
the incidental taking regime. Further, we may consider clarifying the
requirement that to carry an observer applies to all participants in
Category I and II fisheries.
Take Reduction Plans
The MMPA Amendments of 1994 also require NMFS to convene take
reduction teams (TRTs) to develop draft plans for reducing bycatch of
marine mammals in Category I and II fisheries that interact with
strategic stocks. The goals of the plans are to reduce the mortality
and serious injury incidental to commercial fishing below the PBR level
within six months, and to insignificant levels within five years.
Priority for developing plans is given to stocks for which incidental
mortality exceeds PBR, those that have a small population size, and
those declining most rapidly.
Take reduction plans have been completed and implemented by final
regulations for Pacific offshore cetaceans, Atlantic large whales, and
harbor porpoise in the Mid-Atlantic and the Gulf of Maine. We have also
recently convened a new team to address the take of bottlenose dolphin
in the Atlantic. These plans are complex, and sometimes controversial,
since they attempt to meet both marine mammal conservation requirements
and the needs and concerns of the fishing industry. However, through
the dedication of participants from a wide-range of stakeholder groups,
we are seeing some real successes in the present stages of
implementation. Specifically, measures within the Pacific Offshore
Cetacean Take Reduction Plan reduced marine mammal interactions by an
order of magnitude in only two years of implementation. Using this
plan, commercial fishermen have reduced their interactions with whales
and dolphins from approximately 500 per year in the early 1990s to
about 50 in 1998. Things are also looking good for harbor porpoise.
Takes have been reduced from a pre-take reduction plan level of an
average of 1,521 animals per year, to 323 animals in 1999 and 529
animals in 2000.
NMFS believes that the TRT approach makes best use of resources and
stakeholders' input to reduce marine mammal bycatch and maintain
sustainable fisheries for the long term. This is an excellent example
of NMFS' attempts to meet the mandates under the MMPA as well as the
Magnuson- Stevens Fishery Conservation and Management Act. As we gain
more experience, we are also learning better ways to implement the
teams. In 1998, NMFS surveyed participants of the existing TRTs to
evaluate the take reduction process. NMFS is working to implement some
of the suggestions. For example, NMFS sponsored two workshops before
convening the bottlenose dolphin TRT to ensure that participants were
knowledgeable about bottlenose dolphin science and were prepared for
the negotiations.
Despite our success in some areas, we are still faced with
challenges in others. For example, we are still struggling with finding
an effective strategy to reduce the take of right whales in the
Atlantic Large Whale Take Reduction Plan. So far this year, at least
four right whales have become entangled in fishing gear. The PBR level
for this highly endangered species is zero.
One area for improvement that we have been discussing is to provide
more technical and outreach expertise to take reduction teams during
their deliberations. This step is expected to ensure that all
participants fully understand current practices, and can make informed
recommendations regarding any changes in fishing practices.
Increasingly, new gear technologies are being looked to as a means
of reducing entanglements and allowing fishers to continue operating in
areas frequented by marine mammals. We are discussing ways to encourage
new research and speed the development of new gear technologies.
Zero Mortality and Serious Injury Rate Goal (ZMRG)
One of the most difficult challenges remaining in carrying out the
1994 amendments is how to reduce levels of marine mammal mortality and
serious injury to approach the zero mortality and serious injury rate
goal (ZMRG). The key to success is to evaluate and clarify the concept
of ZMRG and its implications for marine fisheries. Since 1994, we have
focused on the immediate goal of reducing take to PBR which has taken
all of our resources to this point. However, now that we are achieving
success in meeting the first goal, we intend to move on to addressing
the long-term goal.
Exclusions
There are some noteworthy exclusions from the 1994 incidental take
regime. It does not govern the incidental taking of California sea
otters which remain subject to Public Law 99-625. While fishery related
mortality is suspected as a cause of the otters' recent decline, NMFS
holds that all elements of section 118 are currently inapplicable to
the California sea otter.
Another exclusion that it does not address is the incidental take
of marine mammals from non- commercial fisheries even though this is an
increasing problem in coastal areas. Currently the taking of marine
mammals in the course of non-commercial fishing is not covered under
the Section 118 exemption and those fisheries are subject to the
enforcement provisions of the MMPA. NMFS is considering ways to address
this issue and educate non-commercial fishers to ensure the
conservation of marine mammals.
Increasing Seal and Sea Lion Populations
The importance of marine mammals as significant functioning
elements of marine ecosystems has been an underlying tenet of the MMPA
since its enactment. The section 120 amendments in 1994 identified
specific objectives to assess the role of seals and sea lions in their
ecosystems, including assessment of interactions between increasing
stocks of seals and sea lions and anadromous fish on both coasts of the
United States. Section 120 also authorized the intentional lethal
taking of individual pinnipeds which are having a significant, adverse
affect on the salmonid stocks. Upon request from any State, the
Secretary would establish and convene a task force to recommend whether
to authorize the requested lethal take or some other alternative.
Section 101(a)(4) also authorized fishermen to use non-lethal means to
deter a marine mammal from damaging their gear or catch.
Responding to this issue on the West Coast, NMFS submitted to
Congress the second of two reports on West Coast interactions in 1999.
This report found that although seal and sea lion predation did not
cause the decline of endangered salmonid species on the West Coast, it
may be affecting the recovery of already depressed populations. This
document recommends implementing expanded lethal removal authority of
the MMPA for certain situations. The report also recommends the
development of safe, effective non-lethal deterrence measures, site-
specific management of these interactions, and identifies information
needs for conducting further research and streamlining the process for
States to obtain authority for lethally removal of nuisance pinnipeds.
NMFS also investigated this issue on the East Coast and in 1997
submitted the first of two reports to Congress which concluded that
more information is needed on seal and sea lion interactions with
salmonids and the East Coast aquaculture industry. The report also
concluded that deterrence technologies should be enhanced before any
significant management actions can be taken.
The Secretaries of Commerce and the Interior were required to
publish guidelines on measures to deter marine mammals safely and to
prohibit any form of deterrence that would have a significant adverse
impact on marine mammals. For species listed as threatened or
endangered under the ESA, the Secretaries were to specify non-lethal
deterrence measures that may be used.
NMFS issued proposed deterrence regulations in 1995, but did not
publish final regulations because of the difficulty in identifying
measures for safely deterring endangered and threatened marine mammals.
The issue of deterrence and how to deal with expanding populations of
marine mammals will continue to be a management challenge. NMFS will
continue to study and work with other interested organizations to find
effective measures for non-lethal deterrence.
Permitting and Captive Display and Release
The MMPA Amendments of 1994 also made significant changes to the
permitting provisions of section 104 of the MMPA, which governs permits
for public display, scientific research, and enhancement of marine
mammal species and stocks and made a related change to the Acts
enforcement provisions in section 102. These amendments: 1) simplified
the procedures for authorizing transfers of marine mammals among public
display facilities and substantially reduced NMFS role in the oversight
of the care and maintenance of captive marine mammals; 2) established a
streamlined General Authorization procedure for scientific research
activities that have the potential to disturb, but not to injure,
marine mammals not listed under the ESA; 3) created a new permit
category for photography of non-listed marine mammals for commercial
and educational purposes; and, 4) established a prohibition on exports
of marine mammals and marine mammal parts, except for purposes of
public display, scientific research, or enhancement.
On May 10, 1996, NMFS published a final rule amending the
regulations for permits to reflect many of the 1994 changes. The rule
updated and consolidated the regulations for special exception permits
and established basic permit requirements applicable to all permits to
take, import, and export marine mammals and marine mammal parts for
purposes of scientific research and enhancement, photography, and
public display. It also provided permit criteria specific to scientific
research and enhancement.
A Memorandum of Agreement among NMFS, FWS, and the USDA's Animal
and Plant Health Inspection Service to clarify federal responsibilities
pertaining to the oversight of marine mammals on public display was
completed in July 1998. On July 3, 2001, NMFS published a proposed rule
to implement the 1994 amendments to the MMPA affecting marine mammals
held captive for public display purposes, and clarify the public
display requirements relating to: 1) permits to capture or import
marine mammals, 2) transport or transfer of marine mammals, 3) export
and, 4) marine mammal inventories. The public comment period on this
proposed rule closes November 2, 2001.
Issues also have arisen concerning the intent of Congress with
regard to the release of marine mammals being held for purposes of
public display to the wild and the export of such marine mammals to
foreign facilities. Section 104(c)(9) of the MMPA added in 1994,
specifies that no marine mammal may be exported from the United States
for the purpose of public display, scientific research, or enhancing
the survival or recovery of a species or stock, unless the receiving
facility meets standards that are comparable to those applicable to
U.S. facilities. The primary focus of this amendment was on exports for
purposes of public display. There has been some debate as to whether
this is a continuing obligation on the part of the receiving facility.
The rulemaking currently underway may resolve these issues regarding
exports for public display.
In addition, the 1994 Amendments, as part of a package of permit-
related amendments, added a prohibition to section 102 on exporting
marine mammals. Although some provisions of section 104 of the Act were
amended to reflect this new prohibition, corresponding changes were not
made elsewhere in the Act, which has led to some confusion. For
example, there is uncertainty as to whether handicrafts being made and
sold by Alaska Natives under section 101(b) may be exported from the
United States.
There is also a need to add certainty to the Act with regard to the
release of captive marine mammals to the wild. Within the scientific
community, the release of marine mammals held in captivity for extended
periods of time is widely regarded as potentially harmful to both the
animals released and wild populations they encounter. Fundamental
questions remain as to the ability of long-captive marine mammals to
forage, avoid predators, and integrate with wild populations. Moreover,
release creates the risk of disease transmission, inappropriate genetic
exchanges, and disruption of critical behavioral patterns and social
structures in wild populations.
Definition of Harassment
The 1994 amendments added several new definitions to the MMPA. For
the most part, these definitions pertain to the new regime governing
the taking of marine mammals incidental to commercial fishing
operations or the revisions to the Act's permit provisions. One
definition, however, has broad applicability throughout the Act--that
of ``harassment,'' which is an element of ``taking.'' The definition
was subdivided into ``Level A'' and ``Level B'' harassment. Level A
harassment is defined as ``any act of pursuit, torment, or annoyance
which has the potential to injure a marine mammal or marine mammal
stock in the wild.'' Level B harassment is defined as ``any act of
pursuit, torment, or annoyance which has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing disruption
of behavioral patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering.''
NMFS has experienced difficulties with respect to interpretation,
implementation, and enforcement of the current definition of
harassment. The two-tiered definition is complex and is somewhat
ambiguous. For example, the definition equates changes in individuals
(e.g., momentary disturbance of an animal's breathing pattern) with
profound changes in populations (e.g., disrupting an animal, or a group
of animals from migrating to a feeding or breeding area). Scientists
and photographers must obtain permits for Level B harassment, but
activities which may be more likely to affect marine mammals are not
necessarily controlled if they are not clearly acts of ``pursuit,
torment or annoyance.''
Small-Take Provisions
Amendments were also made to section 101(a)(5), the Act's so-called
``small-take provision,'' under which the taking of small numbers of
marine mammals incidental to activities other than commercial fishing
may be authorized if the activities are expected to have a negligible
impact on the affected stocks and will not have any unmitigable impacts
on the availability of marine mammals for Native subsistence in Alaska.
Prior to the 1994 amendments, such authorizations could be issued only
by regulation. In 1994, a streamlined mechanism for authorizing
incidental takes by harassment for a period of up to one year,
requiring public notice and opportunity for comment, but not
rulemaking, was enacted.
In general, the new provision has worked well and has succeeded in
shortening the time required to issue incidental harassment
authorizations (IHAs). The problem is that the number of applications -
both IHAs (1 year harassment only authorizations) and Letters of
Authorization (5 year incidental take authorizations) has increased
significantly so that the effect of the 1994 streamlining is being
overcome by the increased workload. We are discussing ways to enhance
the ability of the program to analyze and process applications in a
timely manner.
Gulf of Maine and Bering Sea Ecosystem Studies
Section 110 of the Act, which governs marine mammal research
grants, was amended in 1994 to require the Secretary of Commerce, in
consultation with the Marine Mammal Commission, adjacent coastal
States, environmental organizations, the fishing industry, and other
appropriate groups and individuals, to convene a regional workshop to
assess human-caused factors affecting the health and stability of the
Gulf of Maine marine ecosystem. A workshop was held in 1995 and NMFS
transmitted a report to Congress that same year.
The recommendations included the need to identify the critical
linkages between contaminants and other stressors and their impacts on
biologically and economically important species and habitats. The
recommendations also highlighted the importance of basing management
actions on a precautionary principle, reflecting the level of
uncertainty concerning the status of, and linkages among, various
ecosystem components.
Another provision of this section required the Secretary, in
consultation with pertinent organizations, to conduct a research
program to monitor the health and stability of the Bering Sea marine
ecosystem and to resolve uncertainties concerning the causes of
observed declines in populations of marine mammals, sea birds, and
other living resources.
NMFS prepared a draft Bering Sea ecosystem study plan in 1995.
Although the plan was never finalized, research has been conducted
through the North Pacific Marine Research Initiative administered by
the University of Alaska.
Cooperative Agreements in Alaska
The 1994 amendments provided for cooperative agreements between
NMFS and Alaska Native organizations to conserve marine mammals and to
co-manage subsistence use by Alaska Natives. On April 29, 1999, NMFS
and the Alaska Native Harbor Seal Commission signed an agreement to
work together in developing a co-management plan for harbor seals. NMFS
has also reached an agreement with several parties interested in beluga
conservation, including the Cook Inlet Marine Mammal Council, on
appropriate levels of beluga whale harvest in Cook Inlet, Alaska, for
2001-2004. NMFS and the Alaska Beluga Whale Committee have signed a co-
management agreement for beluga whales outside of Cook Inlet as well.
A general shortcoming with the existing co-management system is
that co-management agreements, to the extent that they are intended to
regulate or limit subsistence taking, will be successful only if all
hunters voluntarily abide by those limits or the Native organization
entering into the agreement can effectively exert control over all
Native hunters, such as is the case with the Alaska Eskimo Whaling
Commission. While Alaska Natives traditionally have demonstrated a
willingness to act responsibly in conserving marine mammals and other
resources, the recent experience with Cook Inlet belugas demonstrates
the delicate underfooting that exists. For some marine mammals, all it
takes is a few hunters refusing to act responsibly to put a stock at
risk.
Enforcement
While the 1994 amendments have been effective in clarifying and
strengthening regulatory processes under the MMPA, some aspects could
be updated. For example, the penalties for violations of the MMPA have
remained unchanged since 1972. It may be worthwhile to discuss
increasing penalties and other means of improving enforcement
capabilities.
Conclusion
The MMPA Amendments of 1994 made significant strides forward in
marine mammal conservation. Since then, NMFS has been working to
implement these changes. Over the years, the benefits of the MMPA on
marine mammal stocks in the United States have been significant, and
its indirect impacts on the status and conservation of marine mammal
species around the world are surely immeasurable. Since its passage,
other countries have not only looked toward the United States for
guidance on marine mammal conservation issues, but have established
policies of their own modeled after the MMPA. We will continue to face
emerging issues and new threats to marine mammals and the MMPA will
need to evolve to effectively protect marine mammal populations, while
balancing human needs.
As you know, Mr. Chairman, the MMPA needs to be reauthorized. I am
pleased to note that NMFS is working with both the FWS and the Marine
Mammal Commission to develop an Administration proposal to amend the
MMPA. Of course, the Department of Justice will be involved in the
development of any proposal to ensure that it meets constitutional
scrutiny under the Commerce and other clauses. We hope to transmit
legislation to the Congress as soon as a proposal is developed and
reviewed by all affected agencies. In the interim, I welcome the
opportunity to discuss the issues I have raised here today in detail
with you and stakeholders to work toward effective resolution of these
and other important marine mammal conservation issues.
Mr. Chairman, this concludes my testimony. Again, thank you for the
opportunity to be here today. I look forward to answering any questions
you or other members of the Subcommittee may have.
______
Mr. Gilchrest. Thank you very much, Dr. Hogarth.
Mr. Jones?
STATEMENT OF MARSHALL JONES, ACTING DIRECTOR, U.S. FISH AND
WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR
Mr. Jones. Thank you, Mr. Chairman. A great pleasure to be
here with you today to provide testimony on reauthorization of
the Marine Mammal Protection Act and on the agreement
negotiated between the United States and Russia on polar bear
conservation.
Over the past several months, the Fish and Wildlife Service
has been working diligently with the National Marine Fisheries
Service, the Marine Mammal Commission, other Federal agencies,
and our Alaska native partners to identify areas of the Marine
Mammal Act which might benefit from well-considered changes.
Today I will discuss a few of the key areas that are under
consideration for changes. The statement we have submitted for
the record provides information on other areas of the act where
recommendations for changes are under consideration, as well as
our involvement in monitoring the status of marine mammal
populations and our implementation of the 1994 amendments to
the act.
Mr. Chairman, one of the most significant amendments made
to the act in 1994, Section 119, authorized cooperative
agreements with Alaska native organizations for co-management
of subsistence use of marine mammals. Through this provision,
we have further developed working relationships with our native
partners, very similar to what Dr. Hogarth has outlined, and we
have reaped the benefits for their enhanced capability to
gather and disseminate information. We have also cooperatively
developed local management strategies for subsistence harvest.
We believe that these cooperative agreements have been a
positive addition to the act.
One change to the act now under consideration within the
administration would build on the strengths of Section 199 to
address a significant limitation elsewhere in the act, the
inability to actively manage subsistence harvest of marine
mammal stocks unless or until those stocks have been designated
as depleted.
We agree with our Alaska native partners that sound
management of marine mammal harvests should occur well before
they are in serious decline, but today the lack of enforceable
management measures on nondepleted stocks could lead to such
sharp declines in those stocks. Active management of the
harvest of marine mammals, in cooperation with Alaska native
organizations, we believe is the best way to ensure their
continued health.
We are now considering a mechanism that would enable native
organizations to initiate the development of expanded co-
management agreements. These agreements would manage
subsistence harvest, and would be administered by either the
tribal or Federal signatories to the agreement. Under this
concept, violations of the terms of the agreement or of tribal
ordinances enacted to enforce the agreement would be violations
of the act.
An additional amendment we are now contemplating relates to
the export of marine mammal products. The 1994 amendments added
some new prohibitions on export, but inadvertently omitted some
corresponding changes to clearly exempt certain otherwise
authorized export situations from the new prohibition. This has
resulted in confusion for the regulated public. The changes now
being considered would address these current inconsistencies in
the act.
Yet another area under review is the definition of the term
``harassment.'' We have been considering ways to clarify the
definition to provide greater notice and predictability to the
regulated community, and to improve the ability of Federal
agencies to comply with the prohibition on harassment, while
continuing to protect marine mammals in the wild and allow
agencies to accomplish their missions.
Mr. Chairman, let me conclude my remarks by discussing an
international agreement that we believe represents a very
significant step forward for the conservation of polar bears.
In February 1998, representatives from the United States
and Russia negotiated a bilateral agreement on the conservation
and management of the shared Alaska-Chukotka polar bear
population. The agreement was signed by the two nations in
Washington, D.C. in 2000. The purpose of the agreement is to
ensure long-term conservation of the shared polar bear
population, in particular to address the widely different
harvest provisions and practices of the United States and
Russia.
As I previously mentioned, U.S. law does not allow
restrictions on subsistence harvest unless a polar bear
population has been designated as depleted under the Marine
Mammal Protection Act. On the other side of the border, the
Russian Federation will soon open a polar bear subsistence
hunting opportunity for native Chukotkans. The bilateral
agreement will create a management framework to prevent any
possibility of an unsustainable combined harvest. Draft
legislation to implement the agreement is currently undergoing
review within the administration.
Mr. Chairman, in closing I would like to emphasize that
this administration is committed to conserving and managing
marine mammals by working with our partners in a cooperative
fashion. In particular, I want to emphasize our ongoing
commitment to work with our Alaska native partners to enhance
their role in the conservation and management of marine
mammals. We look forward to working with you and the members of
the Subcommittee and the full Committee on legislation which
will improve the Marine Mammal Protection Act and implement the
bilateral agreement during this session of Congress.
Mr. Chairman, that concludes my remarks, but I would be
happy to answer any questions.
[The prepared statement of Mr. Jones follows:]
Statement of Marshall Jones, Acting Director, U.S. Fish and Wildlife
Service, Department of the Interior
Mr. Chairman, I am grateful for the opportunity to provide
testimony on the Marine Mammal Protection Act (MMPA or Act) of 1972 and
implementation issues related to the recently negotiated U.S. - Russia
agreement on polar bear conservation.
The MMPA establishes a federal responsibility, shared by the
Secretaries of the Interior and Commerce, for the management and
conservation of marine mammals. The Secretary of the Interior, through
the U.S. Fish and Wildlife Service (Service), protects and manages
polar bears, sea and marine otters, walruses, three species of
manatees, and dugong. As the Subcommittee is aware, the MMPA is
currently due to be reauthorized. While the Administration is in the
early stages of its review of the Act, the Department has been working
diligently with the National Marine Fisheries Service (NMFS), the
Marine Mammal Commission, the Navy, Alaska Natives and others to
identify areas of the Act that might benefit from well-considered
changes.
Mr. Chairman, you asked the Administration to discuss whether any
changes are needed to the Act at this time. The Administration does
believe that the Act can be improved upon in a way that will enhance
the conservation of marine mammals, improve implementation of the Act
generally, and strengthen relationships with our non-federal partners.
However, as noted above, because the Administration has not yet
completed its review of the Act, my testimony today necessarily must
focus only on the types of changes that have been under consideration,
and not on specific recommendations. I will also provide the
Subcommittee information on areas where we have made significant
progress in implementing the 1994 amendments beyond that reported to
the Subcommittee at hearings on June 29, 1999 (regarding implementation
of the 1994 amendments), and on April 6, 2000 (regarding implementation
of Section 119 of the MMPA).
Section 119
Currently, Section 119 of the MMPA authorizes the Secretaries of
the Interior and Commerce to enter into cooperative agreements with
Alaska Native Organizations to conserve marine mammals taken for
subsistence and handicraft purposes. Marine mammals are a vitally
important cultural and subsistence resource for Alaska Natives, and are
visible indicators of changes in the marine environment. Given the size
and remoteness of the marine systems in Alaska, monitoring the health
and status of marine mammal populations, discussed briefly later in
this testimony, is a highly challenging endeavor. Alaska Natives, as
subsistence users, are often first to note changes in marine mammals
that are important to assessing conditions in the marine environment.
Section 119 recognizes these connections, and allows their potential
benefits to be realized by providing a mechanism to access information
available only to Native Alaskans.
Current Section 119 Successes and Limitations
Under this section and the existing cooperative agreements that it
authorizes, the Administration works with its Native partners to
develop management strategies that are implemented through existing
authorities, such as tribal ordinances. The Administration believes
that these cooperative agreements have been a positive addition to the
Act. However, the conservation benefits provided by these management
strategies are limited for several reasons. They are strictly voluntary
endeavors carried out on a village-by-village basis, with further
limitations related to the varying levels of compliance.
From a conservation standpoint, actively managing the harvest of
marine mammal stocks is the best way to ensure their continued health.
Currently, this is not possible because the MMPA does not allow
subsistence harvests of marine mammal stocks to be managed unless those
stocks are designated as depleted under the Act. The current lack of
management measures on non-depleted stocks of marine mammals can lead
to sharp declines in those stocks. Both the Department and our Alaska
Native partners agree that it is essential that sound management of
marine mammal harvests occur prior to depletion, in order to avoid
depletion.
Last year, before this Subcommittee, the Department discussed the
benefits of Section 119 and progress made in working with its Native
partners in a number of areas. At that time, Chairman Young challenged
those directly involved in marine mammal management in Alaska to
develop a proposal supporting management of subsistence harvest by
Alaska Natives. We have been working hard with our federal and non-
federal partners to meet that challenge.
In this vein, a proposal has been considered by this group that
would provide a mechanism for Alaska Native Organizations to initiate
the development of co-management agreements containing management
restrictions, related to subsistence harvest, which would be
administered by either the tribal or federal signatories to the
agreement. Under this proposal, violations of the terms of the
agreement, or of tribal ordinances enacted pursuant to the agreement,
would be violations of the Act.
Implementation of Section 119
The Service currently has three cooperative agreements in place:
(1) for sea otters, with the Alaska Sea Otter and Steller Sea Lion
Commission; (2) for polar bears, with the Alaska Nanuuq Commission; and
(3) for Pacific walruses, with the Eskimo Walrus Commission. These
agreements have been in place since 1997 and provide a contractual
framework for accomplishing specific activities, which are detailed
through ``scopes-of-work'' attached to the cooperative agreement.
Agreements are reviewed and implemented annually. A basic benefit of
these agreements and the resources they provide is improved
communication not only between the Commissions and ourselves, but also
among the Commission members and hunters.
Both the Alaska Sea Otter and Steller Sea Lion Commission and the
Service emphasize involving local Native organizations in the
management of activities that affect sea otters throughout the State of
Alaska. Such efforts include: development of local sea otter management
plans; collection of traditional knowledge regarding sea otter
distribution and abundance; and projects to assess local sea otter
population status and health. Small boat surveys, conducted by local
residents in their areas on an annual basis and following protocols
developed in cooperation with the Service, have the potential to
provide an important long-term data base for tracking population
trends. In addition, the surveys provide a mechanism for incorporating
local, traditional knowledge. This past year, funding through Section
119 also supported participation of the Commission in an international
workshop on sea otters that focused in part on the ongoing decline of
sea otters in the Aleutians.
The Alaska Nanuuq Commission (ANC) was formed in 1994 to represent
Alaska Native hunters from 16 coastal communities in Alaska on polar
bear matters. Our cooperative agreement with the ANC supports polar
bear conservation through the direct involvement of subsistence users.
A highlight of our work with the ANC has been its support in developing
the bilateral agreement with Russia on the conservation of the Alaska-
Chukotka polar bear population. The ANC coordinated meetings, conducted
negotiations, and is developing a Native-to-Native agreement with
Russia's Chukotka Natives to assist in implementing the agreement
between countries. Another accomplishment of working with the ANC has
been the expansion of the effort to study and compile traditional
ecological knowledge of polar bear habitat use to include Chukotka,
Russia. This expanded effort is being conducted in partnership with the
National Park Service. An upcoming project for the ANC is a planned
workshop to provide technical assistance to representatives from
Chukotka to develop a harvest monitoring program in Chukotka.
Our agreements with the Eskimo Walrus Commission (EWC) relating to
Pacific walrus support communications with village hunters, provide
assistance with biological and contaminant monitoring, and promote
sustainable harvest and conservation actions. An accomplishment of our
partnership is the collection of information on Russian harvest of a
shared U.S. - Russian population of walrus. The data collection effort
began two years ago with the training of Russian harvest monitors in an
Alaskan village during the Russian Spring harvest. We now have two
years of Russian harvest data and an expanding program in Chukotka that
provides important information on this shared population. Another focus
of the EWC is to expand the harvest monitoring program in Alaska. To
achieve this, joint efforts have been undertaken to include additional
villages in the collection of specific harvest information and
biological samples.
In sum, Mr. Chairman, while improvements to Section 119 have been
discussed, that section does provide substantial benefits for marine
mammal conservation, in addition to helping us forge and strengthen
essential relationships with our Alaska Native partners. We believe
Section 119 should be retained, even in the event that legislation
relating to co-management is ultimately enacted. This would allow
continued authorization of cooperative research and monitoring
activities related to subsistence use even when the parties desire
something less than full ``co-management'' of a marine mammal stock.
Monitoring Marine Mammal Populations
As I have mentioned, one of the benefits provided by Section 119 is
the ability for the Service to access data collected by Alaska Natives.
This data is used as a compliment to that collected by the Service
through its own programs. The Service uses a variety of approaches to
monitor populations of sea otter, polar bear, and Pacific walrus in
Alaska. Sea otters are most commonly censussed using aerial and
shipboard surveys. The advantage of aerial surveys is the ability to
cover vast distances in a relatively short period of time. Shipboard
surveys are generally less expensive than aerial surveys, and are
typically used to monitor population trends in specific areas. Polar
bear populations are monitored by aerial surveys and mark-recapture
methods. In recent years, the Service has conducted surveys of polar
bears in the southern Beaufort sea using helicopters flown from the
deck of a Coast Guard icebreaker. Staff of the U.S. Geological Survey,
Biological Resources Division have an ongoing mark-recapture study of
polar bear populations with over 20 years of data.
The Pacific walrus population is perhaps the least studied of the
Service's trust species of marine mammals. The last range-wide aerial
survey of walrus was conducted in 1990, and as a result, the current
population size is unknown. The aerial survey technique used at that
time is generally considered to be inadequate for detecting population
trends, and the Service is in the process of developing better survey
methods for Pacific walrus. In the absence of range-wide population
surveys, the Service monitors the walrus population by recording the
numbers of male walrus that come ashore at several locations in Bristol
Bay, Alaska. While this is not an estimate of the overall walrus
population, biologists believe that it is a useful index of population
trends.
In addition to monitoring the status and trend of the living
population, the Service also records the number of marine mammals
removed for subsistence purposes. In 1988, the Service initiated the
Marine Mammal Marking, Tagging, and Reporting Program (MTRP). The
program requires Alaska Natives to present the hide and skull of sea
otters and polar bears, or the tusks of the Pacific walrus to a Service
representative within 30 days of harvest. The representative attaches
permanent tags to the specified items, and records basic biological
information about the animal such as age class and gender. The MTRP
currently has taggers in over 100 villages throughout coastal Alaska.
The MTRP database contains records for 1,000 polar bears, 8,000 sea
otters, and 20,000 walrus harvested by Alaska Natives. In addition to
the MTRP, the Service also conducts and additional program to monitor
the annual spring harvest of Pacific walrus in selected villages in the
Bering sea. The Walrus Harvest Monitor Project collects basic harvest
information and sample materials such as teeth for age determination
and female reproductive tracts for life history analysis.
Export Prohibition
One of the 1994 amendments to the MMPA added to Section 102 a
prohibition on exporting marine mammals. At that time, certain
provisions of Section 104 of the Act, which authorizes the issuance of
permits for various activities, were amended to reflect the new
prohibition on exports. However, other appropriate corresponding
changes were inadvertently not made in the Act. This has resulted in
confusion for the regulated public. For example, Section 101(a)(6),
also added in 1994, authorizes Native inhabitants of Russia, Canada,
and Greenland to import marine mammal products into the United States
in conjunction with personal travel. However, Section 101(a)(6)
neglects to address the export of those imported products at the
termination of the travel within the U.S. Similarly, the export
prohibition added uncertainty as to whether handicrafts made and sold
by Alaska Natives under Section 101(b) may be exported from the United
States. The implementing agencies have been considering ways to clarify
these ambiguities.
Southern Sea Otter - Fishery Interaction Data
Mr. Chairman, you requested that we provide testimony on the
management of southern sea otters. This testimony will be presented
later today by a different Service witness as part of the panel on
California issues. However, I do want to briefly touch on one issue
related to southern sea otters.
Pursuant to Section 118 of the Act, the Department is interested in
gathering information on fishery interactions with southern sea otters.
It is known that southern sea otters are incidentally taken in fishing
operations. MMPA reauthorization may provide an opportunity to enhance
efforts to assess the impact of commercial fisheries on this threatened
sea otter population.
Polar Bear Trophy Permits
In 1994, Congress added a provision to the Act that allows the
issuance of permits for the importation of certain trophies of sport-
hunted polar bears. These trophies must be taken legally in Canada, and
from populations for which certain findings have been made. The 1994
amendments specified that applications for such permits do not require
review by the Marine Mammal Commission. However, the application
process does require that public notice be given prior to, and after,
issuance or denial of the permits.
In recent years, the Service has processed more than 100
applications annually for sport-hunted polar bear trophy importation
permits. Although notice of each application has been published in the
Federal Register, we have not received any public comments responding
to these notices. MMPA reauthorization might provide an opportunity to
streamline this process. One possible approach would be to consolidate
the public notice requirement to a semi-annual listing in the Federal
Register. Such an approach would also have an additional benefit of
reducing administrative expenses associated with the public notice
requirement.
Research Grants
The Administration also continues to be interested in the potential
for research grants as described in Section 110(a). For example, one
change to this provision that might be considered is a clarification
that research grants authorized under this provision may be targeted at
plant or animal community-level problems.
Community-level research could prove especially important in light
of the significant, but poorly understood, environmental changes
occurring off Alaska in the Bering Sea and Chukchi Sea regions. These
environmental changes, which include rapid and extensive sea ice
retreat, extreme weather events, and diminished benthic productivity,
could have widespread effects. There is a pressing need to monitor the
health and stability of these marine communities, and to resolve
uncertainties concerning the causes of population declines of marine
mammals, sea birds, and other living resources of these communities.
Because residents of these regions largely depend upon marine resources
for their livelihoods, research on subsistence uses of such resources,
and providing ways for the continuation of such uses, should be
integral parts of the effort to study these communities.
Similarly, there is concern over possible widespread changes to the
California coastal marine community. These changes may be adversely
affecting prospects for recovery of the threatened southern sea otter
population. This community would similarly benefit from a system-wide
study.
Definition of Harassment
Finally, the participating agencies have been looking at ways that
the definition of the term ``harassment,'' found in Section 3(18)(A) of
the Act, can be clarified. The provision, added to the Act as part of
the 1994 amendments, is viewed by some as ambiguous and confusing. Many
also believe that it could be amended to provide greater notice and
predictability to the regulated community and to improve the ability of
federal agencies to enforce the prohibition on harassment, while
continuing to protect marine mammals in the wild.
U.S. - Russia Polar Bear Agreement
Lastly, amendments to Section 113(d) enacted in 1994 authorized the
Service, for the United States, to enter into negotiations with Russia
to enhance the conservation and management of polar bear stocks. We
have acted on this authorization. Since 1990, the Service has worked to
improve cooperative research and management programs with Russia for
the conservation of polar bears. Significant progress has been made in
this effort. Building on this progress, United States and Russian
representatives negotiated a bilateral agreement on the conservation
and management of the shared Chukchi/Bering Seas polar bear population
in February 1998. That agreement was signed by the two nations in
Washington, D.C., on October 16, 2000.
The purpose of the Polar Bear Agreement is to ensure long-term,
science based conservation of the Alaska-Chukotka polar bear
population. A particular concern addressed by the agreement is the
widely different harvest provisions and practices of the U.S. and
Russia. Unknown (but potentially significant) levels of illegal harvest
are occurring in Chukotka. While lawful harvest by Alaska Natives for
subsistence purposes occurs in Alaska, as discussed above, United
States law does not allow restrictions of this harvest unless a polar
bear population becomes ``depleted'' under the MMPA. The Russian
Federation will soon open a lawful polar bear hunting opportunity for
the subsistence purposes of native Chukotkans. When this happens, there
will be an immediate, pressing need for the coordination of harvest
restrictions on both sides of the border to prevent an unsustainable
combined harvest that could lead to the Alaska-Chukotka polar bear
population becoming depleted under the MMPA and threatened or
endangered under the Endangered Species Act. The Agreement will create
a management framework to prevent this from happening.
In order for the Agreement to be implemented a number of steps
still need to be taken: submission of the Agreement to the United
States Senate by the Administration; ratification of the Agreement by
the Senate; enactment of necessary implementing legislation and
promulgation of regulations.
The Administration is also developing draft legislation to
implement the Agreement; that legislation is currently undergoing
review. The draft legislation will be consistent with, and will carry
forward the spirit and stated intent of, the 1973 multi-lateral
Agreement on the Conservation of Polar Bears, as well as domestic
legislation. Of course, before any legislation is put forward, both it
and any proposed amendments to the MMPA will undergo review by all
federal agencies, including Department of Justice, who will review the
package for legal sufficiency. The Agreement and the draft implementing
legislation represent a major step forward for polar bear conservation,
and enhance our collaborative efforts with Russia to conserve shared
natural resources. The Administration looks forward to working with the
Subcommittee to ensure introduction and passage of this legislation.
Conclusion
Mr. Chairman, in closing, I would like to state that this
Administration is committed to conserving and managing marine mammals
by working with our partners in a cooperative fashion. In particular, I
want to emphasize the commitment to continued collaboration with our
Alaska Native partners to further enhance their role in the
conservation and management of marine mammals. We believe we can be
more effective at addressing our responsibilities in marine mammal
conservation, and look forward to working with you and members of the
Subcommittee and full Committee to enact meaningful improvements to the
Act during this Congress.
Mr. Chairman, this concludes my remarks. I would be happy to answer
any questions.
______
Mr. Gilchrest. Thank you very much, Mr. Jones.
Dr. Reynolds?
STATEMENT OF JOHN E. REYNOLDS III, CHAIRMAN, MARINE MAMMAL
COMMISSION
Mr. Reynolds. Thank you, Mr. Chairman, for inviting the
Marine Mammal Commission to testify on the 1994 amendments to
the Marine Mammal Protection Act and on further changes that we
believe can make programs under the act even more effective.
At previous hearings in 1999 and 2000 we submitted detailed
statements concerning implementation actions. I therefore am
appending the commission's earlier statements to today's
testimony, which focuses on recent actions, to provide the
Committee with a complete picture of what has been accomplished
and what remains to be done. I request that all three
statements be included in the record.
Among the recent actions that have been taken to implement
the 1994 amendments, I call your attention to the following.
When I last testified before this Committee, not enough had
been done to reduce the taking of Gulf of Maine harbor porpoise
incidental to commercial fishing. Now it appears that the
incidental mortality of this stock has been reduced to below
the potential biological removal level.
My previous testimony also highlighted the need to
establish a take reduction team to address the incidental
taking of bottlenose dolphins associated with various fisheries
along the Atlantic Coast. Now such a team has been established.
Regarding permits, the National Marine Fisheries Services,
as we have heard, has published proposed revisions to its
public display regulations to reflect the changes made by the
1994 amendments, and the Fish and Wildlife Service has taken
action in response to recent information concerning the status
and composition of the M'Clintock Channel polar bear
population, and suspended the authorization to import trophies
from this Canadian management unit.
Finally, amendments to Section 113 of the act called on the
Secretary of the Interior, in consultation with the commission
and others, to pursue cooperative research and management
programs with Russia concerning the shared population of polar
bears. As Mr. Jones has described, the result was a bilateral
agreement to promote the conservation and management of the
Alaska-Chukotka population of polar bears, which was signed
last October. Ratification documents and proposed implementing
legislation should be transmitted to Congress shortly.
Although progress toward full implementation of the 1994
amendments has certainly been made, several actions remain to
be taken. These are identified in my full statement. Among
these is the need to assess progress toward achieving the zero
incidental mortality and serious injury rate goal for
commercial fisheries, which under the 1994 amendments was to
have been met by April of this year.
The commission was also asked to include in its testimony
any changes in the act that we believe the Committee should
consider during the current reauthorization of the act. In this
regard, the commission has worked extensively with other
agencies and with representatives of Alaska native
organizations to identify all of the areas where the act needs
to be strengthened or clarified, and to fashion a comprehensive
legislative proposal to address those concerns.
Over the past few months, the National Marine Fisheries
Service and the Fish and Wildlife Service, along with the
commission, have been revisiting the bill submitted to Congress
last session, and pending review within the administration, we
expect to provide a new proposal to Congress shortly. On
completion of that review, however, it would be inappropriate
for me to discuss specific legislative proposals.
I can, however, identify a few problems that have been
encountered and general areas that the commission will seek to
have addressed in an administration bill. Among the key issues
discussed in my full statement are the following:
First, whether refinements are needed to improve the take
reduction team process;
Second, whether there is a need to clarify and enhance the
registration and observer provisions of Section 118;
Third, whether California sea otters should be considered
when categorizing fisheries and making decisions regarding
observer placement;
Fourth, how to address incidental taking by recreational
and other noncommercial fisheries which may be using identical
or similar gear and fishing methods in the same areas as
commercial fishermen;
Fifth, how to address the problems created by the 1994
amendments, which added an export prohibition to the act but
which provided only limited exceptions as to when exports are
or may be authorized;
Sixth, whether statutory provisions to address releases of
captive marine mammals and traveling exhibits are needed;
Seventh, what actions may be necessary to ensure that the
Animal and Plant Health Inspection Service has sufficient
authority to regulate specific activities that present risk to
captive marine mammals;
Next, whether clarification of the act's harassment
definition is needed;
Ninth, how to improve upon the authority of Section 119 to
provide a mechanism for concluding enforceable co-management
agreements between Federal agencies and native Alaskan
subsistence hunters;
Tenth, whether to update the ex-penalty provisions and
other monetary limitations to reflect economic changes since
1972;
And, finally, how to improve enforcement of and compliance
with the act.
Mr. Chairman, this concludes my presentation. I thank you
for the opportunity to discuss these issues with you, and would
be pleased to answer any questions you or the Committee may
have.
[The prepared statement of Mr. Reynolds follows:]
Statement of Dr. John E. Reynolds, III, Chairman, Marine Mammal
Commission
Thank you for providing the Marine Mammal Commission with the
opportunity to advise the Committee on actions that have been taken to
implement the 1994 amendments to the Marine Mammal Protection Act,
problems that have arisen concerning implementation, and possible
amendments. The Commission submitted a comprehensive statement
concerning these subjects to the Committee on 29 June 1999 and provided
additional testimony at a 6 April 2000 hearing that reviewed progress
being made to implement the regime governing the taking of marine
mammals incidental to commercial fishing operations. Rather than
revisiting these matters, the Commission asks that its previous
statements, which are appended, be made a part of the record of this
hearing. This will enable us to provide an update, focusing on more
recent developments, those places where action is still needed, and
proposed amendments.
Since the earlier hearings, the Commission has worked extensively
with other agencies and with representatives of Alaska Native
organizations to identify all of the areas where the Act needs to be
strengthened or clarified and to fashion a comprehensive legislative
proposal to address those concerns. During the previous session of
Congress, the Secretaries of Commerce and the Interior transmitted a
proposed bill to this Committee and its Senate counterpart for their
consideration. Over the course of the past few months, the National
Marine Fisheries Service and the Fish and Wildlife Service, along with
the Commission, have been reworking the bill and, pending review within
the Administration, expect to be able to provide a revised proposal to
Congress shortly. Of course, the Department of Justice will be involved
in the development of any such proposal to ensure that it meets
Constitutional scrutiny under the Commerce and other clauses.
Taking Incidental to Commercial Fisheries, Sections 117 and 118
As of the 6 April 2000 hearing on implementation of the incidental
take regime for commercial fisheries, the National Marine Fisheries
Service had established five take reduction teams to help develop plans
to reduce the mortality and serious injury of strategic marine mammal
stocks to below the stock's potential biological removal level, and
eventually to a level approaching a zero rate. As noted in our earlier
testimony, the Atlantic Offshore Cetacean Take Reduction Team was
disbanded after the Service closed the swordfish gillnet fishery and
portions of other fisheries that were to be the focus of the plan. At
that time, the Service indicated that it intended to reconstitute the
team to address remaining issues. The team, however, has yet to be
reconvened and the Service's plans in this regard remain uncertain.
Recently, the Service has initiated the process of establishing a
bottlenose dolphin take reduction team to address the incidental taking
of this species in a variety of fisheries along the Atlantic coast.
Several general meetings were held to provide background information to
potential team members, and a team, which includes the Commission's
chairman and a Commission staff member, has now been selected. The
first meeting of the team, originally scheduled for 12-13 September
2001, is expected to occur in the near future. Preparation of a take
reduction plan for bottlenose dolphins sufficient to meet the mandates
of the Act will be particularly challenging because of uncertainties
concerning the stock structure of the species and incomplete
information on the numbers of dolphins being killed or seriously
injured incidental to fishing operations and on the locations and
circumstances surrounding those takings. In this regard, the Commission
encourages the Service to complete the analyses that will enable it to
make better use of existing data and expand its observer programs for
the suspected fisheries to obtain this essential information and to
monitor the effectiveness of the take reduction measures that are
eventually adopted.
Since the April 2000 hearing, it has become apparent that efforts
to reduce the incidental mortality and serious injury of Gulf of Maine
harbor porpoises have proven successful, and it is now believed that
the level of such taking is below the stock's potential biological
removal level. Although some of this reduction can be attributed to
measures adopted under the take reduction plan, a large part appears to
be due to measures taken under the Magnuson-Stevens Fishery
Conservation and Management Act to reduce fishing effort. While the
statutory and regulatory basis for the actions leading to the
reductions may not matter, it should be recognized that fishery
management plans are subject to different procedural and substantive
standards and that the measures taken to reduce fishing effort could
change in the future, possibly affecting the incidental take of harbor
porpoises. This being the case, the Commission has recommended that the
take reduction plan and its implementing regulations be amended to
consolidate the take reduction gains under the Marine Mammal Protection
Act authority.
As the Committee is well aware, the process for convening take
reduction teams, translating the team's recommendations into a final
plan, and promulgating implementing regulations has not always gone
smoothly. To help address these problems, the responsible agencies are
reviewing the take reduction team process. Among the possible
refinements currently under consideration are directing the Service to
appoint an individual with commercial fishing expertise to serve as a
technical liaison to each take reduction team and requiring the
Service, once it has formulated proposed implementing regulations, to
reconvene or otherwise consult with the involved take reduction team to
explain and solicit advice concerning any deviations from the draft
take reduction plan submitted by the team.
The Commission also believes that review of other aspects of
section 118 may be warranted. As the Commission has advocated in the
past, we think that this provision may need to specify that a take
reduction plan need not be prepared for those strategic stocks for
which mortality or serious injury related to fisheries is
inconsequential. We also believe that consideration should be given to
an amendment to clarify that it constitutes a violation of the Act to
participate in any category I or category II fishery without having
registered as required by section 118, regardless of whether incidental
takes occur. Other possible changes that would strengthen this
provision also need to be reviewed. Among the proposals meriting
consideration are to specify that all participants in category I or
category II fisheries, whether registered or not, are subject to the
observer requirements of section 118 and that fishery-related
mortalities and injuries of California sea otters should be factored
into determinations with respect to listing fisheries and placing
observers under section 118.
Another problem that has been identified is that coverage of the
section 118 incidental take regime is limited to commercial fisheries.
However, in some cases, recreational and other non-commercial fishermen
are using identical or similar gear and fish for the same species in
the same areas. Although these fisheries presumably present incidental
take problems similar to their commercial counterparts, they are not
included within the coverage of the Act's incidental taking
authorization and have no responsibility to register, carry observers,
report marine mammal injuries and mortalities, or comply with the terms
of take reduction plans. The responsible agencies are currently
reviewing this issue.
The Commission's June 1999 testimony noted that available funding
has not always been sufficient to place observers within all fisheries
that need to be monitored or to place them at levels needed to provide
statistically reliable results. We again call this issue to the
Committee's attention, requesting that it explore possible solutions.
One possible solution would be to require a contribution from the
involved fisheries to help support a more comprehensive monitoring
program.
As a housekeeping measure, we recommend that section 114 of the
Act, which established the pre-existing, interim exemption for
commercial fisheries, be struck, along with references to that section
in other statutory provisions. Similarly, section 120(j), pertaining to
the Gulf of Maine harbor porpoise, is no longer operative and should be
deleted.
The Commission would also like to take this opportunity to update
the Committee on the outstanding issues preventing full implementation
of section 118. Section 118(b) mandates that commercial fisheries
reduce the incidental mortality and serious injury of marine mammals to
insignificant levels approaching a zero mortality and serious injury
rate within seven years of enactment of the 1994 amendments that is, by
30 April 2001. Further, the National Marine Fisheries Service was to
review the progress toward meeting that goal on a fishery-by-fishery
basis and submit a report of its findings to Congress by the end of
April 1998. Although considerable work was done on the report, it has
yet to be completed and transmitted to Congress.
In hindsight, the zero mortality and serious injury rate goal
appears to have been overly ambitious. While this goal likely has been
achieved for some fisheries, it remains a considerable challenge to
bring mortality and serious injuries down to such a level across the
board. Although the existing statutory deadlines have passed, the
Commission believes that a comprehensive progress report on where we
stand with respect to meeting the goal, as originally envisioned by
Congress in the 1994 amendments, continues to be a worthwhile
undertaking and should be pursued under a revised schedule. Likewise,
we encourage the Committee to adopt a revised schedule for meeting the
zero mortality and serious injury rate goal and provide sufficient
resources to enable the agencies and fishermen to adhere to that
schedule.
One of the problems that has been encountered with respect to
determining if the zero mortality and serious injury rate goal has been
met is the lack of clear guidance as to how it should be quantified. We
encourage the Committee, in consultation with the responsible agencies
and other interested parties, to provide such guidance during the
reauthorization process. In this regard, the Commission has endorsed a
two-tiered approach that equates the goal with reducing mortalities and
serious injuries to some biologically insignificant level (e.g., 10
percent of a stock's potential biological removal level) for most
stocks, but that also establishes a numerical cap to ensure that the
taking of large numbers of marine mammals from abundant stocks would
not be deemed as meeting the goal.
Another related issue that has yet to be fully resolved is the
delineation of when an injury to a marine mammal is to be considered
serious. Under section 118, fishermen are required to report all
injuries, but only mortalities and serious injuries are to be
considered when classifying fisheries and developing take reduction
plans and in determining if the zero mortality rate goal has been
achieved. Although the National Marine Fisheries Service, in its
implementing regulations, has defined ``serious injury'' as any injury
that will likely result in mortality, it is not always apparent at the
time a marine mammal is released from fishing gear whether its injuries
are life-threatening. To address this issue, the Service held a
workshop in 1997 to establish more definitive criteria for
differentiating between serious and non-serious injuries. It was
expected that the workshop would enable the Service to publish clear
guidelines for determining when injuries are to be considered serious.
However, such guidelines, which the Commission still believes would be
useful, have yet to be issued.
Taking of Endangered and Threatened Species Incidental to Commercial
Fisheries, Section 101(a)(5)(E)
Section 101(a)(5)(E) directs the National Marine Fisheries Service
to authorize the incidental taking of marine mammals listed as
endangered or threatened if it determines that 1) the incidental
mortality and serious injury from commercial fisheries will have a
negligible impact on the species or stocks; 2) a recovery plan has
been, or is being, developed for the species or stock under the
Endangered Species Act; and 3) where required under section 118, a
monitoring program has been established, the vessels are registered,
and a take reduction plan has been, or is being, developed. The Service
is to publish a list of the fisheries to which the authorization
applies and, for vessels required to register under section 118, issue
appropriate permits. Vessels participating in fisheries included on the
list, but which are not required to register, are covered by the
authorization, provided that they report any incidental mortality or
serious injury.
The most recent authorizations under this provision were published
by the Service in October 2000. They authorize the incidental taking of
fin, humpback, and sperm whales and Steller sea lions in the
California/Oregon drift gillnet fishery for thresher shark and
swordfish.
Pinniped-Fisheries Interactions, Section 120
Section 120, added by the 1994 amendments, called on the Secretary
of Commerce to study pinniped-fishery interactions and provided a
mechanism for authorizing the lethal removal of individual pinnipeds
that are adversely affecting certain salmonid stocks without obtaining
a waiver of the Act's moratorium on taking. As discussed in the
Commission's previous testimony before this Committee, the National
Marine Fisheries Service provided a report to Congress in 1997 on the
findings of a task force established to examine interaction problems
between pinnipeds and aquaculture operations in the Gulf of Maine. In
1999, a report on the impacts of California sea lions and Pacific
harbor seals on salmonid stocks and West Coast ecosystems was also
provided to Congress. The Commission expects that this Congress will
consider those reports as it fashions a reauthorization bill. We
welcome the opportunity to work with the Committee on specific
proposals if it determines that amendments to address these issues are
needed.
Non-Lethal Deterrence of Marine Mammals, Section 101(a)(4)
Section 101(a)(4), as amended in 1994, authorizes fishermen to use
non-lethal means to deter a marine mammal from damaging their gear or
catch. This provision also authorizes owners of private property or
their agents to use non-lethal means to deter marine mammals from
damaging that property and government employees to deter marine mammals
from damaging public property. Non-lethal deterrence of marine mammals
to prevent endangerment of personal safety also is authorized under
this provision. In each case, however, the deterrence measures used
must not result in the death or serious injury of a marine mammal.
To implement this provision, the Secretaries of Commerce and the
Interior, in consultation with appropriate experts, were required to
publish guidelines setting forth the measures that may be taken to
deter marine mammals safely and to prohibit, by regulation, any form of
deterrence that is determined to have a significant adverse effect on
marine mammals. For species listed as threatened or endangered under
the Endangered Species Act, the Secretaries were to specify non-lethal
deterrence measures that may be used.
The National Marine Fisheries Service issued proposed deterrence
regulations in 1995, but has yet to publish final regulations. No
measures for safely deterring endangered and threatened marine mammals
have been proposed. In this regard, it should be noted that, even if
the Service were to identify measures for safely deterring endangered
and threatened species under the Marine Mammal Protection Act,
employing such measures likely would constitute a violation of the
Endangered Species Act, which contains no similar provision authorizing
intentional taking. The Fish and Wildlife Service has yet to take any
action to implement the deterrence provision.
Permits for Public Display, Scientific Research, and Other Purposes,
Section 104
The 1994 amendments included changes to most of the Act's permit
provisions and added authority for the issuance of permits for
commercial and educational photography and the importation of polar
bear trophies from Canada. Some, but not all, of the actions needed to
implement these provisions have been taken by the regulatory agencies.
The National Marine Fisheries Service, some time ago, revised its
regulations concerning general permitting issues and scientific
research permits. Also, as required by the 1994 amendments, the Service
published an interim final rule in 1994 implementing the general
authorization for scientific research involving only Level B
harassment. We understand that the Service intends to replace the
interim regulations with a permanent rule, but it has yet to do so.
Recently, the Service published proposed revisions to its public
display regulations to reflect the 1994 amendments. Those regulations
are currently open for public comment. We have been advised that the
Service also intends to issue specific regulations concerning permits
for educational and commercial photography to supplement its existing
general regulations.
The Fish and Wildlife Service has concentrated its efforts on
implementing the 1994 amendment concerning the importation of polar
bear trophies legally taken in Canada's sport hunts. Regulations
authorizing imports from 5 of Canada's 12 management units were
published in 1997. Affirmative findings with respect to two additional
management units were published in 1999. A recent survey of the
M'Clintock Channel polar bear population, one of the originally
approved management units, indicated that it was less abundant than
originally believed and that the population was heavily skewed toward
females, suggesting that the number of males had been reduced by
hunting. This prompted the Service, on 10 January 2001, to publish an
emergency interim rule rescinding the previous finding for this
population.
The 1994 amendments directed the Fish and Wildlife Service to
undertake a scientific review of the impact of issuing import permits
on the polar bear populations in Canada. No further import permits
could be issued if the review indicated that allowing polar bears to be
imported into the United States is having a significant adverse effect
on Canadian polar bear stocks. The review originally was to have been
completed by 30 April 1996. Inasmuch as regulations authorizing any
imports had yet to be finalized by that date, however, the Service
indicated in its 1997 final rule that it would delay the review for two
years. We understand that the Service has been working on this review
but, as of yet, it has not been completed.
The Fish and Wildlife Service has yet to amend its permit
regulations to reflect any of the 1994 amendments to section 104. As
such, implementation of these provisions has largely been on an ad hoc
basis. Among other things, the Service needs to promulgate regulations
governing the general authorization for scientific research created
under the 1994 amendments as specifically required by section
104(c)(3)(C) of the Act.
The Commission believes that several amendments related to the
Act's permit provisions are warranted. First, we think that sections
101(a) and 104 should be amended to clarify that permits can be issued
to authorize the export, as well as the taking and importation, of
marine mammals.
The Commission notes that little purpose seems to be served by the
publication and comment requirements of section 104 as they pertain to
permits for the importation of polar bear trophies from Canada. The
crucial question is whether to approve a population for import, a
determination that would remain subject to public notice and comment.
At the permitting stage, however, the only question is whether the bear
to be imported was taken legally from an approved population. More than
400 polar bear trophy import permits that have been issued since 1997,
and the Fish and Wildlife Service has received no substantive comments
on any of them. Considerable costs could be avoided by eliminating the
publication requirement for this class of permits. Nevertheless, it is
important that the public continue to have access to information on the
numbers of permits issued and on the ages, sexes, and taking locations
of the bears authorized to be imported.
As detailed in prior Commission testimony, the return of captive
marine mammals to the wild has the potential to pose significant risks
to the animals unless it is well planned, the animals are thoroughly
prepared, and there is adequate post-release monitoring. Moreover, the
released animals may present a risk to humans they encounter and to
wild marine mammal populations. The Commission continues to believe
that this is an issue that merits review.
Also as previously discussed by the Commission, traveling marine
mammal exhibits, by their very nature, present special problems for
successful maintenance of the animals. We believe that, at least with
respect to cetaceans, the risks to the animals in mobile or transient
facilities are unacceptably high and that such displays should not be
allowed. This view is shared by the National Marine Fisheries Service,
which, until nullified by the shift in agency responsibilities under
the 1994 amendments, had in place a policy not to authorize traveling
cetacean exhibits. Such matters now are solely within the jurisdiction
of the Animal and Plant Health Inspection Service, which has taken the
position that it does not have authority under the Animal Welfare Act
to prohibit such exhibits. While we disagree with this interpretation,
and believe that this issue could be addressed by regulation, given the
agency's view of its authority, we believe that a statutory
clarification may be necessary.
More recently, serious questions have arisen concerning the level
of care being provided to polar bears in a traveling exhibit currently
touring Puerto Rico. The types of problems that have been encountered
(e.g., maintaining temperatures within acceptable levels) seem to be
related, at least in part, to the transitory nature of the display.
This being the case, the Committee, as it considers this issue, might
want to consider a ban on traveling exhibits that includes taxa other
than cetaceans. We note, however, that polar bears, in general, are
hardier than cetaceans and that the problems associated with the polar
bear exhibit might be more a function of the individual facility and
the fact that a polar species is being housed outdoors in a tropical
climate. With respect to this last point, the Commission has
recommended that the Animal and Plant Health Inspection Service, in
consultation with independent experts, review the appropriateness of
allowing polar species to be maintained in outdoor tropical
environments and, as warranted based on the results of that review,
revise its care and maintenance standards accordingly. The Service has
replied that such an evaluation would be worthwhile, but concluded that
it is beyond the scope of its authority under the Animal Welfare Act to
prohibit such a practice. Again, the Commission disagrees with the
Service's conclusions concerning the breadth of the actions that can be
taken under the Animal Welfare Act. In this regard, we note that, under
the 1994 amendments to the Marine Mammal Protection Act, the Animal
Welfare Act is left as the sole federal authority available to ensure
the well-being and humane maintenance of captive marine mammals. While
we are not advocating a return to the shared jurisdiction over captive
marine mammals that existed prior to 1994, we recommend that the
Committee review the scope of the Animal Welfare Act as it pertains to
marine mammals and provide additional guidance, as appropriate, either
through amendment or in report language.
Prohibitions--Exports of Marine Mammals, Section 102(a)(4)
The package of permit-related amendments enacted in 1994 also
amended section 102(a)(4) of the Act to add a prohibition against
exporting any marine mammal or marine mammal product taken in violation
of the Act or for any purpose other than public display, scientific
research, or species enhancement. The language of this provision is
problematic in two ways. As noted in our 1999 testimony, the amendment
resurrected an enforcement problem that previously had been fixed in
1981 by reinstating the requirement that, to bring an action for the
otherwise illegal transport, purchase, sale, or export of a marine
mammal product, the government must show that the underlying taking was
also in violation of the Act. As noted in the legislative report
accompanying the 1981 amendment, this confounds enforcement actions by
enabling marine mammals originally taken for legitimate purposes (e.g.,
Native subsistence) to be diverted to other ends. The Commission
continues to believe that this is an issue warranting review.
The second problem noted in our earlier testimony is that the
language of the 1994 amendment restricts exports to those made for
purposes of public display, scientific research, or species
enhancement. Exports for other purposes (e.g., for cultural exchanges,
associated with personal foreign travel, or pursuant to a waiver of the
Act's moratorium on taking and importing marine mammals) technically
are not permissible. There also exists some question as to whether the
export prohibition applies to handicrafts made and sold by Alaska
Natives pursuant to section 101(b) of the Act. The Commission, along
with the Fish and Wildlife Service and the National Marine Fisheries
Service, has conducted a comprehensive review of the Act to help ensure
that exports and other transactions involving marine mammals can
continue to occur as Congress apparently intended prior to 1994. The
Commission intends to pursue this issue as the Administration considers
reauthorization proposals.
Imports Associated with Personal Travel and Cultural Exchanges, Section
101(a)(6)
In addition to highlighting the problems associated with exporting
items allowed to be imported or exchanged under section 101(a)(6), the
Commission's previous testimony recommended that the National Marine
Fisheries Service and the Fish and Wildlife Service explore the
appropriateness of developing a registration and tracking program to
monitor compliance with this provision and consider whether the
benefits of such a program would outweigh the costs. To date, neither
agency has responded to this recommendation, and we are unaware of any
analysis that has been done to assess the merit of such a program.
Other than an amendment to overcome the export problem noted above, no
changes are needed to this section.
Definitions, Section 3
The Commission's 1999 testimony noted that the definition of
``harassment'' added to section 3 in 1994 had created some practical
difficulties related to interpretation and enforcement. We anticipate
that any reauthorization bill forthcoming from the Administration will
address this issue.
Small-Take Provisions, Section 101(a)(5)
The 1994 amendments added a new provision to section 101(a)(5)
allowing the National Marine Fisheries Service and the Fish and
Wildlife Service to use streamlined procedures (notice and comment) to
authorize the taking of small numbers of marine mammals by harassment
incidental to otherwise lawful activities when such taking will have
negligible impacts on marine mammal populations. Prior to enactment of
those amendments, such taking could only be authorized by regulation.
As noted in our 1999 testimony, the National Marine Fisheries Service
has revised its small-take regulations to reflect the new provisions.
However, the Fish and Wildlife Service has yet to update its
regulations.
The Commission, in its 1999 testimony, noted one possible problem
with the new authority. Incidental harassment authorizations are
limited to one-year periods. As such, some applicants are segmenting
long-term projects into one-year intervals and seeking a separate
authorization for each such period. By doing so, it becomes difficult
for the reviewing agencies to assess possible long-term and cumulative
impacts that could have more than negligible impacts on marine mammal
populations. The Commission reiterates its recommendation that Congress
consider ways to address this problem, for example, by lengthening the
period for which such authorizations may be issued.
Polar Bear Agreements, Section 113
Amendments to section 113 enacted in 1994 called on the Secretary
of the Interior to undertake two reviews with respect to the Agreement
on the Conservation of Polar Bears. Section 113(b) required the
Secretary, in consultation with the other four parties to the
agreement, to review the effectiveness of the agreement and to
establish a process for conducting future reviews. Although all parties
have been consulted, preparation of a final report is awaiting an
official response from one of the parties.
The Secretary in consultation with the Secretary of State and the
Marine Mammal Commission, was also directed to undertake a review of
domestic implementation of the polar bear agreement, with special
attention to be given to the agreement's habitat protection mandates. A
report on the results of that review was to be submitted to Congress by
1 April 1995. Although the Fish and Wildlife Service convened a
workshop in 1995 to review U.S. implementation of the agreement and
circulated a draft report in 1996,the report it has yet to be finalized
and transmitted to Congress.
The 1994 amendments also called on the Secretary of the Interior,
acting through the Secretary of State and in consultation with the
Marine Mammal Commission and the State of Alaska, to consult with
appropriate Russian officials in an effort to develop and implement
enhanced cooperative research and management programs for conserving
the shared population of polar bears. A report on the consultations and
periodic progress reports on research and management actions taken
under this provision are to be provided to Congress. Pursuant to this
directive, the United States has negotiated a bilateral agreement with
the Russian Federation, which was signed by the two parties last
October. The advice and consent of the Senate is needed before the
agreement enters into force. It is expected that the ratification
documents, along with proposed implementing legislation, will be
transmitted to Congress shortly.
Co-Management Agreements, Section 119
Both the Fish and Wildlife Service and the National Marine
Fisheries Service have entered into cooperative agreements with various
Alaska Native organizations to promote the conservation and co-
management of marine mammal stocks taken for subsistence. Since 1997,
the Fish and Wildlife Service has entered into annual agreements with
the Eskimo Walrus Commission, the Alaska Sea Otter and Steller Sea Lion
Commission (for sea otters), and the Nanuuq Commission (for polar
bears). The National Marine Fisheries Service has concluded agreements
with the Alaska Native Harbor Seal Commission and with the Alaska
Beluga Whale Commission. In addition, the Service has entered into a
co-management agreement with the Cook Inlet Marine Mammal Council to
authorize the limited taking of beluga whales from this depleted stock,
which otherwise is prohibited by section 627 of Public Law 106-553,
enacted last December. This year, the strike of a single Cook Inlet
beluga whale was allocated to the Native Village of Tyonek, which
successfully harvested the whale in July. The National Marine Fisheries
Service is also working to conclude a cooperative agreement with the
Alaska Sea Otter and Steller Sea Lion Commission for Steller sea lions
and with tribal governments in the Pribilof Islands for fur seals and
Steller sea lions.
Despite the success of the Services and Alaska Native groups in
concluding agreements and carrying out actions of mutual interest under
them, both the government agencies and the Native groups recognize that
much more could be accomplished in appropriate instances if the Act
provided a mechanism to make co-management agreements enforceable among
and between the parties. For example, the overharvesting of the Cook
Inlet beluga whales by a few hunters during the late 1990s, which
reduced the population by half in only four years and which led to the
stock's designation as depleted, likely could have been avoided had
there been such an authority in the Act at that time.
At the April 2000 hearing of this Committee, the former chairman
urged the responsible government agencies to work with the affected
Native groups to develop a proposal for such legislation. Pursuant to
that charge, the Fish and Wildlife Service, the National Marine
Fisheries Service, and the Marine Mammal Commission held a two-day
session with representatives of the Indigenous People's Council for
Marine Mammals (IPCoMM). Over the course of subsequent weeks, a
preliminary consensus concerning the details of the joint proposal was
reached among the negotiating parties. The agreement was carefully
crafted to achieve the joint goals of marine mammal conservation and
protection of Native subsistence practices. We will consider this
agreement in our review of the Administration bill.
Authorization of Appropriations
The Marine Mammal Protection Act contains several authorization
provisions, including those for general appropriations under sections
116 and 207 pertaining to the activities of the Department of Commerce,
the Department of the Interior, and the Marine Mammal Commission under
the Act. The Commission recommends that appropriations be reauthorized
for a five-year period. Also coverage could include section 405 to
authorize the Secretary of Commerce to allocate appropriated funds
toward responses to unusual mortality events. Currently, only donations
and specifically earmarked monies can be placed in the response fund.
Other Issues Meriting Attention
As the Commission noted in 1999, several provisions of the Act
setting monetary limits have not been updated to reflect economic
changes since they were enacted in 1972. These include the Act's
penalty provisions, which establish upper limits on fines that are
quite low as compared with other natural resources statutes. We
recommend that the provisions of sections 105 and 106 be reviewed and
that increases to the available penalties be considered. We also
recommend that Congress review section 206(4), which places a limit of
$100 per day on the amount the Commission can expend in procuring the
services of outside experts and consultants, and consider ways to place
the Commission on an equal footing with other agencies when seeking
such services.
The Commission supports the freestanding provision enacted in 1999
and codified as part of the Marine Mammal Protection Act (16 U.S.C.
Sec. 1375a) that allows fines collected by the Fish and Wildlife
Service for violations of the Act to be used for activities directed at
the protection and recovery of manatees, polar bears, sea otters, and
walruses. We believe that similar authority for the National Marine
Fisheries Service, enabling it to use penalties collected under the
Marine Mammal Protection Act for the conservation of species under its
jurisdiction, would likewise benefit the agency's ability to carry out
its mandates under the Act .
The Commission also believes that the Committee should consider
ways for improving compliance with, and enforcement of, the Act. Such
proposals might usefully include adding a prohibition against
interfering with enforcement investigations, increasing penalties for
violations that harm or threaten enforcement officials, and allowing
seizure and forfeiture of a vessel's cargo for fishing in violation of
the requirements of section 118.
Another provision that merits overhauling by the Committee is
section 110, which identifies specific research projects to be carried
out by the regulatory agencies. The time frames for completing the
existing activities set forth in this section have elapsed. As such,
those provisions that are no longer operative should be deleted. In
their place, the Committee should consider a more generic directive to
the agencies, enabling the agencies to pursue pressing, broad-scale
projects. Among the studies that might be worthwhile are an
investigation of ecosystem-wide shifts in the Bering and Chukchi Seas
and an examination of possible changes in the coastal California marine
ecosystem that may be contributing to the recent declines in the
California sea otter population.
______
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Mr. Gilchrest. Thank you very much, Dr. Reynolds.
Ms. Hayes, welcome.
STATEMENT OF MARGARET HAYES, DIRECTOR, OFFICE OF OCEAN AFFAIRS,
BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC
AFFAIRS, U.S. DEPARTMENT OF STATE
Ms. Hayes. Thank you, Mr. Chairman, and members of the
Subcommittee. Thank you for the opportunity to share the State
Department's views on the U.S.-Russia agreement on the
conservation and management of the Alaska-Chukotka polar bear
population. Mr. Jones and Dr. Reynolds have briefly summarized
that agreement, and I would like to expand on their summary for
a couple of minutes.
Polar bears are an internationally protected species that
live in the circumpolar north, in five countries: the United
States, Russia, Canada, Norway, and Greenland. An important
part of a sensitive ecosystem, polar bears recognize no
national boundaries. They are essential to the survival of
native people, including Alaskans, as a renewable subsistence
resource upon which these people have depended for centuries.
The United States has long had an interest in the
responsible management of shared polar bear resources. We have
been party since 1973 to the Agreement on the Conservation of
Polar Bears, along with Russia, Canada, Norway, and Denmark on
behalf of Greenland. The 1973 agreement explicitly provides for
the possibility that the parties might establish new measures
so as to provide more stringent controls than those required
under the provisions of this 1973 agreement.
The U.S. and Russia signed the bilateral agreement a year
ago. It is designed to afford protection, additional to that
provided by the 1973 agreement, to the polar bears shared
between our two countries. It also addresses the present day
concerns of Alaska and Chukotka natives, as well as social,
economic, environmental, and technological developments since
1973. Additional protection is needed to ensure that the
subsistence take of polar bears by native people in Alaska and
in the Chukotka region, together with mortality from other
activities, continue to promote a sustainable approach to
management of this population.
Informal discussions between the U.S. and Russia on a
bilateral treaty to conserve our shared polar bear population
began in 1992. Formal negotiations were led jointly by the
State Department and the Department of the Interior. Alaska and
Chukotka natives took part directly in these negotiations. U.S.
participants included the Alaska Nanuuq Commission, the North
Slope Borough, the State of Alaska's Department of Fish and
Game, the Marine Mammal Commission, and the National Audubon
Society.
We agreed with Russia that sustainable management of this
population requires a legally binding instrument for the two
countries to jointly determine and allocate subsistence take
from that population. U.S. negotiators specifically sought and
achieved in the bilateral agreement the inclusion of the
following elements:
Recognition of the right of subsistence use of polar bears
from this population by native people of both countries;
Inclusion of a definition of sustainable harvest level,
reflecting a clear obligation to conserve the population;
Establishment of a management mechanism in the form of a
joint commission that can establish binding quotas to ensure
that subsistence take of polar bears from the Alaska-Chukotka
population is consistent with maintenance of that population at
sustainable population levels;
Full involvement of the native people of Alaska and
Chukotka in the implementation of the agreement, including a
provision that each party will include in its national section
in the commission a representative of its native people;
And additional studies and research relating to the
conservation and management of this population, including
collection of data necessary for regular and accurate
population assessment and harvest monitoring.
In all these respects, the bilateral agreement fulfills the
spirit and intent of the 1973 agreement. The bilateral
agreement, which we hope to submit to the Senate soon for
advice and consent to ratification, is in many ways a potential
model of international cooperation. Not only will this
agreement serve our continued interest in conserving our
magnificent polar bears, but it will also ensure the
continuance of a subsistence way of life that depends on the
bear's existence.
We and the Russians have agreed on common principles and
set out a fair and reasonable mechanism for allocating limited
resources between the Russia and Alaska natives. Our success
can serve as a basis for cooperation in other areas of mutual
interest.
Thank you very much. I would be pleased to respond to any
questions you may have.
[The prepared statement of Ms. Hayes follows:]
Statement of Margaret F. Hayes, Director, Office of Oceans Affairs
Bureau of Oceans and International Environmental and Scientific
Affairs, U.S. Department of State
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to share the State Department's views
on the ``Agreement between the Government of the United States of
America and the Government of the Russian Federation on the
Conservation and Management of the Alaska-Chukotka Polar Bear
Population'' (hereinafter referred to as the bilateral Agreement.)
Polar bears are an internationally protected species that live in
the circumpolar North in five countries: the United States, Russia,
Canada, Norway, and Greenland. An important part of a sensitive
ecosystem, polar bears know no national boundaries. They continue to be
essential to the survival of native people, including Alaskans, as a
renewable subsistence resource upon which they have depended for
centuries.
The United States has long recognized our common interest in the
responsible management of shared polar bear resources. We have been
party to the Agreement on the Conservation of Polar Bears since 1973,
along with Russia, Canada, Norway, and Denmark (on behalf of
Greenland). The 1973 Agreement explicitly provides for the possibility
that the Parties might establish new measures ``so as to provide more
stringent controls than those required under the provisions of this
Agreement.'' Article VII of the 1973 Agreement further mandates that
the Parties coordinate research, consult on management, and exchange
information. The bilateral Agreement furthers the objectives of these
provisions of the 1973 Agreement.
The United States and Russia signed the bilateral Agreement in
October 2000. It is designed to afford protection additional to that
provided by the 1973 Agreement to the polar bears shared between our
two countries, while addressing the present-day concerns of Alaska and
Chukotka Natives, as well as social, economic, environmental, and
technological developments since 1973. Additional protection is needed
to ensure that the subsistence take of polar bears by native people in
Alaska and in the Chukotka region, and other activities, are consistent
with a sustainable approach to the management of this population. The
1973 Agreement allows taking of polar bears for subsistence purposes by
native people, as does our domestic legislation--the Marine Mammal
Protection Act (MMPA)--in respect of Alaska Natives.
Informal discussions between the United States and Russia on a
bilateral treaty to conserve our shared Alaska-Chukotka polar bear
population began in 1992. Formal negotiations began in 1998 and were
led jointly by the State Department (OES) and the Department of the
Interior (Fish and Wildlife Service). Other U.S. participants included
the Alaska Nanuuq Commission, the North Slope Borough, the State of
Alaska's Department of Fish and Game, the Marine Mammal Commission, and
the National Audubon Society. Thus, the bilateral Agreement is the
result of eight years of discussions and negotiations with the Russian
Federation, and involving the direct participation of Alaska and
Chukotka Natives.
We agreed with Russia that sustainable management of the Alaska-
Chukotka polar bear population requires a legally binding instrument
for the two countries to jointly determine and allocate subsistence
take from that population.
U.S. negotiators specifically sought and achieved in the bilateral
Agreement the inclusion of the following elements:
<bullet> LRecognition of the right of subsistence use of polar
bears from the Alaska-Chukotka population by native people of Alaska
and Chukotka;
<bullet> LInclusion of a definition of sustainable harvest level
reflecting a clear obligation to conserve the population;
<bullet> LEstablishment of a joint management mechanism, in the
form of a bilateral commission, that can establish binding quotas to
ensure that subsistence take of polar bears from the Alaska-Chukotka
population is consistent with maintenance of that population at
sustainable population levels;
<bullet> LFull involvement of the native people of Alaska and
Chukotka in the implementation of the Agreement, including a provision
that each party will include in its national section in the commission
a representative of its native people (as well as a representative of
the national government); and
<bullet> LAdditional studies and research relating to the
conservation and management of the Alaska-Chukotka polar bear
population, including collection of data necessary for regular and
accurate population assessment and harvest monitoring.
The Administration believes that U.S. interests will be served
through the responsible management of the Alaska-Chukotka polar bears
at sustainable population levels. The bilateral Agreement provides for
long-term joint programs, such as conservation of ecosystems and
important habitat areas, setting of sustainable harvest levels,
collection of biological information, and increased partnerships with
local and private interests. It is also designed to ensure that
subsistence take from this population is by the native people of Alaska
and Chukotka only, and to provide for equitable allocation of such take
between them. Further, it incorporates mechanisms for the continued
research and assessment of the status of this population. In all these
respects, it fulfills the spirit and intent of the 1973 Agreement.
The bilateral Agreement, which we hope to submit to the Senate soon
for advice and consent to ratification, is in many ways a potential
model of international cooperation. Not only will this Agreement serve
our continued interest in conserving our magnificent polar bears, but
it will also ensure the continuance of a way of life that depends on
the bears, existence. Furthermore, there is benefit in reaching this
consensus on shared interests with Russia. We have agreed on common
principles and set out a fair mechanism for allocating limited
resources in good faith between the legitimate claims of Russia and
Alaska Natives. Our success here can serve as a basis for cooperation
in other areas of mutual interest.
Thank you very much; I would be pleased to respond to any questions
you may have.
______
Mr. Gilchrest. Thank you, Ms. Hayes. Ms. Hayes, can you
give us some idea of when Russia will implement the treaty?
Have they implemented it? Do we have some idea of when they
will?
Ms. Hayes. Well, the treaty of course is not in effect yet
on either side. I mean, both sides have to take steps to ratify
it. We expect that once that is done, both the U.S. and Russia
will take all the necessary steps to implement it.
Mr. Gilchrest. But the process is ongoing, and do we have
any idea when the treaties may be ratified, and if the Russians
will then--I guess two questions. Have the discussions with the
Russians gone very well? Are they difficult? Are there some
roadblocks on either side, ourselves or the Russians, native
Alaskans or the natives on the Russian side? And can you
predict if this time next year the treaty will have been
ratified and both the United States and Russia will implement
it?
Ms. Hayes. I am not going to attempt a prediction. I think
that the negotiations went very well. I think the relationship
between the native peoples is particularly strong and
productive. There are always difficulties, I think, in these
situations, particularly when you are talking about populations
in such remote areas. Enforcement mechanisms may not be ideal,
perhaps on either side. But I think we do have the commitment
of the Russian Government to do its best to implement this
agreement.
Mr. Gilchrest. Now, who is involved in this process with us
on our side? Is it NMFS, Fish and Wildlife?
Ms. Hayes. It is Fish and Wildlife Service, the Marine
Mammal Commission, the State of Alaska, and the native
organizations.
Mr. Gilchrest. Well, if you need anybody up there with
snowshoes, Mr. Underwood and I are ready to go.
[Laughter.]
Ms. Hayes. We will give you a call.
Mr. Gilchrest. He has a lot of experience in that arena, I
think.
Mr. Jones. Mr. Chairman, if I could add, first of all, we
would love to have the opportunity for you and any other
members of the Committee who could join you to come up and see
this in Alaska. As Ms. Hayes has said, we can't predict what
the fate will be of the legislation and the treaty, once it is
presented to the other body here, and to you in terms of the
legislation.
But we do believe that this is a very strong agreement, and
it is an unprecedented one because it was not just a
government-to-government negotiation, but also it was a native-
to-native negotiation done simultaneously. So the U.S.
delegation included both governmental and native organization
representatives, the same on the Russian side.
So we believe there is a tremendous commitment on the part
of native organizations to be the masters of their own fates
and take responsibility for management of marine mammals, in
this case polar bears, on both sides of the border. That is why
we think this agreement is so important, Mr. Chairman, and we
look forward to having the opportunity to discuss it with you
in more detail once the implementing legislation has been
presented by the administration, and the treaty itself to the
Senate for ratification.
Mr. Gilchrest. Thank you, Mr. Jones.
Ms. Hayes, sometimes these small obscure agreements have
much more--a broader array of positive spinoffs, and I have a
feeling this one might as well.
Dr. Hogarth, can you briefly describe, you mentioned in
your testimony the networks that are in the process of being
developed and have been developed to discuss an array of
issues, but specifically can you tell us how the network would
respond to the entangled whale problem, whales that are
entangled in fishing gear?
Mr. Hogarth. The right whale problem, yes, sir. Well, we
have a network set up so that they go out and rescue, like we
did for a number of times with the Churchill, which is the
latest one that we spent a number of days with the consortium
looking at the entanglement.
And we have set up a take reduction team to look at how to
manage the effort, so to speak. If the right whales are in a
certain area, we would have seasonal areas we close. We would
have dynamic management areas, where we are getting ready to
implement, that we would do surveys and then we would close
those areas based on the number of right whales.
We are also in the process now of having an outside
consultant look at the ship traffic, the impact of ship traffic
on right whales, and to give us a report on how we can deal
with that. So we have two issues we are dealing with, the
entanglement and also ship strikes. Both of them are problems
with right whales.
Mr. Gilchrest. Could you just briefly respond to any--there
has been some criticism that in the process of the development
of the network toward certain issues, the criticism has been
that NMFS has not always listened to the various interest
groups involved in developing a policy. Now, if you haven't
heard any criticism, well, we will just move on.
[Laughter.]
Mr. Hogarth. No, we have heard more criticism. I was trying
to address that, but thinking about that, at the same time we
have had criticism of how we do the various research, you know,
how the funding is done of the research and how we implement
what comes out of that with the consortium. We have, I think,
worked through that problem for this year.
There is a great concern over right whales, and I think
there is a lot of opinions of what should be done. You know,
when you look at--we know we have problems with ship traffic,
and how do you manage ship traffic from an international
standpoint?
Mr. Gilchrest. Is that the biggest problem with right
whales, ship traffic coming and going to the various ports?
Mr. Hogarth. That is one of the big problems. We know we
have had two to four ship strikes this year, you know, for
example. So yes, that is one of the big problems, and
entanglements have been another problem, and we are looking at
various types of fishing gear, you know, modifications there.
There is money being spent to look at the type of lines,
breakaway lines, but all of that has potential problems, too.
So we are trying to redo the right whale process and get
more input in to look at what we can do. It has not been
successful, if that is your question, too. You know, we still
have less than 300 right whales. It has been listed for a
number of years. And you are dealing with one of the largest
fisheries in the lobster fisheries, about 17,000 fishermen, but
also the ship strikes.
Calving last year was only about, I think last year it was
about four calves; this year it is probably about 20. But the
population itself is not responding. We have got a problem to
deal with, yes, sir.
Mr. Gilchrest. We will help you work with it.
My time is up. We may have a second round if that is
needed, but I would like to yield to Mr. Underwood.
Mr. Underwood. Thank you, Mr. Chairman, and I ask unanimous
consent to allow the ranking member of the full Committee to
sit with us, Mr. Miller.
Mr. Gilchrest. I will ask unanimous consent for Mr. Miller
to sit up here on the dias and ask questions. Is there an
objection?
Hearing none, at least none that is serious, I guess, so
ordered.
Mr. Underwood. If I could just ask a quick question of Ms.
Hayes, in the U.S.-Russia polar bear treaty I know that there
is a lot of expression of goodwill in terms of trying to deal
with this issue, and high levels of cooperation between the
native organizations. But is it your opinion that the Russian
Federal Government will provide the necessary resources for
research, management and education? And is it implied in the
agreement that the U.S. would shoulder primarily the financial
burden to support this new commission?
Ms. Hayes. Well, all I can say is that the Russian
Federation did sign the agreement. I believe they have every
intention of doing their share to implement it.
Mr. Jones, do you have--
Mr. Underwood. Is that outlined in the emerging agreement?
Mr. Jones. The agreement, Mr. Underwood, provides that each
side would bear its own share of the expenses. Now, it has been
clear over the past decade, since the dissolution of the Soviet
Union, that the capacity of the Russians to undertake
conservation agreements has been seriously eroded. That has
been a problem that we have acknowledged.
On the other hand, we believe that they are committed to
implementing this agreement because they have as much to gain
from its successful implementation as we do, and they have just
as much to lose, too. There always are issues in any
international context, and certainly dealing with a country
that is under financial stress, about whether they would do
everything that we would hope they would do, and we can't
guarantee that.
But we do believe that the Russians negotiated this in good
faith. They attended, participated actively. They made the
arrangements for the natives from Chukotka to be part of that.
And we believe that, working together, that we will be better
off with this agreement than without this agreement, because
without the agreement we have no ability to have the good
things happen. With the agreement, we have that possibility,
and we would work actively.
That doesn't mean that we think we would need to pay all
the expenses for Russia. We do have a program. We have
appropriated funds in the Fish and Wildlife Service from
Congress specifically which helps us with a cooperative program
with the Russians, and we use those funds to implement high
priority projects. So we might provide some financial
assistance, but we would expect the Russians would have to pay
their share, and we think they would do that.
Mr. Underwood. Okay. Thank you. I yield to Mr. Miller.
Mr. Miller. I thank my colleague for yielding, and I am
sorry to run in and out like this but I am caught between a
couple of meetings. But I wanted to raise an issue and a
question with you that a number of my colleagues have asked me
about, and that is, apparently deals with the treatment of some
polar bears in this circus in Puerto Rico, this Suarez Circus.
Marshall, I don't know if you are aware of this, or Mr.
Reynolds, if you are.
But my understanding is that there have been at least two
inspections where this facility has been found wanting. We
haven't had a qualified vet go in and look at these animals.
There are questions being raised about the provenance of at
least one of the bears, and maybe another, whether or not those
documents have been falsified. Obviously this is a traveling
circus, and there is concern among myself and some other
Members here about whether or not we can quickly make some
determinations about the care of these bears, their health,
their lineage, if you will, whether or not they are here with
falsified documents.
Are you aware of this, Marshall, and can you help me on
this? I think there is going to be a letter coming to you that
will be more specific on this, but they wanted it raised in
this hearing.
Mr. Jones. Mr. Miller, we are familiar with this in some
great detail, and you have outlined two different issues that
are involved here.
Mr. Miller. There are two, yes.
Mr. Jones. One issue is the issue of the humane treatment--
Mr. Miller. Right.
Mr. Jones. --the care of the animals. The other is whether
or not the animals are what they said they were in the permit
applications. We issued permits for these animals based on
applications which said they were--one of the animals, for
example, was reported to have originated in the Atlanta Zoo,
then went to Germany, and we issued a permit for it to come
back.
We now have a review, which does involve both our
biologists and our law enforcement division, looking at whether
or not in fact the information that was presented in the permit
applications was accurate. If that information is not, then we
would determine what the appropriate course of action would be,
and we are doing that in close consultation with the Puerto
Rico Department of Natural Resources, but we do have a special
agent on Puerto Rico who is actively involved.
Now the other issue, Mr. Miller, has to do with the humane
treatment of the animals, and for that we are not the experts,
and we generally in those matters defer to the Department of
Agriculture for animal welfare issues.
Mr. Miller. Right.
Mr. Jones. And it is my understanding that the latest
report from the Department of Agriculture is that they believe
that the conditions for the animals are acceptable. Puerto Rico
has also been conducting inspections, and I think they are
doing that on a routine basis, maybe on a weekly basis.
We are reviewing those reports, but we believe that it
would be up to the Department of Agriculture to make the
determination about whether or not the conditions meet the
requirements under the Animal Welfare Act which are different
than our permit requirements. And so far the information, the
latest information that we have from APHIS would indicate that
the conditions for the animals are acceptable.
We have a concern about whether or not that will be
maintained, and we are certainly going to continue to monitor
that situation, but we are looking to the Department of
Agriculture to give us advice about that. That is separate from
the investigation about whether the animals are the ones that
they were said to be.
Mr. Miller. While the first part, while the law enforcement
investigation is going on as to whether or not the permit was
fraudulently presented to you or not, I assume the Department
of Natural Resources in Puerto Rico can keep the circus from
leaving until that is resolved, because obviously if they move
on to another country, what have you, and it is a traveling
circus, we would lose jurisdiction at that point. Has some
arrangement been made to see that that doesn't happen until
this issue can be resolved?
Mr. Jones. Yes, sir. That would have to be done under
permit, so--
Mr. Miller. Let me just ask, if I might, Mr. Chairman, just
one final point here. I realize that APHIS has the jurisdiction
here to make this determination as to treatment, but let me ask
you, what is your situation? What is your authority under
current law, if you give a permit and then an animal is
mistreated under that permit? Do you have the right to revoke
that permit? Do you have a right to ensure, separate from
APHIS, that there is proper treatment of the animal under that
permit, or is that delegated to the Department of Agriculture
under APHIS?
Mr. Jones. I think that is a gray area. Generally speaking,
we have said that for animals that are under the jurisdiction
of the Animal Welfare Act, that is an APHIS responsibility.
Now, in our permit regulations we do have a provision which
says that if there is a really blatant case of inhumane
treatment, we could revoke a permit. To our knowledge, we
haven't exercised that recently, and it is very possible that
if we did try to exercise that, there would be some legal
challenge to that by the permittee--
Mr. Miller. I am sure of that. Polar bears are--
Mr. Jones. --because of its being sort of an unprecedented
action. That is why we--we don't have veterinarians. We are not
the experts in humane care, and we look to APHIS to advise us.
Now, if we got a report from APHIS that said the care was
not adequate, and that they were issuing notices of violation
or taking steps, then I think we would feel that we have
certainly the authority to revoke a permit under those
conditions.
Mr. Miller. I would just, I guess I would make this point,
that clearly we can't be in a position where we allow animals
to come in under your permits, then to have harm done to those
animals. I am encouraged by your response suggesting that APHIS
now thinks that the care has improved, but clearly subsequent
to that finding, if that is their tentative finding, that was
not the situation down there, because it is fairly well
catalogued here in terms of the abuses of these animals, in
terms of the humane treatment
I guess what I am asking is, I assume that you will then be
able to sort of make an independent judgment based upon the
APHIS findings, and/or if you are not satisfied with that, you
have some authority to figure out how to make that independent
judgment as to whether or not these animals are being abused
under the permit, because you obviously can't have a permit
that allows that to continue.
Mr. Jones. Right.
Mr. Miller. I think in fact the law wouldn't allow that.
Mr. Jones. I think that is correct. We have some authority.
It is a gray area. We don't know exactly where the boundaries
of that authority are, but we are going to monitor this. We
have a task force that is continuing, almost on a daily basis,
to monitor this with APHIS and with the Commonwealth of Puerto
Rico.
And clearly if we got evidence that indicated the animals
were being mistreated, and that that was leading to harm, we
would consider then what legal steps we could take to try to
stop that. If we got to that point, then a lot of other issues
come up about what would be the right disposition of the
animals, and those are not easy issues.
Mr. Miller. Thank you for your response. I know Mr. Pallone
on this Committee is also very interested in this, as are some
other Members, and if you could just kind of keep us informed--
Mr. Jones. We will.
Mr. Miller. --as to how this progresses, because we would
hate to see that we lose jurisdiction over these animals and
then they fall back into that kind of mistreatment that they
were experiencing earlier. Thank you.
Mr. Gilchrest. Thank you, Mr. Miller.
Mr. Underwood. Thank you.
Mr. Gilchrest. Was that your time, Mr. Underwood?
Mr. Underwood. That was my time, but if I could just add 30
seconds to that--
Mr. Gilchrest. I will give you a few more minutes. Okay, 30
seconds to Mr. Underwood. Sixty seconds to Mr. Underwood.
Mr. Underwood. No, I just wanted to express my concerns
along the lines that have just been expressed by our colleague
from California, and I know that we had invited APHIS to come
here and they have declined to come here to explain this
situation. No? They are here?
Ms. Kohn. No, we were not invited to speak. We have
submitted written testimony. My name is Barbara Kohn. I am from
APHIS. And we were told to submit written testimony.
Mr. Gilchrest. Okay, regular order. Actually, we may ask
you some questions. As a matter of fact, if Mr. Underwood has a
question, we will yield first to Mr. Pombo from California, but
if anybody has any questions here later on to APHIS, we will
bring you up to the table, ma'am.
Mr. Underwood. Very good. Thank you.
Mr. Pombo. Mr. Chairman, if the ranking member has a
question that he wants to deal with, I will yield for the time
being for him to deal with that.
Mr. Gilchrest. Mr. Underwood, do you have a question to
APHIS?
Mr. Underwood. Did you want to ask a question?
Mr. Gilchrest. Mr. Miller?
Mr. Miller. Thank you. I appreciate the extension of time
here. I guess I would be interested in a comment on the events
as outlined by Marshall here, if in fact that is an accurate
interpretation of what your findings to date are and what you
plan to do with them.
Ms. Kohn. Okay, yes. I have been asked to clarify my name.
My name is Barbara Kohn, K-O-H-N, and I work for APHIS Animal
Care. Since the circus, Circus Suarez, has entered the country
in early June, APHIS has been there to inspect them at least 11
times. Our average inspection rate for a facility is once a
year, so we are committed to making sure that these animals are
being treated appropriately under the Animal Welfare Act.
I must make the statement that the Animal Welfare Act is an
act of minimum standards as designed by Congress, so that
minimum standards do not necessarily equate to people's
perception of the ideal way to maintain any animal, across the
board for the number of species that we regulate.
The facility's inspection history has been one of being in
compliance; being out of compliance in some areas on the next
inspection; the facility working hard to fix those areas, being
okayed on a following inspection; and bouncing back and forth.
As a result of this, APHIS has instigated, has initiated an
investigation of the facility's compliance history. Because the
facility is under investigation, I am limited in what I can
say, but I do want to assure the Committee that APHIS has been
monitoring the situation.
We have consulted with experts in the field of polar bear
management whenever we have had questions. One of the things,
we have made the facility provide chillers for their pools;
fans and air conditioners. We admittedly are not there 24 hours
a day, and there have been instances where some of those
devices have not been used.
Mr. Gilchrest. Will the gentleman yield?
First of all, the staff does inform me that APHIS was
invited to attend, to testify, but the person was not available
to do that, so we appreciate--
Ms. Kohn. I appreciate--
Mr. Gilchrest. The other question is, if you normally
investigate a facility once a year, and this seemed to warrant
11 inspections, there must be something significantly wrong.
And perhaps if minimum standards are not what we consider to be
ideal, maybe minimum standards should be improved, and I guess
that would be our responsibility, working with you. Certainly
minimum standards should not be bad standards. But if you went
back 11 times, there was something clearly wrong.
Ms. Kohn. The frequency of inspection has been in response
to public concerns for what is going on there, and the only way
for us to state equivocally what we feel is going on there is
to inspect. This facility also has moved, because it is a
traveling exhibitor, has moved a number of times, and we have
tried to be on site soon after the move at each time. And so
they, I believe, have moved three or four times already.
I am getting a very dry mouth, so excuse me if my voice is
changing.
And so a lot of this has been in response. As Mr. Jones has
indicated, his agency as well as APHIS has received a large
number of inquiries and letters and e-mails on this topic, and
we have responded as we would to any situation where we have a
lot of public interest, where we will go and make sure that
things are moving ahead.
When the facility first arrived, we did do a couple of
inspections to make sure that they were truly set up as their
plans and as their protocols had been directed, because we
could not inspect the facility until the animals were there. I
mean, we could not do a total inspection until the animals were
actually in the country. And so we were down there initially,
and then in response to not only other Federal agencies but the
public, animal welfare groups who have expressed their
concerns, we have been back there monitoring the situation
closely.
Mr. Miller. If I just might follow up on a point that the
Chairman made--and, Marshall, this may go a little bit to your
jurisdiction--and I appreciate that this is being raised
without notice. I mean, this isn't about mousetrapping.
Ms. Kohn. Sure.
Mr. Miller. It is just about a number of us in the Congress
are getting those same e-mails and letters of concern and all
the rest of that, and this was an opportunity, and I appreciate
your answers.
I guess the question is, as the Chairman said, if you went
back 11 times and you have compliance, noncompliance,
compliance, noncompliance, we are talking about very unique
animals here.
And, you know, you start off with the idea that if a polar
bear is in Puerto Rico, you know, something is amiss unless,
you know, global warming or something has changed. If polar
bears could send postcards, right, hey. But anyway, sorry. I
can't get over a polar bear in Puerto Rico. But let's start
over again.
This raises the question of whether or not the permit
should, at a minimum, be modified. I would raise the question
whether the permit should be revoked. But it would seem to me,
Marshall, that if you are giving a permit and you are asking
that a polar bear go to Puerto Rico, you have got to think what
are the special conditions or something that have to be put on
this permit to make this work?
Apparently they didn't have chillers, they didn't have air
conditioning, they didn't have pools of water. They were
basically caged animals for the traveling purposes at the
outset. That is probably not the conditions under which you
would want to let the permit go through.
And I am second-guessing this, okay, and I appreciate that.
But I am also thinking that we have the authority for permit
modification and/or even revocation. I appreciate people sue
you. They will sue you either way. If you want to keep the
permit, you are going to get sued; if you want to revoke the
permit, you are going to get sued.
But we have really got to go to the humane treatment of
these animals. And so I would just hope that as you follow on
this and keep up, that you would think about maybe 11 visits
tells you that you have got to rethink about the conditions
that must be in place and must be met, or there will be a
revocation of this.
And, again, I recognize this is a traveling circus and it
may leave Puerto Rico to go somewhere else, and leave the
country, and we ought to make sure that this is cleared up
before that happens and they not be allowed to take this,
especially with the criminal investigation opened as to the
provenance of these bears.
So I will leave it there, and I just thank you, Mr.
Chairman, for your intervention there, because I think it does
raise the question about the conditions of this permit. And
thank you, the gentlewoman from APHIS. Thank you.
Mr. Gilchrest. Thank you, Mr. Miller.
Mr. Pombo?
Mr. Pombo. I thank the Chairman. I just caution my
colleagues that the purpose of the permit is a different reason
than the Animal Welfare Act, and you have different agencies
with different responsibilities. You know, this may be an issue
with APHIS and not necessarily an issue with dealing with the
permit, and so we better not confuse those two issues and try
to use one agency against another in that particular case.
The United States as a Nation has a history of supporting
sustainable use of renewable wildlife and marine resources
under appropriate professional management conditions, but it is
my understanding that at a recent conference held in Iceland on
Responsible Fisheries and the Ecosystem, which was sponsored by
the U.N. Food and Agriculture organization and co-sponsored by
Iceland and Norway, that the U.S. delegation took a position
that there are certain species of marine mammals that the U.S.
would oppose harvesting regardless of the science justifying
such managed harvest. And my question is, is that a formal U.S.
position? Dr. Hogarth?
Mr. Hogarth. I am really not aware. I will have to get back
to you on that. I am not aware of that agreement, or which one
you are referring to.
Mr. Pombo. Well, it was at a conference, and I received
reports back that that was the position that the U.S.
delegation took, and I was somewhat surprised by that because
it was, I think, contrary to what U.S. law is and what
international law is. And I have a number of questions dealing
with that that I would like to submit to you for the record.
Mr. Hogarth. Thanks, and we will respond, but I am really
not prepared right now.
Mr. Pombo. It is my understanding that the State Department
had the lead on that issue. Can you answer?
Ms. Hayes. The State Department certainly had some members
on the delegation. This was the conference that was to be
investigating ecosystem approaches to the management of
fisheries.
My understanding is that at the conference there were some
delegations from some countries who wanted to use the
conference as an opportunity to push particular theories about
interaction between marine mammals and fishery stocks. Our
delegation believed that that was getting the conference kind
of off track, and tried to keep the conference focused on its
original purpose, which was, as I said, to investigate
ecosystem management of fish stocks. So certainly there were, I
think, interventions made about the appropriateness or
inappropriateness of focusing on how much fish might be eaten
by whales, for example.
Mr. Pombo. Can you tell me, did the U.S. delegation take
the position that there were certain marine mammals that were
off limits, or is--this is the report that I got back, and I am
just trying to figure out, because I wasn't there, so I am
trying to figure out what role the U.S. played in that and if
that was their position.
Ms. Hayes. I think it would be safer for me to investigate
exactly what was said on that subject and get back to you.
Mr. Pombo. Okay. I appreciate that, because it is a concern
of mine, and I would like to know where we are going in that
regard.
Mr. Chairman, I have a number of questions that I would
like to submit for the record for the U.S. agencies, if I may
do that, and have some kind of a written response.
Mr. Gilchrest. Sure. Without objection, I am sure the panel
would like to respond to those issues.
I think Dr. Hogarth wanted to make another comment, Rick.
Mr. Hogarth. The one thing that came out of that was, Japan
continued to follow up from the IWC on whale hunts, and they
tried to take the argument that had been lost at the IWC, the
International Whaling Commission, and take it to this meeting
to try to get some other agreement that they should be hunting
for certain whales that we feel like that are not at the level
that should be hunted.
And that was one of the issues, but I didn't know we took a
position that there are certain ones that should never be
hunted. But there is the level of hunt and all, and Japan was
trying to argue from the standpoint of how much fish they may
eat, and there should be--we should not care about the hunting
of whales. They want to reopen all whale hunting, for example,
and they tried to take the argument from one commission and
carry it to another proposal. But we will answer your questions
in detail.
Mr. Pombo. Are you saying that what they were trying to do
was increase?
Mr. Hogarth. Yes.
Mr. Pombo. And that the U.S. had taken a position opposed
to the increase?
Mr. Hogarth. At the International Whaling Commission, we
had a position there that there should not be an increase in
the take, is my understanding. And Japan wants to increase the
whaling, and they were trying to get another avenue to get
agreement with this.
Mr. Pombo. Now, in that particular case, is the U.S.
position based upon some scientific study or--
Ms. Hayes. The U.S. position at the International Whaling
Commission is that the moratorium on commercial whaling should
be continued until the commission completes its work on what is
called the revised management scheme. That is the system where
any commercial harvest would be monitored, would be followed
from the whaling vessels through to distribution in the
marketplace, and we are still working with the other members of
the IWC to complete that mechanism before we face the question
of what position the U.S. should take on lifting the commercial
moratorium.
Mr. Pombo. Thank you, Mr. Chairman.
Mr. Gilchrest. Thank you, Mr. Pombo.
Just a follow-up question from Mr. Pombo. The team or the
group of countries involved in this issue, Ms. Hayes, you made
some comment about the U.S. won't take a final position until a
mechanism has been agreed to. What does that mean? As far as
the mechanism, does that mean a monitoring scheme, an
assessment of the type of whales that might be taken and what
their populations are and what the interactions are with the
rest of the marine ecosystem?
Ms. Hayes. The commission has already adopted in principle
what is called the revised management procedure, and that has
all the scientific part of assessing whale populations and
deciding, how you go about deciding on an appropriate quota for
any particular population. But the part that is missing is this
monitoring mechanism. We don't yet have agreement on such
things as how many--
Mr. Gilchrest. Who would go on whose vessel, from what
country?
Ms. Hayes. Who would go on whose vessel. You know, if--
Mr. Gilchrest. Would a visa be required?
Ms. Hayes. Well, for example, if it is a very small vessel
and there is only room for one additional enforcement person,
should it be the national inspector or should it be the
international observer? We don't have agreement yet on whether
following distribution through to the marketplace is a
legitimate part of this monitoring system. Of course, the U.S.
thinks that it is, that that is the only way you can make sure
that there isn't any cheating going on. Another issue is who
pays for this observation scheme.
But we are going, we are sending a delegation to a meeting
in Cambridge at the end of this month to continue, in a small
group of experts, to try to finish this revised management
scheme.
Mr. Gilchrest. Maybe we should go to Iceland as well.
Mr. Pombo. Mr. Chairman, if I may just--I know I have no
time left, but--
Mr. Gilchrest. You have all the time you need, Mr. Pombo.
Mr. Pombo. I was at a previous hearing. I was told that
this study on the management scheme was imminent, and I believe
that was almost a year ago. And Mr. Swingle and Mr. Barry, I
believe, both testified that they were working toward the end
of that and that it should be any day now at that time, and
that was a year ago. From my understanding of what you are
saying, we still don't have that. Is there a reason why? Are we
working toward a conclusion on that?
Ms. Hayes. The U.S. delegation is working very hard on
that. We have offered a lot of different, what we thought were
creating solutions to the problems that have been presented to
us by the whaling countries, but so far we haven't been able to
arrive at solutions to those problems that are acceptable to
both sides. I hope that progress will be made in Cambridge at
the end of the month.
Mr. Pombo. Well, as long as the positions that we take are
based on the science that is there, what is provided to us or
what our own research is, as long as our positions are based
upon that, then I don't have a problem with it. But if you are
unilaterally making political decisions within the agencies,
then I do have a problem with it. And that is why a year ago I
asked the questions I did, and it doesn't seem like we are any
closer to coming to a scientific answer, but political
decisions are being made.
Ms. Hayes. Well, I wouldn't really agree with that
assessment because we are just, as I said, not at the point of
making that political decision. As long as there is no monetary
scheme agreed to, we think it would be dangerous and
irresponsible to lift the moratorium on commercial whaling
because we have no way of ensuring that the same sort of
decimation of the whale populations didn't recur.
Mr. Gilchrest. Thank you, Mr. Pombo. I think some of us--
Mr. Underwood, any follow-up questions?
Mr. Underwood. I just wanted to make a couple of final
points, and that is, one, would the woman from APHIS provide us
with a report on the 11 inspections, kind of a summary report,
just so that it can enhance our understanding of what is going
on with the polar bears in Puerto Rico?
Ms. Kohn. Sure, we would very pleased to provide you the
information we have to date.
Mr. Underwood. Okay, and just as a follow-up on the issues
raised by Mr. Pombo, my understanding of the whaling issue, and
it may be limited, but certainly it is the law of the land that
we take, the U.S. takes the position that the moratorium on
commercial whaling be continued. That is correct.
But we are not by definition closing the door to changes in
scientific whaling. You know, it seems to me that at some point
in time, if we are talking about ecosystem management of marine
resources, that the whales themselves would have an impact on
the entire system. So we are not, just by definition, closing
that door, are we?
Ms. Hayes. No, I wouldn't say we have closed that door.
Mr. Underwood. And is the kind of regulatory activities
which pertain to fisheries, is there any reason to suspect that
the whaling countries like Norway and Japan are not amenable to
the kinds of regulatory activities that normally occur with
other kinds of fishing vessels? Would you like to explain that
a little bit?
Ms. Hayes. Yes. In fact, we have been a little surprised
that some of the suggestions, some of the elements that we
think are necessary for this monitoring scheme, and that exist
in fisheries management organizations internationally and
accepted by some of those whaling countries, have not proved to
be acceptable in the context of a scheme to monitor whaling
activities. In other words, we don't think we are asking for
anything so unusual or out of the way.
Mr. Underwood. And in the interests of time, I would like a
written response to actually a real legislative issue the
Subcommittee is confronted with, and that is, what are the
definitions that we would like to see, changes in the meaning
of the term ``harassment,'' because I think that is really key
to our work. I know we have gone a little bit far afield this
morning, but thank you very much.
Mr. Gilchrest. Thank you, Mr. Underwood.
I think maybe we just should have held today's hearing with
this panel. But there are numerous follow-up questions
certainly dealing with harassment, with Navy sonar, with the
take reduction teams that are out there, with a full range of
issues, also with APHIS, and you can be sure that in the coming
days we will be corresponding with all of you. We appreciate
your testimony, and look forward to working with you certainly
in the near future.
But thank you all for coming this morning, and you did a
fine job. Thank you.
Our next panel will be Mr. Charlie Johnson, Ms. Sharon
Young, Mr. George Mannina, and Mr. Rick Marks.
I ask unanimous permission to submit for the record the
statement by the Honorable Mr. Jones.
Hearing no objection, so ordered.
[The prepared statement of Mr. Jones follows:]
Statement of the Honorable Walter B. Jones, a Representative in
Congress from the State of North Carolina
Thank you, Mr. Chairman, for holding this important hearing.
The Marine Mammal Protection Act was created to ensure that there
is an abundance of species in our oceans. However the Act is so
inflexible and jurisdiction so unclear, that many of my constituents
feel their needs and professional opinions are not adequately addressed
when decisions directly impacting their lives are made.
North Carolina's commercial fishing industry is already in dire
economic straits and with the approaching and some say current
recession, North Carolina's recreation fishing industry can't be far
behind. Eastern North Carolina has lost thousands of jobs in the
textile industry and thousands of jobs in the tobacco industry. And
now. we're on the threshold of losing commercial and recreational
fishing j obs.
These are small, family-owned businesses that have been fishing
these waters for a century. My constituents cannot be easily placed
elsewhere in today's economy. The Marine Mammal Protection Act and the
Endangered Species Act have been very successful in putting many North
Carolinians out of work and have done little to restore healthy species
to the marine ecosystem.
In November 2001, a Take Reduction Team will meet to determine the
number of bottlenose dolphins that may be ``taken'' under the authority
of the Marine Mammal Protection Act. My concerns with this process are
twofold: That the stock assessment being utilized by the Take Reduction
Team may be outdated and that my constituents receive fair, equitable
and scientifically-based treatment from the National Marine Fisheries
Service and the Office-of Protected Resources.
1 want to discuss one more item of concern. Recently, the National
Marine Fisheries Service closed the summer flounder fishery in Pamlico
Sound. However, some but not all of my constituents were notified the
day of the closure by radio. I guess if you didn't have your radio on,
you didn't know about the closure. While the closure was imminent,
there was no warning and no advance notice. The closure took place on
Friday, September 28, 2001, yet most of my constituents were not
notified until Monday, October 2, 2001.
I would respectfully request that my natural resource-dependent
constituents receive better treatment from their federal government. As
this Subcommittee all-too-well knows, fishermen face daunting
regulations and mortal danger as a part of their livelihood. If my
constituents are going to be able to ever trust a federal agency, that
federal agency must be accountable. To provide an unbiased, equitable
and accountable process is the most important service you can provide,
a process designed to allow input from the fishermen who pay the bills
of the National Marine Fisheries Service, the Fish & Wildlife Service
and the Animal and Plant Health Inspection Service.
Mr. Chairman, I would respectfully request that I submit the
following questions for the record. I look forward to seeing the
responses, particularly from my friend Dr. Bill Hogarth and those
directly impacted by the Marine Mammal Protection Act.
______
Mr. Underwood. I ask unanimous consent to enter a statement
by the Earth Island Institute.
Mr. Gilchrest. Hearing no objection, so ordered.
[The information referred to follows:]
Statement of David Phillips, Director, The International Marine Mammal
Project, Earth Island Institute
Thank you for the opportunity to present our views on the
reauthorization of the Marine Mammal Protection (MMPA). The
International Marine Mammal Project of Earth Island Institute has
worked to protect dolphins, whales and other marine mammals around the
world, and much progress has been made in recent years to reduce the
killing and harassing of these unique marine species. Yet, new
challenges persist, and there is no room for complacency.
The Threat of LFA Sonar:
Earth Island Institute is opposed to the deployment and continued
testing of the Navy's Surveillance Towed Array Sensor System (SURTASS)
Low Frequency Active ,(LFA) Sonar.
Noise pollution in the oceans constitutes a growing environmental
threat that is not being adequately addressed. The Navy's planned LFA
Sonar system will add tremendously to the problem of ocean noise
pollution through the use of very high energy soundblasting coupled
with the long-range underwater effects characteristic of low frequency
sound. (See attached chart of sound levels comparison with the Navy's
LFA SURTASS sonar system prepared by acoustician Michael Stocker.)
Virtually nothing is known about the short-term, long-term, or
cumulative effects of LFA Sonar on the ocean ecosystems, or how the LFA
Sonar soundblasting will interact with other noise sources underwater.
What little that has been determined through limited research by
the Navy suggests we should be deeply concerned. Instead, the Navy has
cavalierly pronounced the LFA Sonar's effects as variously
``negligible,'' ``minimal,'' and ``not biologically significant.'' This
does not suggest .to us that the Navy can be counted on to fairly judge
the results of deployment or to adequately monitor the effects. Nor
does it give us faith that the conclusions of the Navy's own biological
assessments and Final Environmental Impact Statement (FEIS) can be
given credence.
There is no scientific justification for the Navy or the National
Marine Fisheries Service (NMFS) to claim that there will be no adverse
impact on whales or other marine life at LFA Sonar sound levels of 180
dB.
According to the Navy's FEIS, the sound levels used in
experimentation on whales was 120 to 155 dB, far lower than the
effective operating level of 242 dB at maximum for the LFA Sonar system
and far lower than the 180 dB deemed acceptable by the Navy. Even at
lower levels of 120 to 155 dB, the Navy's experiments noted ``short-
term behavioral responses'' to the noisemakers. Furthermore, the Navy
notes that ``avoidance responses were sometimes obvious in the field''
for migrating gray whales. However, these changes in behavior are
dismissed as ``no significant change in biologically important
behavior'', a point on which we clearly disagree. If singing of mating
humpback whales or migration of gray whales is not considered
``biologically significant'', it is hard to understand what the Navy
would consider ``significant''.
(It is important to note that causing ``short-term behavioral
responses'' in whales is a violation of the MMPA when applied to
whalewatching operations, as determined by NMFS guidelines and, in the
case of Hawai'i, regulations. Such disturbance of behavior, however,
under whalewatching conditions usually is limited to one or a few
animals, not to whole populations throughout the world's oceans as the
Navy proposes with the LFA Sonar system.)
Extrapolation of this limited data to claim ``no harm'' at sound
levels up to 180 dB violates the basis premises of science, not to
mention the Precautionary Principle.
Alternatives to LFA Sonar:
There are several strategic alternatives available to the use of
LFA Sonar that involve substantial improvement of existing passive
sonar systems.
For example, RADM Malcolm I Fages, U.S. Navy Director, Submarine
Warfare Division, Office of the Chief Of Naval Operations (N87) and
RADM J. P. Davis, U.S. Navy Program Executive Office for Submarines,
provided the following assessment before the House Armed Services
Committee, Military Procurement Subcommittee on Submarine Force
Structure and Modernization (June 27, 2000):
``Acoustic Superiority. The Submarine Force is. making significant,
rapid improvements in acoustic sensors and processing. In real-world
exercises and operations, both the TB-29 towed array and the new
Acoustic Rapid Commercial-Off-The-Shelf (COTS) Insertion (ARCI) sonar
system have unequivocally demonstrated our submarines retain a clear
acoustic advantage. Use of COTS equipment in ARCI (and in a modified
TB-29 array) has substantially reduced costs with significantly
improved processing capability. Each ARCI ship-set costs only a small
fraction of the price of its predecessor, yet improves processing power
by an order of magnitude. This faster and more robust processing power
enables us to use powerful new algorithms that result in significantly
improved towed array detection ranges. Each modified TB-29 towed array
will cost one- half of the price of its predecessor, yet provides
equivalent performance. We are also working with the Navy's Chief
Technology Officer and the Office of Naval Research to develop even
more affordable and reliable towed arrays, specifically fiber optic
towed arrays. Fleet Commanders have repeatedly requested ARCI systems
at a rate faster than we can afford to provide them.
``Surveillance Towed Array Sensor System (SURTASS) Twin Line
operations in 1998 and 1999 demonstrated the ability to detect advanced
diesel submarines at substantial ranges in the littoral environment
where contact was previously thought to be `unobtainable' by the
operational commander. Two twin-line systems have been delivered using
current technology arrays. No additional systems will be delivered next
year due to funding constraints. However, follow-on SURTASS twin lines
will leverage the submarine TB-29 developments by fielding twin TB-29
arrays. The COTS version of the Fixed Distributed System (FDS-C) starts
in--water testing this year. This use of COTS equipment has also
resulted in substantially reduced costs with no reduction in fielded
capability. Development of the new Advanced Deployable System (ADS)
will provide a rapidly deployable acoustic array installed on the ocean
floor that provides littoral undersea wide-area surveillance and real
time cueing. ADS development is moving along smoothly with potential
for accelerated capability development.''
Furthermore, the Defense Advanced Research Projects Agency (DARPA),
the central research and development organization for the Department of
Defense (DOD), has made great progress-in developing passive sonar
systems. It manages and directs selected--basic and applied research
and development projects for DOD, and pursues research and technology
where risk and payoff are both very high and where success may provide
dramatic advances for traditional military roles and missions.
Dr. Thomas J. Green of DARPA made the following address to the DoD
(September 6-8, 2000):
``Good afternoon ladies and gentlemen! My name is Tom Green and I'm
the Program Manager for the Robust Passive Sonar Program, otherwise
known as R-P-S.
``The focus of R-P-S is to develop innovative, optimal end-to-end
processing approaches that exploit tactical acoustic sensors to produce
dramatic gains in passive detection against quiet targets operating in
shallow water ``littoral'' environments. In recent years there has been
much emphasis on achieving tactical control of shallow water, littoral
regions against quiet diesel electric submarines. Towards this end,
there has been substantial fundamental work aimed at developing
advanced processing techniques to exploit the propagation
characteristics of these regions. In addition, new sensors are being
developed and deployed that have the necessary characteristics to
support many of these processing techniques. We believe there is an
opportunity now to realize significant acoustic gain by applying these
and other advanced signal processing techniques to emerging sensors
within an end-to-end sonar system context and by so doing to achieve
substantial tactical advantage over future submarine threats.''
Soundblasting of the oceans threatens marine life, while
alternative systems can provide for national security without harming
the ocean ecosystem upon which we all depend.
Tuna/Dolphin Fishery: Do Not Weaken Protections for Dolphins:
Recently the Circuit Court of Appeals unanimously upheld a decision
reached in Earth Island Institute's lawsuit ``Brower v. Evans''
(formerly ``Brower v. Daley''). to maintain the current strong
standards for the ``Dolphin Safe'' tuna label under U.S. law (see
attached copy of court decision). The courts have made it clear that
all of the evidence assembled by the NMFS research program on dolphins
has indicated that the chasing and netting of dolphins continues to
cause harm to these species, especially to depleted populations in the
Eastern Tropical Pacific tuna fishery. Despite the fact that only 2-
3,000 dolphins are reported killed annually in tuna nets, dolphin
populations do not appear to be recovering from depleted status. There
is growing evidence that chasing and netting dolphins causes harm to
dolphins and interferes with-their reproduction (e.g. through the
separation of mothers from dependent calves).
In this light, we believe any weakening of the MMPA protections for
dolphins is inappropriate at this time. The standards-for the ``Dolphin
Safe'' tuna label, which now prohibit use of the label on- any tuna
caught by chasing, netting, or killing dolphins, should remain in
force, as ordered by the courts (see next section below).
Furthermore, we strongly believe that the provision for sundown
sets should remain ``...30 minutes before sundown...'' (Section 303
MMPA; emphasis added), rather than weakening the definition to one
half-hour AFTER sundown, as proposed by the Clinton Administration last
year. Historically, more than three times as many dolphins die in
sundown sets as die in net sets made during daylight hours. In the
tropics, light fades rapidly after sunset, causing problems with
manipulating and avoiding mortality of dolphins in net sets made
deliberately on schools of dolphins. With depleted dolphin populations
showing little recovery from the fishery, any additional sources of
mortality should be eliminated. This is not a time to weaken dolphin
protection provisions of the MMPA.
Tuna Tracking System is Broken:
The MMPA provides for a tuna tracking system to ensure that tuna
caught in the Eastern Tropical Pacific Ocean can be guaranteed to be
``Dolphin Safe'' when it carries that label on supermarket shelves in
the U.S.
The U.S. government is required to adhere to the original strong
standards for ``Dolphin Safe'' labeling established by Congress in the
MMPA. These standards provide that tuna may be labeled ``Dolphin Safe''
only if ``no tuna were caught on the trip in which [it] was harvested
using a purse seine net intentionally deployed on or to encircle
dolphins, and . . . no dolphins were killed or seriously injured during
the sets in which [it was] caught.'' (Emphasis added; PL 105-42.,
Section 5.)
However, forms supplied by onboard Inter-American Tropical Tuna
Commission (IATTC) observers no longer specify whether dolphins were
encircled during a fishing trip. This change was made pursuant to a
June 1999 IATTC resolution, which the U.S. delegation to the IATTC
supported, to alter the tuna tracking and verification system such
that: ``Processed dolphin safe tuna destined for export shall be
accompanied by appropriate certification of such status issued by the
competent national authority ... provided that such documentation shall
not reference details of fishing operations, except as relates to
identification of types of fishing gear.'' (System for Tracking and
Verifying Tuna, Section 6.-. Part d, emphasis added. See attached copy
as amended June 2001.) This language effectively precludes any
communication to U.S. tuna processors, consumers, or U.S. regulatory
agencies (NMFS and U.S. Customs Service) about whether or not any
fishing trip involved encirclement of dolphins, thus preventing
identification of such tuna as ``Dolphin Safe'' under the U.S. and the
American tuna processors' standards.
Moreover, in June 2001 - again with the support of the U.S.
Delegation - the IATTC adopted several resolutions further restricting
onboard observers from reporting on any fishing practices outside of
the IATTC's narrow ``Dolphin Safe'' definition. (See ``Resolution on
Amending the Rules of Confidentiality of the Agreement on the
International Dolphin Conservation Program,'' 20 June 2001, attached.)
Therefore, the IATTC onboard observers cannot report as to whether
encirclement of dolphins occurred during a fishing trip, and the U.S.
standards for non-encirclement cannot be fully verified. Instead, the
IATTC observers prepare documents that only verify whether any dolphin
mortality was observed in any dolphin net sets. We believe this is
insufficient for purposes of U.S. law and for proper dolphin
conservation.
Earth Island Institute maintains monitors around the world to
independently check on the status of tuna to maintain the integrity of
the ``Dolphin Safe'' tuna label. However, the IATTC fails to provide
information on whether or not a tuna vessel has a Dolphin Mortality
Limit (DML, an IATTC ``quota'' of dolphin mortalities the tuna vessel
can cause during a fishing trip) or whether a tuna vessel has used any
of their DMZ's during a particular trip. This hampers efforts to verify
``Dolphin Safe'' status of tuna shipments. Key details regarding the
numerous violations of the IATTC's international tuna and dolphin
regulations by vessels and companies are also withheld, such as the
name of vessel and company involved.
Support for these measures by the U.S. delegation to the IATTC has
seriously undercut the efforts of U.S. tuna fishermen and U.S. tuna
processors, not to mention U.S. tuna consumers, to adhere to the
Congressionally-mandated standards for ``Dolphin Safe'' tuna. Virtually
all of the 7 million+ dolphins killed in the Eastern Tropical Pacific
tuna fishery over the past four decades died in purse-seine nets
deliberately set by the dolphin-encirclement method. Yet, efforts by
U.S. tuna fishermen and the industry to adhere to strong standards to
protect dolphins have been undermined by a dysfunctional International
Tuna Tracking System which forbids, with the active support of the U.S.
delegation, dissemination of information to track truly ``Dolphin
Safe'' tuna.
For these reasons, our organizations are deeply concerned that the
U.S. Department of Commerce is not able to fulfill the Congressional
mandates of the MMPA and verify that tuna entering the United States is
meeting. current U.S. Dolphin Safe standards.
Thank you for your consideration of our comments for the record of
this hearing.
______
[Attachments to Mr. Phillips' statement follow:]
[The attachment, Brower, et al. v. Evans, et al. has been
retained in the Committee's official files.]
[GRAPHIC] [TIFF OMITTED] 75640.040
agreement on the international dolphin conservation program
resolution on amending the rules of confidentiality of the agreement on
the international dolphin conservation program
20 june 2001
The Parties to the Agreement on the International Dolphin
Conservation Program (AIDCP), at the 5th Meeting of the Parties, held
June 15, 2001, in San Salvador, El Salvador,
Hereby agree to amend the Rules of Confidentiality of the AIDCP,
adopted in October 2000, as follows:
1. LChange Paragraph 1 to: ``The following information associated
with the responsibilities and activities of the On-Board Observer
Program, and with the activities of the Secretariat in connection with
the AIDCP Dolphin Safe Certification procedures, shall be treated as
confidential:''
2. LChange Paragraph 2 to: ``All information collected by the On-
Board Observer Program, or by the Secretariat in connection with the
AIDCP Dolphin Safe Certification procedures, shall be made available to
the government under whose jurisdiction the vessel operates.''
###
international dolphin conservation program revised system for tracking
and verifying tuna june 2001
1. DEFINITIONS
The terms used in this document are defined as follows:
a. LDolphin safe tuna is tuna captured in sets in which there is no
mortality or serious injury of dolphins;
b. LNon-dolphin -safe tuna is tuna captured in sets in which
mortality or serious injury of dolphins occurs;
c. LAgreement Area is the area covered by the AIDCP;
d. LAIDCP is the Agreement on the International Dolphin
Conservation Program;
e. LParty or Parties are the Parties to the AIDCP ;
f. LState is a sovereign state or a regional economic integration
organization to which its member States have transferred competence
over matters covered by the AIDCP;
g. LNational authority is the department of government or other
entity designated by each Party as responsible for implementing and
operating the tuna tracking and verification program described in this
document;
h. LIATTC is the Inter-American Tropical Tuna Commission;
i. LSecretariat is the staff of the IATTC;
j. LCaptain is the person aboard the vessel who has legal
responsibility for the vessel while at sea and in port;
k. LEngineer is the person aboard the vessel responsible for
preparation of wells and the loading of the catch into the prepared
wells;
l. LObserver is the person assigned to the vessel by the IATTC or
the Party's national observer program to record the vessel's fishing
activities;
m. LVessel includes any vessel which catches, stores, or transports
tuna covered by this tracking and verification program;
n. LWell is any compartment on a purse-seine vessel in which tuna
is stored in a freezing brine solution;
o. LSet is the act of deploying and retrieving the purse seine in
order to catch tuna;
p. LBin is any container used to store tuna after unloading, during
cold storage, or for transport to processing.
q. LA fishing trip terminates when a vessel unloads two-thirds or
more of its catch, during a single unloading or during a series of
partial unloadings.
2. GENERAL
This document describes a system for tracking tuna caught in the
Agreement Area by vessels fishing under the AIDCP. The sole purpose of
this system is to enable dolphin safe tuna to be distinguished from
non-dolphin safe. tuna from the time it is caught to the time it is
ready for retail sale. This system is based on the premise that dolphin
safe tuna shall, from the time of capture, during unloading, storage,
transfer, and processing, be kept separate from non-dolphin safe tuna.
To this end the system shall be based on a Tuna Tracking Form (TTF) and
additional verification procedures described in this document or
developed by individual Parties for use within their respective
territories.
The national authority of the Party under whose jurisdiction a
fishing vessel operates shall be responsible for tracking the tuna
caught, transported, or unloaded by that vessel, but may, by mutual
consent, delegate the observation of unloadings and transfers to the
national authority of the Party in which the unloading or transfer
takes place. The national authority of the Party in which the tuna is
processed becomes responsible for the tracking and verification of the
dolphin-safe status of all such tuna when it enters a processing plant
located in the jurisdiction of that Party, regardless of the flag of
the catcher vessel, and for communicating the information to the
Secretariat.
It shall be the responsibility of each national authority to
establish and maintain the systems, databases, and regulations
necessary to implement the system in areas under its jurisdiction. Each
Party shall provide to the Secretariat a report detailing the tracking
and verification program established by that Party under its national
laws and regulations.
Each Party shall provide to the Secretariat, and update as
necessary, the name, mailing address, telephone and fax numbers, and e-
mail address of a designated contact person at its national authority
who shall be responsible for all matters pertaining to the program
described in this document, and the Secretariat shall circulate a list
of all such contact persons to all national authorities.
3. TUNA TRACKING FORM (TTF)
The Secretariat shall be responsible for producing the TTFs, which
shall be in both English and Spanish, in sufficient quantity to be used
throughout the Agreement Area by all the Parties; for distributing the
forms to the national authorities; for training a representative of
each national authority in the proper use and handling of the form; and
for maintaining physical control of all completed TTFs, once they are
returned to the Secretariat by the national authority in accordance
with its national laws and regulations.
1. LTTFs utilized during a trip shall be identified by a unique
number, which shall be the IATTC cruise number to which, it
corresponds, and shall have provision for recording and endorsing
information concerning each set made during a fishing trip which would
enable the contents of any., of the vessel's wells to be identified as
dolphin safe or non-dolphin safe.
2. LDolphin safe and non-dolphin safe tuna caught in the course of
a trip shall be recorded on separate TTFs.
3. LThe Secretariat shall issue the TTFs to observers, except that
in cases where the Party with jurisdiction over the vessel has a
national observer program in operation, the pertinent national
authority shall issue the TTFs to observers of its national observer
program. The cruise number shall be recorded on the TTF at the
beginning of each trip, and all tuna caught during that trip shall be
recorded on the relevant TTF.
4. LAfter a trip, the original TTF(s), with total confirmed
quantities of tuna unloaded or transferred from that trip, shall be
retained by the competent national authority, as follows:
a. LIf the tuna is to be processed within the territory of the
Party under whose jurisdiction the fishing vessel operates, the
original TTF(s) shall be submitted to the national authority of that
Party;
b. LIf the tuna is to be processed within the jurisdiction of a
Party other than the Party under whose jurisdiction the fishing vessel
operates, at the completion of unloading the tuna the responsibility
for tracking passes to the national authority of the. Party in whose
territory the tuna is to be processed. In such a case, the original
TTF(s) is (are) submitted to the national authority. of the Party under
whose jurisdiction the tuna is to be processed, and a copy of the
TTF(s) is (are) provided to the national authority of the Party under
whose jurisdiction the vessel operates.
5. LWithin ten days of receipt of a TTF, the competent national
authority shall transmit the TTF to the Secretariat.
6. LTTFs shall be treated by the competent national authority as
confidential official documents of the IDCP, consistent with Article
XVIII of the AIDCP, and the AII)CP Rules of Confidentiality.
4. FISHING OPERATIONS
1. LAt sack up during each set, and prior to brailing or loading of
tuna aboard the vessel and into wells, the observer determines whether
or not dolphin mortality or serious injury has occurred in the set and
notifies the captain immediately of his determination.
2. LOn the basis of the observer's determination, the tuna is
designated either dolphin safe or non-dolphin safe. The tuna is brailed
and loaded into a prepared well or wells which already contain either
dolphin safe tuna or non-dolphin safe tuna, as applicable, or into a
prepared but empty well or wells which shall then be designated dolphin
safe or non-dolphin safe, as applicable.
3. LAt the completion of brailing, when there is no further
question as to whether the tuna is dolphin safe or not, the observer,
in consultation with the engineer, shall record on the appropriate TTF
the species and estimated quantity of tuna loaded into each well used
in that set. Both the observer and the engineer shall initial the entry
for each set.
4. LWithin a reasonable period after the completion of loading of
non dolphin safe tuna, the observer may confirm the number(s) of the
well(s) receiving the tuna by noting the subsequent change in
temperature in the well(s).
5. LTransfers of tuna from the net of one fishing vessel to another
fishing vessel at sea in the course of a trip shall be documented on
the M(s), specifying the quantity, species, and dolphin safe status of
the tuna being transferred. The transfer shall be documented on the
TTF(s) of both the transferring and receiving vessels.
6. LAt the end of each fishing trip, when no more sets are to be
made, the observer and the captain shall review the TTT(s), make any
additional notes, and both will sign the form.
5. UNLOADING
1. LThe captain, managing owner, or agent of a vessel returning to
port to unload part or all of its catch shall provide sufficient notice
of the vessel's intended place and schedule of unloading to the
competent national authority to allow for preparations to be made for
monitoring the unloading of that tuna.
2. LIf a trip terminates when a vessel enters port to unload part
of its catch, new TTF(s) shall be assigned to the new trip, and the
information concerning any tuna retained on the vessel shall be
recorded as the first entry on the TTF(s) for the new trip. If the trip
is not terminated following a partial unloading, the vessel shall
retain the original TTF(s) and shall submit a copy of that TTF(s), with
original signatures, to the national authority of the Party where the
tuna was unloaded. In either case, the species, dolphin safe status,
and amount of tuna unloaded shall be noted on the respective original
TTF(s).
3. LIf tuna is unloaded from a fishing vessel in port and
subsequently loaded aboard a carrier vessel for transport to a
processing location, the Party under whose jurisdiction the fishing
vessel operates shall be responsible for obtaining the TTF(s),
retaining documentation of the unloading, including recording of the
total confirmed scale weight if the tuna is weighed at that time,
verifying that the dolphin safe tuna is kept separated from the non-
dolphin safe tuna during the carrier loading and transporting process,
and transmitting all relevant documentation to the Secretariat. Dolphin
safe tuna and non-dolphin safe tuna may be stored in the same -hold on
a carver vessel provided that the two are kept physically separate,
using netting or similar material, and the non-dolphin safe tuna is
clearly identified as such.
4. LIf the tuna is unloaded directly to a processing facility, the
national authority of the Party in whose area of jurisdiction the tuna
is to be processed shall be responsible for retaining documentation of
the unloading of the tuna and recording of the separate confirmed scale
weight for dolphin safe and non dolphin safe tuna. The competent
national authority shall be responsible for returning the original
______
Mr. Gilchrest. Mr. Charlie Johnson, Executive Director,
Alaska Nanuuq Commission, Indigenous Peoples Council on Marine
Mammals; Ms. Sharon Young, Field Director for Marine Issues,
The Humane Society of the United States; Mr. George Mannina,
American Zoo and Aquarium Association and the Alliance of
Marine Mammal Parks and Aquariums; Mr. Rick Marks, member of
the Take Reduction Team--oh, a member, an actual live member--
Mr. Marks. Teams. That is plural, Mr. Chairman.
Mr. Gilchrest. --of the Take Reduction Teams, Garden State
Seafood Association. Is that New Jersey?
Mr. Marks. Yes, Mr. Chairman.
Mr. Gilchrest. The Garden State. Thank you for coming.
I think what we will do, to give people a heads-up, no need
to rush this panel, but at the end of this panel, whenever that
might be, we will take an hour for lunch. Since The Humane
Society is here, that is the humane thing to do, I think.
Mr. Johnson, welcome. You may begin, sir.
STATEMENT OF CHARLES JOHNSON, EXECUTIVE DIRECTOR, ALASKA NANUUQ
COMMISSION, AND MEMBER, INDIGENOUS PEOPLES COUNCIL ON MARINE
MAMMALS
Mr. Johnson. Thank you, Mr. Chairman, honorable members of
the Committee. I am Charles Johnson, the executive director of
the Alaska Nanuuq Commission. I also serve on the Indigenous
Peoples Council for Marine Mammals.
The commission was formed in June 1994 to represent the
villages and the hunters of north and northwest Alaska on
matters concerning the conservation of polar bear. The
commission is now in its fourth year of a co-management
agreement with the U.S. Fish and Wildlife Service. This
agreement is to represent the villages in the range of the
polar bear, and to assist the service in the development of a
bilateral treaty with Russia.
The commission also has a cooperative agreement with the
National Park Service's Beringia Program to collect polar bear
habitat use in Chukotka from the traditional knowledge of
native hunters. This program is now in its third and final
year, and we hope to publish our report by the end of this
year.
I testified before this Committee on April 6th of 2000 and
gave a detailed report of the co-management needs and desires
of the Alaska Nanuuq Commission. The commission, as I
mentioned, is a member of the Indigenous Peoples Council on
Marine Mammals, or IPCoMM, which was formed in the early '90's
to advocate for the co-management rights of Alaska native
people in regard to marine mammals. IPCoMM represents most of
the Alaska native organizations involved in marine mammal
conservation.
Since the April 6, 2000 hearing of this Committee, IPCoMM
has worked very diligently with the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service to develop
mutually acceptable language for the reauthorization of MMPA.
The agencies are to be commended for their efforts,
forthrightness, and willingness to compromise. As a result of
these efforts to find common ground, IPCoMM supports the
language that the U.S. Fish and Wildlife Service and NMFS are
proposing to amend MMPA.
First, each village has a tribal council that is federally
recognized. Every Alaska Native Marine Mammal Commission gets
its authority to enter into co-management agreements for marine
mammals from these tribal councils. This is a reality of life
in Alaska, and IPCoMM strongly urges that language which
specifies that co-management agreements must be with tribal
organizations replaces language that specifies ``Alaska native
organizations.''
IPCoMM feels that Section 101(b), which recognizes the
right of Alaska natives to harvest marine mammals for
subsistence, remain. That section is vital to maintaining our
subsistence culture and way of life.
We also recognize that there are times when we may want to
limit the harvest for conservation purposes, and for this
reason we support the introduction of the new Section 119(a),
which allows for management of marine mammals before depletion
through co-managements with Alaska native tribes or tribally
authorized organizations. A co-management agreement must be in
place before depletion takes place.
IPCoMM also supports the prohibition section of 119(a),
which states that Alaska natives hunting in an area with a co-
management agreement must abide by that agreement. Had this
been in place in Cook Inlet, we may have been able to avoid the
current situations with beluga whales being hunted to
dangerously low numbers.
Alaska Native Marine Mammal Commissions have accomplished a
very great deal with very limited funding. It is now up to
Congress to adequately fund the co-management programs with the
$3 to $5 million that is requested or is proposed by Interior
and Commerce.
The Alaska Federation of Natives recognizes the
effectiveness of co-management agreements between government
agencies and Alaska natives, and has proposed co-management as
a solution to the State's current subsistence divisiveness. In
fact, AFN strongly supports preemption of State laws to provide
a subsistence priority, should the State not find the will to
bring itself back into compliance with Federal law.
I would like to introduce a paper that was produced by AFN
into the record, and it is a paper on preemption of State law
for providing a subsistence priority.
The Alaska Nanuuq Commission has been an equal partner with
the U.S. Fish and Wildlife Service in negotiating the polar
bear treaty with Russia. The treaty was signed on October 16,
2000 in Washington, D.C. As a result, Alaska natives and
natives of Chukotka will have equal representation on a joint
commission created to set harvest limits of the shared polar
bear population in Alaska and Chukotka.
The treaty also allows for a native agreement to implement
the treaty. The Alaska Nanuuq Commission is now developing its
agreement with the Association of Traditional Marine Mammal
Hunters of Chukotka. That is a grassroots organization that
represents the natives of Chukotka.
We also support extending the prohibition of the use of
aircraft which is in the treaty to the rest of Alaska where the
treaty does not cover, such as in the Beaufort Sea, and we
would also support extending the prohibition on sales or
exports of parts of polar bears.
We will face challenges in developing enforceable quotas as
we move from unlimited hunting in Alaska to quotas, and from no
hunting to legal hunting in Chukotka. It is vital to the
success of this organization that Congress adequately funds the
implementation of this precedent-setting agreement.
Thank you, Mr. Chairman, and I will be happy to answer any
questions.
[The prepared statement of Mr. Johnson follows:]
Statement of Charles Johnson, Executive Director, Alaska Nanuuq
Commission
Mr. Chairman, Honorable Members of the Committee, I am Charles
Johnson, the Executive Director of the Alaska Nanuuq Commission. The
Commission was formed in June of 1994 to represent the villages and
hunters of North and Northwest Alaska on matters concerning the
conservation of polar bear. The Commission is now in its fourth year of
a co-management agreement with the U.S. Fish and Wildlife Service. This
agreement is to represent the villages in the range of the polar bear
and to assist the Service in the development of a bilateral treaty with
Russia.
The Commission also has a cooperative agreement with the National
Parks Service Beringia Program to collect polar bear habitat use in
Chukotka from the traditional knowledge of the native hunters. This
program is now in its third and final year and we hope to publish our
report by the end of this year.
I testified before this committee on April 6; 2000 and gave a
detailed report on the comanagement needs of the Alaska Nanuuq
Commission. The Commission is a member of the Indigenous Peoples
Council on Marine Mammals or IPCoMM, which was formed, in the early
90's to advocate for the co-management rights of Alaska Native people
in regard to marine mammals. IPCoMM represent most of the Alaska Native
organizations involved in marine mammal conservation.
Since the April 6, 2000 hearing of this committee IPCoMM has worked
very diligently with the U. S. Fish and Wildlife Service and the
National Marine Fisheries Service to develop mutually acceptable
language for the reauthorization of MMPA. The agencies are to be
commended for their efforts, forthrightness and willingness to
compromise.
As a result of these efforts to find common ground IPCoMM supports
the language that the U.S. Fish and Wild Life Service and NMFS are
proposing to amend MMPA.
Every village has a tribal council that is federally recognized.
Every Alaska Native marine mammal commission gets it authority to enter
into comanagement agreements for marine mammals from these tribal
council. This is the reality of life in Alaska and IPCoMM strongly
urges that language, which specifies that co-management agreements must
be with tribal organizations, replace language that specifies Alaska
Native Organizations.
IPCoMM feels that Section 101(b), which recognizes the right of
Alaska Natives to harvest marine mammals for subsistence, must remain.
That section is vital to maintaining our subsistence culture and way of
life. We also recognize that there are times where we may want to limit
the harvest for conservation purposes and for this reason we support
the introduction of the new Section 119A which allows for management of
marine mammals before depletion through co-management with Alaska
Native tribes or tribally authorized organizations. A co-management
agreement must be in place before management before depletion takes
place.
IPCoMM also supports the prohibition section of 119A, which states
that Alaska Natives hunting in an area with a co-management agreement
must abide by that agreement. Had this been in place in Cook Inlet we
may have been able to avoid the current situation with beluga whales
being hunted to dangerously low numbers.
Alaska Native marine mammal Commissions have accomplished a great
deal with very limited funding. It is now up to Congress to adequately
fund the co-management programs with $3,000,000 to $5,000,000 each to
Interior and Commerce.
The Alaska Federation of Natives recognizes the effectiveness of
co-management agreements between government agencies and Alaska Natives
and has proposed co-management as a solution to the State's current
subsistence divisiveness. In fact AFN strongly supports pre-emption of
state law to provide a subsistence priority should the state not fid
the will to bring itself back into compliance with federal law. I would
like to introduce into the record a briefing paper on federal pre-
emption, prepared by AFN in August 2001.
The Alaska Nanuuq Commission has been an equal partner with the
U.S. Fish and Wildlife Service in negotiating the polar bear treaty
with Russia. The treaty was signed on October 16, 2000 in Washington
D.C. As a result Alaska Natives and the Natives of Chukotka will have
equal representation on the joint commission created to set harvest
limits of the shared polar bear population in Alaska and Chukotka.
The treaty also allows for a Native-to-Native agreement to
implement the treaty. The Alaska Nanuuq Commission is developing that
agreement with the Association of Traditional Marine Mammal Hunters of
Chukotka, which represents the Native Peoples of Chukotka.
We will face challenges in developing enforceable quotas as we move
from unlimited hunting in Alaska to quotas and from no hunting to legal
hunting in Chukotka.
It is vital to the success of this treaty that congress adequately
funds the implementation of this precedent setting agreement.
Thank you Mr. Chairman
______
[The attachment, ``Preemption of State Law to Provide a
Subsistence Preference,'' has been retained in the Committee's
official files.]
Mr. Gilchrest. Thank you very much, Mr. Johnson.
Ms. Young?
STATEMENT OF SHARON B. YOUNG, FIELD DIRECTOR FOR MARINE ISSUES,
THE HUMANE SOCIETY OF THE UNITED STATES
Ms. Young. Mr. Chairman, members of the Committee, unlike
my colleagues here at the table who were each addressing fairly
specific portions of the MMPA reauthorization in '94, I am
going to be trying to address them all. And since it is a
pretty difficult task, I am going to do my best, but I do
encourage you to look at the much more extended written
testimony that we have submitted.
I am Sharon Young, and I am the field director of marine
issues for The Humane Society of the United States. I am
testifying on behalf of the International Wildlife Coalition,
the Earth Island Institute, and The Humane Society of the
United States.
Between '92 and '94, the HSUS participated in an ad hoc
stakeholder negotiation, resulting in proposals to Congress for
amendments to the Marine Mammal Protection Act that were
enacted in 1994. Since that time, we have served on a number of
appointed Committees, working groups, take reduction teams, and
any number of other groups that the National Marine Fisheries
Service convened in response to the needs for implementation of
the many provisions that were added to the Marine Mammal
Protection Act in '94.
The '94 amendments to the Marine Mammal Protection Act
established objective standards for implementing the many broad
goals of the act and for measuring the progress toward
achieving them. The most important standard was the concept of
potential biological removal level. This, in conjunction with
the zero mortality rate goal, provides a key understanding of
human-related impacts on marine mammals, and both of these
provisions should be maintained as they exist within the MMPA.
The success of other amendments to the MMPA has been
somewhat mixed. Take reduction teams, which allow stakeholder
groups to advise the National Marine Fisheries Service on
measures to reduce mortality of marine mammals in commercial
fisheries, have met and produced recommendations fairly
expeditiously. The process can be very contentious.
Stakeholders with very different constituencies may be
vehemently in disagreement with one another, but that is in
fact a point of the process. To sit down together, to share
information, to make sure we all operate from a common basis of
understanding one another's interests and positions, and to be
open and honest in a forum that encourages resolution of
differences is a very important part of the act, I think.
However, the National Marine Fisheries Service has delayed
convening teams or has delayed action or refused to act on
recommendations by take reduction teams until court proceedings
have been brought against them in many instances. This
seriously undermines the confidence in and the effectiveness of
the process.
There are other issues that have created problems in the
implementation of Section 118, as well. One of them is the
disparity between take reduction requirements for commercial
fishing gear and the exemption of identical recreational gear
from these same restrictions. This inequity should be
addressed.
Another problem for MMPA implementation is the National
Marine Fisheries Service's use of MMPA implementation funds to
make up shortfalls in base operating budgets. This is a budget
issue that urgently needs to be addressed. Additionally, there
is virtually no enforcement of MMPA take reduction mandates.
This in turn rewards lawbreakers and undermines the efficacy of
take reduction measures.
These issues also need attention by enforcement agents. The
HSUS believes that the process established under Section 118
can work as intended, if the National Marine Fisheries Service
upholds its responsibilities under the act.
Native co-management of marine mammals under the MMPA
amendments we believe has not necessarily improved the lot of
marine mammals. Reporting of kills is as many as 5 years
behind, and when it does occur, the National Marine Fisheries
Service in its official reports admits that it is generally
under-reporting.
Another troubling aspect is that many of the species of
marine mammals, particularly in Alaska, and including the
endangered Steller sea lion, are being killed by natives in
excess of established PBR levels. We believe this situation
needs to be remedied as well.
We believe that it is important to involve conservation
interests and public comment in this process, to ensure an
outside review and representation of all stakeholders, and more
importantly, to ensure adequate protection of marine mammals.
This is particularly true if there is going to be an expansion
of co-management into other marine mammal species.
The HSUS believes that the prohibition on hunting polar
bears in Alaska should be maintained, because of evidence that
conservation provisions in Canada to regulate polar bear sport
hunting have been wholly inadequate to protect a number of
polar bear stocks, the importation provision enacted as part of
the 1994 amendments should be repealed.
The 1994 amendments also changed the authority under which
captive marine mammals are overseen. The intervening years have
shown that many of the changes have proven somewhat inadequate
to ensuring protection of the animals.
We believe there should be a prohibition on traveling shows
exhibiting marine mammals. There should be regular on-site
inspections of all display facilities, and this should be
mandatory. Permits should be required for any proposed export
of marine mammals from the United States. Resources in the
Department of Agriculture are inadequate to the task of
managing public display facilities, and we believe that the
jurisdiction over captive marine mammals should be returned to
the National Marine Fisheries Service. We also support
maintaining Marine Mammal Inventory reports.
The HSUS also supports--and I know this is being dealt with
by another panel--a prohibition of intentional killing of
marine mammals. We encourage the National Marine Fisheries
Service and Congress to assist them in their work by developing
innovative and nonharmful deterrents.
The American people continue to show broad support for
recovering and protecting marine mammals. The MMPA stands as an
assurance of the government's commitment to this will. We urge
this Committee to ensure that the MMPA remains strong. Any
amendments to the act should be limited to noncontroversial
clarifying amendments that maintain the strong conservation
principles of the act.
Thank you.
[The prepared statement of Ms. Young follows:]
Statement of Sharon B. Young, Field Director, Marine Issues, The Humane
Society of the United States
Mr. Chairman, members of the Subcommittee, my name is Sharon Young
and I am the Field Director for Marine Issues for The Humane Society of
the United States (HSUS). On behalf of The HSUS, the International
Wildlife Coalition, Earth Island Institute and their more than 7
million members and constituents, I am grateful for the opportunity to
present our views on the implementation of the Marine Mammal Protection
Act (MMPA) and suggestions for changes that might improve the MMPA's
ability to protect marine mammals.
BACKGROUND
Between 1992 and 1994, The HSUS participated in an ad hoc
stakeholder negotiation that resulted in proposals to Congress for the
Amendments to the MMPA that were enacted in 1994. Since that time we
have served on a number of appointed committees, working groups and
take reduction teams that have arisen from the implementation of the
many provisions that were added to the MMPA in 1994. We have also
testified a number of times before this and other House Committees
regarding the implementation of various portions of the MMPA, most
recently in an April 2000 hearing on oversight of the Take Reduction
Team process.
One of the questions I was asked to address in this hearing is
whether the changes in 1994 have had a positive effect on human-related
interactions with marine mammals. I think that the answer is mixed. The
Amendments included a number of important provisions. Their primary
accomplishment was that for the first time since the 1972 passage of
the MMPA, measurable standards and objectives were established to help
achieve the goals that were desired by the American people. In
particular the Amendments provided an objective measure of
understanding of the likely impacts of human-related mortality on
marine mammals that is known as the Potential Biological Removal Level,
or PBR. The 1994 Amendments established a process to bring stakeholders
to a common table to share information and work toward development of
solutions to those situations in which unsustainable levels of
mortality in commercial fisheries are occurring. They provided
deadlines to ensure timely enactment of management plans to reduce
unsustainable levels of mortality. They established a process to
address concerns about nuisance pinnipeds (seals and sea lions) that
were thought to be having a demonstrably negative effect on endangered
fish stocks. They also streamlined the process for obtaining scientific
research permits. Additionally, the Amendments included provisions
pertaining to hunting of polar bears, the care of captive marine
mammals, and the co-management of marine mammals by native peoples. The
success of these measures, however, has been tempered by a variety of
actions and inaction by the National Marine Fisheries Service (NMFS)
and failures in budgeting and enforcement. I would like to address each
of issues these separately.
Establishment of Objective Standards for Reducing Fishery Related
Mortality
Potential Biological Removal Level (PBR)
Among the principal accomplishments of the 1994 Amendments was the
development of the concept of PBR. The formula that was used to obtain
PBR was developed by scientists to ensure a precautionary approach to
managing our interactions with marine mammals. The PBR formula
recognized the uncertainties inherent in understanding the life history
and population dynamics of marine mammals. Their marine habitat makes
it easy to under-count them or to assume that animals that are widely
distributed along a coast are parts of the same population, when in
fact they are from separate stocks that require separate management
strategies. We know little about the reproductive rates of most marine
mammals, and we often know less than we should about levels and sources
of mortality to populations. Since 1994, the principles underlying PBR
have been adopted by other nations as well as they have sought to
manage their own nation's interactions with marine mammals. Congress
and the National Marine Fisheries Service deserve to be commended for
developing an approach that is conservative and precautionary in its
approach. This sort of approach (PBR) helps guarantee that we do not
repeat the sorry history demonstrated by fishery management in many
areas of the country where fish stocks have crashed and economic
hardship has resulted as a result of non-precautionary approaches to
management. The American public cares deeply about marine mammals, and
PBR is an important means of ensuring protection and promoting growth
in diminished populations.
Zero Mortality Rate Goal (ZMRG)
In 1972, the MMPA included a goal stating that fishery interactions
with marine mammals should be reduced to ``insignificant levels that
are approaching a zero mortality and serious injury rate.''[16USC 1371
(a)(2)] This has become widely known as the zero mortality rate goal or
ZMRG. This goal is important, as it provides a commitment to ensuring
that wasteful practices do not result in unnecessary death or injury of
marine mammals - a goal that has long been, and still is, supported by
the American people. Goals are by definition: ``an end that one tries
to attain.'' ZMRG is a goal, not an objective. While goals and
objectives may seem similar, we can look to the field of education to
see how they are differentiated. In education, goals are broad
principles toward which one strives, such as teaching children to
approach one another with attitudes that are not prejudiced. Objectives
are measurable standards, such as teaching them to use terms that are
not derogatory to races or sexes when they speak. In the case of
interactions with marine mammals, the MMPA strives toward the goal of
reducing marine mammal mortalities to levels that are biologically
insignificant; not the objective of absolute zero. This goal
acknowledges that some incidental mortality may occur, but the phrasing
reflects the desire of the American people to reduce mortality and
serious injury to levels that are as low as is feasible. We often hear
Americans speak in scathing terms of other nations that catch marine
mammals in fishing nets without qualms. Striving toward the zero
mortality rate goal assures us of ``clean'' fisheries of which the U.S.
can be proud. It is a goal that should remain in the MMPA.
Take Reduction Teams and Reduction of Mortality in Marine Mammal Stocks
The 1994 Amendments established, for the first time, a process
designed to include input from all parties with a stake in the
management of fishery interactions with marine mammals. The Amendments
ensured that stakeholders were represented in advising management
decisions. They also stipulated priorities for convening teams to
address stocks or fisheries with the most serious levels of
interactions. The highest priority was given to situations in which
fisheries interacted with strategic stocks of marine mammals. Strategic
stocks were those that were listed under the Endangered Species Act as
threatened or endangered, or were listed under the MMPA as depleted or
were sustaining levels of interactions with fisheries that exceeded the
PBR for the stock or stocks. Take reduction teams are charged with
producing a plan to reduce mortality to below PBR with six months of
implementation. [Section 118(f)(5)(A)]
Under the schedule established in the MMPA Amendments when they
were enacted in May 1994, fisheries should have been at or below PBR by
October 1996. Because of the extremely high levels of mortality of
harbor porpoise in gillnet fisheries in the Gulf of Maine, Congress
made special provisions for this fishery. The MMPA provided that the
Secretary may ``modify the time period required for compliance with
section 118 (f)(5)(A), but in no case may such modification extend the
date of compliance beyond April 1, 1997.'' [Section 120 (j)(2)]
With that in mind, the NMFS first convened a team to address
mortality of harbor porpoise in the Gulf of Maine. This stock was
subjected to mortality more than three times the PBR. NMFS then
convened a team to address mortality of endangered large whales in the
Atlantic, as levels of human-related mortality in North Atlantic right
whales were unsustainable, and other endangered whales such as humpback
whales and fin whales were also entangled in gillnet and lobster gear
used along the U.S. east coast. Other teams that were convened included
those for both the east coast and west coast driftnet and/or longline
fisheries that interacted with offshore cetaceans including pilot
whales and oceanic dolphins.
The HSUS testified in greater depth in April 2000 as to the fate of
these teams, but I would like to summarize what has been a needlessly
contentious process. The MMPA Amendments provided a procedure and
specific deadlines. Despite this, all take reduction teams were
convened well after the legally mandated date. Because of delays within
the NMFS, no fisheries were able to comply with the MMPA deadlines for
reducing their interactions with strategic stocks to below PBR by
October 1996. In fact, no take reduction plans had even been published
by this date. Gulf of Maine harbor porpoise were still being killed at
a rate almost three times their PBR when the April 1997 deadline came
and went without publication of any take reduction plan.
When the NMFS reported its 1995 activities to Congress, it stated
that a ``coordination process'' to ``initiate'' Teams was begun in
September 1995. The report states that they had contracted with a
facilitator who was to be responsible for convening six (6) take
reduction teams during 1996 to address the mortality of the strategic
stocks whose PBR was exceeded. In the report, NMFS stated that these
six teams would be ``in order of priority: Gulf of Maine stock
(population) of harbor porpoise; Atlantic offshore cetaceans; Pacific
offshore cetaceans; and the Atlantic baleen whales (humpback and
northern right whales).'' Furthermore they reported that ``[t]he
development of [Teams] for three other stocks: the Atlantic coastal
stock of bottlenose dolphins; and the eastern and western stocks of
Steller sea lions, is also being considered.'' We have emphasized the
last four words, as these stock are all strategic stocks with known
fishery interactions. Bottlenose dolphins were being killed in numbers
exceeding their PBR and were a depleted stock; therefore a take
reduction team was mandatory. Steller sea lions were declining in
portions of their range and portions of the stock have been designated
as endangered or threatened.
Even if allowance is made for the fact that the stock assessments
were late in development, thereby delaying the convening of take
reduction teams, the MMPA states that take teams must be established
``at the earliest possible time (not later than 30 days) after the
Secretary issues a final stock assessment.'' Despite this clear
mandate, NMFS did not convene the first take reduction team until
February 1996. As of the date of this testimony, NMFS has convened only
four of the six teams that they themselves had identified as having
``the highest priority for the development of take reduction plans to
reduce incidental bycatch of strategic stocks.'' Almost six years after
the publication of the first stock assessment, there are still no take
reduction plans for coastal stocks of bottlenose dolphins or for
Steller sea lions in Alaska. The bottlenose dolphin team, which has
been formed, has not yet officially met. Of the teams that have met,
there have been mixed results.
The Pacific Offshore Cetacean Team
This team was convened in February 1996 to address the mortality of
multiple stocks of marine mammals in the Pacific driftnet fishery. It
submitted a plan as mandated in August 1996. The NMFS published the
draft and final plans in a timely manner and in early 1997 the plan was
implemented. Since that time, its measures have apparently been
effective in reducing mortality in the Pacific driftnet fishery. While
there have been some issues of compliance by the fishery with some
portions of the take reduction plan, the NMFS has gone forward to
address these problems with education programs and enforcement and this
team's efforts appear to have been a success. The same cannot be said
of the other take reduction teams.
Gulf of Maine Harbor Porpoise
Both the harbor porpoise teams reached basic consensus on plans to
reduce mortality by mid-1997. Despite this, NMFS did not publish a plan
until litigation forced them to act in 1999. Since that time, the
mortality of harbor porpoise has dropped to approximately the PBR
level, although The HSUS remains concerned that this is largely a
result of Fishery Management Council related closures for the purposes
of groundfish management rather than as a result of the provisions of
the take reduction plan.
The Atlantic Offshore Cetacean Take Reduction Team
This team initially had three fisheries represented on the Take
Reduction Team. During the negotiation process, the NMFS disallowed one
of the fisheries, the Pair Trawl Fishery. No plan was published under
the MMPA for the remaining two fisheries and one of them, the pelagic
driftnet fishery, was disallowed in 1999 without benefit of a take
reduction plan. The plan for the Atlantic longline fishery was never
published, although portions of the plan were adopted under the Fishery
Management Plan for the fishery. The team has never been reconvened,
and within the past two months, team members have been notified that
the team is being disbanded for a period of approximately three years
while the NMFS gathers additional data. This is an unconscionable
decision.
Data in the NMFS' own stock assessments for east coast marine
mammal stocks for several years have indicated that the longline
fishery continues to inflict unsupportable and illegal levels of
mortality and serious injury on a number of strategic stocks.
Furthermore, additional trawl fisheries such as the Squid, Mackerel and
Butterfish trawl fishery are also killing or seriously injuring
hundreds of oceanic dolphins. For example: the PBR for common dolphins
is 227 animals, but the combined mortality due to offshore fisheries is
406 - almost double the PBR. The PBR for pilot whales is 108 although
fishery-related mortality is 245 per year - more than twice the PBR.
Mortality of other species, such as Atlantic white-sided dolphins,
varies from year to year as to whether it is over or just under PBR.
Clearly the NMFS has a legal obligation to reconvene this Take
Reduction Team as required by the MMPA.
Atlantic Large Whale Take Reduction Team
This team was convened to address the mortality of a number of
species of large baleen whales: north Atlantic right whales, humpback
whales, fin whales and minke whales. The major focus of the team was
the mortality and serious injury of right whales, the most critically
endangered species of large whale. The team was convened in August 6,
1996, following a lawsuit by Greenworld. The task of this team was
difficult because, although the likelihood of any particular lobster
pot entangling a whale was extremely low, the likelihood of a whale
getting entangled in some lobster pot or gillnet was extremely high.
With 300 or fewer right whales remaining, and evidence mounting that
the population is in decline, it was (and remains) urgent that measures
be taken to alter current fishing practices that entangle whales.
The NMFS published a take reduction plan in the wake of both
litigation and appeals by fishermen to Congress. This plan has been a
resounding failure. In its most recent biological opinions on the
affected fisheries, NMFS has stated that the take reduction plan (which
is based on current best fishing practice) was ``inadequate to avoid
jeopardy to right whales.'' This month, they published proposed gear
modifications and a proposal for emergency response to aggregations of
right whales that are currently subject to a 30-day public comment
period. They also published an advanced notice of proposed rulemaking
to consider implementation of additional seasonal restrictions in areas
where right whales are predictably found outside of critical habitat.
We have serious reservations about these measures, many of which
request voluntary actions by fishermen. The NMFS continues to place its
hopes in disentanglement response. Although several whales have been
successfully disentangled, others have died or were lost subsequent to
attempts to disentangle them and have not been seen since. Within the
past two years an adult female died of grotesque injuries resulting
from her entanglement, and an adult male (Churchill - who was the
subject of many well-publicized disentanglement attempts) has finally
disappeared after being seen lying motionless at the surface, emaciated
and with his head drooping.
Clearly the promise of research and the reliance on disentanglement
have not been adequate. Measures contained in the plan to prevent
disentanglement have failed and newly proposed measures are of
questionable promise.
Given the history of failure by the NMFS to act on a timely basis
and in the face of a mounting death toll in right whales, The HSUS
filed suit in the year 2000 against the NMFS for violations of both the
ESA and the MMPA. It is with reluctance that we move in this direction;
however, the history of the take reduction team process to date
indicates that without litigation or threat of litigation, little is
accomplished, even when the statutory requirements are perfectly clear
and the body count of animals continues to rise. In our most recent
court appearance, Judge Douglas Woodlock, of the First District Court
of the United States, castigated the NMFS for countless delays and
deliberate vagary in its proposals. He characterized their actions as
``the `manana' approach,'' further stating: `` the approach you have
chosen forces courts to act and you have only yourselves to blame.''
Indeed the Take Reduction process has not failed right whales, it is
the NMFS that has failed them.
Coastal Stocks of Atlantic Bottlenose Dolphins
The most recent team to be convened will address the mortality of
bottlenose dolphins in gillnet fisheries in the mid-Atlantic. This team
has not yet officially met and is long overdue. In its report to
Congress for 1996 (released October 1997), NMFS stated that it had not
yet convened a Mid-Atlantic Team; however, ``NMFS expects to convene
this team in the spring of 1997 to address incidental takes of harbor
porpoise and bottlenose dolphins in ocean gillnet fisheries from New
York to North Carolina.'' Although the mid-Atlantic harbor porpoise
take reduction team was originally to have addressed mortality of
bottlenose dolphins, the Team was directed by the NMFS to focus its
efforts solely on harbor porpoise. In 1997, the Team recommended that
by January 1999, the NMFS should convene a team to address mortality of
bottlenose dolphins.
In 1999, The HSUS sent a letter to NMFS notifying them of our
growing concern that they had not yet convened a team for bottlenose
dolphins, despite repeated promises to do so. We received a commitment
from NMFS to convene a Team in the fall of 2000, following completion
of expanded data gathering efforts. In the summer of this year, NMFS
began meeting with stakeholders to share with them information it had
gathered pertaining to the structure of the stock, with updated and
dramatically larger population assessments, and higher estimates of
fishery-related mortality. This team has had a number of meetings
postponed and has not yet met, though it is scheduled to do so in
November. The HSUS hopes that the NMFS will abide by its agreement to
convene a take reduction team. We would like to avoid litigation as a
means of enforcing their statutory obligation to protect bottlenose
dolphins.
Alaska Steller Sea Lion Team
In its report to Congress on activities undertaken in 1996, the
NMFS states that they had not yet convened this team; however they
stated ``NMFS expects to convene this team to address incidental takes
of Steller sea lions in Alaska Commercial fisheries. The team will be
facilitated by Mediation Services, Seattle, WA.'' As of the date of
this testimony in October 2001, this team has still not been convened,
despite ongoing population declines and contributing mortality from
fisheries interactions.
Summary of Section 118 Implementation
It is troubling that, without litigation or threat of litigation,
the NMFS has shown reluctance to abide by its legal responsibilities.
Where take reduction teams have faltered, it is because the NMFS has
undermined their functioning by bowing to political manipulation of the
system that results in encouraging delay of action or in taking
inadequate actions, which is then followed by the necessity of seeking
assistance of the courts to force the agency to do its job. Indeed, The
HSUS has been a plaintiff in two lawsuits pertaining to inaction on
take reduction mandates.
The 1994 Amendments put in place a system that was designed to
allow conservationists, fishermen and scientists to join with
government managers to develop plans that reduce mortality of marine
mammals consistent with the mandates of the MMPA. This system CAN work.
The illustration provided by the Pacific Offshore Cetacean Take
Reduction Team is, in part, an example of this. Where the system has
failed, it is generally not as a result of an inability of stakeholders
to comprehend the problem and work collaboratively to develop a
solution.
Where the failure to convene teams or to implement plans is a
result of funding and personnel insufficiency, the NMFS must seek and
Congress should grant adequate funds. But funding alone does not seem
to explain the failure of the NMFS to take action on take reduction
plans. Some of the recommendations of take reduction teams would cost
the agency nothing. For example only in October 2001 did the NMFS
finally act on a 1999 recommendation by the Atlantic Large Whale team
to remove 7/16'' line from a list of technology options designed to
reduce risk. Also litigation was necessary to force publication of the
take reduction plan for harbor porpoise, although the plan had been
largely complete for over a year prior to the suit.
The delays also undermine the confidence of Team members in the
take reduction process. It is arduous work for diverse stakeholders to
develop a plan that all can agree is likely to be effective and is
acceptable to all interested parties. It is frustrating to have this
hard work end with the NMFS refusing to publish a plan, often for
years, with little or no explanation for the delay. Additionally,
failure to enforce take reduction plan mandates further undermines the
likelihood of the plan succeeding. The take reduction team process was
designed to reduce the need to use lobbying and litigation as
management tools. Instead, delays have forced both the fishing industry
and conservation groups to use the very tools that the process was
designed to obviate, further weakening confidence in the efficacy of
the process.
The failure of the NMFS to meet its statutory obligations leads to
a waste of resources that must be consumed by legal fees, lobbying
efforts and oversight hearings. More importantly, the failure to meet
statutory obligations under the MMPA has lead to a needless waste of
animals' lives.
Abundant Pinniped Populations
While we understand that this issue is to be addressed in another
Panel before the Subcommittee, The HSUS would like to take this
opportunity to state that we believe that existing provisions in the
MMPA are adequate to address situations of perceived conflict between
humans and pinnipeds and concerns that pinnipeds are eating endangered
fish species. Specifically, Section 109 and Section 120 were enacted to
provide a forum for addressing these concerns and are a precautionary
means of addressing conflicts. The HSUS has some grave concerns with
portions of Section 120 and its implementation, but at the very least,
it provides some checks and balances. We believe that there is no need
to amend the MMPA to allow additional authorizations for the
intentional lethal removal of pinnipeds by state and federal resource
agencies or by private citizens. In particular, we are concerned that
if private citizens, including fishermen, are provided with any
authority to intentionally kill marine mammals, we will merely see a
dramatic increase in the wounding and maiming of hundreds of marine
mammals.
In May 1999, Yale University completed a survey entitled ``American
Perceptions of Marine Mammals and their Management.'' In this, they
found that three fifths of Americans disapproved of reducing
populations of seals and sea lions and more than ninety percent opposed
the use of lethal practices such as shooting or poisoning seals and sea
lions as a means of reducing conflicts even though these methods were
described as being the least expensive option. Clearly the American
people would not support any changes to the MMPA that would broaden the
use of lethal forms of managing conflicts. We agree with many of the
comments made by the Ocean Conservancy in their testimony, particularly
the need for innovative and targeted research to develop non-lethal
deterrents that can prevent interactions while posing little risk to
the pinnipeds or non-target organisms.
Native Co-Management
The 1994 Amendments to the MMPA provided greater authority for the
NMFS to enter into agreements with native tribes and Alaskan natives to
co-manage stocks of marine mammals, particularly those in Alaska. The
HSUS has always supported the involvement of stakeholders in the
process of determining management programs. We are, however, concerned
that the co-management process is NOT an inclusive process. Meetings
between native groups and the US government are not open to attendance
by members of the public, nor is the public allowed to comment on the
agreements prior to their going into effect. The NMFS, as can be seen
in our testimony about take reduction teams, clearly does not always
represent the public's interests and opinions. Problems have arisen in
the co-management of marine mammal stocks. We note a number of examples
from the 2001 Alaska Marine Mammal Stock Assessments, published by the
NMFS.
Endangered Steller Sea Lions have a PBR of 208. This stock
continues to decline. There are no data on native subsistence hunting
provided since 1997. In that year, natives killed 353 animals from this
declining stock, and we have no way of knowing how many were killed in
the past 4 years. This is simply unacceptable. Similarly, spotted seals
are hunted by natives with no harvest data available since 1995.
Another example, of which Congress is no doubt aware, is the crisis
that arose for beluga whales in the Cook Inlet in Alaska, whose
population was decimated by native hunting. While this situation has
received a great deal of attention, and management actions have halted
the heavy hunting; beluga whales in the Eastern Bering sea stock are
also hunted in levels above their PBR. These belugas have a PBR of 129,
with an estimated annual average of 121 killed by native hunters. This
is perilously close to the PBR and, in fact, in four of the five years
between 1993 and 1997 (the standard period used by NMFS to obtain
annual averages), PBR was exceeded by native hunting. We do not know
how many may have been killed since 1997. The stock assessments state
that for virtually all marine mammal stocks hunted by natives,
estimates of native hunting are underestimates.
Without outside input to and review of the co-management process,
we cannot hope to ensure that management agreements between the hunters
and the government are adequately protective of marine mammals stocks.
The HSUS strongly supports the inclusion of conservation interests in
meetings and discussions pertaining to co-management agreements and
believes that the public should have a right to comment on these
agreements before they are enacted.
Public Display
Export Permits
The MMPA should be amended to restore the requirement for a permit
to export marine mammals for the purpose of public display, scientific
research, and enhancing the survival or recovery of a species or stock.
The 1994 Amendments removed this requirement and required only a 15-day
notification to the NMFS or Fish and Wildlife Service (FWS) and a
determination that a receiving facility meets standards comparable to
those required under the Animal Welfare Act (AWA) and MMPA. The HSUS
opposed these amendments, as we had serious concerns about the ability
of the agencies under such a short-notice regime and without public
input to ensure the well-being of marine mammals leaving this country
for foreign facilities not under the jurisdiction of U.S. law.
In several instances since 1994, captive cetaceans, pinnipeds, and
sea otters have been exported to countries such as China and Japan to
literally unknown fates. One of the most well-known exports under the
new provisions was that of Keiko, the killer whale of ``Free Willy''
fame. Ironically, the Alliance of Marine Mammal Parks and Aquariums
(Alliance) vigorously protested this export, when in fact the Alliance
was instrumental in fashioning the minimal export provisions under
which Keiko was sent to Iceland from Oregon. While The HSUS believes
this export would have qualified for a permit under the pre-1994
provisions, we point to this example in order to demonstrate that it is
precisely because the law should be equally applied to all, that the
law must be strong.
The current export requirements, which include the 15-day
notification and a letter of comity from the receiving nation, have
proven woefully inadequate in protecting captive marine mammals leaving
U.S. jurisdiction. National agencies all too frequently provide letters
of comity with no substance underlying them, yet as a diplomatic
matter, the U.S. agencies must accept these letters. The permit
process, which includes public notice and public input through
comments, allows a greater - and more protective - degree of scrutiny
of a receiving facility and the laws to which it is subject.
On-Site Inspections to Determine Comparability
Under the 1994 Amendments, foreign receiving facilities must
demonstrate that they meet standards that are comparable to those under
the AWA. However, the Animal and Plant Health Inspection Service
(APHIS) has concluded that facilities may demonstrate this solely
through providing the agency documentation - affidavits and photographs
- rather than by the agency conducting an on-site inspection. APHIS has
on a number of occasions stated that it does not have the authority or
budget to conduct such on-site inspections nor the authority to require
foreign receiving facilities to cover the expense of an on-site
inspection. This authority or lack thereof is not clear from the
language of the AWA or its regulations or from the language of the
MMPA. Therefore, the MMPA should be amended to clarify in Section
104(c)(9) that the determination of comparability must be made through
first-hand knowledge - that is, on-site inspections - by the relevant
U.S. agency. Otherwise the determination is in essence being made by
the receiving facility itself, through the documentation it chooses to
provide to APHIS, which is a clear conflict of interest.
The Marine Mammal Inventory Report (MMIR)
The U.S. is one of the only countries in the world with legislation
requiring the maintenance of an inventory of marine mammals held in
captivity. Other nations without such a requirement sorely feel the
lack. Until recently, for example, Mexican public interest groups and
the Mexican government had no idea how many captive dolphins were held
in their country. They had no idea what the mortality, birth, or
survivorship rates were. Through the efforts of non-governmental
organizations, an inventory was painstakingly put together that
demonstrated that the situation for captive dolphins in Mexico is
relatively grave. There are a far greater number than interest groups
or the government were aware of (over 90 bottlenose dolphins) and the
origins of many were controversial (e.g., wild-caught from unstudied
populations, traded from other countries without adequate paperwork).
Mortality rates in some facilities were excessive. Without an
inventory, the status of captive marine mammals can be impossible to
determine.
Again, Congress specifically recognized the specialized nature and
needs of marine mammals when it passed the MMPA in 1972. This nature
and these needs have not changed in 30 years - marine mammals are
particularly vulnerable when removed from their natural, marine habitat
and placed in captivity. The example of other countries emphasizes why
inventories are not only precautionary but also necessary to ensure the
humane treatment of these animals in captivity. Government biologists
used the data found in the MMIR in 1995 to determine the survivorship
rates of various species commonly found in marine parks and aquariums -
this analysis determined that while pinnipeds survived well in
captivity, captive bottlenose dolphins at best matched the survivorship
of their free-ranging counterparts and captive orca survivorship rates
were depressed compared to those of their wild cousins. This begs the
question of what causes mortality in captive dolphins and why these
mortality sources prevent their survivorship from surpassing that of
free-ranging dolphins - it certainly begs the question of why captive
orcas do not survive as well as or better than wild orcas. These
inventory data are vital to our understanding of the trade in marine
mammals as well.
There is no good argument for abandoning the MMIR.
Traveling Marine Mammal Shows
The MMPA should be specifically amended to prohibit traveling shows
(e.g., circuses, portable performances) featuring marine mammals.
Recently, Mundo Marino, a traveling dolphin show based in Colombia, and
the Mexican Suarez Brothers Circus, featuring performing polar bears,
have sought entry into Puerto Rico. NMFS disallowed the entry of Mundo
Marino but the FWS issued an import permit to the Suarez Brothers
Circus earlier this year, after APHIS approved the circus' facilities.
APHIS has cited the circus multiple times since June for violations of
AWA regulations and Puerto Rican authorities charged it with cruelty to
the bears in August. The cruelty case hearing is now scheduled for
early December.
Marine mammals are not suited to traveling shows. Their care and
maintenance requirements, as evidenced by the separate and detailed
regulations in 9 CFR Subpart E, are highly specialized. Providing
adequately for them ``on the road'' is impossible. The agencies clearly
believe that the current provisions of the law provide them with
inadequate authority to prohibit such shows. Therefore, the law should
be amended to make this authority clear. Traveling shows featuring
marine mammals clearly violate the spirit of the MMPA, which is
designed to conserve species and stocks and ensure humane treatment of
these animals. It is time for the letter of the MMPA to match this
spirit when it comes to traveling marine mammal shows.
Captive Marine Mammals and the National Marine Fisheries Service
APHIS, under the AWA, has not demonstrated that it can adequately
ensure the humane treatment and welfare of marine mammals on public
display. For example, APHIS, after taking more than three years to
finalize the regulations for the operation of swim-with-the-dolphin
(SWTD) facilities, suspended its enforcement only six months later, in
April 1999. It is now October 2001 and regulations for these
specialized facilities are still not in place. The special aspects of
SWTD interactions, which add an additional element of stress to animals
already stressed by confinement, remain unregulated in the United
States, putting this country on a par with such developing nations as
the Dominican Republic and Anguilla in the Caribbean and Palau in the
South Pacific, which have unregulated SWTD facilities. The failure of
APHIS to expedite the review and reinstatement of these regulations
(let alone its failure to finalize them promptly in the first place)
emphasizes its inability to address the specialized needs of captive
marine mammals.
As another example, APHIS approved and licensed the Suarez Brothers
Circus, even though a number of problems were evident in the
documentation that the circus provided the agency. Once the circus was
on U.S. territorial soil, some of these same problems led APHIS to
issue citations for violations of AWA regulations, some of which were
apparently never corrected and led to the filing of cruelty charges by
Puerto Rican authorities. Given that some of these violations were
evident in the circus' documentation prior to licensing, it is
difficult to understand why APHIS licensed the circus in the first
place, at least unless and until these violations were corrected.
APHIS has limited expertise among its staff in the biology and
handling of marine mammals. Its veterinary inspectors receive some
training regarding the specialized needs and regulations for these
animals, but this training is sometimes neglected entirely and is often
inadequate. Facilities are allowed numerous opportunities to correct
violations and in some instances, violations are never corrected. APHIS
is responsible for implementing and enforcing the AWA for a broad range
of species, both exotic and domesticated. The specialized biology and
ecology (and captive maintenance requirements) of marine mammals,
specifically recognized by Congress when it passed the MMPA, overburden
this already overburdened agency.
In 1993, The HSUS testified before the Senate Committee on
Commerce, Science and Transportation that NMFS, in contrast to APHIS,
has the expertise and infrastructure to ensure the humane treatment of
captive marine mammals. What NMFS lacks in veterinary staffing, it can
acquire. It merely makes sense that marine mammal species, under the
jurisdiction of NMFS (and the FWS for polar bears, walruses, manatees,
and sea otters) when wild, should continue to be under the jurisdiction
of NMFS when captive - they do not transform into livestock merely by
virtue of entering a tank, pen, or cage. It seems abundantly clear that
APHIS is stretched very thin already. It also seems clear that the
public display industry's confidence, expressed during the 1993/1994
reauthorization, that APHIS and the AWA could adequately protect
captive marine mammals was misplaced. We therefore maintain our
original position that jurisdiction over captive marine mammals should
be transferred to NMFS (and FWS for the four species under its
authority), with an appropriate addition of marine mammal veterinarians
to its staff (and the funding necessary to hire them).
Prohibit the Capture From the Wild of Marine Mammals For Public Display
The U.S. public display industry frequently points out to the
public that it has not captured any cetaceans from the wild since 1993.
It has not captured certain cetacean species for far longer than that.
Other species' collection numbers have also been maintained for years
(and in some cases, decades) through captive breeding, imports/
transfers, or the retention of unreleasable stranded animals, rather
than through wild captures. Given this successful maintenance of
captive populations without removing animals from the wild, The HSUS
believes it is time for the MMPA to be amended to prohibit this
extraordinarily disruptive, traumatic practice.
Sport Hunting of Polar Bears
The HSUS requests Congress to maintain the strict prohibition on
the sport/trophy hunting of polar bears in Alaska. The entire MMPA is
based on the understanding that marine mammals belong to the nation as
a whole - that they are held in public trust. The prohibition against
take is universal, as it should be - the exemptions are for purposes
that serve the public good. To allow exemptions for personal use is
counter to the spirit of this ground-breaking legislation. In addition,
The HSUS believes commercial sport hunts provide a dangerous incentive
to over-exploit this vulnerable and naturally rare species, as was
historically the case. Sport hunting and its negative impacts on polar
bear populations were among the primary reasons the five polar bear
nations (Denmark [for Greenland], the Russian Federation [then the
USSR], Norway, Canada, and the U.S.) originally negotiated and signed
the 1973 Agreement on the Conservation of Polar Bears.
At this time, Canada continues to be the only country that allows
the sport hunting of polar bears under the 1973 Agreement. In 1994,
Congress agreed to an amendment that allowed the import into the U.S.
of trophies legally taken in Canada. The HSUS opposed this amendment,
partially because we believe the hunt in several populations of
Canadian polar bears was (and continues to be) unsustainable - allowing
the import of trophies would provide a strong incentive for Canada to
maintain or increase already unsustainable quotas because more American
hunters would seek to purchase subsistence hunt tags from Canadian
Inuit.
Demonstrating our concerns, the FWS approved the M'Clintock Channel
polar bear population for imports under the 1994 Amendments. Earlier
this year, the agency published an emergency rule disapproving
M'Clintock Channel because a recent study by the Canadian authorities
indicated that there were far fewer bears than originally estimated,
making the quota not only unsustainable, but actually an extirpation
risk for the population. Some of the population data used to calculate
this new population estimate were apparently available to the Canadian
authorities as early as 1978. In addition, the population estimate was
always rated as ``poor'' and even after the results of the first two
years of a three-year study (1998, 1999, and 2000) showed that there
were almost certainly far fewer bears in the population than previously
estimated, Canada did not change the quota until the study's final year
of results was analyzed. (The 1998/1999 hunting season, therefore,
removed nearly 10% of the population and the unfulfilled quota was for
more than 10% of the population.) In short, managers could have and
should have foreseen the actual status of the population as early as 20
years ago and certainly two years ago.
The HSUS has always been critical of the potential for
mismanagement under Canada's management regime. The situation in
M'Clintock Channel is a classic example of a worst-case scenario under
this regime, which, inter alia, relies on population estimates that are
qualitatively rather than quantitatively characterized. The quota for
this population was driving the M'Clintock Channel bear population
inexorably toward extirpation for several years before the regime was
able to detect this trend.
It is impossible to know whether those populations that the FWS has
not approved for import but which are still subject to legal hunts
under Canadian law are experiencing similar negative impacts because of
hunting under Canada's management regime. If they are, this reflects on
Canada's entire management program. As for those six populations
currently with full FWS approval for import, their status is arguably
just as questionable, as they are being managed under the same regime.
Given how long M'Clintock Channel's dire situation escaped Canada's
notice, and given the uncertain quality of some of the population data
from the other approved populations, there is simply no assurance that
any polar bear population in Canada is being managed sustainably.
The HSUS believes strongly that the amendment allowing trophies to
be imported should be repealed. Polar bears are uniquely unsuited to
being sport-hunted. Establishing accurate population estimates and life
history parameters upon which commercially-driven hunts can be
sustainably based is extremely difficult, given their remote and
marginal habitat.
ADDITIONAL RECOMMENDATIONS TO IMPROVE PROVISIONS OF THE MMPA
Up to this point in our testimony, we have dealt with the
implementation of provisions put in place in the 1994 Amendments. There
are a number of issues, not considered in the amendments that affect
their implementation.
Recreational Fisheries
Meetings of the mid-Atlantic Take Reduction Team have brought to
light the issue of recreational fisheries interacting with marine
mammals. Section 118, which focuses on commercial fisheries, does not
provide jurisdiction over recreational fisheries. Gillnets that are
used to catch bait for personal use are similar in design and method of
operation to that of commercial gillnets. Both commercial fishermen and
scientists working in the area have observed dolphins and porpoises
caught in these nets that are not under the jurisdiction of Section 118
of the MMPA. Recreational lobster gear poses a risk to whales that is
no less than that posed by commercial lobster pots, yet may not receive
the same degree of oversight.
We believe that there should be a mechanism for quantifying the
nature and extent to which recreational fisheries interact with marine
mammals when they use gear that is similar in type to that of
commercial gear known to kill or injure marine mammals. Furthermore, we
believe that recreational fisheries utilizing gear types similar to
those used by commercial fisheries, and known to interact with marine
mammals, should be subject to the same restrictions required of
commercial fisheries.
Quantifying the Impact of Fishery Interactions
The funding for the observer program is insufficient to provide
anything but rudimentary observer coverage in many fisheries. Stock
assessment surveys, which appear to be mandated by the MMPA, are simply
not done. The HSUS believes that this is a significant problem that
results in an underestimate of the number or impact of mortalities in
fisheries that may interact with marine mammals. It can be addressed by
designating appropriations for this purpose. For example, since the
1994 Amendments, stock assessments for marine mammals in and around the
Hawaiian Islands acknowledge that there has been no effort directed to
determining the population abundance of most stocks and there is no
observer coverage on most fisheries in this area. We have no way of
knowing how many animals there are, let alone whether commercial
fisheries may be having a negative impact on their populations.
Resources must be directed to assess stocks and fisheries interactions
in this area. Additionally, many gillnet fisheries in Alaska have
little or no observer coverage. The extensive Atlantic longline fleet,
which is known to seriously injure hundreds of animals each year, has
less than 5% observer coverage to monitor its operations and, in some
areas or times when interactions may occur, there is virtually no
observer coverage. Because of a lack of resources there are a number of
fisheries with a likelihood of killing marine mammals but about which
we know little. Until we can provide additional and more uniform
observer coverage, we are unlikely to be able to understand the extent
of fishery interactions with marine mammals. This results in an
underestimate of mortality and an inability to track the efficacy of
take reduction measures.
The NMFS needs to request, and Congress needs to appropriate,
sufficient funding to ensure an adequate observer program that will be
able to detect sources, levels and trends in marine mammal mortality.
Enforcement of Provisions of Take Reduction Plans
Although we have focused much of our testimony on the glacial speed
of the NMFS response to MMPA mandates to convene take reduction teams
and publish take reduction plans, there is also a problem that arises
with enforcement of the plans once they are published.
Fishermen in parts of North Carolina have routinely refused to take
federal observers on board, with absolutely no consequence resulting
from their having violated the law. This provides disincentive to other
fishermen who are law abiding and it means that the data that are
gathered do not provide a random and representative look at the
fishery's interactions with marine mammals. The result of this skewed
picture is that we may either underestimate the number of animals
killed, to the detriment of the marine mammal population; or we may
overestimate the number of animals killed, to the detriment of the
fishery. Additionally, in a number of fisheries, fishermen have been
documented by federal observers to be fishing in closed areas, and
killing marine mammals. No enforcement action has been taken against
them. Again, this is a disincentive to those fishermen who are obeying
the law and it undermines the effectiveness of the take reduction plan.
These are but two examples of a broader problem.
It is paramount that the NMFS examine the compliance issues that
have come to light in these teams and take action against violators.
Where implementing regulations are unclear or other internal
administrative policies prevent action, these situations must be
remedied. Furthermore, it is urgent that Congress provide adequate
funds to both the NMFS and Coast Guard to ensure that their resources
are sufficient to enforce compliance with laws and regulations.
Additional Funding Issues
In earlier hearings, The HSUS has pointed out that MMPA
implementation funds are routinely robbed for so called ``base
funding'' shortfalls. That is, the NMFS has insufficient funds to pay
for operating costs and permanent staff positions and, rather than fund
recommendations by take reduction teams for additional research or
personnel, uses these funds to pay for general operating budgets. This
is an unacceptable practice.
We urge the NMFS to clearly and accurately depict its needs for on-
going operating costs and we further urge that Congress appropriate
sufficient base funding to meet these needs. Funds identified for
implementing Take Reduction Team recommendations and for conducting
research that helps us understand and reduce levels of mortality in
marine mammals must be used for their intended purpose.
SUMMARY
In summary, the 1994 Amendments put in place a means of obtaining
many of the goals outlined in the MMPA when it was passed in1972. We
can now gauge the impact of human-related actions on marine mammal
populations and we have a process to help mitigate adverse impacts. In
particular the approaches taken in the use of PBR and the zero
mortality rate goal, should stand as a measuring stick to the MMPA's
commitment to reduce or eliminate threats to marine mammal populations.
Stakeholders are now assured a role in management decisions. In some
cases there are ongoing adverse impacts, as is the case in some stocks
hunted by natives or sport hunters, marine mammals killed in
recreational fisheries, and where marine mammals in captivity have lost
important protections; however, clarifications to the MMPA would
address many of these problems. We also believe that the federal
government should maintain management authority for marine mammals,
rather than abrogating to states or user groups. Lethal taking of
marine mammals should remain prohibited. Additional problems in the
implementation of the MMPA can be addressed by careful attention to
enforcement of existing requirements; by demanding Agency compliance
with existing provisions of the MMPA, including deadlines for action;
by ensuring participation of multiple stakeholders in all decision
making fora; and by ensuring adequate funding to carry out the intent
of the provisions of the MMPA.
The HSUS would not oppose a straight reauthorization of the MMPA.
The HSUS would also support extremely limited and non-controversial
changes that are intended to clarify the MMPA's obvious conservation
intent. Many of the concerns we have expressed can be addressed through
the allocation of sufficient resources; by agencies taking overdue
regulatory actions or making interpretations of the MMPA that allow
stricter enforcement of its provisions; and by ensuring support by the
agencies and this Congress for action by inclusive bodies of
stakeholders acting to resolve or prevent problems.
The 1999 Yale University study of ``American Perceptions of Marine
Mammals and their Management'' by Stephen Kellert and colleagues
concludes:
``The results of this study largely revealed strong support for
marine mammal protection among the great majority of
Americans... Most Americans indicate a willingness to render
significant sacrifices to sustain and enhance marine mammal
populations and species. Despite concern for various
commercially important ocean activities, including commercial
fishing and oil and gas extraction, these interests did not
supercede the public's inclination to protect marine mammals.
Most Americans consistently indicated a desire to modify or
alter these and other human activities in the marine
environment to protect marine mammal populations and species,
even it if necessitated sacrifices on society's part. Americans
further affirmed the importance of maintaining the Marine
Mammal Protection Act.
With the passage of the MMPA in 1972, Congress granted marine
mammals a special protection and status that was, and still remains,
the desire of the American people. The 1994 Amendments helped objectify
many of its lofty goals. The HSUS urges you to keep the MMPA strong in
its protection of marine mammals.
______
Mr. Gilchrest. Thank you very much, Ms. Young.
Mr. Mannina?
STATEMENT OF GEORGE MANNINA, AMERICAN ZOO AND AQUARIUM
ASSOCIATION AND THE ALLIANCE OF MARINE MAMMAL PARKS AND
AQUARIUMS
Mr. Mannina. Mr. Chairman, Mr. Underwood, in 1993 NMFS
proposed replacing five pages of marine mammal public display
regulations with 234 pages of what NMFS called a simplification
and what we lawyers called a retirement plan. In 1994 Congress
rejected that so-called simplification. Now, 7 years later,
NMFS is proposing regulations which resurrect many of the same
proposals Congress rejected in 1994.
For example, in the 1993 simplification, NMFS proposed that
it and APHIS have separate and equal authority to establish and
enforce marine mammal care and maintenance standards. Congress,
however, decided it was wasteful to have two agencies
performing the same responsibilities, and gave APHIS the job.
Nevertheless, in its 2001 proposal, NMFS now claims it has
joint responsibility with APHIS to enforce APHIS's care and
maintenance standards. This creates the awkward circumstance in
which an APHIS inspector finds a facility in compliance with
APHIS's regulations, but NMFS says the APHIS inspector is
wrong. After NMFS finds the facility in violation of APHIS's
regulations, NMFS can then revoke the facility's right to
display marine mammals.
This latest NMFS proposal again creates good government,
legal, and budgetary questions as to why two different agencies
should be enforcing the same statute. NMFS then compounds the
problem by allowing NMFS to deputize any person to inspect a
public display facility for compliance with APHIS's
regulations, and to then inspect and copy any and all facility
records. Allowing NMFS to designate any member of the public as
an APHIS inspector, and requiring public display facilities to
turn over all of their records to that person, raises very
significant public policy and privacy issues.
In 1994 Congress also rejected the cumbersome process NMFS
had proposed to regulate the transfer of marine mammals between
facilities. The 1994 amendments stated NMFS was to receive a
simple 15-day notification of that transport. But the 2001
proposed regulations resurrect much of the 1993 proposed
simplification, replacing Congress's one notification with six
forms. Three of those forms cover the exact same information
already contained in the NMFS Marine Mammal Inventory.
The 1993 simplification also codified NMFS's practice of
prohibiting marine mammal exports unless the receiving foreign
nation agreed to enforce NMFS's regulations. Not surprisingly,
foreign nations were somewhat less than enthusiastic about
subordinating their sovereign authority to NMFS's regulations,
and Congress rejected NMFS's idea. The 2001 NMFS proposal
resurrects that idea.
To understand the problem, a case example may be helpful.
Assume for a moment an animal is to be exported from the United
States to France. Under NMFS's proposal, the French Government
must agree to give comity to NMFS's regulations and APHIS's
care and maintenance standards.
If 10 years later the animal is exported to Germany, and 10
years after that to Spain, under NMFS's proposal each of those
governments must agree to enforce NMFS's regulations and
APHIS's care and maintenance standards, and for each transfer
NMFS is to receive six inventory and transport notification
forms.
And if the animal gives birth, the NMFS proposal would
require that the NMFS regulations would apply to the care and
transfer of that progeny. And if that progeny dies, we may now
be 60 years after the transfer, NMFS is to receive an inventory
notice and an explanation of the cause of death.
NMFS's plan raises some very significant international
relations issues and very serious questions about whether NMFS
should be using its limited resources to transform itself into
an international regulatory agency.
Although I have highlighted just a few problems, the 2001
NMFS proposal essentially repeals large segments of the 1994
MMPA amendments. While we very much would like to work with
NMFS to resolve these issues, NMFS appears intent upon pursuing
its same old regulatory agenda, and it may well be necessary
for Congress to speak with even greater clarity to these
issues.
Thank you.
[The prepared statement of Mr. Mannina follows:]
Statement of George Mannina, on behalf of the American Zoo and Aquarium
Association and the Alliance of Marine Mammal Parks and Aquariums
Mr. Chairman and Members of the Subcommittee, I am representing the
American Zoo and Aquarium Association (AZA) and the Alliance of Marine
Mammal Parks and Aquariums (Alliance). The members of these two
organizations include marine life parks, aquariums, and zoos whose
expertise is the public display of animals including marine mammals.
These zoological institutions are dedicated to the highest standards of
care for marine mammals and to their conservation in the wild through
public education, scientific study, and wildlife presentations.
Collectively, the members of AZA and the Alliance represent the
greatest body of experience and knowledge with respect to marine mammal
husbandry.
AZA represents over 200 accredited zoo and aquarium institutions
that draw over 135 million visitors annually and have more than 5
million zoo and aquarium members. The Alliance has 40 members that host
over 36 million visitors each year. Collectively, these institutions
teach more than 12 million people each year in living classrooms,
dedicate over $50 million annually to education programs, invest over
$50 million annually to scientific research and support over 1300 field
conservation and research projects in 80 countries.
AZA and the Alliance are uniquely qualified to comment on the
Marine Mammal Protection Act (MMPA). Both organizations are very
knowledgeable about the MMPA as it pertains to the public display of
marine mammals and the rescue of stranded animals. And, both were
actively involved in the process of amending the MMPA in 1994.
I. The Role of Public Display Facilities
The House Resources Committee and its Subcommittee on Fisheries
Conservation, Wildlife and Oceans have long understood the important
role of public display. Indeed, a Congressional report on the passage
of Marine Mammal Protection Act in 1972 observed ``...without observing
marine mammals in oceanaria the 'magnificent interest' in marine
mammals will be lost and 'none will ever see them and none will care
about them and they will be extinct. If it were not for these
organizations and the public exposure you have on these animals in the
first place, these matters wouldn't be brought to the attention of the
public.' ''
A. Education
The conservation of marine mammals requires public education, the
practice of conservation behaviors by every individual, and the
development of effective public policy. The public display of marine
mammals plays an integral role in this conservation effort, helping to
preserve these magnificent animals for present and future generations.
With public display comes marine mammal education and conservation
programs unique in their ability to establish a personal connection
between visitors and the animals. This personal connection fosters
learning about how the behaviors of each and every one of us affect
marine mammals and the habitats in which they dwell.
Congress has entrusted zoological parks and aquariums with great
responsibility and they strive daily to live up to that responsibility.
Each and every year, members of the American Zoo and Aquarium
Association and the Alliance of Marine Mammal Parks and Aquariums
proudly communicate their educational messages to an ever-expanding and
diverse audience, reaching more and more children and adults about the
importance of conserving marine mammals and their habitats. Members
provide an enthusiastic, imaginative, and intellectually stimulating
environment to the approximately 140 million people who visit AZA and
Alliance member marine life parks, aquariums, and zoos annually.
Additionally, each year over 12 million young people participate in
programs for school children. With the growth of the Internet, along
with more traditional forms of communication, AZA and Alliance members
reach nearly one hundred and fifty million children and adults each
year.
Recognizing this responsibility, both AZA and the Alliance
established standards for education programs offered by public display
facilities in the United States. The standards have been acknowledged
by the National Marine Fisheries Service (NMFS) as the two
``professionally accepted standards'' on which a public display
facility must base its education and conservation programs. NMFS
published these standards in the Federal Register October 6, 1994,
(Vol.59, No.193, Pgs. 50900-2).
The mission of educational exhibits and programming at AZA and
Alliance member facilities is to enhance the appreciation and
understanding of marine mammals and their ecosystems. Members of these
zoological institutions instill in those who visit an awareness of
ecological and conservation issues and a respect and caring for these
animals and their environments. Our members believe this respect
engenders a strong, active commitment to marine mammal conservation and
an understanding that each and every person can make a difference.
Generally, the goals of AZA and Alliance member education programs are
to:
<bullet> Lprovide opportunities for visitors to expand their
knowledge about marine mammal biology and natural history;
<bullet> Lpromote awareness of and sensitivity toward the marine
environment;
<bullet> Lpresent information on marine conservation issues;
<bullet> Lbe marine science and environmental information resources
to interested citizens, local schools, community groups, and educators,
and
<bullet> Linspire visitors to embrace conservation behavior.
Education programs and courses are diverse and age relevant.
Programs for children ages three to five provide an excellent
opportunity for preschoolers to see and begin to gain an appreciation
and understanding of other living creatures. Interspersed amidst the
singing, role-playing, and other activities designed to teach young
children about marine mammal characteristics and behavior is a strong
conservation message of respect for all life forms. Programs emphasize
learning through sight, touch, sound, and movement.
Education courses for school-age children teach the importance of
conservation, responsible human behavior, and the principles of
ecology. The courses also promote basic competencies in science and
other related disciplines. AZA and Alliance members typically use
county and state science curriculum standards when developing programs.
Many institutions have curriculum advisory committees made up of local
educators who review curriculum and programs to assure that they meet
the needs of teachers, the community and the state.
Elementary and secondary school teachers who are interested in
incorporating new, exciting programs into their teaching plans have the
opportunity to learn to teach curriculums developed by AZA and Alliance
members. The focus on the environment and conservation includes
activities in both field and laboratory settings. Courses reflect state
frameworks and nationally recognized standards in science and
mathematics. Some of the courses are designed to help teachers receive
academic credits toward re-certification.
In its statement on complementary sources of science education, the
National Science Teachers Association (NSTA) specifically recognizes
the educational role of zoos and aquaria, museums, cultural
attractions, and other community resources. According to NSTA, there is
a growing body of research that documents the power of learning
experiences outside the classroom to spark curiosity and engage
interest in the sciences during the school years and throughout a
lifetime. NSTA points out that these complementary science institutions
have a long history of providing staff development for teachers and
enriching experiences for students and the public. NSTA recognizes that
science education and resources at zoological parks and aquariums are
``often the only means for continuing science learning in the general
public beyond the school years.''
A 1998 Roper Starch poll provides clear evidence that programs at
marine life parks, aquariums, and zoos are educational and provide the
public with a heightened appreciation of the importance of conserving
and preserving marine mammals. Responses to the Roper Starch poll
indicate that seeing live marine mammals enhances the educational
experience for the visitors to marine life parks, aquariums, and zoos.
<bullet> LAlmost everyone (97%) who visited Alliance member marine
life parks, aquariums, and zoos said their experience with live marine
mammals had an impact on their appreciation and knowledge of the
animals. The impact was greater for those visiting facilities where
they actually had an opportunity to interact with marine mammals.
<bullet> LNinety-six percent (96%) of the parks' visitors agreed
that ``seeing marine mammals engaged in their daily behavior as I did
here today is the best way to understand and learn about them.''
<bullet> LNinety-four percent (94%) of the visitors agreed with the
statement, ``I learned a great deal about marine mammals today.''
<bullet> LNine in ten visitors agreed that they ``have become more
concerned about the importance of preservation/conservation of marine
mammals as a result of my visit here today.''
B. Research
Knowledge acquired through research with animals in public display
facilities, in tandem with field research, is another fundamental
contribution to marine mammal conservation. Communicating this
knowledge is one of the most effective means of ensuring the health of
wild marine mammals in the 21st century. Much of this research simply
cannot be accomplished in ocean conditions.
Tens of millions of dollars are being spent on research at and by
AZA and Alliance member facilities that is essential in understanding
the anatomy and physiology of marine mammals, in treating sick and
injured animals from the wild, and in learning to better manage and
assist endangered species. Additionally, many AZA and Alliance
facilities collaborate with marine mammal researchers from colleges,
universities, and other scientific institutions that conduct studies
important to wild species' conservation and health. Over the years,
this body of work has contributed significantly to the present
knowledge about marine mammal biology, physiology, reproduction,
behavior and conservation. These studies have led to improvements in
diagnosing and treating diseases; techniques for anesthesia and
surgery; tests for toxic substances and their effects on wild marine
mammals; and advancements in diet, vitamin supplementation, and
neonatal feeding.
There is still a tremendous amount scientists do not yet know about
the marine mammals in our oceans and rivers. And we desperately need
greater knowledge and understanding if we are going to make informed,
intelligent decisions regarding the increasingly complex pressures on
these wild animals. The long-term studies of in-shore, wild marine
mammal populations, which provide scientists opportunities to measure
contaminant exposure, monitor health and immune responses of individual
animals, and to study population-level trends, are extremely important.
Alliance and AZA members play a strong role in these efforts as
evidenced by the following examples of both in situ and ex situ
research projects:
<bullet> Lthe Sarasota Dolphin Research Program, begun in 1970 and
supported by the Brookfield Zoo - Chicago Zoological Society since
1989. Efforts over these 30 years have resulted in the development of a
natural laboratory for detailed, long-term studies of the behavior,
population biology, health, and ecological relationships of resident
communities of bottlenose dolphins along the central west coast of
Florida;
<bullet> Lresearch by Six Flags Marine World on killer whales in
northern Washington State, British Columbia, and southern Alaska, which
has led to numerous publications since it started in 1981;
<bullet> Lcooperative work by Shedd Aquarium and the University of
Quebec on cancer in beluga whales in the St. Lawrence River, animals
that have high levels of PCBs, pesticides, mercury, and other mutagenic
compounds in their systems, which will help scientists understand the
influence of environmental contaminants on the health of these animals;
<bullet> La collaborative study of endangered manatees and their
exposure to bacterial and viral pathogens conducted by the National
Aquarium in Baltimore and supported by Florida Department of Natural
Resources and SeaWorld, which will help scientists better understand
the diseases these animals are exposed to in the wild;
<bullet> La wide range of studies on the natural history of marine
mammals stranded in Florida by SeaWorld, focusing on food habits,
parasites, growth, development, and mortality patterns;
<bullet> Lan assessment of the immune function of seals, sea lions,
whales, and dolphins that will greatly add to the current body of
knowledge also by SeaWorld; and
<bullet> Lthe first ecology and biology study of rough-toothed
dolphins by Dolphin Quest at their French Polynesian facility, with
support from SeaWorld;
<bullet> Ldolphins' communication systems researching by The Walt
Disney Company's Living Seas;
<bullet> Lmicrosatellite DNA markers to look at genetic diversity
of dolphins in public display facilities by the Indianapolis Zoo, along
with Texas A&M University; and
<bullet> Lradiation therapy techniques for treating corneal
opacities in beluga whales by the New York Aquarium.
C. Stranded Marine Mammals
For centuries, experts have long been frustrated in their attempt
to restore to health the millions of stranded marine mammals found sick
and dying on beaches throughout the world. Today, members of AZA and
the Alliance have the expertise and ability to offer much needed,
practical assistance to these animals. The accumulated knowledge,
collective experience, and resources of these facilities are the
primary factors in these successful rehabilitation efforts. Indeed, AZA
and Alliance members provide millions of dollars in direct expenditures
and in-kind contributions annually to support stranding programs.
Though there are hundreds of unspoken heroes who strive to save
stranded marine mammals, one recent event was highlighted in a
documentary by National Public Television. It featured Mystic
Aquarium's successful rehabilitation of a pair of young pilot whales.
The show was titled Whale Rescue: Stranded Friends. The pair of whales
were rescued from a Cape Cod beach and, after being nursed back to
health for nearly four months, were released off the coast of Rhode
Island. It was the first release of pilot whales by any U.S. aquarium
in nearly 14 years. The whales were fitted with satellite-linked
transmitters that operated for approximately three months and provided
aquarium scientists with important information about the animals' range
and diving patterns.
Also, Animal Planet's Wild Rescues last year featured a segment on
Dually, an injured manatee rescued in the Florida Keys. The show
contains dramatic footage of Dually's initial rescue by the Dolphin
Research Center and her surgery at Miami Seaquarium to remove fishing
line embedded in her flippers.
The U.S. Coast Guard flew a melon-headed whale calf to Sea Life
Park Hawaii after it was found floundering in the ocean two years ago.
These whales are not found in public display facilities and scientists
from the University of Hawaii are using this unique opportunity to
learn more about the species and its acoustic behavior.
Mass strandings are becoming more common. Over 100 dolphins died in
bays along the Florida panhandle in late 1999 and early 2000. Another
100 dolphins stranded and 28 died last year in the Florida Keys. AZA
and Alliance members located throughout Florida cooperated with
government officials in efforts to save the animals involved in the
mass strandings in their state waters. The U.S. government also is
concerned about a die-off of gray whales along the Pacific coast.
II. The 2001 Regulations Proposed by NMFS
The 1994 Amendments (1994 Amendments) to the Marine Mammal
Protection Act were a reaction to, and rejection of, regulations
proposed by NMFS. In 1993, NMFS proposed replacing 5 pages of public
display regulations with a 234-page ``simplification.'' The 1994
Amendments rejected that ``simplification.''
On July 3, 2001, more than seven years after passage of the 1994
Amendments, NMFS published proposed regulations (``Proposed
Regulations'') to implement the 1994 Amendments. 66 Fed. Reg. 35209
(July 3, 2001). The Proposed Regulations are inconsistent with, and
contradict, the 1994 Amendments, resurrecting many of the same sweeping
and costly proposals Congress rejected in 1994. The following are the
principal issues.
A. Care and Maintenance Standards for Marine Mammals
Before the 1994 Amendments, NMFS claimed it had equal authority
with the Animal and Plant Health Inspection Service (APHIS) to
establish and enforce care and maintenance standards for marine mammals
at public display facilities. The 1993 proposed regulations made clear
that NMFS intended to exercise its claimed authority in significant
ways. However, in the 1994 Amendments, Congress decided it was wasteful
for two agencies to have identical responsibilities and that the public
display community should not be subjected to double jeopardy by having
two different agencies enforcing care and maintenance standards.
Therefore, Congress determined that APHIS would have sole authority
over the care and maintenance of animals at public display facilities.
Nevertheless, the Proposed Regulations resurrect the rejected 1993
approach by giving NMFS joint responsibility to enforce APHIS' care and
maintenance standards.
Reflecting Congressional intent to have only one agency issuing and
enforcing care and maintenance standards, the 1994 Amendments provided
that when NMFS issues a public display permit, NMFS' responsibility is
restricted to determining whether the public display facility ``is
registered or holds a license'' issued by APHIS pursuant to the Animal
Welfare Act (``AWA''). 16 U.S.C. Sec. 1374(c)(2)(A)(ii). Indeed, the
preamble to the Proposed Regulations admits that the ``Captive care and
maintenance of marine mammals held for public display are now under the
sole jurisdiction'' of APHIS. 66 Fed. Reg. at 35211. The preamble also
admits that the 1994 Amendments had the specific effect of ``removing
the jurisdiction of NMFS over public display captive animal care . .
.'' Id. Thus, Congress clearly provided that the establishment and
enforcement of marine mammal care and maintenance standards is APHIS'
responsibility.
Nevertheless, the Proposed Regulations attempt to overturn the 1994
Amendments by stating that NMFS' authority is not limited to
determining if a public display facility has an APHIS registration or
license. Instead, the Proposed Regulations state NMFS must also
independently determine that the facility complies with all of APHIS'
care and maintenance standards. Proposed Sec. 216.43(b)(3)(ii), 66 Fed.
Reg. at 35216. As in 1993, NMFS is claiming it has joint responsibility
with APHIS to enforce APHIS' care and maintenance standards.
This intent becomes very clear in Sec. 216.43(a)(4) of the Proposed
Regulations which states that public display facilities must allow any
National Oceanic and Atmospheric Administration employee to examine any
marine mammal, to inspect all public display facilities and operations,
and to review and copy all records concerning any marine mammal. 66
Fed. Reg. at 35216. Compounding the problem of having two agencies
enforcing the same regulations, the Proposed Regulations state that
``any person'' designated by NMFS will also have the right to examine
any marine mammal held for public display, to inspect any public
display facility, and to review and copy all records. [Emphasis added.]
Proposed Sec. 216.43(a)(4), 66 Fed. Reg. at 35216.
Simply put, the Proposed Regulations could create the situation in
which APHIS finds a facility in compliance with APHIS' standards, but
NMFS, or some private person designated by NMFS, says that APHIS is
wrong about APHIS' own regulations-- and NMFS can then either deny the
facility the right to display animals or seize the animals.
This was the specific result Congress rejected in 1994. Not only do
the Proposed Regulations create budgetary questions regarding why
Congress would want two agencies enforcing the same statute,
particularly when the AWA vests sole enforcement authority with APHIS,
but they also raise public policy and significant privacy issues
regarding why any member of the public designated by NMFS should have
the right to inspect facilities for compliance with APHIS standards and
to require public display facilities to turn over all of their records.
B. Export of Marine Mammals
Although Congress and the courts have rejected NMFS' effort to
apply the MMPA in foreign nations, the Proposed Regulations
specifically attempt to make foreign citizens subject to NMFS'
regulations. Not surprisingly, foreign nations are not enthusiastic
about subordinating their sovereign authority to NMFS' regulations.
Prior to the 1994 Amendments, NMFS required that marine mammals
could be exported for public display only if the foreign nation agreed
it would afford comity to any decision by NMFS to modify, suspend or
revoke that permit. 66 Fed. Reg. at 35213. The 1994 Amendments rejected
the NMFS requirement. The 1994 Amendments provided that any person
properly holding marine mammals for public display in the United States
could export the animals ``without obtaining any additional permit or
authorization.'' 16 U.S.C. Sec. 1374(c)(2)(B). However, the 1994
Amendments did effectively address the export issue by stating that a
marine mammal could be exported for public display only if the
receiving facility met ``standards that are comparable to the
requirements that a person must meet to receive a permit'' under the
MMPA for public display. 16 U.S.C. Sec. 1374(c)(9). There are three
such standards: the facility must (1) offer a program for education or
conservation based on professionally recognized standards of the public
display community; (2) have an APHIS registration or
license<SUP>1</SUP>; and (3) be open to the public on a regularly
scheduled basis with access not limited except by an admission fee. 16
U.S.C. <l-arrow>1374(c)(2)(A). Significantly, Congress applied this
comparability test only to the facility which receives the animals from
the United States and not to subsequent transfers between foreign
facilities.
---------------------------------------------------------------------------
\1\ This standard is met through a comparability review by APHIS.
---------------------------------------------------------------------------
In the 1994 Amendments, Congress clearly recognized the continuing
validity of the decision in United States v. Mitchell, 553 F.2d 996,
1003, 1005 (5th Cir. 1977), where the Court held the MMPA does not
apply within the territory of a foreign sovereign. Indeed, a December
10, 1996, opinion from the Office of General Counsel, NOAA, stated the
MMPA ``does not confer U.S. jurisdiction over marine mammals in the
territory of other sovereign states.''
The Proposed Regulations offer a different interpretation of the
1994 Amendments. The Proposed Regulations amend the statute by
replacing the comparability test with the requirement that the foreign
facility ``must meet the public display criteria at Sec.
216.43(b)(3)(i) through (iii). . .'' [Emphasis added.] Proposed
Sec. 215.43(f)(2), 66 Fed. Reg. 35219. However, the requirements of
section 216.43(b)(3)(i)-(iii) include not only the three statutory
requirements that a facility offer an education or conservation program
based on professionally recognized standards, be registered or hold on
APHIS license, and be open to the public, but section 216.43(b)(3)(ii)
adds NMFS' newly minted requirement that NMFS independently determine
that the facility complies with APHIS' care and maintenance
standards.<SUP>2</SUP>
---------------------------------------------------------------------------
\2\ After requiring absolute compliance, the Proposed Regulations
state that the receiving facility must also submit to NMFS a letter
from APHIS certifying that the receiving facility meets standards
comparable to those of APHIS. Proposed sections 216.43(f)(2), 66 Fed.
Reg. at 35219.
---------------------------------------------------------------------------
But the Proposed Regulations do not stop here. NMFS interprets the
MMPA provision requiring NMFS to maintain an inventory of marine
mammals held under MMPA permits, 16 U.S.C. Sec. 1374(c)(10), to mean
that NMFS must maintain an inventory of those animals and their progeny
even if the animals are no longer in the U.S. 66 Fed. Reg. 35213. Since
everyone agrees the MMPA does not apply outside the U.S., it is hard to
see how NMFS reaches the conclusion that NMFS is to apply the inventory
reporting requirements to foreign citizens. Nevertheless, NMFS combines
that interpretation with its new version of the comparability standard
to conclude that NMFS can prohibit the export of a marine mammal until
the government of the country in which the receiving facility is
located signs a letter of comity agreeing ``to enforce requirements
equivalent to the U.S. Marine Mammal Protection Act. . .'' Proposed
Sec. 216.43(f)(4), 66 Fed. Reg. 35219, see 66 Fed. Reg. 35213. The
regulatory preamble makes it quite clear that equivalency means all of
NMFS' regulatory requirements. 66 Fed. Reg. at 35213. Thus, the
preamble states that NMFS' regulatory requirements apply ``to all
holders of animals exported from the United States . . .'' Id.
To understand the problem, a case example may be helpful. The
Proposed Regulations, including the letter of comity, have the effect
of providing that if an animal is exported from the United States to a
French facility in 2001, and the French facility decides in 2011 to
transfer the animal to a public display facility in Spain, then the
French government and the French facility must determine that the
Spanish facility meets the MMPA standards as interpreted by NMFS,
including the requirement that the facility meets APHIS requirements
and has an acceptable education or conservation program--- and NMFS
must receive a transport notification and inventory report from both
the Spanish and French facilities. If the animal at the Spanish
facility gives birth 5 years later, the Spanish facility must file an
inventory report with NMFS reporting the birth. If that progeny is
transferred to a public display facility in Germany 10 years later, the
Spanish government and the Spanish facility are to ensure that the
German facility meets the requirements of the U.S. MMPA as interpreted
by NMFS, including the requirement that the facility meets APHIS
standards and has an acceptable education or conservation program---
and NMFS is to receive a transport notification and inventory report
from both the Spanish and the German facilities. If 15 years later, now
40 years after the original 2001 export from the U.S., the marine
mammal originally transferred, now in a Spanish facility, dies, NMFS is
to receive an inventory notice of that event together with an
explanation of the cause of death. And if the progeny, now in Germany,
dies in 2061, 60 years after the parent left the United States, NMFS is
to receive an inventory notification including the cause of death.
These ``comity'' requirements are nothing more than an effort by
NMFS to apply the MMPA internationally, something neither Congress nor
the courts allow. The Proposed Regulations not only raise very serious
international relations issues, but they also raise serious questions
about whether NMFS should be using its limited resources to transform
itself into an international regulatory agency.
C. The Removal of Animals from the Wild
Although no public display facility has taken marine mammals from
the wild since 1992, and there are no plans to do so, it may some day
be necessary to do so to maintain genetic diversity. The Proposed
Regulations make that impossible.
With respect to non-depleted species, the Proposed Regulations
provide that unless NMFS has established a removal quota, the applicant
for a take permit must demonstrate that the taking ``will not have, by
itself or in combination with all other known takes and sources of
mortality, a significant direct or indirect adverse effect'' on the
species. Proposed Sec. 216.43(b)(3)(v)(B), 66 Fed. Reg. at 35216.
However, existing regulations already require a permit applicant to
demonstrate that any taking ``by itself or in combination with other
activities, will not likely have a significant adverse impact on the
species or stock . . .'' 50 C.F.R. 216.34(a)(4).
The public display community does not object to the existing
regulations. But the Proposed Regulations significantly change the
existing standard and create an impossible burden to meet. Unlike the
existing regulations which require a showing that the taking is not
``likely'' to have a significant adverse effect on the species, the
Proposed Regulations require that the public display community prove a
negative i.e., that the taking ``will not have'' a significant adverse
effect. Moreover, the Proposed Regulations now require that you prove a
negative not only with respect to ``direct'' effects but also with
respect to what NMFS calls ``indirect'' effects.
Not only do the Proposed Regulations establish standards which are
virtually impossible to meet, but if a person tries to meet the
standard, NMFS creates still more obstacles because the Proposed
Regulations allow NMFS to require public display facilities to
undertake extensive, expensive and time consuming research to gather
and analyze population level information and to evaluate every other
direct or indirect take or source of mortality. The Proposed
Regulations are quite specific that NMFS' decision on whether to allow
the taking is to be based on the best available information ``including
information gathered by the applicant.'' This last clause allows NMFS
to require an unending gathering of new information in order to satisfy
whatever information thresholds NMFS may establish.
The public display community does not object to the existing
requirement that it demonstrate that any removal from the wild is not
likely to adversely affect the population at issue. The community does
object to the wording in the Proposed Regulations moving the goalposts
and permitting NMFS to insist on information gathering which allows
NMFS to move the goalposts again by requiring new studies before NMFS
can make a decision.
A clear example of NMFS' moving the goalposts is found with respect
to depleted species. The MMPA prohibits the taking of any depleted
species. 16 U.S.C. Sec. 1372(b)(3). The Proposed Regulations, include
the statutory prohibition but then go on to amend the MMPA by also
prohibiting the taking of animals from a species which is ``proposed by
NMFS to be designated as depleted. . .'' Proposed
Sec. 216.43(b)(4)(iii)(A), 66 Fed. Reg. at 35216. Even the Endangered
Species Act does not have a provision like that which NMFS is trying to
insert into the MMPA. Significantly, NMFS does not impose upon itself
any time limit for reaching a final decision on its proposal to
designate a species as depleted.
D. Transfer, Reporting and Other Requirements
The 1994 Amendments provide that a person issued a permit to take
or import marine mammals for public display shall have the right
``without obtaining any additional permit or authorization'' to sell,
transport, transfer, etc. the marine mammal to persons who meet the
MMPA requirements. 16 U.S.C. Sec. 1374(c)(2)(B). The MMPA also provides
that a person exercising these permit rights must notify the Secretary
of Commerce no later than 15 days before any sale, transport, etc. 16
U.S.C. Sec. 1374(c)(2)(E). However, the Proposed Regulations ignore the
simple and direct process contained in the statute and resurrect
elements of the 1993 proposed ``simplification'' that Congress
rejected.
Not only do the Proposed Regulations require that the shipping
facility provide the statutorily required 15-day transport notice, but
the shipping facility must also submit a complete Marine Mammal Data
Sheet (``MMDS'') for each mammal to be transferred. Proposed
Sec. 216.43(e)(1)(i), 66 Fed. Reg. 35217. The MMDS gives the animal's
official NMFS identification number, name, sex, age, origin, etc.---
information already held in the NMFS inventory. The Proposed
Regulations go on to state that in addition to receiving a transport
notification and MMDS from the shipping facility, NMFS must also
receive a transport notification and another MMDS for the marine mammal
from the receiving facility. Id. After the transfer occurs, the
receiving facility must confirm the transport and submit yet another
MMDS. Proposed Sec. 216.43(e)(2), 66 Fed. Reg. at 35218. Thus, a single
15-day notification required by the statute has been transformed into
the submission of three transport notifications for the same
transaction and three MMDS forms restating the information already in
the inventory.<SUP>3</SUP>
---------------------------------------------------------------------------
\3\ Many observers have questioned the need for the inventory since
there is no apparent use of the inventory by NMFS. Given that, the
question becomes whether the inventory requirements should be deleted
from the Act.
---------------------------------------------------------------------------
Moreover, the Proposed Regulations require that before a transport
can occur, both the holder and the receiver must provide NMFS with a
certification that the receiver meets the requirements of
Sec. 216.43(b)(3)(i)-(iii) of the Proposed Regulations. Proposed
Sec. 216.43(e)(1)(i), 66 Fed. Reg. at 35217-18. As noted above, these
provisions include requirements that a facility have a conservation or
education program, have an APHIS license or registration, be open to
the public and be in compliance with all APHIS requirements. However,
the Proposed Regulations make persons subject to civil or criminal
penalties for submitting false information. Proposed Sec. 216.13(g), 66
Fed. Reg. at 35215.
Read together, these provisions mean that a shipping facility is
now subject to penalties if NMFS finds, for example, that the receiving
facility is not in full compliance with APHIS standards. It is not
clear why an APHIS determination of compliance with APHIS requirements
is not adequate and why the shipper and receiver must provide an
independent certification, particularly when the MMPA says the transfer
may occur without further permit or authorization.
Finally, after erecting the regulatory regime described above, the
Proposed Regulations state that any public display permit issued by
NMFS shall ``contain other conditions deemed appropriate'' by NMFS, a
catchall provision apparently authorizing NMFS to issue any additional
requirements it might think appropriate. Proposed Sec. 216.43(b)(5), 66
Fed. Reg. 35216. Although such a provision might seem a reasonable
contingency for most agencies, given NMFS' history, it is a provision
about which significant questions must be raised because, in the past,
NMFS has not exercised its authority judiciously.
In summary, NMFS has taken the simple process provided for in the
statute and converted it into a needlessly cumbersome process.
E. Other Issues
Although the preceding are the major issues, there are a number of
other issues in the Proposed Regulations which are of concern. For
example, Congress intended that the marine mammal inventory be a record
of animals actually held at public display facilities. As noted above,
there are serious questions about whether the inventory serves any
regulatory purpose. That said, if the inventory is to be a record of
marine mammals held at public display facilities, its only valid
purpose can be with respect to living marine mammals. It is neither
appropriate nor necessary that the Proposed Regulations require
facilities to report stillbirths since such animals will not become
part of the inventory of animals at public display facilities. See
Proposed Sec. 216.43(e)(4)(vii), 66 Fed. Reg. at 35218. The issue
regarding stillbirths is with respect to genetics and public display
facilities already report stillbirths to these persons who maintain
these genetic records.
F. Congressional Assistance May Be Needed
A review of the Proposed Regulations shows NMFS is attempting to
resurrect regulatory proposals already rejected by Congress. NMFS is
also attempting to amend the MMPA by inserting provisions nowhere found
in the statute. Further, NMFS is adopting new legal interpretations
which are not even in the Proposed Regulations but which reverse
longstanding understandings of the MMPA. An example of the latter is a
July 31, 2001, Marine Mammal Commission (Commission) letter stating
that NMFS and the Commission have now determined that the MMPA
prohibits NMFS from allowing foreign nationals to take marine mammals
in U.S. waters and to export them to a foreign facility, although NMFS
could permit U.S. nationals to do so. Since 1972, NMFS and the
Commission have read the MMPA to allow for the issuance of such permits
to foreign nationals and the letter admits that since the 1994
Amendments six such permits have been issued. Nevertheless, NMFS and
the Commission have now decided that the legal authority they found in
the MMPA somehow is no longer there. To reach that conclusion, they
have discovered words and concepts nowhere found in the MMPA.
We hope that we will be successful working with the agency through
the normal administrative process to have this proposed rule
drastically modified in a way that reflects Congressional intent. And
we may need to look to Congress for support in that endeavor. Should
our efforts be unsuccessful, we may have to request further legislative
changes that will clearly and precisely limit NMFS' ability to continue
to ``interpret'' the MMPA to insert provisions nowhere found in the law
and to impose regulatory interpretations and reinterpretations that are
duplicative, unnecessarily burdensome and contrary to Congressional
intent.
III. Prescott Stranding Grant Program
AZA and the Alliance are very grateful for the help this
Subcommittee has provided with the John H. Prescott Marine Mammal
Rescue Assistance Grant Program. Vice Chair Saxton was the principal
author of the Prescott bill when he was chair of the Subcommittee. The
grant program was initially conceived as a means of providing financial
support for the largely volunteer efforts of stranding network
participants. This was reflected in the three priorities listed in the
law for which grants should be approved treatment of stranded marine
mammals, data collection for scientific research, and facility
operating costs. However, when NMFS published its criteria for the
program's implementation plan, these priorities were ignored.
Instead, the agency's listed priorities would impose additional
work on long-time volunteer stranding network participants rather than
help them with their struggle to fund current activities related to
their already significant responsibilities. To meet many agency
priorities, network participants would have to formulate proposals for
new research in order to obtain grant funds. Additionally, it appears
that the agency's priorities are geared more towards incidents of live
marine mammal strandings. While these situations are very important and
warrant great concern, the majority of stranding activities relate to
dead marine mammal strandings. Also, the agency's priorities include a
number of outstanding and much needed endeavors, such as a national
stranding workshop and meeting, but these are items more appropriately
undertaken by the agency.
AZA and the Alliance were also very concerned that NMFS had capped
grants at $75,000 rather than the $100,000 limit Congress had intended.
These issues reportedly have been resolved through discussions between
the Congress and the agency. But our two organizations may have to
again request help if NMFS continues to use the grant program to fund
agency priorities rather than the needs of stranding participants.
IV. Conclusion
Both AZA and the Alliance very much appreciate the opportunity to
testify before the Subcommittee today and hope our comments have been
helpful. We look forward to working with the Subcommittee on the
upcoming reauthorization of the Marine Mammal Protection Act.
______
[An attachment to Mr. Mannina's statement follows:]
VIA fax and mail
301/713-0376
November 1, 2001
Ann Terbush
National Marine Fisheries Service
Office of Protected Resources F/PR1
Permits Division
1315 East-West Highway, Room 13705
Silver Spring, MD 20910
RE: Protected Species Special Exemption Permits;
Docket No. 001031304-0304-01
On behalf of the 201 accredited institutional members of the
American Zoo and Aquarium Association (AZA), I respectfully submit the
following comments with regard to the National Marine Fisheries
Service's (NMFS) proposed regulations for implementation of the Marine
Mammal Protection Act (MMPA) Amendments of 1994 (1994 Amendments)
affecting marine mammals in public display facilities.
AZA institutions draw over 135 million visitors annually and have
more than 5 million zoo and aquarium members who provide almost $100
million in support. These institutions teach more than 12 million
people each year in living classrooms, dedicate over $50 million
annually to education programs, invest over $50 million annually to
scientific research and support over 1300 field conservation and
research projects in 80 countries.
aza general comments
Collectively, AZA members represent the foremost authorities on
marine mammal care, husbandry, and behavior. AZA member institutions
also play a critical role in the conservation of marine mammals in the
wild through the broad-based education, research, and stranding/
recovery/rehabilitation programs briefly outlined below:
Education
The conservation of marine mammals requires public education, the
practice of conservation behaviors by every individual, and the
development of effective public policy. The public display of marine
mammals plays an integral role in this conservation effort, helping to
preserve these magnificent animals for present and future generations.
With public display comes marine mammal education and conservation
programs unique in their ability to establish a personal connection
between visitors and the animals. This personal connection fosters
learning about how the behaviors of each and every one of us affect
marine mammals and the habitats in which they dwell.
The mission of educational exhibits and programming at AZA member
facilities is to enhance the appreciation and understanding of marine
mammals and their ecosystems. Members of these zoological institutions
instill in those who visit an awareness of ecological and conservation
issues and a respect and caring for these animals and their
environments. Our members believe this respect engenders a strong,
active commitment to marine mammal conservation and an understanding
that each and every person can make a difference. Generally, the goals
of AZA member education programs are to:
<bullet> Lprovide opportunities for visitors to expand their
knowledge about marine mammal biology and natural history;
<bullet> Lpromote awareness of and sensitivity toward the marine
environment;
<bullet> Lpresent information on marine conservation issues;
<bullet> Lbe marine science and environmental information resources
to interested citizens, local schools, community groups, and educators,
and
<bullet> Linspire visitors to embrace conservation behavior.
Research
Knowledge acquired through research with animals in public display
facilities, in tandem with field research, is another fundamental
contribution to marine mammal conservation. Communicating this
knowledge is one of the most effective means of ensuring the health of
wild marine mammals in the 21st century. Much of this research simply
cannot be accomplished in ocean conditions.
Tens of millions of dollars are being spent on research at and by
AZA member facilities that is essential in understanding the anatomy
and physiology of marine mammals, in treating sick and injured animals
from the wild, and in learning to better manage and assist endangered
species. Additionally, many AZA facilities collaborate with marine
mammal researchers from colleges, universities, and other scientific
institutions that conduct studies important to wild species'
conservation and health. Over the years, this body of work has
contributed significantly to the present knowledge about marine mammal
biology, physiology, reproduction, behavior and conservation. These
studies have led to improvements in diagnosing and treating diseases;
techniques for anesthesia and surgery; tests for toxic substances and
their effects on wild marine mammals; and advancements in diet, vitamin
supplementation, and neonatal feeding.
Stranded Marine Mammals
For centuries, experts have long been frustrated in their attempt
to restore to health the millions of stranded marine mammals found sick
and dying on beaches throughout the world. Today, members of AZA have
the expertise and ability to offer much needed, practical assistance to
these animals. The accumulated knowledge, collective experience, and
resources of these facilities are the primary factors in these
successful rehabilitation efforts. Indeed, AZA members provide millions
of dollars in direct expenditures and in-kind contributions annually to
support stranding programs.
2001 proposed regulations
A. Care and Maintenance Standards for Marine Mammals
In the 1994 Amendments, Congress decided it was wasteful for two
agencies to have identical responsibilities and that the public display
community should not be subjected to double jeopardy by having two
different agencies enforcing care and maintenance standards. Therefore,
Congress determined that APHIS would have sole authority over the care
and maintenance of animals at public display facilities. We believe the
Proposed Regulations reject this Congressional mandate by giving NMFS
joint responsibility to enforce APHIS' care and maintenance standards.
Reflecting Congressional intent to have only one agency issuing and
enforcing care and maintenance standards, the 1994 Amendments provided
that when NMFS issues a public display permit, NMFS' responsibility is
restricted to determining whether the public display facility ``is
registered or holds a license'' issued by APHIS pursuant to the Animal
Welfare Act (``AWA''). 16 U.S.C. Sec. 1374(c)(2)(A)(ii). The preamble
to the Proposed Regulations admits that the ``Captive care and
maintenance of marine mammals held for public display are now under the
sole jurisdiction'' of APHIS. 66 Fed. Reg. at 35211. The preamble also
states that the 1994 Amendments had the specific effect of ``removing
the jurisdiction of NMFS over public display captive animal care...''
Id. Thus, Congress clearly provided that the establishment and
enforcement of marine mammal care and maintenance standards is APHIS'
responsibility.
The Proposed Regulations attempt to overturn the 1994 Amendments by
stating that NMFS' authority is not limited solely to determining if a
public display facility has an APHIS registration or license.
Proposed Sec. 216.43(b)(3)(ii), at 35216: For the Office Director
to issue a public display permit, the applicant must be registered or
hold an exhibitor's license and comply with all applicable Animal and
Plant Health Inspection Service standards at 9 CFR subpart E (emphasis
added)
AZA Response: The Proposed Regulations can be interpreted to read
that NMFS must also independently determine that the facility complies
with all of APHIS' care and maintenance standards. Thus, NMFS is
claiming it has joint responsibility with APHIS to enforce APHIS' care
and maintenance standards.
The1994 Amendments provides no statutory authority, nor does the
legislative history of the 1994 Amendments express the will of the
Congress to provide for the National Marine Fisheries Service to carry
out this responsibility.
Proposed Sec. 216.43(a)(4)(i) at 35216: To facilitate compliance
with Sec. 216.43: (i) The holder shall allow any designated employee of
NOAA or any person designated by the Office Director to: (A) Examine
any marine mammal held for public display; (B) Inspect all facilities
and operations which support any marine mammal held for public display;
and (C) Review and copy all records concerning any marine mammal held
for public display (emphasis added)
AZA Response: The1994 Amendments provides no statutory authority,
nor does the legislative history of the 1994 Amendments express the
will of the Congress to provide for the National Marine Fisheries
Service to carry out the responsibilities outlined under Sec. 216.43
(a)(4) or to assign a designee said responsibilities.
The Proposed Regulations under Sec. 216.43 could create the
situation whereby APHIS finds a facility in compliance with APHIS'
standards, but NMFS, or some private person designated by NMFS, says
that APHIS is wrong about APHIS' own regulations--- and NMFS can then
either deny the facility the right to display animals or seize the
animals.
This was the specific result Congress rejected through the 1994
Amendments. The Proposed Regulations under Sec. 216.43 create budgetary
questions regarding why Congress would want two agencies enforcing the
same statute, particularly when the AWA vests sole enforcement
authority with APHIS. They also raise public policy and significant
privacy issues regarding why any member of the public designated by
NMFS should have the right to inspect facilities for compliance with
APHIS standards and to require public display facilities to turn over
all of their records.
B. Export of Marine Mammals
Prior to the 1994 Amendments, NMFS required that marine mammals
could be exported for public display only if the foreign nation agreed
it would afford comity to any decision by NMFS to modify, suspend or
revoke said permit. 66 Fed. Reg. at 35213. The 1994 Amendments rejected
the NMFS requirement. The 1994 Amendments provided that any person
properly holding marine mammals for public display in the United States
could export the animals ``without obtaining any additional permit or
authorization.'' 16 U.S.C. Sec. 1374(c)(2)(B). However, the 1994
Amendments did address the export issue by stating that a marine mammal
could be exported for public display only if the receiving facility met
``standards that are comparable to the requirements that a person must
meet to receive a permit'' under the MMPA for public display. 16 U.S.C.
Sec. 1374(c)(9). There are three such standards: the facility must (1)
offer a program for education or conservation based on professionally
recognized standards of the public display community; (2) have an APHIS
registration or license <SUP>1</SUP>; and (3) be open to the public on
a regularly scheduled basis with access not limited except by an
admission fee. 16 U.S.C. Sec. 1374(c)(2)(A). Congress applied this
comparability test only to the facility which receives the animals from
the United States and not to subsequent transfers between foreign
facilities.
---------------------------------------------------------------------------
\1\ This standard is met through a comparability review by APHIS.
---------------------------------------------------------------------------
In the 1994 Amendments, Congress recognized the continuing validity
of the decision in United States v. Mitchell, 553 F.2d 996, 1003, 1005
(5th Cir. 1977), where the Court held the MMPA does not apply within
the territory of a foreign sovereign. A December 10, 1996, opinion from
the Office of General Counsel, NOAA, stated the MMPA ``does not confer
U.S. jurisdiction over marine mammals in the territory of other
sovereign states.''
Proposed Sec. 216.43(f)(2) at 35219: Persons intending to receive
marine mammals for public display by export from the United States must
meet the public display criteria at Sec. 216.43(b)(3)(i) through (iii).
AZA Response: The Proposed Regulations under Sec. 216.43(f)(2)
amend the statute by replacing the comparability test with the
requirement that the foreign facility ``must meet the public display
criteria at Sec. 216.43(b)(3)(i) through (iii): . . .'' (emphasis
added). However, the requirements of section 216.43(b)(3)(i)-(iii)
include not only the three statutory requirements that a facility offer
an education or conservation program based on professionally recognized
standards, be registered or hold on APHIS license, and be open to the
public, but section 216.43(b)(3)(ii) adds NMFS' newly created
requirement that NMFS independently determine that the facility
complies with APHIS' care and maintenance standards. <SUP>2</SUP>
The1994 Amendments provides no statutory authority, nor does the
legislative history of the 1994 Amendments express the will of the
Congress to provide for the National Marine Fisheries Service to carry
out this responsibility.
---------------------------------------------------------------------------
\2\ After requiring absolute compliance, the Proposed Regulations
state that the receiving facility must also submit to NMFS a letter
from APHIS certifying that the receiving facility meets standards
comparable to those of APHIS. Proposed Sec. 216.43(f)(2), 66 Fed. Reg.
at 35219.
---------------------------------------------------------------------------
Proposed Sec. 216.43(f)(4)(ii), 66 Fed. Reg. 35219: ...the Office
Director must receive a statement from the appropriate agency of the
government of the country where is foreign receiver/facility is located
certifying that the laws and regulations of the foreign government
involved permit that government to enforce requirements equivalent to
the requirements of the US Marine Mammal Protection Act and Animal
Welfare Act.
AZA Response: NMFS employs its newly-created version of the
comparability standard to conclude that the agency can prohibit the
export of a marine mammal until the government of the country in which
the receiving facility is located signs a letter of comity agreeing
``to enforce requirements equivalent to the U.S. Marine Mammal
Protection Act. . .''
These ``comity'' requirements appear to represent an effort by NMFS
to apply the MMPA internationally, something neither Congress nor the
courts allow. The Proposed Regulations raise very serious questions
about whether NMFS should be using its limited resources to transform
itself into an international regulatory agency.
C. The Removal of Animals from the Wild
Although no AZA facility has taken marine mammals from the wild
since 1992, it may be necessary to do so in the future in order to
maintain genetic diversity among marine mammals within the public
display community. The 1994 Amendments provide for this possibility,
however the Proposed Regulations would make the removal of marine
mammals from the wild extremely difficult, if not impossible.
Proposed Sec. 216.43(b)(3)(v)(B), 66 Fed. Reg. at 35216: For the
Office Director to issue a public display permit, the applicant must
demonstrate that any proposed permanent removal from the wild is
consistent with any applicable quota established by NMFS, or where
there is no quota in effect, will not have, by itself or in combination
with all other known takes and sources of mortality, a significant
direct or indirect adverse effect on the protected species or stock, as
determined on the basis of the best available information on cumulative
take for the species or stock, including information gathered by the
applicant concerning the status of the species or stock.
AZA Response: Existing regulations, at 50 C.F.R. 216.34(a)(4)
already require a permit applicant to demonstrate that any taking ``by
itself or in combination with other activities, will not likely have a
significant adverse impact on the species or stock . . .'' The Proposed
Regulations significantly change the existing standard and create an
impossible burden to meet. Unlike the existing regulations which
require a showing that the taking is not ``likely'' to have a
significant adverse effect on the species, the Proposed Regulations
require that the public display community prove a negative--i.e., that
the taking ``will not have'' a significant adverse effect. Moreover,
the Proposed Regulations now require that an applicant prove a negative
not only with respect to ``direct'' effects but also with respect to
what NMFS calls ``indirect'' effects.
The Proposed Regulations establish standards that are virtually
impossible to meet. If an applicant attempts to meet the standard, NMFS
creates still more obstacles because the Proposed Regulations allow
NMFS to require public display facilities to undertake extensive,
expensive and time consuming research to gather and analyze population
level information and to evaluate every other direct or indirect take
or source of mortality. The Proposed Regulations are quite specific
that NMFS' decision on whether to allow the taking is to be based on
the best available information ``including information gathered by the
applicant.'' This last clause allows NMFS to require an unending
gathering of new information in order to satisfy whatever information
thresholds NMFS may establish.
AZA does not object to the existing requirement that its members
demonstrate that any removal from the wild is not likely to adversely
affect the population at issue. We do, however, object to the wording
in the Proposed Regulations that permits NMFS to insist on information
gathering that allows the agency to unilaterally alter permit
requirements by requesting additional studies before NMFS can make a
decision.
Proposed Sec. 216.43(b)(4)(iii)(A) at 35216: Permit holders may not
capture or import a marine mammal that is from a species or stock
designated as depleted or proposed by NMFS to be designated as depleted
(emphasis added).
The MMPA prohibits the taking of any depleted species. 16 U.S.C.
Sec. 1372(b)(3). The Proposed Regulations include this statutory
prohibition but then proceed to amend the MMPA by also prohibiting the
taking of animals from a species which is ``proposed by NMFS to be
designated as depleted. . .'' In addition, NMFS does not impose upon
itself any time limit for reaching a final decision on its proposal to
designate a species as depleted.
The1994 Amendments provides no statutory authority, nor does the
legislative history of the 1994 Amendments express the will of the
Congress to allow the National Marine Fisheries Service to regulate the
take of species or stocks proposed by NMFS to be designated as depleted
for public display purposes.
D. Transfer, Reporting and Other Requirements
The 1994 Amendment provide that a person issued a permit to take or
import marine mammals for public display shall have the right ``without
obtaining any additional permit or authorization'' to sell, transport,
transfer, etc. the marine mammal to persons who meet the MMPA
requirements. 16 U.S.C. Sec. 1374(c)(2)(B). The MMPA also provides that
a person exercising these permit rights must notify the Secretary of
Commerce no later than 15 days before any sale, transport, etc. 16
U.S.C. Sec. 1374(c)(2)(E).
Proposed Sec. 216.43(e)(1)(i) at 35217: The holder and receiver
must submit a completed Marine Mammal Transport Notification (MMTN)
together with a supporting Marine Mammal Data Sheet (MMDS) for each
marine mammal to be transferred. A completed MMTN includes a MMDS for
each animal proposed for transfer and/or transport and a certification
signed by both the holder and the receiver which provides that the
receiver and/or receiving facility meets the requirements of paragraphs
Sec. 216.43(b)(3)(i) through (iii).
Proposed Sec. 216.43(e)(2), 66 Fed. Reg. at 35218: Receivers must
provide verification within 30 days of the date of transfer and/or
transport. Verifications must include a revised MMDS for each marine
mammal...
AZA Response: The Proposed Regulations require that the shipping
facility provide the statutorily required 15-day transport notice and
submit a complete Marine Mammal Data Sheet (``MMDS'') for each mammal
to be transferred. The MMDS gives the animal's official NMFS
identification number, name, sex, age, origin, etc.--- information
already held in the NMFS inventory. The Proposed Regulations go on to
state that in addition to receiving a transport notification and MMDS
from the shipping facility, NMFS must also receive a transport
notification and another MMDS for the marine mammal from the receiving
facility. After the transfer occurs, the receiving facility must
confirm the transport and submit yet another MMDS.
Moreover, the Proposed Regulations require that before a transport
can occur, both the holder and the receiver must provide NMFS with a
certification that the receiver meets the requirements of
Sec. 216.43(b)(3)(i)-(iii) of the Proposed Regulations. As noted above,
these provisions include requirements that a facility have a
conservation or education program, have an APHIS license or
registration, be open to the public and be in compliance with all APHIS
requirements.
Read together, these provisions mean that a shipping facility is
now subject to penalties if NMFS finds, for example, that the receiving
facility is not in full compliance with APHIS standards. An APHIS
determination of compliance with APHIS requirements should be adequate.
It is also unnecessary for the shipper and receiver to provide an
independent certification, particularly when the MMPA says the transfer
may occur without further permit or authorization.
Proposed Sec. 216.43(b)(5) at 35216: All public display permits
issued under this subpart shall, in addition to the specific conditions
set forth..., contain other conditions deemed appropriate by the Office
Director.
AZA Response: The Proposed Regulations state that any public
display permit issued by NMFS shall ``contain other conditions deemed
appropriate'' by NMFS--a catchall provision apparently authorizing NMFS
to issue any additional requirements it might think appropriate. AZA
believes that all public display permit conditions should be fully
disclosed in the regulations in order to provide for consistency and
objectivity in the permit process.
E. Other Issues
Proposed Sec. 216.43(e)(4)(vii) at 35218: ...holders of captive
marine mammals must provide an updated MMDS to the Office Director
whenever a change in inventory occurs. This updated MMDS must include:
If a marine mammal dies, including stillbirths and animals that undergo
euthanasia, the holder must notify the Office Director within 30 days
of the date of death (emphasis added).
AZA Response: Congress specifically intended that the marine mammal
inventory be a record of animals actually held at public display
facilities. If the inventory is to be a record of marine mammals held
at public display facilities, its only valid purpose should be with
respect to living marine mammals. AZA believes that it is neither
appropriate nor necessary that the Proposed Regulations require
facilities to report stillbirths since such animals will not become
part of the inventory of animals at public display facilities. The
issue regarding stillbirths is with respect to genetics and public
display facilities already report stillbirths to those entities which
maintain these genetic records. This section should be deleted as there
is no statutory authority to collect stillbirth data.
Thank you for the opportunity to comment on these important
proposals. If you require any further information, please contact me at
301/562-0777 ext. 249.
Regards,
Steven G. Olson
Director, Government Affairs
American Zoo and Aquarium Association
______
Mr. Gilchrest. Thank you, Mr. Mannina.
Mr. Marks?
STATEMENT OF RICK E. MARKS, MEMBER, TAKE REDUCTION TEAMS,
GARDEN STATE SEAFOOD ASSOCIATION
Mr. Marks. Mr. Chairman, Mr. Underwood, I serve on three
take reduction teams, and I represent the New Jersey commercial
fishermen as the Garden State Seafood Association. I also work
very closely with commercial fishermen from New England, the
Mid-Atlantic, North Carolina, Florida Keys, the West Coast, and
Alaska. I think you will find that my comments will resonate
with fishermen from those areas as well.
First, for the take reduction team process to continue to
work, it must be perceived by all parties as a level playing
field for consensus-based negotiations. The facilitator is
critical to that process. They must be perceived as impartial
by all parties if the process is to work. To NMFS's credit, all
the TRTs to date involve facilitators with no overt interest in
marine mammals.
We are about to convene a new take reduction team in the
Mid-Atlantic, and fishermen already believe they are not
entering a fair negotiation. This is not personal. The
facilitating agency and its staff are unknown to us, but the
fact remains that the Office of Protected Resources has allowed
the selection of a facilitating agent that has served as a
stakeholder on a previous take reduction team, that publishes a
whale conservation newsletter, that is funded in part by the
Massachusetts Environmental Trust and the Office of Protected
Resources. This process has become tainted before it has even
started, and that is not, Mr. Chairman, what we bargained for
in 1994.
My second point is that the lack of information
disadvantages fishermen. Mr. Chairman, unless you experience
firsthand the problems we are all having in the take reduction
team process with the lack of information, you just can't
really understand it.
This is not to mean any disrespect to the agency, because
the demands on them are huge, but the fact still remains that
if we are going to require a high level of detail to implement
the MMPA, we ought to have the requisite data to do it. The
temporal and spatial limited information is forcing
precautionary decisionmaking on the process, and because of
that, fishermen in our economy are suffering.
I would like to make note of Dr. Hogarth's leadership in
moving forward with NMFS's request in the CJS appropriations
process for funds to conduct bottlenose dolphin research. We
support that request, and ask that this Subcommittee would do
the same.
Point number three: The act lacks national standards. The
act has no effective provision currently to allow for the
consideration of socioeconomic impacts of marine mammal
protection measures on fishermen, on their families, and on
their communities.
We currently operate under a regime where our own fishermen
are afforded less consideration than a porpoise. Mr. Chairman,
I see fishermen struggling to make their next month's boat
payment at the very same time they are kept tied to the dock
for one of the most productive fishing months in their year,
just because we need to have a 95 percent certainty that a
particular population of mammals has to be at its optimum level
in either 20 or 100 years, and we just can no longer stand this
level of inequity.
Point number four: The act is flawed because it protects
but it does not manage. The MMPA is intensely protectionistic,
with stiff civil and criminal penalties for offenders. The net
effect of such extreme protectionism on any species would be
that there would be more of them. But, you might ask, how does
the act handle increasing numbers of marine mammals, some to
the point of becoming a public nuisance?
The answer is simple: The act does not at all. If you are a
fisherman using crab pots, gillnets, baited hooks, or if you
set ocean net pens to raise fish for food, the laws of
probability dictate you are going to have more problems with
marine mammals because there will be more of them to have
problems with. The act is dysfunctional because it does not
address the very problem it creates.
Our fifth and final point is that the act is overly
conservative. Mr. Chairman, two elements come to mind in the
MMPA, PBR and ZMRG, and I believe both of them would do nicely
as poster children for the precautionary approach. PBR is
calculated as the product of three variables: stock size, stock
productivity, and a safety factor.
The best scientific estimates of stock size and stock
productivity are calculated, and then they are reasonably
reduced to account for uncertainty in the data. And I note here
that the act conveniently does not contain a definition of what
``reasonable'' actually is.
Clearly, then, we understand it is NMFS's intention that
the values of these variables are less than what is considered
the best scientific information. A safety factor is then tossed
in for good measure, also reportedly to account for
uncertainty.
The effect that these assumptions have on population size
and PBR calculations can be astounding. In the case of harbor
porpoise, the population was reduced 35 percent on paper from
recent survey estimates. In numbers, that is a reduction of
74,000 animals to 48,000 animals, counted, then discounted. PBR
was reduced 257 animals based on that reduction. These huge
reductions from the best scientific estimates represent
multiple layers of precaution.
ZMRG, the level of incidental mammal takes by commercial
fishing interactions is defined as the insignificant levels
approaching a zero mortality and serious injury rate. It is not
based on biology, common sense. It has not been quantified and
it has not been codified in regulation. Mr. Chairman, if you
allow this to happen, you will expose the Departments of
Commerce and Interior to intense litigious activity. Please
remove that provision from the act.
I know these are difficult issues, Mr. Chairman. My
fishermen know it as well. That is why we need your direction.
That is why we need Congress to step in, help craft and
implement a much more reasonable law.
I see that I am out of time. I will merely quickly
summarize by giving you just 4 of the short recommendations of
the 10 that we have in our written testimony:
Incorporate objective facilitator selection criteria;
create a formal set of national standards to ensure adequate
science and socioeconomic informations are considered; minimize
the precautionary layering in the PBR by directing scientists
to provide a range of PBR rather than an ultra-conservative
point estimate; and require NMFS to take a multidisciplinary,
multi-agency, multidepartmental approach to mammal management,
rather than just relying on the Office of Protected Resources;
and please provide the necessary authorization for research and
stock assessment work.
Mr. Chairman, please accept my written testimony for the
record. On behalf of the fishermen in New Jersey and like-
minded fishermen from around the Nation, we appreciate your
time and the time of the members to share our thoughts with you
today.
[The prepared statement of Mr. Marks follows:]
Statement of Rick E. Marks, Robertson, Monagle & Eastaugh, Arlington,
Virginia
Mr. Chairman and Members of the House Subcommittee on Fisheries,
Conservation, Wildlife and Oceans, on behalf of the members of the
Garden State Seafood Association, I thank you for the opportunity to
appear before you to discuss the reauthorization of the Marine Mammal
Protection Act.
The membership of the Garden State Seafood Association (GSSA) is
comprised of shore-based and at-sea commercial fishing interests and
fishing-dependent businesses located throughout the State of New
Jersey. The various members of the GSSA have a long history of
participation, investment, employment, and cooperative scientific data
collection and gear mitigation efforts involving numerous mid-Atlantic
commercial fisheries, including but not limited to, Atlantic mackerel,
long and shortfin squid, Atlantic monkfish, Atlantic scallop, blue
crab, summer flounder, scup, black sea bass, American shad, surf clam
and ocean quahog, Atlantic menhaden, bluefish, and spiny dogfish.
Traditionally, commercial fishing ports in the State of New Jersey,
including Cape May and Point Pleasant among others, are considered
major national fishing ports accounting annually for 150 to 200 million
pounds of seafood products. GSSA members utilize a vast number of
available fishing gears to harvest these marine resources including
various gillnet designs, mid-water and bottom trawls, scallop and clam
dredges, and crab pots.
Mr. Chairman, New Jersey fishermen and their counterparts from
around the country are reporting increasing problems with protected
species management issues, chief among them the MMPA. Fishermen
continue to forgo fishing time and income in an effort to address these
growing problems. Unfortunately, the situation is out of control, and
the federal government is placing the needs of mammals far above that
of fishing families, and fishermen are now in an untenable position. It
is for these reasons that we appear before this Subcommittee. We
provide oral comments, submit written testimony for the record with
your approval, and ask for your leadership in helping us resolve these
difficult issues.
THE MMPA: PROTECTIONISM VERSUS RESOURCE MANAGEMENT
The main objectives of the MMPA are ``to protect and encourage
marine mammals to develop to the greatest extent feasible commensurate
with sound policies of resource management'' such that they do not
``cease to be a significant functioning element of the ecosystem of
which they are a part'' and that they do not diminish below their
optimum sustainable population (OSP).'' U.S.C. 1361(2);(6). In theory,
this represents a somewhat balanced approach to wildlife management,
making sense both biologically and philosophically.
It is with the federal government's subsequent implementation of
the Act that we begin to experience a distinct shift from ``sound
policies of resource management'' toward outright protectionism. It is
readily acknowledged that the original law was crafted in an effort to
atone for the consequences of ``man's impact upon marine mammals
[which] has ranged from what might be termed malign neglect to virtual
genocide.'' H.R. Rept. No. 92-707. This philosophical shift comes at
the expense of working men and women involved in commercial fishing
around the nation.
The 1994 MMPA reauthorization (P.L. 103-238) provided, among other
things, for the accidental harm of mammals in the normal course of
commercial fish harvesting. But the law also requires fishing
operations to take steps to reduce interactions with populations that
NMFS determines to be in decline via a take reduction team, or the
``TRT'' approach. Here again, in theory this appears to be a reasonable
methodology for purposes of marine mammal management.
In reality however, the MMPA will continue to be perceived as
controversial and flawed legislation because it: (A) applies overly
extreme levels of precautionary management in the absence of sound
scientific information; (B) fails to address the paradox of protecting
& managing population increases that inevitably follow complete and
total protection; (C) prioritizes the interests of marine mammals
disproportionately above that of mankind by failing to balance marine
mammal protection measures with socio-economic concerns; and (D) has
the unattainable goal of maintaining stocks at OSP at least 95 percent
of the time.
PBR: AN EXERCISE IN PRECAUTIONARY MANAGEMENT
The 1994 MMPA reauthorization added a new requirement that NMFS
develop estimates of Potential Biological Removal (``PBR''). PBR is the
maximum number of animals, not including natural mortalities, which may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population.
PBR is the product of three components: (1) the minimum population
estimate (Nmin); half the maximum net productivity rate (0.5 Rmax); and
a recovery factor (Fr) and is expressed by the formula:
PBR = Nmin * 1/2 Rmax * Fr
PBR is not based on or derived from any specific wildlife
management population model. It was apparently developed by NMFS solely
for implementing the 1994 MMPA amendments. NMFS scientists freely
incorporated several layers of precautionary assumptions into the only
formula that would serve as a nationwide standard for calculating PBR.
The Minimum Population Estimate (Nmin) is defined as the number of
animals in a stock, which is supposed to be based on the best available
information and provides reasonable assurance that the stock size is
equal to or greater than the estimate. However, the Act contains no
specific reference to what is ``a reasonable assurance'' that the
population is equal to or greater than that estimate. This means that
NMFS intends for the values to be less than the best estimate. Indeed,
the best available population survey numbers are adjusted downward as
the NMFS deems fit to account for ``uncertainty.''
``Rmax'' is defined as one half of the maximum theoretical or
estimated net productivity rate of the stock at a small population
size. Net productivity rate is considered to be the annual per capita
rate of increase in a stock due to reproduction. In most instances
conservative default values are used, 0.04 (cetaceans) and 0.12
(pinnipeds). Hence, not only are conservative values employed as a
starting point, but the Rmax values are reduced again by half to
account for possible ``uncertainty.''
Finally, a recovery factor termed ``Fr'' is applied to the PBR
calculation. The intent of the recovery factor is to compensate for
uncertainty and possible unknown estimation errors. Though the 1994
amendments provided no specific guidance for values of Fr, values of
0.1 to 1.0 are arbitrarily used to reduce the value of PBR. The value
of Fr used in a given PBR formula may vary, such that Fr = 0.1 for
endangered stocks; Fr = 0.50 for stocks of unknown status or listed as
depleted or threatened; and Fr = 1.0 for stocks thought to be at OSP.
Thus, a multi-tiered precautionary approach is incorporated into
each and every PBR calculation, all reportedly for the same reason to
account for ``uncertainty'' which remains undefined, to ensure that
marine mammal populations are at OSP levels at least 95 percent of the
time. The impact of such conservative assumptions on the estimate of
PBR can be significant and is elucidated in the following harbor
porpoise example.
HARBOR PORPOISE PBR: A PRECAUTIONARY MANAGEMENT EXAMPLE
Harbor porpoise is a small, coastal, migratory cetacean found along
the east coast from Canada to North Carolina. Harbor porpoise are
currently managed in the Mid-Atlantic region under a plan developed
jointly by NMFS and the Mid-Atlantic Harbor Porpoise Take Reduction
(HPTRT). The final plan became effective in December, 1999. There is
also a separate but closely related New England harbor porpoise
management plan.
Table 1 contains harbor porpoise abundance information available
during 1991 to 1997. The HPTRT had only three years of survey data
(1991, 1992, 1995) available to calculate PBR in 1997. NMFS chose not
to utilize the most ``recent'' 1995 survey of 74,000 by itself, nor did
they use the moving average of the most recent three surveys, nor did
they drop the oldest and therefore, most dubious survey from 1991.
Instead, NMFS reduced the population estimate to 54,300, using the
inverse variance-weighted average of the three surveys. This
effectively reduced the stock of harbor porpoise by 26 percent. The
agency then reduced the population estimate by 8.7 percent more (taking
the 20th percentile of the log-normal distribution) to arrive at
48,289, the final Nmin.
This winnowing down of the population estimates represents a heavy-
handed use of the precautionary approach and more importantly, a total
reduction in population size equal to 34.7 percent (74,000 to 48,289)
from the most recent survey count. This corresponds to a reduction in
PBR from 740 to 483, significant numbers for fishermen required to meet
the PBR number via the TRT process within just six months.
[GRAPHIC] [TIFF OMITTED] 75640.001
Finally, the application of Rmax and Fr to the reduced value for
Nmin forces a further low-balling of harbor porpoise PBR estimates.
This is not a valid or necessary approach for a species such as harbor
porpoise. These small cetaceans are reported in the scientific
literature to have extremely short life spans, early maturity and very
high reproductive rates, comparing favorably with those of pinniped
species (See Read, A. & A. Hohn, 1995. Life in the Fast Lane: Life
History of Harbor Porpoise from the Gulf of Maine).
Arguably, applying one-half of a default Rmax value (i.e. Rmax =
0.02 ; noting that 0.04 it is the exact same value used for large,
slower growing whales) and the Fr default value (0.5) for a species
with such r-selected life history characteristics may be
philosophically justifiable, but not necessary from a scientific
standpoint. Alternatively, calculating PBR using N = 59,667; Rmax =
0.04 and Fr = 1.0, leads to an estimation of PBR for harbor porpoise
equal to at least 1,629 animals.
This approach is valid when one considers that prior to
implementing harbor porpoise protective measures, the NMFS 1999
population estimate for harbor porpoise totaled 89,700 animals, up from
74,000 reported in 1995 and 37,500 in 1991 (Table 1: See also Palka,
D., 2000. Abundance of the Gulf of Maine/Bay of Fundy Harbor Porpoise
Based on Shipboard and Aerial Surveys during 1999).
Clearly, in the process of developing the harbor porpoise plan,
NMFS required an overly precautionary approach with little or no regard
for the social and economic impacts of such a plan on fishermen.
In the final analysis, despite evidence of increasing population
numbers prior to the implementation of a single TRT-authored management
measure, protecting harbor porpoise has come totally at the expense of
commercial fishermen along the east coast. Eric Anderson, a gillnet
fishermen from New Hampshire recently commented on the harbor porpoise
process, stating that
It's pleasant enough to know that we avoided an ESA listing,
but I'm sorry it resulted in people leaving the fishery .I
wonder if society recognizes and understands what these costs
are and I sometimes question if these natural resource policies
are in the best interest of society. (See National Fishermen,
September 2001)
ROBUST POPULATIONS
A direct result of the narrow-minded focus on protectionism is that
the law does not contemplate the actual ``management'' of growing
marine mammal species. This dysfunction is readily apparent along the
coast of California where robust populations of marauding sea lions are
presently consuming endangered runs of salmon, wreaking economic havoc
in numerous fisheries, injuring humans, preventing access to private
property, and fouling public breaches and marinas with fecal waste. In
Maine, abundant seals are reportedly tearing into ocean net pens used
to raise salmon, causing damage and product loss. Though presently
confined to these two regions, increasing mammal populations may well
force us to deal with this kind of problem in many other areas,
including the mid-Atlantic.
Unfortunately, the law provides no management tools to treat marine
mammals as we treat other mammal species that expand to the level of
becoming pests. To its credit, the NMFS published a 1999 Report to
Congress titled ``Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems''.
In this document NMFS reports that uncontrolled mammal populations
are negatively impacting human healthy, safety, property use,
recreational and commercial fishing businesses, and preventing the
recovery of depressed fish populations. NMFS outlines possible methods
to address the growing social and economic problems resulting from
robust mammal populations and nuisance animals in their report
recommendations. To date, NMFS has not seen fit to effectively
implement the recommendations contained in this report.
The difficult and sensitive nature of this issue notwithstanding,
the NMFS Office of Protected Resources has clearly shown it is either
unwilling or incapable of handling this aspect of the management
equation. Congress must now provide the leadership and direction by
forcing the agency to take a responsible, practical approach to
resolving the issue.
There are really just two choices to consider regarding robust
species, either the Act provides for a science-based wildlife
management regime which attempts population control, or it promotes
efforts to develop non-lethal deterrent technology and streamlines the
lethal removal process to address disruptive nuisance animals. The Act
does not necessarily have to provide for both, but it must allow for
management alternatives - the federal government cannot have it both
ways.
ZMRG: PHILOSOPHY VERUS SCIENCE
The zero mortality rate goal (``ZMRG'') included in the 1994
amendments mandated reductions for incidental mammal takes to
``insignificant levels approaching a zero mortality and serious injury
rate.'' 1916 U.S.C. Sec. 1371(a)(2). As defined here, the Act requires
that commercial fisheries attain this goal within seven years from
passage of the 1994 amendments (i.e. April 2001).
Widely controversial, ZMRG is considered by some to be
unattainable, and by others as a tool to stop commercial fishing. As
such, it remains undefined in the regulations. However, the fact that
it remains undefined does not mean it does not negatively impact
fishermen during the TRT process.
Though there is no biological justification for ZMRG, there is a
tacit understanding among interested parties, fostered by NMFS, that
ZMRG is considered to be less than or equal to 10 percent of PBR. From
our experience, the existence of ZMRG, even conceptually, is used to
generate pressure for increasing restrictions on commercial fishermen
during the TRT process.
Regardless of whether ZMRG is ultimately tied to some percentage of
a stock's biological removal, or some other yet-to-be-determined
numerical value, it remains an arbitrary limitation based solely on the
fact that animals may still inadvertently be removed from a population
during the process of harvesting food from the sea. Nonetheless, it
remains patently unfair to allow constituents to be pressured to
achieve arbitrary, philosophical objectives as part of a federal
management process.
Furthermore, the existence of ZMRG serves only as potential
litigation bait it is ``Trojan Horse'' in the truest sense and must be
removed from the Act. The resource management process is replete with
litigation and threats of litigation which impact numerous mammal
stocks and fisheries.
If ZMRG is codified by regulation, the Departments of Commerce and
Interior will be defenseless against near certain legal action from
extremists within the conservation industry. It will be of no
consequence how much fishermen have already sacrificed to achieve
highly conservative PBR levels, they will be required to sacrifice even
more of their ability to operate as efficient businessmen and raise
their families.
THE TRT EXPERIENCE: THE GOOD, THE BAD, AND BOTTLENOSE DOLPHIN
Commercial fishermen from New Jersey and around the country were
generally supportive of including the TRT component in the 1994
reauthorization. Prior to the existence of TRT's, there was no open
public process to address mammal issues. Decision-making was at the
discretion of the NMFS Office of Protected Resources, which was cause
for concern among many resource-use constituencies.
We have openly supported those positive elements of the TRT process
including the chance for free and open exchange of information,
opportunities to provide experienced on-the-water observations, the
ability to jointly develop gear mitigation ideas and to engage in
proactive efforts to address difficult issues. For these elements of
the TRT process we are thankful to Congress and the NMFS.
However, problems continue to plague the MMPA TRT process. Several
of those issues were raised during this Subcommittee's last MMPA
oversight hearing on April 6, 2000. These included, but were not
limited to, the protocol for NMFS staff during TRT negotiations,
funding problems, unreasonable deadlines, lack of sound scientific
information, litigation problems, and budget shortfalls.
From a commercial fishing industry perspective, there are
additional ongoing TRT problems: (1) the overwhelming lack of good
scientific information; (2) poor inter- & intra-agency/departmental
communication and reconciliation of fishery and mammal management
plans; (3) lack of standards to require consideration of the
socioeconomic impacts of proposed management measures; and (4) exposure
of the Departments of Commerce and Interior to litigation or threats of
litigation, forcing them to prematurely convene TRT's.
By way of example, all of the aforementioned TRT problems are
strongly implicated in the brewing east coast bottlenose dolphin
management controversy. Under the current scenario, this TRT process
will result in catastrophic effects on gillnet fishermen from New
Jersey, Maryland, Virginia, North Carolina and potentially south to the
coast of central Florida.
The bottlenose dolphin TRT process is scheduled to convene on
November 6-8, 2001 with the following problems:
(1) LPopulation estimate is severely outdated (1995) and restricted
both temporally & spatially;
(2) LHumane Society of the U.S. has threatened to file a ``notice
of intent to sue'' the Secretary of Commerce for failure to convene a
TRT to protect bottlenose dolphins pursuant to the MMPA;
(3) LNo substantive coordination exists between the NMFS Offices of
Sustainable Fisheries and Protected Resources and the Atlantic States
Marine Fisheries Commission to determine the impacts of State and
Federal Fishery Management Plan provisions on fisheries and bottlenose
dolphins;
(4) LDolphin stock was judged ``depleted'' due to large scale
viral-related mortality event during 1987-88. Since then, no
reconsideration of the ``depleted'' status or review of the genetic and
assessment assumptions has been conducted;
(5) LBefore the TRT has convened the OPR staff has already
suggested the TRT consider an alternative which would remove commercial
gillnets within 3 km of the east coast;
(6) LEfforts by commercial fishing interests to work cooperatively
with the NMFS OPR to examine reflective gillnet material as a form of
gear mitigation in the mid-Atlantic region remains frustrated and
stalled since December 2000;
(7) LEstimates of annual dolphin mortality attributed to commercial
fishing are not defensible nor are they supported by the survey data;
(8) LZMRG is already influencing group discussions; and
(9) LNMFS OPR has allowed the selection of a former TRT stakeholder
as a facilitator who publishes a whale conservation newsletter that is
funded and edited by the Massachusetts Environmental Trust and the NMFS
OPR.
MMPA REAUTHORIZATION RECOMMENDATIONS
(1) LApply a set of formal standards to the decision-making process
to ensure that adequate scientific information is available & utilized
and that relevant social and economic factors are given due
consideration
(2) LRemove the Zero Mortality Rate Goal from the Act to insulate
the Departments of Commerce and Interior from proactive and frivolous
litigious activities
(3) LIncorporate a provision into the Act which provides for
effective management of robust stocks and nuisance animals through the
development of non-lethal deterrent devices
(4) LProvide specific guidance and increased authorization for
cooperative research funding to encourage the development and testing
of gear mitigation alternatives
(5) LDirect the Ocean Studies Board of the National Academy of
Sciences to provide Congress with an independent, objective assessment
of all MMPA goals, including how the Act is currently implemented
``commensurate with sound policies of wildlife management'', the
realities of achieving OSP at least 95% of the time for all stocks, the
necessity of such a conservative approach as it relates to ensuring
that mammals remain ``a significant functioning element of the
ecosystem'', and finally, an estimate of the cost this Act is having on
our nation's commerce
(6) LRedefine, clarify, and provide specific guidance for each
element of the PBR calculation to minimize repetitive layering of
overly precautionary decision-making; direct NMFS to provide the TRT
with a full range of possible PBR values, rather than a single
conservative point estimate; and require NMFS to take an inter-
disciplinary, coordinated approach to mammal management using all
available resources in different departments, the regional management
councils and state commissions, rather than relying solely on OPR
(7) LAmend the Act to include a provision which allows for TRT's to
convene proactively for purposes of identifying scientific data gaps,
research and observer needs, and gear mitigation proposals while being
held harmless under 16 U.S.C.1387(6)(f)(2) which triggers a 6-month
requirement for the TRT, once convened, to achieve PBR
(8) LIncorporate objective selection criteria into the Act which
ensures that TRT facilitators have no previous history of stakeholder
participation in marine mammal issues
(9) LProvide the appropriate authorization levels for NMFS to
conduct necessary research and stock assessment work
(10) LChange the name of the Act to the ``Marine Mammal Management
and Conservation Act'' to reflect the commitment of Congress to achieve
a more balanced law
Mr. Chairman, I ask that you kindly accept my written testimony for
the record, and on behalf of the GSSA and like-minded commercial
fishermen from around the nation, I thank you for the opportunity to
share our concerns and ideas with your Subcommittee.
______
[Attachments to Mr. Marks' statement follow:]
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------
Mr. Gilchrest. Yes, sir. Thank you very much, Mr. Marks.
Mr. Johnson--actually I will ask this question to the panel
in a broad sense. Do any of you feel that the Marine Mammal
Protection Act should have a new definition for ``harassment,''
in particular to look at, instead of the short-term problems
with harassing marine mammals, which could be anything from
somebody taking a photograph to recreational activity, to the
long-term view insofar as what the interface between humans and
marine mammals might do in the long term? Mr. Johnson?
Mr. Johnson. Yes, Mr. Chairman, I think the answer to that
would be yes, because we have seen the effects of tour ships,
for example, on seal pups and seals and whales in Alaska. We
have seen the effects of--
Mr. Gilchrest. What have those effects been?
Mr. Johnson. Well, for example, when there are certain--
when the cruise ships come into areas like Glacier Bay, they
affect the pupping of the seals and force them to move to pup
in different areas, and we think that is a very negative
effect. We see the effects of these ships on whales up there.
In fact, a week ago they found a whale that had been killed by
a cruise ship. So I think in response to your answer there
needs to be tighter regulations, particularly affecting cruise
ships, where there are marine mammals.
Mr. Gilchrest. So it is your understanding right now, Mr.
Johnson, that the effect of cruise ships on certain populations
of marine mammals in certain areas of Alaska is acceptable by
the National Marine Fisheries Service?
Mr. Johnson. There might be where there is no effects, but
what I am saying is, there is instances where we feel very
strongly that the actions of these ships has a very negative
effect on the health of the marine mammals.
Mr. Gilchrest. Does the National Marine Fisheries Service
share that view?
Mr. Johnson. I am not--I don't know that.
Mr. Gilchrest. We will ask Dr. Hogarth later. Thank you
very much, sir.
Ms. Young?
Ms. Young. I think that there is--the definition within the
act is fairly broad and it can be interpreted in a number of
different manners. I think there is some scrutiny and there may
be some tightening of the language that is warranted. However,
harassment is a very nebulous concept at best, and one person's
harassment is somebody else's good look.
I think that there has been some discussion about defining
harassment in behavioral terms, you know, if it displaces the
animals from breeding habitat, if it stops their feeding, if it
compromises their long-term viability. And I think we would
oppose those sorts of changes because I think there are ample
demonstrations, certainly in a number of other wildlife species
but certainly in humans as well, where significant impacts
occur without obvious changes in behavior.
For example, workers in factories for years went deaf with
machine noise so loud, but they were trying to make a living
and they didn't realize how detrimental it was until it was too
late to do anything about it. Similarly, marine mammals we know
will feed sometimes up until the moment of death. That doesn't
mean that they are not dying. It doesn't mean they are not
harmed, they are not being harassed.
So I think so put a behavioral definition on it would be a
very difficult thing, because you may well see marine mammals
continuing to feed in an area, to breed in an area, to bring
their young to an area because that is the only optimal habitat
in which they can live and make a living, but that doesn't mean
that their lack of behavioral response is indicative of a lack
of harm to the species.
Mr. Gilchrest. Thank you. Anyone else? Mr. Mannina?
Mr. Mannina. Mr. Chairman, representing the public display
community, the question you are driving at is beyond something
that we normally are involved with. That said, if you are
contemplating changes to the harassment definition, we would
only ask that you be cognizant of the medical work that we do
with animals, that harassment not be so defined as that our
work with stranded animals to help them would be inhibited.
Mr. Gilchrest. Thank you.
Mr. Marks. Mr. Chairman, if I may just add quickly, we
certainly feel--we operate under Section 118, which has a
little bit of a different approach, but we certainly feel that
the definition is extremely broad and extremely subjective, and
it could basically disrupt typical, normal human activity.
And it also transcends down to people that are trying to
make improvements, whether they might be trying to improve a
boat harbor or maintain a marina to protect their vessels, that
any of the work done to that could be considered harassment,
even if it is just slightly temporary. So we certainly believe
that needs a very hard look by Congress, and because it is so
extreme, perhaps it could be somewhat limited, certainly
temporally, anyway. That would probably help us.
But one aspect I would like to add here in terms of
harassment, and it is somewhat related, is this issue of
providing some sort of relief from growing populations in terms
of nuisance animals. And it could possibly fall under some
change in harassment, but certainly a separate provision which
would help us at least do nonlethal deterrence, try and find a
way which would acoustically harass these animals technically
but perhaps chase them away from our operations, would be
something that we would certainly ask Congress to consider.
Thank you.
Mr. Gilchrest. Thank you very much, Mr. Marks.
My time has been used up. I will come back with some
further questions, but when I think of harassment, I think of
polar bears and seals, not to be insensitive to the fact that
we need to avoid unnecessary human harassment to these animals.
But once again I think we can probably--I understand that the
essence of the broad definition of harassment in some ways is
arbitrarily applied on both sides of the issue, but we will
pursue a fine-tuning to that to protect the socioeconomic
concerns of people but also to protect the integrity of the
mammals and the ecosystem upon which we as humans also depend.
I yield now to Mr. Underwood.
Mr. Underwood. Thank you, Mr. Chairman, and certainly this
panel indicates some of the complexities of the issues that we
deal with and the various stakeholders that are involved.
Mr. Johnson, I know that in your testimony you also added
an addendum on the issue of the preemption of State law
regarding subsistence takes. Is there a real concern by the
Alaska Federation of Natives that--is there an ongoing issue
with the State law trying to inhibit, dare I say harass, your
ability to engage in subsistence activities?
Mr. Johnson. Yes. In fact, subsistence priority was the
State law and it was in compliance with Title VIII or Section 8
of ANILCA, which gives a rural preference for subsistence
activities if there is a shortage of animals, only if there is
a shortage. And the State law now prohibits that, even though
the polls have shown that there is very broad, in some cases by
some polls up to 85 percent of the State, including the urban
population, that would support a subsistence priority, there
are a few politicians that will not allow it to even be voted
on by the Alaska public.
And we look on MMPA as one of the only legislations that
recognizes our rights to subsistence, to harvest marine mammals
for subsistence purposes. We don't say that we live on the
animals, we say we live with them. In fact, as far as I know,
in our language it has no word for ``kill.'' We look at the
taking of marine mammals for subsistence and for food and
handicrafts as the animal is giving himself to you, or herself.
So MMPA to Alaska natives is a very vital and critical
legislation.
Mr. Underwood. Well, thank you for that.
In the earlier, in the previous panel there was a point
raised by Marshall Jones regarding the active co-management
between native organizations and Fish and Wildlife in advance
of depletion of the resources. Does your organization take a
position on that?
Mr. Johnson. Yes. In fact we are very supportive of that
idea because we feel that the native organizations, the tribes,
all want to be involved in co-management, and in fact there are
some tribes that are drafting limitations, for example, on the
take of walrus. Even though walrus are not a depleted or not
even a threatened or endangered species, there is recognition
from the native community that we must ourselves limit our take
and our use sometimes. So most tribes that I know of, and in
fact all the tribes that I work with all are supportive of the
co-management idea, that we need to manage before depletion.
Mr. Underwood. Thank you for that, and I think, at least
speaking for myself, I take a very strong interest in that and
in the maintenance of native rights regarding subsistence
takes.
Mr. Mannina, if I could just ask a question, are you
familiar at all with the controversy in Puerto Rico regarding
the Suarez Circus?
Mr. Mannina. Only, Mr. Underwood, what we have read in the
press.
Mr. Underwood. Okay. Do you have any--would you care to
characterize that the Suarez Circus is in compliance with
anything? You know, I know that there is an issue with the
APHIS regulations, but what about your own organization's
standards? Do you have standards?
Mr. Mannina. They are not a member of either of our
organizations, Mr. Underwood. In fact, they would not meet the
standards for our organization, to be a member. In AZA we do
not have any traveling circuses or traveling exhibits members.
Mr. Underwood. So how would you propose, I mean, do you
think that the current approach that is utilized in order to
regulate traveling circuses--are you in support of those?
Mr. Mannina. Mr. Underwood, we have not taken a position on
traveling exhibits. What I can do perhaps is turn the focus a
little bit to the APHIS regulations themselves, and to note for
the Committee that beginning in 19, I think it was 94, APHIS
began a process of updating its regulations, improving them
through a consensus procedure, and there were 18 topics that
discussed.
It included representatives, these discussions included
representatives of the public, the public display community,
the environmental community, and government agencies. And 7 of
those, I think 13 of those have now been published, and there
are 5 yet to be published. Consensus was achieved.
I think the issue you are really raising is what should be
the appropriate standards, and that can be addressed through
another consensus procedure or through the Animal Welfare Act.
Mr. Underwood. Very good. Thank you very much.
Mr. Gilchrest. Thank you, Mr. Underwood.
Mr. Johnson, do you see any obstacles, hurdles, problems,
as you may proceed with co-management?
Mr. Johnson. Well, as I mentioned in my testimony, we are
moving from a system where we have no limits on our hunting, as
long as it is done nonwastefully, to where if we are going to
co-manage the species with the U.S. Fish and Wildlife, that we
are moving into quotas. If we are going to share the harvest
with Russia, it means numbers, if we are going to equally
share. If we are going to share, it means quotas. One of the
difficulties that is going to be facing us is--
Mr. Gilchrest. What does that mean, Mr. Johnson, you are
going to share in the quotas?
Mr. Johnson. Well, if we are both taking polar bears out of
the Alaska-Chukotka population, the treaty says that we have
the right to take an equal part of the harvest. So if we are
going to set a quota, for example, say of 40 or 80 for that
entire population, that means that we will be limiting--we will
take half of that in Alaska, and how we divide that up between
the villages is work that the Alaska Nanuuq Commission is going
to have to do and get village concurrence on. So we are moving
from an unlimited hunt to a limited hunt.
Mr. Gilchrest. Do you have any opinion on polar bear
hunting in Canada, the way it is managed and the agreement that
the United States has with the Canadian Government?
Mr. Johnson. Well, I think the Canadian management has been
much closer a co-management situation than we have had in
Alaska. In fact, what we are doing with the natives of Chukotka
is based on a voluntary agreement that is between the Inupiat
of the North Slope Borough and the Inuvialuit of Canada, in
where they have voluntarily placed limits on themselves, and in
fact it has been so successful that it has reduced the annual
take and they have never--they haven't exceeded the take.
For example, the last 10 years, the total number was 800
bears that were on the quotas. Of that, only like 680 have been
taken. And the important thing is, it has reduced the take of
females. In the western part of the State, the take of females
is approximately 40 percent of the hunt, and the Canadian-
Alaska agreement, and that is a voluntary agreement, the take
is only like 25 percent, so it has been very successful with
that.
Mr. Gilchrest. So you don't feel that the apparent
worldwide reduction in polar bear population is related to
polar bear hunting?
Mr. Johnson. No. In fact, I just returned from an
international polar bear meeting in Greenland that the United
States, Denmark, Greenland, Russia, Canada, and Norway all took
part in, and the general consensus--and these are all the polar
bear experts, the biologists--their feeling that came out of
that meeting was that the polar bear population worldwide is
very healthy.
Mr. Gilchrest. Oh, the polar bear population is healthy?
Mr. Johnson. Correct.
Mr. Gilchrest. That is interesting. Did they say it is
healthy compared to something?
Mr. Johnson. No. In fact, all the indications in all the
reports, including most of Canada, indicate that based on the
age/sex structure, the number of large males, those are all
indicators of a healthy population.
Mr. Gilchrest. I see. So, Ms. Young, would you agree with
the fact that this group said that that polar bear population
is healthy?
Ms. Young. I want to start by providing a caveat to my
answer, and that is, much as Congress establishes Committees to
assure that everybody doesn't have to know everything about
everything, we in the HSUS have people who specialize, and Dr.
Naomi Rose is the person who works largely on this. I will
attempt a general answer, and if you want to be more specific,
I will ask if I could defer to her.
But I think my belief is that you can't make a statement
like ``Polar bear populations worldwide are healthy.'' That is
like saying ``Large cat populations worldwide are healthy.'' It
depends on what you are looking at. Some areas--well, wolves
would be a better example. You know, in some areas wolf
populations are doing very well; in other areas they are doing
very badly.
So a general statement that the overall population is
looking good is not necessarily informative. There are smaller
populations that may be doing quite poorly and that may not be
seen in the overall picture.
I think the importation provisions in the act for polar
bear sport hunting, as I said to a greater extent in our
written comments, there have been a number of instances in
which Canadian officials allowed hunting with the imprimatur
that in fact the population was healthy, only to later admit
that, well perhaps it wasn't after all; and that although
outsiders could see those data and say, ``Well, you know, we
think you are not taking a thorough look at an analysis of the
situation,'' M'Clintock Channel being one of them, it was only
after animals had been removed from the population that
reconsideration was given to the granting of the authority to
remove them. So it is not precautionary as it is, and I think
it is a bit broad to state ``Polar bear populations are doing
fine.'' Polar bears ain't always polar bears.
Mr. Gilchrest. Thank you. I guess we might want to consider
what the polar bear population was 500 years ago, and what the
polar bear population is today, and if there is no further
degradation of the environment or loss of habitat, maybe the
existing population can be maintained and sustained with proper
management.
My time has expired again, but I will ask the gentleman
from Guam for his indulgence, if I can, unless you have a
question, Mr. Underwood.
Just very briefly, Ms. Young and Mr. Marks, you both feel
that the take reduction teams have not been very effective. I
would suspect that you have different reasons for that.
Ms. Young, you gave some examples that the take reduction
teams might have solved some problems with the commercial gear
used but have not carried that over for recreational gear. You
say the enforcement is not there and reporting always seems to
be behind, among some other things.
And Mr. Marks, you said that the TRTs are under-represented
as far as the stakeholders are concerned, unless I
misunderstood your comment.
Mr. Marks. I think you may have misunderstood my comments,
but I can expand on those when you are done, sir.
Mr. Gilchrest. And lack of information disadvantages to
fishermen, and there need to be natural standards where there
are none now, to take into consideration economic conditions to
fishermen, and there is ample enforcement of protection but not
enough for management, among some other things.
Well, when we break for lunch, maybe the two of you can get
together over lunch and resolve some of those issues.
[Laughter.]
We certainly will make the attempt on our side. But if you
just wanted to make a comment briefly, Ms. Young, directed
toward the people that Mr. Marks represents, and then Mr.
Marks, if you could make comment toward Ms. Young concerning
the people that you represent, in sort of a broad response to
that inquiry.
Ms. Young. Certainly there is a lack of information. I
think we are all equally disadvantaged by it. I don't think it
is unique to the fishermen.
Mr. Gilchrest. Could I just interrupt, just for a second,
and I apologize for that. But, Ms. Young, when you said the
take reduction teams have not worked well because, and you gave
a list of those, the commercial gear restrictions are not
carried over to the recreational fishermen?
Ms. Young. In some areas, for example, theMid-Atlantic,
there is recreational gillnetting going on side-by-side with
commercial gillnets. They both have the same general gear. They
both are prone to catching marine mammals. However, only the
commercial fishers are impacted by take reduction mandates, so
they may have to do certain things to modify their gear or--
Mr. Gilchrest. But the recreational people don't?
Ms. Young. Exactly.
Mr. Gilchrest. Mr. Marks, do you want to respond to that?
Mr. Marks. Well, that is exactly correct. They apply to
commercial gear, but not to recreational gear, and oftentimes
there is recreational fishermen that use commercial gear for
recreational purposes. So we have a complicated system, and
what happens at times is, mortality that should be attributed
to the recreational sector is being tagged onto my fishermen,
and then we are responsible to reduce down to PBR from there.
So it is a very, very difficult problem, hard for us to tease
out right now, sir.
Mr. Gilchrest. So I guess what you are saying is, there
are, between The Humane Society and the Garden State Seafood
Association, there is some agreement?
[Laughter.]
Mr. Marks. You have to define ``some'' for me.
[Laughter.]
Mr. Marks. Mr. Chairman, I could make just a very brief
statement, if I may.
Mr. Gilchrest. Yes, sir.
Mr. Marks. You know, the take reduction team process, we
are actually thankful to Congress for providing that, because
before that, Mr. Chairman, we didn't have any interaction or
any impact into that process. It was basically done by the
Office of Protected Resources and the National Marine Fisheries
Service, and there was no genuine public process.
So for that we are quite thankful, but I think the problem
is that the TRT process is laid on the backdrop of the MMPA,
which we find to be overly conservative. We can come to the
table, we can provide our information, we can talk about gear,
we can do those kinds of things, but when it comes down to it,
it is so restrictive, we are hamstrung by a lack of
information, and we have a very tight time frame to meet.
What would be helpful for us, sir, if we could change a
provision in the law which would allow a TRT to convene but not
be subject to the 6-month deadline to reach PBR, because there
is lots of work to be done. We have to design surveys. We are
trying to work with reflective net material for commercial
fishermen to use, so the animals can echo locate off of it
better. We don't even have time to get those kinds of research
things sorted out and done before we have to reach a certain
level of conservative PBR.
Those are problems that we just can't get our arms around
right now. But the basic TRT process, believe it or not, I
think we are probably in agreement that it has been an avenue
for us that is much better than what we had before. It is just
not so good yet.
Mr. Gilchrest. Thank you very much. Your testimony has been
vibrant and helpful, without a doubt.
Mr. Mannina, we will certainly pursue your concerns dealing
with the excess paperwork by NMFS versus the ability for APHIS
to take concern and care for marine mammals on display. Unless
you wanted to make a comment--
Mr. Mannina. I was just going to say thank you.
Mr. Gilchrest. We will certainly stay in touch with all of
you. We have another opportunity, Mr. Johnson, for Mr.
Underwood and myself to visit Alaska to look at some of your
concerns and some of your successes. But your testimony will be
considered. We appreciate it, and we would also like to
continue to communicate with all of you as we move down the
road, we hope in this Congress, to reauthorize the Marine
Mammal Protection Act.
As we continue to communicate with you, we would also like
to send written questions to you for the record, so that we can
make sure this becomes a part of the process. But thank you all
very much. We appreciate your attendance here this morning.
I now want to ask unanimous consent to insert a statement
into the record from Congressman Cunningham.
Without objection, so ordered.
[The prepared statement of Mr. Cunningham follows:]
Statement of Randy ``Duke'' Cunningham, a Representative in Congress
from the State of California
Mr. Chairman, I want to thank you for the brief opportunity to
submit a statement for this hearing today.
I want to thank to Committee for accepting testimony from my friend
and constituent, Bob Fletcher from the Sport fishing Association of
California. Bob is a dear friend and an expert on dealing with marine
mammal problems in San Diego and all along the Pacific Coast.
I would also like to submit for the hearing record a Dear Colleague
circulated by Rep. Chris Cannon and myself. The Committee is accepting
testimony today from Earth Island Institute, an organization with
strong feelings on the environment and misguided views of Americans. I
submit for the record an article from the September 13, 2001 Earth
Island Journal. Written by the Editor, Gar Smith, this article calls
``Terrorism the negotiating tactic of the powerless'' and blames US
foreign and environmental policies for the horrific acts of September 1
1th If the Committee is going to accept testimony from a group like
this, I want the members to know the entire agenda of this
organization.
Thank you for accepting my statement today.
______
[An attachment to Mr. Cunningham's statement follows:]
[GRAPHIC] [TIFF OMITTED] 75640.010
[GRAPHIC] [TIFF OMITTED] 75640.011
Mr. Gilchrest. Thank you all very much. I think, unless
there is an objection, I don't know if I have to ask unanimous
consent to break for lunch, but let's reconvene at 1:30. Thank
you very much.
[Whereupon, at 12:24 p.m., the Subcommittee recessed, to
reconvene at 1:30 p.m. the same day.]
[Afternoon Session - 1:41 p.m.]
Mr. Gilchrest. The hearing will come to order. Apparently
some of us up here got ``used to lunch.'' That was the phrase
that was just quoted to me. The next time we have a long
hearing, we will make it an hour and a half.
Anyway, we appreciate you coming this afternoon to give us
your testimony on this long, arduous, but certainly interesting
road to reauthorizing the Marine Mammal Protection Act, and all
the various nuances, complexities and dimensions thereof. But
at this point we have testifying Dr. Joe Scordino, Deputy
Director, Northwest Region, National Marine Fisheries Service;
Mr. Bob Fletcher, President, Sports Fishing Association of
California; Mr. Steve Rebuck, Member of Sea Otter Technical
Consultant Group, Southern Sea Otter Recovery Team, nice to
meet you; Mr. Steve Thompson, Acting Manager, California-Nevada
Operations, U.S. Fish and Wildlife Service; Ms. Kaitilin
Gaffney, California Central Coast Program Manager, The Ocean
Conservancy.
Welcome. Dr. Scordino, you may begin.
STATEMENTS OF JOE SCORDINO, DEPUTY REGIONAL ADMINISTRATOR,
NORTHWEST REGION, NATIONAL MARINE FISHERIES SERVICE
Mr. Scordino. Thank you, Mr. Chairman, members of the
Subcommittee. In my testimony today I will follow the format of
the report to Congress that we provided in 1999. It was one of
those actions requested in the 1994 amendments to the Marine
Mammal Protection Act. I also will describe some of the new
information we have collected since 1998 in conjunction with
the States, using the funding that Congress provided
specifically for us to look at the issues of sea and sea lion
impacts on salmon and West Coast ecosystems.
So I will start with the current status of the California
sea lions and Pacific harbor seals, which we collectively call
pinnipeds, in Washington, Oregon and California. Both of these
species have increased at an annual rate of about 5 to 8
percent since passage of the Marine Mammal Protection Act in
1972.
The current population estimate for California sea lions is
now well over 200,000 in the U.S. waters alone. Harbor seals
are currently estimated at over 72,000 seals in Washington,
Oregon and California. Both those numbers are pretty much
record high numbers for those species since we began counts off
and on from the '40's, '50's, and then more dedicated surveys
starting in the mid and late '70's.
Recent analyses now indicate that harbor seals in
Washington and Oregon are at their optimum sustainable
population level. This is something we have struggled with for
several or many years, trying to determine OSP for these
species, and with the harbor seals then in Washington and
Oregon they have clearly reached their OSP level.
Attached to my testimony there are some figures, and one of
those shows the population trend with harbor seals. And you can
see, looking at the figure, they have leveled off in the last 5
to 6 years, so clearly we have reached the top of the curve in
Washington and Oregon. Unfortunately, in California we have not
had complete surveys in recent years, so we can't make the same
determination for California harbor seals.
In the case of California sea lions, they are continuing an
increasing trend and are not clearly showing signs of leveling
off. One thing we see with California sea lions is that
whenever there is an El Nino condition, the populations
fluctuate pretty dramatically.
And again, if you look at the figure attached to my
testimony, Figure 4, you will see some pretty dramatic
fluctuations in California sea lion pup counts, and those
fluctuations are those years when we had the severe El Nino
conditions. So the populations drop down, but they rebound
right back up again.
So that is the current status of the two populations of
concern on the West Coast. I will now turn to pinniped impacts
on salmon and steelhead, which was a significant component in
the report to Congress.
Over the period that pinniped populations have expanded, we
have also seen salmon and steelhead populations on the West
Coast declining. Although the pinniped predation was not the
cause of the decline, it raises concerns now. With these large
populations of seals and sea lions, small populations of
salmon, there is real concern that the recovery of these
already depressed populations may be affected, especially with
those listed under the Endangered Species Act.
Limited studies we conducted prior to when we submitted the
report to Congress clearly showed that pinniped predation on
small salmon populations, especially in areas of restricted
passage, clearly can have an impact on the salmon population. A
case on that was the California sea lion predation on a
steelhead run that migrated through the Ballard Locks in
Seattle, Washington, where we saw that run pretty much crash
because of constant annual high rates of predation by
California sea lions.
In the report to Congress, we note there are many sites on
the West Coast where pinnipeds co-occur with ESA listed salmon,
and we have been using the funding provided to investigate as
many of those sites as we could and get good studies through
the State-Federal cooperative program I mentioned previously.
Preliminary results from these studies indicate that
predation is definitely not having an impact in some systems,
so we looked in the Umpqua River and looked at predation on
cutthroat trout, sea run cutthroat, and clearly found no
predation was occurring at all. But the flip side, we also had
a study or have ongoing a study in Hood Canal in Washington,
where clearly the predation by harbor seals on a listed chum
salmon run, that level of predation we are seeing which exceeds
25 percent could be impairing recovery of those runs.
Most of these situations appear to involve a small number
of animals. It is not the whole population. So you might see
100 to 300 animals right at the mouth of the river, but it
appears when you start moving up the river and take a close
look, it is usually a handful of animals or less that actually
move upriver and target their foraging on the salmon species.
We don't have conclusive results yet from these studies. We
are applying new technology like night vision equipment, and
expect to have more conclusive results within the next year.
In regard to pinniped conflicts with commercial and
recreational fisheries, we noted in the report we submitted
that interactions and conflicts between pinnipeds and fisheries
were increasing, and the situation has not changed. Fishermen
are continuing to report economic impacts from interactions
with these animals.
We have conducted some recent studies in salmon fisheries
off Monterey, California, as well as in the recreational
fisheries in southern California, and both those studies
substantiate continued, in some cases severe, conflicts with
especially California sea lions. In one time frame off Monterey
we were seeing where the sea lions were taking 70 percent of
the catch during the peak of a run from fishermen's lines.
Many fishermen use a number of nonlethal methods to try to
keep these animals away from their gear, but most of the time
there is limited or no success, and when there is success, it
is short term. It might work 1 day but not the next day, or
part of a day and later the animals will come back and cause
problems.
I would like to now turn to the four recommendations in the
report and quickly go over those and give you a status update.
The first recommendation is to implement site-specific
management authority that would allow State and Federal
officials authorization to lethally remove pinnipeds where
necessary to protect ESA-listed salmon.
This recommendation is more of a framework, and it sets up
different tiers for different situations. So in the case of a
system where you have ESA-listed species, the recommendation,
the framework provides for immediate removal of animals if it
is consistent with a recovery plan, and then steps down from
there to actions in, let's say, fishery situations where
nonlethal approaches would be used first, but then recommends
that a lethal approach be authorized for State and Federal
officials as a last resort.
In all of these cases we are looking at lethal removal of
small numbers of animals. Our studies are clearly showing it is
usually a few animals that cause most of the problems, and so
this recommendation is specific to those small numbers of
individual animals. It is not a recommendation to go out and
remove animals from haul-outs, or any kind of culling
operation.
The second recommendation is to develop safe and effective
nonlethal deterrent technologies. At the time the report was
prepared, we were seeing that there may be some promise in some
acoustic devices that were being tested and were being used.
For example, at the Ballard Locks we found that these high-
intensity acoustic devices in the confined situation there did
keep sea lions away, but only after we removed the animals that
were habituated to the area.
So we moved forward from there, working with the fishing
industry and working with Bob's group, to test more powerful
acoustic devices in open ocean waters that could be applied on
fishing boats. One of these devices, called the pulse power
device, appeared to have promise.
Unfortunately, we ran into problems with field testing the
device because of environmental concerns of effects on other
species. Cetaceans, whales, dolphins, etcetera, were also
affected by these devices, so it was more than just the target
animals that would be affected.
And then further, more recently some laboratory studies
have shown that these devices may not be as effective as we
thought on California sea lions, where it was tested on a
couple of animals and one animal showed no reaction. So we are
seeing some of the unpredictability with acoustic technology.
We are moving to still try and study other approaches,
looking at behavioral studies, what attracts an animal to
fishing gear, and hopefully that will give us some insights on
where to go in the future. But I think right now it is safe to
say we are at the bottom of our bag of tricks and we are not
sure where to turn in the nonlethal arena.
The third recommendation was for Congress to reconsider
authorizing intentional lethal taking by fishermen. Prior to
the 1994 amendments, commercial fishermen were allowed to shoot
animals as a last resort, if they couldn't remove them by other
methods from their gear. We recommended Congress reconsider
that, given the continued interactions with animals.
This recommendation was the subject of most of the negative
comments we received from the public, and we kept it in the
report more to provide the background information, the science
base for what could occur. That recommendation was predicated
on optimism that we would be finding some acoustic way to
remove animals nonlethally, and as I mentioned previously, we
are not seeing that, so we no longer are supporting this third
recommendation.
And the fourth recommendation was to collect additional
information, and we have done that with the funding you have
provided.
That concludes my testimony, and I will note that, as Bill
Hogarth mentioned earlier today, the administration is
currently developing a proposal to reauthorize the MMPA, and
this report to Congress that I have discussed will be included
in their consideration. Thank you.
[The prepared statement of Mr. Scordino follows:]
Statement of Joe Scordino, Deputy Regional Administrator, Northwest
Region, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to testify today. My name is Joe Scordino, and I am the
Deputy Regional Administrator of the Northwest Region, National Marine
Fisheries Service (NMFS) in the National Oceanic and Atmospheric
Administration, Department of Commerce. Among many other aspects of
conserving marine resources along the U.S. west coast, I have had an
active role in marine mammal issues in the Northwest for more than 20
years. I was one of two principal authors of the Report to Congress:
Impacts of California Sea Lions and Pacific Harbor Seals on Salmonids
and West Coast Ecosystems, which was submitted to the Committee on
Resources and the Committee on Commerce, Science and Transportation in
February 1999.
In my testimony today, I will generally follow the format of the
Report to Congress and will emphasize new information that has become
available since the Report was completed. This new information is the
result of a cooperative west coast pinniped research and monitoring
effort by NMFS and the Pacific States Marine Fisheries Commission
(PSMFC) that commenced in Fiscal Year 1998 with Congress increasing
NMFS base funding specifically for studies on pinniped impacts on
salmonids and West Coast ecosystems. The state fish and wildlife
agencies in California, Oregon, and Washington as well as university
and tribal entities participate in this cooperative program. Recent
studies funded by the states, tribes, and academia as well as other
funding sources such as the fishing industry and Saltonstall-Kennedy
Grants have contributed to this cooperative program.
The coordinated state/federal coastwide program to study and
monitor the effects of expanding populations of Pacific harbor seals
and California sea lions on the west coast focuses on the following
five areas:
<bullet> LPinniped effects on depressed salmon and steelhead
populations
<bullet> LPinniped conflicts with commercial and recreational
fisheries
<bullet> LNon-lethal methods to mitigate pinniped conflicts with
people and other resources
<bullet> LPinniped population assessments
<bullet> LOther coastal ecosystem pinniped impacts.
Status of California Sea Lions and Pacific Harbor Seals in Washington,
Oregon and California
Populations of California sea lions and Pacific harbor seals have
increased at an annual rate of five to eight percent since the early
1970s concurrent with passage of the Marine Mammal Protection Act in
1972 (see Figures 1-4). Although some pinniped populations in the
Pacific Ocean have declined and have been listed under the Endangered
Species Act (e.g., Steller sea lions and Hawaiian Monk seals), the
opposite has occurred with harbor seals and California sea lions off
the west coast of Washington, Oregon and California. The expanding
populations of these two species has caused concurrent increased
reports of conflicts with fisheries, fishery resources (especially
salmon), and human activities. Elephant seals on the west coast also
have increased at about 8% per year, but their interaction issues are
currently limited to human contact on coastal beaches. Thus, as
requested in the 1994 Amendments to the MMPA, the Report to Congress
and my testimony focus on expanding populations of California sea lions
and Pacific harbor seals (collectively called ``pinnipeds'') in
Washington, Oregon and California.
The Report summarized the status of California sea lions and
Pacific harbor seals as healthy, robust populations--their status has
not changed. The recent NMFS Stock Assessment Report estimates the
California sea lion population at over 200,000 animals in U.S. waters,
the harbor seal populations in Washington and Oregon at over 42,000
seals, and the California harbor seal population at over 30,000 seals.
Individuals from both species are increasingly found in inland waters
and upriver in freshwater in many West Coast river systems.
The information available at the time the Report was completed
indicated that despite current high abundance levels, there was
insufficient evidence that either of these pinniped populations had
reached its optimum sustainable population (OSP) level. Such a
determination requires evidence that the affected population has
exceeded its Maximum Net Productivity Level (MNPL), which is the lower
limit of a population=s OSP. However, recent analyses by NMFS and State
scientists on current abundance and life history parameters of harbor
seals in Washington and Oregon indicate that these populations are
experiencing the reduced rates of increase that accompany population
levels exceeding MNPL (see Figures 1 and 2). These OSP determination
manuscripts are currently under scientific peer review, and I expect
NMFS will formally announce that these stocks as having reached their
OSP as soon as the scientific papers are published.
The recent data history for harbor seals in California is not as
clear as in Washington and Oregon because the last completed survey was
in 1995. The last two survey efforts for harbor seals by the California
Department of Fish and Game were incomplete, and did not result in
abundance estimates. Although there is some preliminary evidence from
continuous counts in portions of California that would indicate harbor
seals are experiencing a reduced rate of increase, this evidence is not
conclusive without complete data for the State. Therefore, I do not
anticipate that an OSP determination can be made for this stock of
harbor seals until we have several completed annual surveys.
California sea lions are continuing an increasing trend; the
population growth data based on pup counts has not shown a reduced rate
of increase which would indicate that the MNPL has been exceeded. As
shown in Figure 4, pup production is affected dramatically by El NiZo
events; pup counts decreased by 35% in 1983, 27% in 1992, and 64% in
1998. El NiZo events do cause declines in the California sea lion
population, but do not appear to affect overall long-term increasing
trends. NMFS scientists are examining other population and life history
indices that may be used in an OSP determination for this species.
Therefore, I do not anticipate that an OSP determination will be made
for California sea lions in the near term.
Pinniped Impacts on Salmon and Steelhead
Over the period that these pinniped populations have expanded,
salmon and steelhead populations along the west coast have declined
raising serious concerns about resource conflicts and impacts of
pinnipeds on salmon listed under the Endangered Species Act (ESA). As
noted in the Report to Congress, although seal and sea lion predation
did not cause the decline of salmonids, it may be affecting the
recovery of already depressed populations. Limited studies conducted
prior to the Report to Congress showed that pinniped predation on small
salmonid populations especially at areas of restricted fish passage,
such as the California sea lion predation on a steelhead run that
migrates through the Ballard Locks, can have negative impacts on the
recovery of depressed or declining salmonids. The Report noted that
there are many sites on the west coast where pinnipeds co-occur in
estuaries and rivers with ESA listed salmon runs. As described earlier
in my testimony, NMFS, PSMFC, Washington Department of Fish and
Wildlife, Oregon Department of Fish and Wildlife, and California
Department of Fish and Game began a coordinated coastwide program in
1998 to investigate and evaluate potential pinniped impacts on ESA
listed salmonids.
The cooperative state/federal program commenced with workshops to
review and assess the sampling design and approach to 1) food habits
studies that involve collecting pinniped scats at haul-out sites and
determining diet from prey remains in the scat, and 2) surface
observations from selected vantage points at sites where pinniped
foraging and predation on salmonids could be observed. State/federal
cooperators agreed to common protocols for data collection, analyses,
and reporting to ensure consistency in studies at all sites coastwide.
Pinniped-salmon predation study sites include the lower Columbia
River; Willamette Falls, OR; Rogue River, OR; Alsea Bay, OR; Umpqua
River, OR; Ozette River, WA; Hood Canal, WA; Duamish River, WA; Ballard
Locks, WA; Snohomish River, WA; Klamath River, CA; Eel River, CA; Madd
River, CA; Smith River, CA; Scott Creek, CA; and San Lorenzo River, CA.
In addition to field work, the cooperative program includes 1) captive
pinniped studies to determine food passage rates so that data from
scats can be quantified and extrapolated, and 2) laboratory studies on
development of genetic identification of material in scats so salmon
species/stocks can be determined. Initial reports from the first two
years of studies are available from NMFS. Preliminary results from
these studies indicate pinniped predation is definitely not having an
impact on some salmonid runs (for example, studies have shown no
pinniped predation on cutthroat trout in the Umpqua River ) and may be
impairing recovery in other areas (for example, pinniped predation
rates exceeding 25 percent of spawning summer chum salmon in Hood
Canal). Because of interannual variability, studies need to be
conducted for at least three seasons in most areas before conclusive
results are available. Some studies have been expanded to incorporate
night vision technologies in an attempt to quantify the incidence of
predation at night, so that a complete assessment of impacts can be
made. Since night observations are limited and some sites have
extensive reaches of river that cannot be observed, there will be some
uncertainty in some of the predation estimates from some sites.
Nonetheless, I expect that state/federal program will have completed
salmonid predation assessments for many of the study sites within the
next year.
Pinniped conflicts with commercial and recreational fisheries
Increasing California sea lion and Pacific harbor seal populations
and their expanding distribution have resulted in increased reports of
interactions with both commercial and recreational fisheries. Fishers
are reporting economic impacts from the interactions. In the commercial
fisheries, California sea lions and Pacific harbor seals remove catch
and damage gear in the salmon troll and gillnet fisheries; nearshore
gillnet fisheries; herring, squid, and bait purse seine and round-haul
fisheries; and trap and live bait fisheries. Commercial fishers lose
income because they are unable to catch, land, and sell fish.
California sea lion interactions with salmon troll fisheries off
California are especially severe. Recent studies showed that California
sea lions took from eight percent to 28 percent of the hooked salmon in
the salmon troll fishery off Monterrey Bay from 1997 to 1999.
Interaction rates were highest in 1998 during El NiZo conditions, when
sea lions appeared to target fishing vessels due to lack of other prey
resources.
Both California sea lions and Pacific harbor seals are involved in
interactions with recreational fisheries coastwide, but most conflicts
are attributable to California sea lions. Sea lions interact by
consuming bait and chum, and removing hooked fish that are being reeled
in. Fish also may stop feeding or may be scared away by the presence of
sea lions. In addition, when sea lions are present, skippers frequently
have to move their boats to other, sometimes less productive, fishing
areas, incurring additional fuel costs and loss of fishing time.
Despite these efforts, sea lions often follow the boats to these new
locations. Interactions with the southern California partyboat fishery
are reported to be especially severe. Recent studies by the California
Department of Fish and Game and Moss Landing Marine Laboratory continue
to substantiate the common occurrence of California sea lion
interactions with Commercial Passenger Fishing Vessels in southern
California and Monterrey areas. Many fishers use an array of non-lethal
deterrence measures to minimize or avoid interactions, but as noted in
the Report to Congress, most of these measures have limited success an
usually of short term duration. High powered acoustic devices have
shown success in some limited areas such as at the Ballard Locks, but
their applicability to fishing vessels and open ocean conditions limit
their use. NMFS has worked with the fishing industry to develop a more
powerful acoustic deterrence device, called Pulsed Power, that
generates a high intensity pulse that could be effective in open
waters. However, this device could affect other species and its testing
has been constrained due to environmental concerns about such devices.
More recent laboratory studies also indicate it may not be as effective
in deterring California sea lions as initially hoped.
Recommendations in the Report to Congress
The 1999 Report is the result of a Congressional request that NMFS
conduct a scientific investigation on the expanding populations of
California sea lions and Pacific harbor seals off Washington, Oregon
and California, and develop recommendations for addressing problems and
issues identified as a result of the investigation. NMFS developed the
recommendations in the Report with the assistance and concurrence of
the Pacific States Marine Fisheries Commission, Washington Department
of Fish and Wildlife, Oregon Department of Fish and Wildlife and
California Department of Fish and Game. The Report includes specific
recommendations to Congress for management measures to address pinniped
(seal and sea lion) conflicts with salmon and human activities. The
four recommendations are: 1) Implement site-specific management
authority that would allow state and federal officials to lethally
remove pinnipeds where necessary to protect ESA listed salmon and other
marine resources; 2) Develop safe and effective non-lethal deterrent
technologies; 3) Reconsider the prior MMPA authorization that allowed
commercial fishers to lethally take pinnipeds as a last resort to
protect their catch and gear in specific fishery areas where economic
impacts are occurring; and 4) Implement the studies necessary to obtain
additional information on the expanding pinniped populations and their
impacts on other resources, especially ESA listed salmonids.
1. Implement Site Specific Management for California Sea Lions and
Pacific Harbor Seals
The Report to Congress recommends a framework for site specific
management measures, including lethal removal of pinnipeds, if and when
necessary under specified circumstances, to address conflicts involving
California sea lions and Pacific harbor seals on the west coast. The
three components of the framework are:
1. LIn situations where California sea lions or Pacific harbor
seals are preying on salmonids that are listed or are proposed or are
candidates for listing under the ESA, immediate use of lethal removal
by state or federal resource agency officials would be authorized.
2. LIn situations where California sea lions or Pacific harbor
seals are preying on salmonid populations of concern or are impeding
passage of these populations during migration as adults or smolts,
lethal takes by state or federal resource agency officials would be
authorized if (a) non-lethal deterrence methods are underway and are
not fully effective, or (b) non-lethal methods are not feasible in the
particular situation or have proven ineffective in the past.
3. LIn situations where California sea lions or Pacific harbor
seals conflict with human activities, such as at fishery sites and
marinas, lethal removal by state or federal resource agency officials
would be authorized after non-lethal deterrence has been ineffective.
The Report noted that a precautionary approach would favor the
protection of ESA listed species (e.g., salmon) over absolute
protection of healthy, robust and expanding pinniped populations. This
recommendation includes a number of safe-guards to prevent unwarranted
lethal takes of pinnipeds. Only in situations where pinnipeds are
preying on ESA listed salmonids would lethal removal be authorized
without considering non-lethal means first, and only in cases where
such removal is within the context of salmon recovery actions. In all
cases, lethal removal of pinnipeds is an action of last resort by state
or federal resource managers. This recommendation only addresses the
individual problem animals, which cause most of the conflicts; it is
not intended to reduce or cull local pinniped populations. Additional
details and specifics of this framework can be found in the Report. As
described earlier in my testimony, recent studies have shown that the
impacts of pinniped predation in some rivers are minimal (e.g.,
cutthroat in the Umpqua River) and would not warrant action, while in
others the effects of pinniped predation will need to be considered in
recovery planning (e.g., summer chum salmon in Hood Canal, WA).
2. Develop Safe, Effective Non-lethal Deterrents
At the time the Report was completed, only one avenue of deterrence
technologies appeared to be promising for timely development of non-
lethal techniques to deter marine mammals from interfering with human
activities. This avenue was acoustic devices. Acoustic deterrents have
been used with some degree of success in aquaculture operations and
were applied with success in the confined area at the Ballard Locks in
Seattle, WA to reduce predation on Lake Washington steelhead. I note,
however, that non-lethal measures at Ballard Locks were not effective
on California sea lions until NMFS had permanently removed three
individually identifiable California sea lions that had frequented the
area for many years.
Concurrent with preparation and since submission of the Report to
Congress, NMFS supported research to test acoustic deterrents. For
example, NMFS funded through the Saltonstall-Kennedy program the
development and preliminary testing of a pulsed-power device for
deterring sea lions from fishing boats. Field testing of this device
has been postponed because of environmental concerns over its effect on
non-target marine mammals and other species. There also is concern
about routine use of these devices by the fishing fleet because large
portions of ocean waters could be ensonified.
After research efforts indicated that acoustic technology would not
provide a safe, effective approach to long-term deterrence of marine
mammals, we were left with no alternatives for immediate development
and application. Therefore, NMFS is currently supporting a new line of
studies by Moss Landing Marine Laboratory to conduct basic behavioral
studies on sea lions to determine what ``cues'' they use to find hooked
fish. These studies would describe the ``cues'' involved in
interactions with fishing operations and ways to possibly ``mask'' or
eliminate those ``cues'' to avoid interactions. External sources (the
Marine Mammal Center and fishing organizations) have expressed interest
in supporting part of this research.
3. Consider Selectively Reinstating Authority for the Intentional
Lethal Taking of California Sea Lions and Pacific Harbor Seals
by Commercial Fishers to Protect Gear and Catch
This recommendation is for Congress to reconsider authorizing the
use of intentional lethal taking of California sea lions and Pacific
harbor seals until such time as effective non-lethal methods are
developed for specific fishery conflict situations. Prior to the 1994
amendments to the MMPA, commercial fishers were allowed to kill certain
pinnipeds as a last resort to protect their catch or gear. This
recommendation was included in the Report following consultation with
PSMFC in response to requests from some parts of the fishing industry.
This recommendation was predicated on optimism that effective non-
lethal deterrents would be developed in the short term thus negating
the need for fishers to use lethal means to eliminate interactions.
However, as noted above, it does not appear that environmentally sound
and effective deterrence methodologies are likely in the near term.
This recommendation was the subject of most negative comments from the
public, but it remained in the Report so that Congress would have
background information if it chose to reconsider the 1994 amendments
that eliminated the prior authorization that allowed commercial fishers
to kill marine mammals as a last resort. Following the submission of
the Report, NMFS has learned that many participants in current
commercial and recreational fisheries do not necessarily desire to have
this authority. Rather, these parties have expressed the need to have
safe, effective non-lethal deterrents. Consequently, NMFS no longer
supports this recommendation.
4. Information Needs
With Congressional action to increase NMFS base funding in fiscal
year 1998 for studies on pinniped impacts on salmonids and West Coast
ecosystems, this recommendation is being addressed. The cooperative
state/federal program is collecting the information specified in the
Report and state and federal managers are using the data for
management.
Conclusion
Mr. Chairman, as Bill Hogarth noted earlier today, the
Administration is currently developing a proposal to reauthorize the
MMPA. The Report to Congress that I have discussed will be included in
its considerations. Again, I appreciate the opportunity to testify
today and would be pleased to answer any questions you or other members
of the Subcommittee may have.
______
[An attachment to Mr. Scordino's statement, ``Report to
Congress - Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems,'' has been
retained in the Committee's official files.]
[Additional attachments to Mr. Scordino's statement
follow:]
[GRAPHIC] [TIFF OMITTED] 75640.004
[GRAPHIC] [TIFF OMITTED] 75640.005
Mr. Gilchrest. Thank you very much, Dr. Scordino.
Mr. Bob Fletcher?
STATEMENT OF ROBERT FLETCHER, PRESIDENT, SPORTS FISHING
ASSOCIATION OF CALIFORNIA
Mr. Fletcher. Good afternoon, Chairman Gilchrest and
members. I am Bob Fletcher, president of the Sportfishing
Association of California, also known as SAC, a nonprofit
association representing the majority of the passenger
sportfishing fleet in California.
Twenty-nine years after the passage of the Marine Mammal
Protection Act, the population of California sea lions has
rebounded beyond anyone's expectations, and today probably
exceeds historic levels. The result of this population
explosion has been an ever-escalating battle between sport and
commercial fishermen and pinnipeds, and the fishermen are
losing, thanks in large part to the restrictions placed on them
by the Marine Mammal Protection Act.
One of the more frustrating problems for the sportfishing
fleet involves a relatively few nuisance animals which have
learned to meet the sportfishing boats as they depart the
harbors and follow the boats to the fishing grounds. It makes
no difference how many moves the captains make, the sea lions
just follow in the wake to the next spot and then ambush the
passengers' fish when they hook up.
In total frustration, one skipper reported to the outdoor
editor of a local newspaper that he had had a great day fishing
but a poor day catching, thanks to sea lions. His report
included a catch of 38 fish heads and two whole fish.
Sea lions also harass the live bait harvesting boats on the
bait grounds, and at times packs of 50 to 60 sea lions will
jump into the nets and feast on the trapped bait, damaging the
nets and most of the bait that they don't eat. These aggressive
animals have also been known to lunge at crew members who were
scooping bait on the bait receivers, and they have even
attacked anglers in small boats.
For the commercial fishing fleet, similar conflicts exist.
Drift gillnet swordfishermen often lose much of their catch
before they can even bring the nets on board. Lobstermen
complain of having over 50 percent of their traps smashed by
sea lions who are after the bait inside. And set gillnet
fishermen have occasionally lost their entire catch of halibut
and white sea bass to these marauding pinnipeds.
Salmon troll fishermen likewise have terrible problems with
sea lions. One experienced salmon fisherman, known to many of
us, lost 68 consecutive salmon and then quit fishing that day
in disgust.
While Pacific harbor seals create less of a problem, they
have recently started grabbing more fish off both recreational
and commercial fishermen's lines and out of the trawl and
gillnets.
Mr. Chairman, you asked that I commend on the 1999 NMFS
report to Congress on impacts of seals and sea lions, which I
think was an outstanding treatment of what is clearly a
controversial subject. In my mind, the most important
recommendation in the report was that Congress should develop
safe, nonlethal deterrent devices. You have heard from Dr.
Scordino about our efforts. SAC itself has spent thousands of
dollars in an effort to develop a nonlethal deterrent device,
and even with NMFS funding and assistance, a workable device
has yet to be developed.
I feel sure, however, that with congressional support, a
device capable of deterring sea lions could be available in the
near future. Making Federal funds available would create
incentives that I am sure would encourage private sector
participation. I know the technology is out there. We just need
the stimulus that Federal grants would provide.
A second important recommendation would be to implement
site-specific management of California sea lions and Pacific
harbor seals. We have seen that relatively few problems animals
are responsible for many of the interactions. If State and
Federal resource agency officials were given general authority
for limited removal in those areas where documented problems
exist, the magnitude of the conflicts would decline
dramatically.
In 1994, when the MMPA was reauthorized and fishermen lost
the right of last resort lethal removal of sea lions,
commitments were made that congressional support for the
development of nonlethal deterrents would be a top priority. We
have yet to see that support, or a deterrent device that works.
The simple fact is that commercial and recreational fishermen
on the West Coast are being driven out of business by these
robust populations of seals and sea lions, and the time for
change in the act is now.
One way you could show support would be to hold hearings on
the West Coast in the near future. I heard you say you may be
holding one in Alaska. California would welcome you with open
arms. You need to hear from the fishermen in their own words
describing the frustrations they feel. We can learn to coexist
with these robust stocks of seals and sea lions, but only if we
are able to control some of their more aggressive tendencies
toward our fishermen and our gear.
Thank you all for your consideration of this critical
problem for West Coast fishermen and the industries that rely
on and support them.
[The prepared statement of Mr. Fletcher follows:]
Statement of Robert Fletcher, President, Sportfishing Association of
California
Chairman Gilchrest & Members:
My name is Robert Fletcher, and I am the President of the
Sportfishing Association of California, (SAC), which is a non-profit
political organization representing the interests of the commercial
passenger fishing vessel (CPFV) fleet in southern California. SAC
represents about 175 boats operating from 23 different Sportfishing
landings. Member-boats operate in all major ports between Morro Bay and
San Diego, and carry close to 750,000 passengers a year on
sportfishing, sport diving and natural history excursions.
29 years after passage of the MMPA, the population of California
sea lions has rebounded beyond anyone's expectations, and today the
population probably exceeds historic levels. The result of this
expansion has been an ever-escalating battle between sport and
commercial fishermen and sea lions that the fishermen are losing. These
robust populations of sea lions are constantly learning new ways to
interact with the boats in the SAC fleet, and over the last few years a
small number of individual animals have learned to identify the boats
in the fleet. They lay in wait near the harbor entrance, and then
follow these boats to the fishing grounds. It makes no difference how
many moves the Captain makes, the sea lions just follow in the wake and
then ambush the passengers' fish once they hook them. In total
frustration, one skipper reported to the outdoor editor of the local
paper that he had had great day fishing but a poor day catching, thanks
to the sea lions! His report included 38 fish heads and two whole fish!
Sea lions 38 - anglers 2!
Another escalating problem concerns the bait receivers, which are
underwater boxes in most of the harbors along the coast where the bait
companies hold their live bait for later sale to the commercial
sportfishing boats, as well as the large fleet of private recreational
boaters. A relatively few problem animals have learned that if they
blow bubbles under these bait receivers, the bait will panic and
scatter out through the openings in the boxes, and thus become easy
prey. On average, the bait receiver operators indicate that less than
50% of the bait placed into the boxes is later available for sale. This
problem is not an isolated one, but occurs in most harbors along the
California coast. As if these losses were not enough, the harvest of
live bait along the coast can be seriously affected by `packs' of sea
lions that wait until the bait is encircled in a net, then pour over
the cork line and feast on the trapped bait fish, damaging most of it
in the process. In other cases on these bait docks, sea lions have
become so aggressive as to lunge at crewmembers in an attempt to get by
them and into the nets holding bait that is being readied for sale. I
have also included an article from this August's Western Outdoor News
to show you just how aggressive these animals can become with
recreational anglers on small boats.
So far I have talked about recreational fishing problems with sea
lions, but commercial fishermen face the same conflicts and predation.
Drift gill net swordfish fishermen complain that in the last few years,
sea lions have destroyed more than half the swordfish in their nets
before they can bring the nets on board, and these nets are being
fished at times more than 100 miles offshore. Lobstermen claim that a
group of rogue animals have learned that they can get a free meal if
they smash the trap apart so they can get at the bait inside. At times
the losses by these fishermen exceed half the traps they set out.
Set gill net fishermen fishing white seabass and halibut outside
three miles have told me that on occasion they have lost their entire
catch to predation by sea lions.
Finally, the salmon troll fishery in Central California, Oregon and
Washington continues to have severe problems with loss of catch to sea
lions. Once again a relatively small group of sea lions have learned to
follow in the wake of these troll fishermen, watching the activities of
the crew on deck. When they see the crewmember go to the gurney to
bring in a hooked salmon, they dive down, approach the hooked fish from
behind and rip it off the hook. One long-time, highly respected
fisherman, Dave Danbom, told of a day where he lost 68 salmon in a row
before returning to the anchorage in disgust.
Mr. Chairman, I would also like to comment on the 1999 NMFS Report
to Congress on Impacts of California Sea Lions and Pacific Harbor Seals
on Salmonids and West Coast Ecosystems, and specifically on several of
its recommendations. I am an advisor and past Commissioner on the
Pacific States Marine Fisheries Commission (PSMFC), and was involved in
a cooperative effort with NMFS to develop the Report, which is an
outstanding treatment of this controversial subject. By far and away
the most important recommendation was that Congress, ``Develop Safe,
Non-Lethal Deterrents''. SAC has worked for years and spent tens of
$1,000s in an effort to find just such a device. So far we have been
unsuccessful, although NMFS has supported our efforts through S-K
grants, and more recently our efforts and NMFS' have stalled due to the
environmental communities' concern for the possibility that such a
device may accidentally cause some negative impact to the pinnipeds as
we attempt to redirect their attention away from our catch and gear.
These are intelligent marine mammals and don't discourage easily!
Notwithstanding these problems, I strongly encourage this
Subcommittee to make development of non-lethal devices a high priority,
and within your fiscal limitations make funds available to create
incentives for private-sector development of an effective device. I am
sure the technology is out there; we just need the stimulus that
federal grants would provide. Australia has similar problems and could
also bring some expertise to the table.
A second important recommendation would, ``Implement Site-Specific
Management for California Sea Lions and Pacific Harbor Seals.'' A
common thread that runs through most fisheries-pinniped interactions is
that a relatively few animals, rogue animals if you will, are creating
the majority of the problems. Unfortunately, over time these few are
teaching others to, for example, lie in wait at the mouth of spawning
streams or fish ladders and ``ambush'' listed salmonid adults as they
return to spawn; follow along behind commercial or recreational salmon
boats to `rip off' hooked fish; follow commercial passenger fishing
boats as they leave the harbor and then grab and eat or damage the
passengers' catch. If state or federal resource agency officials could
be given general authority for limited lethal removal in those specific
areas or in those instances where a documented nuisance animal is
operating, the magnitude of the interactions would decline
dramatically.
Chairman Gilchrest and members, recreational and commercial fishing
on the west coast provides significant economic activity for the
coastal communities, but will continue to struggle as long as problem
sea lions are allowed to have free rein in our coastal waters. Pacific
harbor seals are a lesser problem but with populations on the increase
these pinnipeds will also create difficulties, mainly in central
California. I would again encourage you to become familiar with the
NMFS Report on Seal and Sea Lion Impacts, as it has a wealth of timely
information and well thought out recommendations that are even more on
target today than when released two years ago.
I haven't touched on the Report's final recommendation, so I would
like to make a few remarks on the importance of `Information Needs'
before I close. The last few years have seen a significant increase in
the population of California Sea Lions and Pacific Harbor Seals, as
well as reports of new levels of interactions between seals and
fisheries, and some disturbing reports of cases where sea lions came
close to, or did in fact, injure anglers. I had a sea lion jerk a
yellowtail out of my hand as I was attempting to release it from a
lure, and in the process narrowly missed being hooked myself. An angler
in Monterey Bay was bitten in the forearm by a sea lion as he netted a
salmon he had just brought to the boat.
This new information is critical in order to follow the changes to
marine mammal populations on the west coast, as well as to better
understand how these intelligent animals are learning to more
effectively live off the efforts of commercial and recreational
fishermen, and how they are affecting listed salmonid stocks. As a
result, it is of utmost importance that Congress continues funding the
collection of timely data on the status of these robust stocks, as well
as collecting timely information on the kinds of pinniped-fisheries
interactions that are occurring.
Chairman Gilchrest, thank you for the opportunity to provide
comments to the Subcommittee on issues of such critical importance to
my industry, and I will of course be glad to answer any questions that
you or members may have.
______
[An attachment to Mr. Fletchers statement follow:]
[GRAPHIC] [TIFF OMITTED] 75640.006
[GRAPHIC] [TIFF OMITTED] 75640.007
Mr. Gilchrest. Thank you, Mr. Fletcher.
Mr. Rebuck?
STATEMENT OF STEVEN L. REBUCK, MEMBER, SEA OTTER TECHNICAL
CONSULTANT GROUP, SOUTHERN SEA OTTER RECOVERY TEAM
Mr. Rebuck. Thank you, Mr. Chairman. I appreciate very much
the opportunity to appear here today. The fishermen from my
region of the State, which is south central California and
southern California, echo that appreciation.
I have been around sea otters--you have asked me to talk
about that--I have been around sea otters since the mid-'50's.
I watched my father lose his business in the abalone fishery in
California between the late '50's and the early 1960's.
Seventeen years ago I appeared down the hall here before
another hearing on the Marine Mammal Act. In 1985 I was asked
to appear again on the Endangered Species Act, and essentially
covering all these same details in regards to sea otters and
the at that time proposed translocation of sea otters to San
Nicolas Island by the U.S. Fish and Wildlife Service.
We are rapidly losing our fisheries in California, and
frankly, Mr. Chairman, I don't know that the people I represent
can hang on through another cycle of reauthorization. We really
need your help this year, and without it I just don't know how
we have commercial fisheries in California. The populations of
marine mammals, in particular California sea lions, like Mr.
Fletcher has said here, are extremely robust. It is difficult
if not impossible many days to land a fish on a sport or
commercial boat.
And I think clearly Congress needs to differentiate between
these recovered stocks and the ones that may be still critical,
but I have heard nothing today really about the improvement in
the stocks that has been demonstrated through the Marine Mammal
Protection Act. It has really done its job in many ways. I
think there needs to be some recognition of that.
Sea lions consume a lot of fish, and I have provided to
your staff a work that I did for our State Fish and Game
Commission showing that California sea lions in 1995 consumed
several times more fish by species than commercial fishermen
caught. This is something that we can actually assess. But you
asked me to talk about sea otters, so I will switch to that
topic.
When I appeared before Congress 17 years ago, I really
thought through Public Law 99-625 that we had made a deal, and
that deal was that fishermen would be allowed to coexist with
sea otters. In my exhibits I have included a number of State
documents, and one of those, for example, from the Department
of Fish and Game, says they ``would like to see the Fish and
Wildlife Service abide by Public Law 99-625.''
Our Fish and Game Commission stated that there has been a
``lack of commitment'' and that ``Fish and Wildlife Service has
led a nonexistent recovery program.'' Our California Coast
Commission asks that there is a need ``for a new Federal
consistency review.'' The approval by the Coastal Commission
was based on a containment policy, a policy now that has not
been lived up to since 1993.
In creating Public Law 99-625, Congress really amended the
mandate of the Fish and Wildlife Service. The service has told
me many times that their mandate is to recover the sea otter,
not to protect fisheries. But you changed that mandate in 1986.
You required the service to be involved in the conservation of
shellfish resources and the fisheries they support.
Sea otters are rather unique. I have been diving around
these animals since the late '50's. I have 45 years of diving
experience. These animals eat 25 to 35 percent of their body
weight a day, and they don't just eat the same sizes that
humans are allowed to harvest. They eat much smaller animals as
well.
Scientific research demonstrates well that sea otters and
shellfish fisheries cannot coexist, and in recent years that
has extended on to our set gillnet fisheries for halibut and
other fish, and more recently to the live fish markets where
fishermen use traps. So I think for someone say that sea otters
and fisheries can coexist is rather naive. It is just contrary
to the scientific literature.
The number of sea otters in California is really little
changed since the passage of the act in 1972. There was
approximately 2,000 sea otters in California at that time, and
that number is essentially the same.
Much has been made in recent years, the last couple of
years, about a supposed decline in the sea otter population.
However, I think if one looks at the methodology that is used
in counting and surveying sea otters, you find that there is a
10 percent variable on the plus side, meaning that when the
animals are counted, about 10 percent of the animals are
missed. So I think there is some question about the supposed
decline.
When the Fish and Wildlife Service began the translocation
experiment in 1987, there were about 1,400 sea otters in the
population, and the service was required to demonstrate that
there was excess in nonessential animals for them to capture
and relocate, and they did that. Now the population is up
around 2,100 animals, it is about a 30 percent increase since
1986, and yet supposedly this is a crisis. They can't determine
why the population is declining. I think it is pretty healthy,
myself.
The sea otters may be limiting themselves by their food
intake. They eat a lot of shellfish. At either end of the range
there are areas that are food poor, and that may be a limiting
factor in their range expansion and in their population.
I have been involved with this for a long time, and I find
it difficult to identify anything, anything that the U.S. Fish
and Wildlife Service has ever done to help sea otters in
California. There was one thing a few years ago, the
prohibition on use of gillnets in shallow water, water
shallower than 30 fathoms or 180 feet, but that was
accomplished through State legislation. You know, I just
question what the Fish and Wildlife Service has really been
accomplishing.
One of the things that commercial fishermen did in the mid-
'60's was to investigate alternative fishing methods to reduce
the entanglement and mortality of sea otters in gillnets. There
was a problem during the '80's. I was a co-founder of an
alternative gear group, and our findings were actually
published by the Marine Mammal Commission in 1986. So fishermen
have been working to solve problems of mortality.
Right now fishermen are being blamed for the supposed
decline in otters, although one finds in the scientific
literature there is more sea otters dying annually from
consumption of parasites related to cat feces than are dying in
fishing gear, yet we are being singled out.
Sea otters are an important living marine resource, and I
think we are as fishermen concerned about their well-being, but
right now they occupy about 30 percent of our State's near
shore environment, and I really question why it is that we
should be expected to give up the entire State of California
for sea otters and eliminate all of our fisheries.
I think that concludes my comments today, Mr. Chairman, and
I appreciate the opportunity.
[The prepared statement of Mr. Rebuck follows:]
Statement of Steven L. Rebuck, Member, Sea Otter Technical Consultant
Group, Southern Sea Otter Recovery Team
On March 10, 1984, it was my honor to have been selected by a
coalition of commercial and recreational fishermen, organized as Save
Our Shellfish (SOS) to testify on the Marine Mammal Protection Act
(MMPA) Reauthorization, before Congressman John Breaux, Chairman of the
Subcommittee on Fisheries and Wildlife, Conservation and the
Environment. The panel I sat on that day, like this day, was concerned
about the sea otter in California, Enhydra lutris.
Those I represented, then, as now, were concerned about the
translocation of sea otters, to San Nicolas Island, Ventura County,
California, as planned and executed by the U.S. Fish and Wildlife
Service (USFWS). Commercial and recreational fishermen, especially
divers, were well aware of the impacts sea otters had in the region
between Monterey, California and Pismo Beach, California. They were
justifiably fearful of losing even more valuable fisheries, should
USFWS carry out the translocation. Knowledge of the proposal had spread
through the regional fishing fleet beginning in 1979, when commercial
abalone divers encountered biologists, contracting to the USFWS, who
were conducting baseline studies at San Nicolas Island. Local fishermen
organized as SOS and initiated contact with State and Federal agencies
and Congress.
In a May 11, 1981 report by the Comptroller General of the United
States, ``Congressional Guidance And Better Federal Coordination Would
Improve Marine Mammal Management,'' CED-81-52, it was reported that
USFWS had not informed the State of California Department of Fish and
Game (DFG) nor the Marine Mammal Commission (MMC) of their intentions
to translocate sea otters to San Nicolas Island. The Comptroller
reported:
``After receiving the Interior's comments, we again contacted
MMC officials who repeated what we had been told during the
review--USFWS had not consulted with them before initiating
such studies. We also contacted the Director, California
Department of Fish and Game, because the State had reported in
a September 20, 1979 letter that F'S had unilaterally chosen a
transplant site in spite of the State's request to be involved
in the decision. The Director told us that the State had not
been consulted by USFWS before it had decided to proceed with
studies on San Nicolas Island.''
The denial by USFWS that San Nicolas was the target would continue
throughout many years, before Congress, the California Coastal
Commission (CCC), DFG and including several drafts of an Environmental
Impact Study. Ultimately, it was San Nicolas Island which was selected.
The selection of San Nicolas Island appeared contrived. A mapping
study prepared by James Dobbins Associates for the USFWS and MMC in
1984, ``Compilation and Mapping of Available Biological, Ecological and
Socio-Economic Information Bearing on the Protection, Management and
Restoration of the Southern Sea Otter'', MMC Contract No. 14-16-0009-
81-050, identified San Nicolas Island as having very high risks of oil
spills due to U.S. Navy activities, high fishery conflicts, and
regional pollution problems. Although Dobbins concluded that fishing
conflicts at San Nicolas Island appears the least of any site under
consideration, Dobbins did report:
``Should dispersal take place to other islands shelves such as
the northern archipelago, (San Miguel, Santa Rosa, Santa Cruz,
Anacapa) and Santa Barbara Island, conflicts arising from the
selection of San Nicolas would be greater (in economic terms)
than conflicts arising from dispersal from other zones.''
To quell concerns, USFWS biologists proposed they would contain sea
otters to a ``Translocation-Zone'' around San Nicolas Island. Fishermen
argued containment would be extremely difficult. The logistics of the
island and common bad weather were only the beginning. Once animals
left, it was a big ocean where finding a small animal would be very
difficult. Ultimately, the fishermen's predictions were far more
accurate than USFWS experts.
To address fishermen's concerns, yet allow USFWS to get on with
what was being called, ``the recovery effort of the century'' Congress
passed Public Law 99-625 in 1986, creating a legal framework whereby
the sea otter in California, listed as Threatened under the Endangered
Species Act (ESA) in 1977, could be captured under experimental
provisions of ESA Section 10(j) and transported to San Nicolas Island.
This law mandated USFWS to protect sea otters and fisheries.
Fishermen had embraced ``Zonal-Management'' of sea otters as had
been recommended to USFWS by MMC in a letter dated December 2, 1980.
In a July 23, 1987 letter to the California Fish and Game
Commission (FGC) from USFWS Regional Director, Rolf Wallenstrom,
several commitments were made to the State including: ESA Section 6
funds and enhancement of shellfish resources.
Containment of the experimental population became a hot debate
during 1987, when USFWS biologist appeared before meetings of the CCC,
DFG, FGC, Ventura County Board of Supervisors All of these State and
agencies approved the program, but only by slim margins. What swayed
the State of California and others was the containment program, which
became the cornerstone of the project and project approval.
Once the translocation experiment began in fall 1987, fishermen
sued to stop the program, out of fear there was no long-term funding
for containment. Unfortunately, the fishermen's suit was dismissed by
September 1987. USFWS had already begun to translocate the first few
dozen otters even before the legal dust had settled.
Things began to go badly almost from the start. In the USFWS Rule
Making, there were commitments for things like an 800 telephone numbers
for fishermen to report wayward otters and a promised weekly survey by
aircraft. Neither happened. Fishermen who called USFWS often reached an
answering machine, which meant overnight, or in the case of weekend
calls, a three or four day delay in USFWS action. USFWS also required
``verification'' of a sighting, delaying recapture even further. Sea
otters could move many miles before USFWS took action.
By 1991, it was clear to fishermen that USFWS was not committed to
the job they had taken on and promised to the State of California. DFG
biologists who conducted most of the recaptures in the ``No Otter/
Management-Zone'' were frustrated by USFWS failures to have a re-
capture team available. In addition, F'S reported, ``...we expect a
reduction in funding for sea otter research.'' ``Some sea otter
research money is being reprogrammed into other non-otter projects.''
When USFWS realized fishermen were receiving copies of their weekly
reports from DFG, the USFWS stopped producing weekly reports. It should
be pointed out that even though the recovery of sea otters in
California was a publically funded project, USFWS had long made it very
difficult for one segment of the public to participate--fishermen.
Other agencies of the Interior Department also go into the act. In
a June 28, 1991 letter to USFWS, Stanley Albright, Regional Director
for the National Park Service (NPS) recommended to USFWS they not
remove sea otters from the Management-Zone as required by law. Director
Albright wrote:
``On May 13, 1991, during the spring survey of the Southern Sea
Otter population, 10 otters (including one pup) were observed
at San Miguel Island. San Miguel Island is a part of the
Channel Islands National Park. We are concerned that current
consideration to remove Southern Sea Otters from San Miguel
Island in the Channel Islands National Park are
counterproductive to recovery and eventual delisting of the
subspecies.
We share with your agency the goal of seeing the recovery of
sustainable populations of Southern Sea Otters. Natural
expansion of the San Miguel population would go a long way
towards meeting the Recovery Plan goals of 1) expanding otter
numbers and range, and 2) reducing jeopardy to the subspecies
from a large-scale oil spill.
We suggest that the U.S. Fish and Wildlife Service review and
revise the special regulations promulgated regarding the
southern sea otter.''
By 1993, USFWS had determined that capturing sea otters and
removing them from the ``No-Otter/ Management Zone'' was causing
mortality and USFWS ended the containment program, even though Congress
had made it clear that this was an experimental program with no
jeopardy.
Soon, the State of California demonstrated alarm. In a January 25,
1994 letter DFG biologist, Fred Wendell estimated the multiplied values
of commercial fishing at risk was $73,800,000 recreational fishing at
risk was $150,400,000 and oil and gas was $4,666,000,000.
NPS Regional Director Albright also lobbied the Director of DFG to
close the abalone resource to fishing in order to rebuild stocks. Mr.
Albright's recommendation was curious since sea otters forage on
abalone at a much smaller size than is allowed by fishing regulations.
Yielding to NPS pressure, DFG closed the commercial and recreational
abalone fisheries, south-of San Francisco, beginning 1993, and
concluding May 1997.
The following year, in April 1998 more than 100 sea otters occupied
an area in Northern Santa Barbara County, near Pt. Conception, the Cojo
Anchorage in the northern most tip of the ``No-Otter/Management-Zone''.
This area of low-relief reef structure had been a productive abalone,
sea urchin, crab and lobster ground for decades. Within a few months,
the area was virtually devoid of living invertebrate marine life. The
otters later dispersed from the area. In 1999, nearly 200 otters swam
south of Pt. Conception, back to Cojo, and even further south. Pt.
Conception is the northern most range of white abalone, Haliotis
sorenseni, an endangered species.
Federal biologist Karl Kenyon (1969) published ``The Sea Otter in
the Eastern Pacific Ocean,'' North American Fauna 68, Bureau of Sport
Fisheries and Wildlife, Dept. of the Interior. Kenyon wrote:
`` The requirement for large amounts of food by sea otters has
been discussed. feeding grounds are limited by depth to
relatively shallow waters and tag returns indicate that
individual sea otters do not range widely along the coast (see
Home Range). because of these circumstances which concentrate
feeding activities in rather limited areas, it appears probable
that a large population of sea otters could seriously deplete
food resources within their home range. Evidence is available
that this does in fact occur.''
SEA URCHIN DEPLETION
``McLean (1962) presents convincing evidence that sea urchin
Strongylocentrotus franciscanus has been nearly exterminated in a
particular area on the California coast which is occupied by a
considerable number of sea otters. Of the area he studied he says
(p.101) ``the large sea urchin was totally absent, although spines and
test fragments were present in gravel samples.''
DFG biologists Paul Wild and Jack Ames (1974) in ``A Report on the
sea otter, Enhydra lutris 1., in California,'' DFG, Marine Resources
Technical Report 20 reported finding whereby 100 sea otters could
consume 0.5 to 1.0 million pounds of abalone (whole weight) in one
year.
The value of this abalone, in 1997 when the fishery was closed
would be approximately $5 million to $10 million ex-vessel or
multiplied by 2.7 $13.5 million to $27. million. One could estimate the
abalone lost at Cojo Anchorage and northern Management-Zone at $4.5
million to $9 million during a four month period for each of the two
years.
In early 1999, USFWS released a Draft Evaluation of the Southern
Sea Otter Translocation Program and Draft Biological Opinion (1-8-99-
FW-38R).
On April 30, 1999, California Coastal Commission Deputy Director,
Susan Hansch wrote the USFWS:
``Thus, the decision by the USFWS to no longer maintain the
``no otter'' zone triggers the need for a new federal
consistency review to determine if the project continues to be
undertaken in a manner consistent with the CCMP.''
On May 3, 1999, California Fish and Game Commission Executive
Director, Robert Treanor wrote the USFWS:
``...the Commission is disappointed with the USFWS's decision
to recommend that the translocation program is a failure. This
action, in effect, will terminate the 1987 Memorandum of
Understand (MOU) between the USFWS and State. The MOU, among
other things, provides for zonal management of sea otters,
which is needed to protect our state's valuable shellfish
resource. With reassurance from the USFWS, the State agreed in
good faith to the translocation project and MOU, but the total
lack of commitment (removal of staff and funding) on the part
of the USFWS has led to a nonexistent recovery program.''
The Fish and Game Commission also forwarded to USFWS a policy
document titled: Fish and Game Commission Policy ``Shellfish and Sea
Otter Conflicts.''
The Fish and Game Commission declares the following:
1. LThe management and conservation of marine resources are
important to the State of California and fish and wildlife resources
are held in trust for the people of the State by and through the
Department of Fish and Game. [FGC Sec. 711.7 (a) and sec 1600]
2. LIt is the policy of the State to encourage the conservation,
maintenance, and utilization of marine resources for the benefit of all
citizens and to promote the development of local fisheries, to
encourage the growth of commercial fisheries, and to achieve the
sustainable use of the state's fisheries. [FGC Sec. 1700 and Sec. 7055]
3. LSignificant legislation enacted in 1998 established the State
policy that marine living resources are to be conserved, used and
restored for the benefit of all citizens; that the health and diversity
of entire marine ecosystems and all marine resources are to be
conserved; and the State actions are to recognize the importance of
sustainable fisheries to the economy and culture of California [AB 1241
]
4. LThe Commission has previously adopted policies to encourage the
development and expansion of commercial fishing and to cooperate with
local, state and federal agencies and private persons and organizations
to further the conservation of fish and wildlife.
5. LIn 1986 a federal law was enacted amending the Endangered
Species Act. The amendment specifically provides authority for the U.S.
Fish and Wildlife Service to cooperatively undertake, with the
Department of fish and Game, a zonal management plan for the threatened
southern sea otter that has its primary objective to conserve both sea
otters and local commercial fisheries. This federal law paved the way
for a Memorandum of Understanding between two agencies and initiated an
extraordinary effort to balance apparently competing needs and give
assurances to both wildlife conservation and commercial fishing
interests.
Therefore, it is the policy of the Fish and Game Commission to:
1. LActively encourage on its own initiative and with the
Department of Fish and Game, consistent with state law and
legislatively established policy, a balanced solution to minimize
shellfish fishery and sea otter conflicts that provides assurances for
sea otter recovery, sustainable local commercial and sport fishing,
healthy marine ecosystems, and strong local economies.
2. LSupport and encourage the Department in completing and
maintaining a current comprehensive sea urchin management plan that
considers among other issues the long-term impacts of various levels of
fishing effort, predation, and habitat quality.
3. LConfer with appropriate state and federal agencies, local
governments, scientific experts, fishery participants, sea otter
support groups, and other interests in exploring options for and
identifying a balanced zonal management plan that protects the marine
resources of the State and supports sustainable local commercial
fishing industries.
4. LPromote a healthy marine ecosystem as the single best way to
recover sea otters and promote local fisheries and encourage
appropriate federal and State agencies to undertake research efforts
necessary to identify the cause or causes for the continued decline in
the sea otter population.
5. LPursue financial resources to match federal funds in
undertaking research and management efforts designed to promote
recovery of California's sea otter population while minimizing
conflicts with shellfish fisheries and other marine resource uses.
These funds could include general State revenues and the State's share
of federal funds from Section 6 of the Endangered Species Act, or
Pittman-Robertson federal aid. (Adopted April 2, 1999)
On May 11, 1999, Department of Fish and Game Director, Robert Right
wrote USFWS:
``It is the Department's opinion that the compromise reached in
developing P.L. 99-625 reasonably balances the needs to protect
sea otters with our other public trust responsibilities of
maintaining sufficient resources to support human uses of the
States renewable resource.''
This letter was a companion to an earlier letter dated September 3,
1998 from former DFG Director, Jacqueline Schafer, who wrote USFWS:
``In the short term, we expect the Service to abide by Public
Law 99-625 and the terms of its MOU with the Department of Fish
and Game.''
The City of Santa Barbara, in an August 26, 1999 letter to
Congresswoman Lois Capps, wrote:
``Both the City of Santa Barbara and California Department of
Fish and Game are very concerned about the inaction of the
United States Fish and Wildlife Service (USFWS) in upholding
Public Law 99-625.''
``To date, they have failed to honor this law and otters are
now extending their range into the restricted zone, causing
damage to invertebrate resources. Included in these resources
are rare species of abalone that are currently protected from
harvest.''
``In an effort to bring attention to this issue and make USFWS
accountable, the City of Santa Barbara is forwarding to you a
recently adopted resolution in support of fisheries management
and resource conservation which requires the zonal management
of the Southern Sea Otter by the USFWS per their 1987
Memorandum of Understanding between the State of California and
the USFWS.''
Lastly, is a March 28, 1998 letter from my former Congressman, the
Honorable Robert Lagomarsino, who writes (used with his permission):
``I believe it is a contempt of Congress for the U.S. Fish and
Wildlife Service to not carry out the law by recapture of sea
otters. At the very least they should have notified Congress of
what was going on.''
``I agree that it would be preferable to have Fish and Game
manage the otters.''
CONCLUSION
It should be very apparent by now that the USFWS has done an
extremely poor job when it comes to how they have managed their
obligations, as identified in PL 99-625, the Final Rule Making, the
Memorandum of Understanding with the California Department of Fish and
Game, the California Coastal Commission, coastal communities, and
recreational and commercial fishing.
As a citizen who was directly involved with the creation of PL 99-
625 and implementing the ``Zonal-Management'' approach for the
protection of sea otters and conservation of shellfish, there is only
one word to describe what has taken place: ``BETRAYAL.''
Mr. Lagmarsino called it ``CONTEMPT.''
Director Schafer asked the USFWS to ``ABIDE BY PL 99-625.''
Executive Director Treanor called it a `` LACK OF COMMITMENT'' and
concluded ``USFWS HAS LEAD A NONEXISTANT RECOVERY PROGRAM.''
The City of Santa Barbara states clearly, the USFWS has `` FAILED
TO HONOR THIS LAW.''
How is it possible for an agency to cause such disruption in so
many coastal communities?
The USFWS has spent millions of public dollars mismanaging the sea
otter program in California. At a meet of the Southern Sea Otter
Recovery Team at the Monterey Aquarium in April 1999, USFWS Sea Otter
Coordinator, Carl Benz was asked how much money was budgeted for sea
otter recovery in California. His answer was,'' $300,000 per year''.
Next, Mr. Benz was asked what amount was actually spent on sea otters.
``None,'' was his answer. The next question was what then is the money
spent on? ``Salaries,'' was his answer. One must ask, where is the
evidence that the USFWS has done anything which actually benefits sea
otters in California?
In the year 2000, the Commercial Fishermen of Santa Barbara, Inc.
felt compelled to file a lawsuit against the U.S. Fish and Wildlife
Service for their failure to contain sea otters to San Nicolas Island,
to re-capture sea otters in the ``No-Otter/Management Zone'' and the
loss of shellfish resources at Cojo Anchorage, related jobs, income and
related economic impacts to the regional economies. It is absolutely
shameful that working people have to sue a federal agency to do their
job, especially with all the years of negotiation, Public Law 99-625,
Memorandum of Understanding, supposed consistency with the Coastal Zone
Managment Act, etc...
We respectfully request Congress mitigate the losses caused by
USFWS's willful neglect.
REQUESTS AND RECOMMENDATIONS
1) We request Congressional no jeopardy protections afforded
commercial fishermen, recreational fishermen, aquaculturists and oil
companies in PL 99-625 should be continued as they were in previous
MMPA Reauthorizations.
2) We request USFWS live up to their obligation, as mandated in PL
99-625 to protect sea otters, while promoting conservation of renewable
shellfish resources for human use fisheries through zonal management of
sea otters. USFWS should be held accountable and deliver on commitments
made in the Memorandum of Understanding with the State of California in
1987.
3) We request Congress provide continuous oversight into Department
of the Interior activities, including the activities of the USFWS and
NPS as it relates to sea otters and fisheries in California, requiring
annual reports to the Congress and State of California.
4) We request Congress consider financial mitigation to the State
of California and local economies for the losses of valuable shellfish
resources pursuant to willful neglect by USFWS.
5) We request Congress provide guidance for reconfiguring the ``No-
Otter/Management Zone.'' Marine Protected Areas (MPAs) are being
designed by state and federal agencies, commercial and recreational
fishermen, academics, environmentalists, and other interested parties
for the enhancement and recovery of fish and shellfish stocks, in
support of fisheries.
6) We request Congress consider amendments to the MMPA which could
allow for return of management to the State of California. This would
require funding to the State. A legal opinion, and/or amendment to the
MMPA providing for a waiver may be a useful consideration.
7) We suggest Congress may want to consider whether recent range
expansion by sea otters is sufficient to allow for delisting from the
Endangered Species List.
8) We recommend a hearing on taxonomic clarification. A petition,
prepared by SOS in 1982, pursuant to the ESA listing of sea otters in
California was shelved by USFWS.
9) Although sea otters are listed as Threatened under the ESA, due
primarily to oil spill risks, it has been fishing which has been
sacrificed to protect sea otters from oil spills. This is an injustice.
10) Recognize that the risks to sea otters has been significantly
reduced since the listing in 1977.
11) We request Congress be aware that at the time the sea otter
translocation began, in the fall of 1987, the estimate population was
1,367 (MMC report to Congress) and yet USFWS had ``non-essential/
excess'' animals for capture and translocation. Now, with the year 2001
population estimated at 2,161 the USFWS claims the population is in
crisis and they cannot recapture otters. This appears contradictory.
Another General Accounting Office investigation may be warranted.
INCREASED PROTECTIONS AND REDUCTIONS OF RISKS TO SEA OTTERS IN
CALIFORNIA SINCE 1977
Compiled by Steve Rebuck for the Southern Sea Otter Recovery Team
October 1999. There has been a significant reduction in risks to sea
otters in California since sea otters were proposed for listing in
1977. In addition, by range expansion and translocation, separate
colonies now exist over many hundreds of mile of coast and islands,
further reducing risks.
1) L$ L billion oil industry clean-up and prevention fund.
2) LDFG Oil Spill Prevention and Response Office (OSPRO).
3) LOSPRO Wildlife Rehabilitation Facility, Santa Cruz, California.
4) LClosure of tanker terminals at: Moss Landing, Estero Bay, Morro
Bay, Avila Beach.
5) LChevron and other carriers using Doublehull Tankers.
6) L50 nautical mile voluntary program offshore the sea otter
range.
7) LStationing of ocean-going tugs.
8) LMonterey Bay National Marine Sanctuary protections and
research.
9) LFishermen's Oil Response Team (FORT) 50 boats and 250 trained
fishermen.
10) LNo offshore oil drilling north of Pt. Arguello.
11) LIncreased use of pipelines instead of tankers.
12) LInterior Secretary Bruce Babbit cancels four offshore leases
(3 in Santa Maria Basin & 1 near El Capitan) August 13, 1999. 36 more
under consideration.
13) LCancellation of planned LPG terminal at Gaviota.
14) LSuspension of 19 seismic survey permits in State Waters
(inside 3 mi.) beginning 1986. 15) State laws have regulated the use of
set-gillnets inside 20 and 30 fathoms near sea otters.
______
[Attachments to Mr. Rebuck's statement have been retained
in the Committee's official files.]
Mr. Gilchrest. Yes, sir. Thank you, Mr. Rebuck.
Mr. Thompson?
STATEMENT OF STEVE THOMPSON, ACTING DIRECTOR, CALIFORNIA-NEVADA
OPERATIONS, U.S. FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF
THE INTERIOR
Mr. Thompson. Thank you, Mr. Chairman. Thank you for the
opportunity to provide testimony on the administration's effort
to recover the southern sea otter. The administration is
committed to recovering the sea otter, and we look forward to
working with all of you and all of the interested parties to
identify the most effective measures to accomplish this
recovery.
The Department of Interior listed the southern sea otter as
a threatened species in 1977, and that listing was based on the
species' small population size, the greatly reduced range, and
the potential risk to catastrophes, both natural and man-
caused. Since it was listed, the sea otter population has
increased at a rate of about 5 percent per year. However, we
did experience a significant decline in the years between 1995
and 1998.
Our recent surveys indicate that the population is stable
at about 2,200 otters. To give you some context of that, back
in the '30's we had perhaps 50 sea otters on the California
coast. We are now up to about 2,200, and perhaps historically,
although we don't know exactly, there was anywhere in the
neighborhood from 16,000 to 20,000 sea otters.
Our original recovery plan was finalized in 1982 and
identified the need to translocate small numbers of sea otters
from the existing range to unoccupied habitat. Although
translocation was allowed under the Endangered Species Act, we
did not have similar authorizations or provisions under the
Marine Mammal Protection Act. As Steve just mentioned, that
dilemma was attempted to be resolved through Public Law 99-625,
which authorized the Secretary of Interior to develop a
translocation plan for southern sea otters, administered in
cooperation with the affected State, the State of California.
Public Law 99-625 also requires specific conditions,
including a specification of a management zone, which is from
Point Concepcion south to the Mexican border, where sea otters
would be removed using nonlethal means. The primary purpose of
this management zone was to prevent, to the maximum extent
feasible, the conflicts between the southern sea otter and
fisheries resources.
Between August 1987 and March 1990 we translocated 140 sea
otters to the central coast at San Nicholas Island in southern
California. That population now stands at about 20 individuals.
In the management zone we captured and moved 24 sea otters
between 1987 and 1993. In 1993 we became concerned that the
capture and transport of sea otters found in the management
zone could result in the death of some animals, and we
suspended moving otters from the management zone. The number of
sea otters in the management zone remained small until about
1998, when about 100 sea otters rafted south into the
management zone.
In 1999 we prepare a draft evaluation of the translocation
program and distributed it to all interested parties. We also
reinitiated consultation on the management aspects of the
program under the Endangered Species Act. As a result, we
determined that moving sea otters from the management zone will
likely jeopardize the continued existence of the species, and
further evaluation of the translocation process was warranted.
The department currently faces a conflict between the
obligations to isolate and contain southern sea otters pursuant
to Public Law 99-625, and our mandate to avoid jeopardizing the
continued existence of the species. We have suspended efforts
to capture and move southern sea otters from the management
zone pending a complete reevaluation of the translocation
program, including the preparation of a supplemental to the
original Environmental Impact Statement for the program. In
other words, we will be putting together a supplemental EIS on
the translocation program, and we will also be finishing our
recovery plan.
Mr. Chairman, from the outset our efforts to recover the
southern sea otter have been carried out under a unique set of
circumstances. The southern sea otters are listed under the
Endangered Species Act, considered a depleted species under the
Marine Mammal Protection Act, and required passage of a special
law, 99-625, to authorization the translocation program.
Clearly the department's expectations for the southern sea
otter translocation have yet to be achieved, and we intend to
examine these circumstances in significant detail through an
ongoing National Environmental Policy Act process and a wide
open public process. We believe that this decisionmaking
process, which will fully involve all affected stakeholders,
will help frame the legal and scientific debate so that this
conflict can be resolved to advance the concentration of sea
otters in a manner that is both fair and equitable to all
affected interests.
Mr. Chairman, that concludes my prepared testimony, and I
will be happy to answer any questions.
[The prepared statement of Mr. Thompson follows:]
Statement of Steve Thompson, Acting Manager, California/Nevada
Operations Office, U.S. Fish and Wildlife Service, U.S. Department of
the Interior
Mr. Chairman, thank you for the opportunity to provide testimony on
the Administration's efforts to recover the southern sea otter.
Recovery of the sea otter will require a sustained effort by the
Federal government and our State, local and private partners. The
Administration is committed to recovering the otter, and we look
forward working with all affected parties to identify the most
effective measures to accomplish recovery.
My testimony will describe the history of sea otter management
actions, notably the Sea Otter Translocation Program. I will also
discuss the challenges we face and how we plan to meet those
challenges.
Origins of Southern Sea Otter Translocation Program
On January 14, 1977 (42 FR 2968), the Department of the Interior
(Department), through the U.S. Fish and Wildlife Service (Service),
listed the southern sea otter (Enhydra lutris nereis) as a threatened
species under the Endangered Species Act (ESA). This determination was
made on the basis of the species' small population size and greatly
reduced range, and the potential risk to the species from oil spills. A
southern sea otter recovery team was established in 1980 and a recovery
plan for the species was approved on February 3, 1982. Recovery goals
included: minimizing risk from potential oil spills; establishing at
least one additional breeding colony outside the then-current southern
sea otter range; and compiling and evaluating information on historical
distribution and abundance, available but unoccupied habitat, and
potential fishery conflicts. The approved recovery plan identified the
establishment of a second colony of otters by means of translocation of
southern sea otters to a remote location, as what was expected to be an
effective and reasonable recovery action. The recovery plan
acknowledged that a translocated southern sea otter population could
impact shellfish fisheries that had developed in areas formerly
occupied by southern sea otters.
The purpose of a translocation program was to establish southern
sea otters in one or more areas outside the otters' then-current range.
It was believed that this action would minimize the possibility of a
single natural or human-caused catastrophe from adversely affecting a
significant portion of the population. Ultimately, it was anticipated
that translocation would result in a larger population size and a more
continuous distribution of animals throughout the southern sea otter's
former historical range. The Department viewed translocation as
important to achieving recovery of the southern sea otter.
Translocation of a listed species to establish experimental
populations is specifically authorized under section 10(j) of the ESA.
However, the southern sea otter is protected under both the ESA and the
Marine Mammal Protection Act (MMPA), and the MMPA contains no similar
translocation provisions. For southern sea otters, this dilemma was
resolved by the passage of Public Law (P.L.) 99-625 (Fish and Wildlife
Programs: Improvement; Section 1. Translocation of California Sea
Otters) on November 7, 1986. This law specifically authorized
development of a translocation plan for southern sea otters
administered in cooperation with the affected State.
A translocation plan developed by the Secretary of the Interior
under P.L. 99-625 was required to include: the number, age, and sex of
sea otters proposed to be relocated; the manner in which sea otters
were to be captured, translocated, released, monitored, and protected;
specification of a zone into which the experimental population would be
introduced (translocation zone); specification of a zone surrounding
the translocation zone that did not include range of the parent
population or adjacent range necessary for the recovery of the species
(management zone); measures, including an adequate funding mechanism,
to isolate and contain the experimental population; and a description
of the relationship of the implementation of the plan to the status of
the species under the ESA and determinations under section 7 of the
ESA. The purposes of the management zone were: to facilitate the
management of southern sea otters; to facilitate the containment of the
experimental population within the translocation zone; and, to the
maximum extent feasible, prevent conflicts between the experimental
population and other fishery resources within the management zone.
Under a translocation plan, any sea otter found within the management
zone was to be treated as a member of the experimental population. The
Department must use all feasible non-lethal means to capture sea otters
in the management zone and return them to the translocation zone or to
the range of the parent population.
Development of Translocation Plan
On March 6, 1987, the Department completed an intra-Service
biological opinion that evaluated a proposed translocation of southern
sea otters to San Nicolas Island, our preferred translocation site. The
biological opinion analyzed effects on the parent population caused by
removal of southern sea otters from the population for translocation.
The opinion also analyzed the effects on the species of containment of
otters through their removal from the management zone. The proposed
translocation plan was found to be a well-designed recovery action that
maximized the opportunity for success while minimizing negative impacts
on the parent population. The Department concluded that the southern
sea otter translocation plan would not likely jeopardize the continued
existence of the species.
In May 1987, the Department finalized an Environmental Impact
Statement (EIS) that analyzed the impacts of establishing a program to
translocate southern sea otters from their then-current range along the
central coast of California to areas of northern California, southern
Oregon, or San Nicolas Island off the coast of southern California. San
Nicolas Island was identified as the preferred alternative. A detailed
translocation plan meeting the requirements of P.L. 99-625 was included
as an appendix to the final EIS.
Regulations to implement P.L. 99-625 were finalized August 11,
1987, and are found at 50 CFR 17.84(d). They provide details of the
translocation plan, including criteria for determining whether the
translocation program would be considered a failure. Waters surrounding
San Nicolas Island were designated as the translocation zone, and all
waters south of Point Conception, California, with the exception of
waters surrounding San Nicolas Island, were designated as the
management zone.
On August 19, 1987, as part of our cooperative actions with the
State of California, the Department signed a Memorandum of
Understanding with the California Department of Fish and Game (CDFG)
providing for cooperative research and management efforts to promote
recovery of the southern sea otter population in California. The
agreement also included provisions to minimize conflicts between
southern sea otters, existing shellfish fisheries, and other users of
marine resources through containment of sea otters that might enter the
management zone.
Implementation of the Translocation Plan
On August 24, 1987, the Department began implementation of the
translocation plan by starting to move groups of southern sea otters
from the parent population at the coast of central California to San
Nicolas Island. In December 1987, in coordination with the CDFG, the
Department began capturing and moving sea otters that entered the
designated management zone in an effort to minimize conflicts between
sea otters and fisheries within the management zone and to facilitate
the management of sea otters at San Nicolas Island.
The Department released 140 southern sea otters at San Nicolas
Island between August 1987 and March 1990. As of March 1991,
approximately 14 sea otters (10 percent) were thought to remain at the
island. Some sea otters died as a result of translocation; many swam
back to the parent population, some moved into the management zone; and
the fate of more than half the sea otters taken to San Nicolas is
unknown. In 1991, due to low retention and survival, the translocation
of sea otters to San Nicolas Island stopped. However, the Department
continued monitoring the sea otters remaining in the translocation
zone. Sea otter surveys at San Nicolas Island are now conducted by the
Biological Resources Division of the U.S. Geological Survey on a
bimonthly basis.
Sea otters were captured and removed from the management zone until
February 1993. At that time, two sea otters that had been recently
captured in the management zone were found dead shortly after their
release in the range of the parent population. A total of four sea
otters were known or suspected to have died within 2 weeks of being
moved from the management zone. The Department suspended all sea otter
capture activities in the management zone to evaluate sea otter capture
and transport methods. Results of the evaluation were inconclusive, but
the Department remained concerned that capture and transport of sea
otters found in the management zone could result in the death of some
animals. Between December 1987 and February 1993, 24 sea otters were
captured and removed from the management zone and returned to the
parent range. Of these, two sea otters were captured twice in the
management zone after being moved to the northern end of the parent
range, suggesting that capture and relocation were ineffective.
Containment efforts were discontinued after 1993 in response, in part,
to our concerns about the unexpected mortalities of otters experienced
during or shortly following their removal from the management zone. The
Department also recognized that techniques at the time, which proved to
be less effective than originally predicted and were labor intensive,
were not a feasible means of containing otters. In 1997, CDFG announced
that they also would no longer be able to assist with sea otter
captures in the management zone.
Assessment of the Translocation Plan
A group of approximately 100 southern sea otters moved from the
parent range into the northern end of the management zone in 1998. At
the same time, range-wide counts of the southern sea otter population
indicated a decline of approximately 10 percent since 1995. Given the
decline in the southern sea otter population, the Department asked the
Southern Sea Otter Recovery Team, a team of biologists with special
expertise in sea otter ecology, for a recommendation regarding the
capture and removal of sea otters in the management zone. The recovery
team recommended that sea otters not be moved from the management zone
to the parent population because moving large groups of sea otters and
releasing them within the parent range would be disruptive to the
social structure of the parent population.
In August 1998, two public meetings were held to provide
information on the status of the translocation program, describe
actions we intended to initiate, and solicit general comments and
recommendations. At these meetings, the Department announced that it
would reinitiate consultation under Section 7 of the ESA for the
containment program, and begin the process of evaluating the program
under the failure criteria established for the translocation plan. The
technical consultant group for the Southern Sea Otter Recovery Team,
composed of representatives from the fishery and environmental
communities as well as State and Federal agencies, was also expanded to
assist with evaluating the translocation program. The Department
provided updates on the translocation program and status of the
southern sea otter population to the California Coastal Commission,
Marine Mammal Commission, and California Fish and Game Commission in
1998 and 1999.
In March 1999, the Department distributed its draft evaluation of
the translocation program to interested parties. The draft document
included the recommendation that the translocation program be declared
a failure because fewer than 25 sea otters remained in the
translocation zone and reasons for the translocated otters' emigration
or mortality could not be identified and/or remedied. The Department
received substantive comments from agencies and the public following
release of the draft for review.
In accordance with our re-initiation of consultation under Section
7 of the ESA, the Department prepared a draft biological opinion
evaluating southern sea otter containment. The draft opinion was
distributed to interested parties for comment on March 19, 1999, and a
final opinion was completed on July 19, 2000. The re-initiation of
consultation was prompted by the receipt of substantial new information
on the population status, behavior, and ecology of the southern sea
otter that revealed effects of containment that were not previously
considered. Specifically, the biological opinion noted that in 1998 and
1999 southern sea otters moved into the management zone in much greater
numbers than had occurred in prior years; analysis of carcasses
indicated that southern sea otters were being exposed to environmental
contaminants and diseases which could be affecting the health of the
population; range-wide counts of southern sea otters found numbers were
declining; recent information, in particular the implications of the
effects of the Exxon Valdez oil spill, indicated that sea otters at San
Nicolas Island would not be isolated from the potential effects of a
single large oil spill; and the capture and release of large groups of
sea otters was likely to result in substantial adverse effects on the
parent population. The Service concluded that reversal of the southern
sea otter population decline, and expansion of the southern sea otter's
population distribution are essential to its survival and recovery. The
Service further concluded that continuation of the containment program,
while restricting the southern sea otter to the area north of Point
Conception, will likely exacerbate recent sea otter population declines
and increase vulnerability to catastrophic man-made or natural events,
and therefore, likely jeopardize the continued existence of the
species.
On February 8, 2000, a draft revised recovery plan for the southern
sea otter was released for public review and comment (65 FR 6221).
Based on the observed decline in abundance and shift in distribution of
the southern sea otter population, the recovery team recommended in the
draft revised recovery plan that it would be in the best interest of
the southern sea otter to declare the experimental translocation of
southern sea otters to San Nicolas Island a failure and discontinue
maintenance of the management zone. The recovery team's recommendation
will be fully evaluated through the Department's ongoing process on the
translocation action under the National Environmental Policy Act
(NEPA).
Current Status of Southern Sea Otter
Based on three year running averages of Spring survey data, the sea
otter population in California declined from 1995 to 1998. Recent
counts indicate that the population is stable but still below the
number believed necessary for recovery of the species. In spite of more
than 140 sea otters having been translocated and evidence of
reproduction, the population of sea otters at San Nicolas Island
currently comprises only approximately 20 adults.
Current Status of the Translocation Program
To date, the southern sea otter translocation program has not met
the primary goal of establishing a viable population of southern sea
otters at San Nicolas Island. In the translocation plan, the Department
determined that a self-sustaining colony size of 150 southern sea
otters would be necessary to consider the population at San Nicolas
Island viable. Based on trends since the translocation program began
and current circumstances, a population of this size may not be
attainable.
On July 27, 2000, the Department published in the Federal Register
a notice of intent to prepare a supplemental EIS on the southern sea
otter translocation program (65 FR 46172). The need for a supplemental
EIS is based on changed circumstances and new information since the
original EIS on translocation of southern sea otters was prepared in
1987. Public scoping meetings were held on August 15 and 17, 2000, with
the purpose of soliciting information to be used in defining the
overall scope of the supplemental EIS, identifying significant issues
to be addressed, and identifying alternatives to be considered. The
technical consultants to the Southern Sea Otter Recovery Team met to
discuss the supplemental EIS on September 26, 2000. A scoping report
for the supplemental EIS was distributed to the public and interested
parties in April 2001. The Department plans to complete a draft
supplemental EIS to be released for public comment. A final document
will subsequently be published. The draft evaluation of the
translocation program released in March 1999 will be finalized
following further opportunity for public participation in the decision-
making process and completion of the EIS.
On January 22, 2001, the Department published a notice of policy
regarding capture and removal of southern sea otters from a designated
management zone (66 FR 6649). The notice advises the public that the
Department has determined that it will not capture and remove southern
sea otters from the southern California sea otter management zone
pending completion the ongoing reevaluation of the southern sea otter
translocation program, including the preparation of a supplemental EIS
and release of a final evaluation of the translocation program.
As explained in the notice, the Department currently faces a
conflict between the obligation to isolate and contain California sea
otters pursuant to Public Law 99-625 and the statutory mandate to avoid
carrying out activities that are likely to jeopardize the continued
existence of those otters. We believe that the ongoing decision-making
process, which will fully involve all affected stakeholders, will help
to frame the legal and scientific debate so that this legal and
scientific conflict can be resolved to advance the conservation of sea
otters in a manner that is both fair and equitable for all affected
interests.
Working with the State and Stakeholders
The Department has become increasingly active in our efforts to
identify actions which will promote the recovery of the southern sea
otter, address sea otter/fishery conflicts, and build partnerships. For
example, in 1999 the Department created a forum to identify,
prioritize, coordinate, and implement research needs for California sea
otters. The Monterey Bay Aquarium now hosts this research symposium
annually, bringing together scientists, resource agencies, and others
working in the field of southern sea otter research and conservation to
discuss goals and objectives in a creative and productive setting.
Through our endangered species landowner incentives program, we
secured funding to help fishermen convert fishing gear that may trap
and drown sea otters. Metal rings that will prevent otters from
entering traps have been purchased and are now in the process of being
distributed to fishermen. The California Fish and Game Commission has
responded to concerns for sea otters by requiring these rings to be
placed in live fish traps along the central California coast where most
sea otters reside.
A separate, community-based dialog on sea otter issues was
initiated by environmental and fishery groups in 1999. In 2000, the
dialog ceased. However, renewed efforts to reconvene the group have
begun, and a meeting is likely to occur in the near future. The
Administration supports this involvement by the community and hope to
be invited to participate in a way that will promote a better
understanding and resolution of sea otter issues.
As interest in sea otter/fishery interactions has increased, the
Department has increased its efforts to keep key partners informed and
up to date. It has provided frequent updates to the California
Department of Fish and Game, the California Fish and Game Commission,
the California Coastal Commission, and the Marine Mammal Commission,
and it will continue to keep these agencies informed and involved in
decisions it makes with respect to sea otters.
Conclusion
Mr. Chairman, from the outset, our efforts to recover the southern
sea otter have been carried out under a unique set of circumstances.
The fact that this species is listed under the ESA, and designated as a
depleted species under the MMPA, required passage of a special law to
authorize the translocation program. This allowed the Department to
employ the experimental population recovery tool that has proved highly
successful for many other imperiled species. Clearly the Department's
expectations for the southern sea otter translocation have yet to be
achieved, and we intend to examine these circumstances in significant
detail through the ongoing NEPA process.
The NEPA process that is now underway will engage all stakeholders
in helping the Department examine all available alternatives to address
the current biological status of California sea otters, the problems
posed to sea otters that remain within the translocation zone, the
legal and scientific conflicts posed by the containment obligation, and
the possible need for greater management flexibility. No decisions have
been made by the Department at this time, nor will any decisions be
made until the current collaborative process of working with all
stakeholders through the NEPA process is completed.
Mr. Chairman, this concludes my prepared testimony. I would be
happy to answer any questions.
______
Mr. Gilchrest. Thank you very much, Mr. Thompson.
Ms. Gaffney?
STATEMENT OF KAITILIN GAFFNEY, CALIFORNIA CENTRAL COAST PROGRAM
MANAGER, THE OCEAN CONSERVANCY
Ms. Gaffney. Good afternoon, Mr. Chairman and members of
the Subcommittee. Thank you for the opportunity to present our
views on marine mammals in California under the Marine Mammal
Protection Act. My name is Kaitilin Gaffney, and I am the
California Central Coast Program Manager for The Ocean
Conservancy, and I work out of our field office in Santa Cruz,
California.
The Ocean Conservancy, formerly the Center for Marine
Conservation, played a leadership role in the development of
the 1994 amendments to the MMPA, and we continue to actively
participate in the amendments' implementation. We believe that
Congress's refinements to the act in '94 brought it closer
toward achieving its goals, and that the MMPA is now an
international model for the effective conservation of marine
mammals. In short, any problems with the MMPA stem not from the
act itself, but from the agencies' failure to implement the act
fully and effectively, compounded by a chronic lack of
resources for effective implementation.
Today I am going to address both of the issues that the
other panelists have discussed, interaction of pinnipeds,
specifically California sea lions and harbor seals, with salmon
stocks, as well as the translocation program for the southern
sea otter.
Regarding the first issue, I think it is important to
reiterate that pinnipeds have never been the primary cause of
salmonid declines. In fact, studies show that salmon make up
only a very small percentage of pinniped diet, and that habitat
loss is the primary reason behind salmonid declines.
Nonetheless, in 1994 the environmental community, the
fishing industry, and Congress provided the National Marine
Fisheries Service with the tools in Section 120 of the MMPA to
effectively and strategically address the issue of pinniped
predation on threatened and endangered salmonid stocks.
Consequently, there is no need to amend the MMPA to allow a
blanket authorization for the intentional lethal removal of
pinnipeds by State and Federal resource agencies.
The Ocean Conservancy believes that nonlethal deterrents
hold the most promise to resolve pinniped-salmonid conflicts.
NMFS has failed, however, to publish final guidelines for what
constitute acceptable nonlethal deterrents, and NMFS and
Congress have not yet placed a sufficient priority on dedicated
and aggressive research into the development of safe, effective
nonlethal deterrents.
The Ocean Conservancy strongly opposes any attempt to
remove the statutory prohibition on shooting pinnipeds. Any
change to the prohibition will only result in the wounding,
maiming and death of hundreds of marine mammals, an outcome
that would be both inhumane and unacceptable to the public.
Furthermore, allowing fishermen to target marine mammals
will create an unreasonable risk to species such as Steller sea
lions, southern sea otters, and harbor porpoise which could
easily be shot by mistake. Because NMFS cannot adequately
enforce the existing statutory prohibition, amending it will
only create an open season on marine mammals throughout the
United States.
Regarding the issue of southern sea otters, the U.S. Fish
and Wildlife Service's efforts to recover the southern sea
otter, listed as threatened under the Federal Endangered
Species Act, have not been successful. As was mentioned by Mr.
Thompson, the population has declined in recent years, and the
current population of just under 2,200 animals is down
significantly from historic population estimates of 16,000 to
20,000 individuals.
I am not going to repeat the history of the translocation
law, as Mr. Thompson covered that very well, but will go again
to 1999 and the biological opinion finding issued by the Fish
and Wildlife Service. The finding stated that removal of sea
otters from the southern California otter-free management zone
would jeopardize their continued existence, and that allowing
the southern sea otter to expand its range is essential to the
species' survival and recovery.
Fish and Wildlife service now proposes to designate the
translocation a failure, and has initiated formal reevaluation
of the translocation program. Given the decline in the southern
sea otter population, The Ocean Conservancy concurs with the
biological opinion, and we believe that moving any animals out
of the management zone at this time would likely result in
mortality and would further impede recovery, in violation of
the Endangered Species Act. We believe that efforts to remove
otters from San Nicolas Island will have similar results in
mortality, and that the existing population at San Nicolas
Island should be allowed to remain.
In the past, The Ocean Conservancy has engaged in
discussions with the fishing industry about how to recover the
southern sea otter while working to ensure sustainability of
commercial fisheries. We would be very interested in resuming
this dialogue to further explore potential areas of common
ground.
In the meantime, we urge Congress to refrain from amendment
the MMPA, and to instead direct Fish and Wildlife Service to
expeditiously complete its reevaluation of the translocation
program. We also request that Congress provide funds to
undertake activities that the environmental community and the
fishing industry have identified as beneficial to both sea
otter recovery and fisheries.
In conclusion, we believe that the existing MMPA provisions
provide the appropriate methods for addressing pinniped-
salmonid conflicts, and we concur with Fish and Wildlife
Service's biological opinion on the southern sea otter, and
support the agency's efforts to reevaluate the translocation
plan.
Mr. Chairman, that concludes my remarks. I would be happy
to answer any questions.
[The prepared statement of Ms. Gaffney follows:]
Statement of Kaitilin Gaffney, California Central Coast Program
Manager, The Ocean Conservancy
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to present our views on the Marine Mammal Protection Act
(MMPA), specifically marine mammal species in California. My name is
Kaitilin Gaffney. I am the California Central Coast Program Manager for
The Ocean Conservancy, and I work out of our field office in Santa
Cruz, California.
I. SUMMARY STATEMENT
The Ocean Conservancy (formerly the Center for Marine Conservation)
played a leadership role in the development of the 1994 amendments to
the MMPA, especially those governing the incidental take of marine
mammals in commercial fisheries. Since that time we have been one of
the few organizations that has actively participated in the amendments'
implementation. The Ocean Conservancy believes that, in the sweeping
changes made in 1994, Congress refined the Act and brought it closer
toward achieving its goals of recovering marine mammal populations. The
MMPA is an international model for effective conservation and
protection of marine mammals. In short, the problems with the MMPA stem
not from the Act itself, but often the agencies' failure to implement
the Act fully and effectively, compounded by a chronic lack of
resources for effective implementation.
A. Pinnipeds and Salmonids
Pinnipeds have never been the primary cause of a salmonid decline,
nor has it been scientifically demonstrated that they have been a
primary factor in the delayed recovery of a depressed salmonid species.
Studies show that salmonids make up only a small percentage of pinniped
diets, and that habitat loss is a primary factor in salmonid decline.
Nonetheless, in 1994, the environmental community, the fishing
industry, and Congress provided the National Marine Fisheries Service
(NMFS) with the tools in Section 120 of the MMPA to effectively address
the issue of pinniped predation on threatened and endangered salmonid
stocks. Section 120 serves its purpose. NMFS successfully used these
provisions to authorize the removal of California sea lions preying on
steelhead trout at the Ballard Locks. In future conflicts NMFS must
choose to use these tools wisely.
The Ocean Conservancy asserts that, as currently codified in law,
Sections 109 and 120 of the MMPA [16 U.S.C. Sec. Sec. 1379,1389] offer
effective and precautionary approaches to protecting pinnipeds,
salmonid fishery stocks, biodiversity, and human health and welfare.
Consequently, there is no need to amend the MMPA to allow a blanket
authorization for the intentional lethal removal of pinnipeds by state
and federal resource agencies. Nor do we believe that such a blanket
authorization would be acceptable to the public.
Non-lethal deterrents hold the most promise to resolve the problems
of ``nuisance'' animals and as such should be the first line of defense
as opposed to lethal removal. NMFS has failed, however, to publish
final guidelines for what constitute acceptable non-lethal deterrents.
NMFS and Congress have also not placed a sufficient priority on
dedicated and aggressive research into the development of safe,
effective non-lethal deterrents. Development of such deterrents will
aid in reducing not only predation on threatened and endangered
salmonid stocks, but also other conflicts between pinnipeds and humans.
The Ocean Conservancy strongly opposes any attempt to remove the
statutory prohibition on shooting marine mammals or even to modify this
provision to allow limited, controlled shooting of pinnipeds by
fishermen. Any change to the prohibition will only result in the
wounding, maiming, and death of hundreds of marine mammals.
Furthermore, allowing fishermen to target marine mammals will create an
unreasonable risk to special status species such as Steller sea lions,
southern sea otters, and harbor porpoise, which could easily be shot
``by mistake.'' Because NMFS cannot adequately enforce the existing
statutory prohibition, amending it will only create an ``open season''
on marine mammals throughout the United States.
B. Southern Sea Otters
The U.S. Fish and Wildlife Service's (FWS) efforts to recover the
southern sea otter (Enhydra lutris nereis), found mainly off the
central California coast and listed as threatened under the federal
Endangered Species Act (ESA), have not been successful. The southern
sea otter population steadily increased between the mid-1980s and 1995,
but since 1995, the population has declined by 9%. The current
population is over 2,100 individuals, a drastic decline from an
estimated historical population of 16,000-20,000 animals. The greatest
extant threats to the subspecies include oil spills, infectious
disease, water pollution, and fishing gear and nets.
In accordance with the Translocation Law (Public Law 99-625
(1986)), in 1986, FWS began an experiment to move (translocate) a
number of southern sea otters to San Nicolas Island off of Santa
Barbara--south of their current range--in an attempt to create a viable
second colony. The goal was to minimize the chance that the entire
subspecies could be wiped out by an oil spill along the central
California coast. FWS estimates that the translocated colony on San
Nicolas Island currently numbers less than 25 sea otters. The
Translocation Law also created an otter-free zone to protect shellfish
fisheries from sea otter competition, as these areas were devoid of
otters at the time of the law's passage. Despite their declining
population, a group of predominantly, male sea otters have seasonally
expanded their geographical range into this otter-free zone. Moreover,
new information on sea otters discovered since the Translocation Law's
enactment demonstrate that its statutory provisions are no longer in
the southern sea otter's best interests.
Last year, FWS found in a biological opinion that the removal of
sea otters from the Southern California ``otter free management zone''
would jeopardize their ``continued existence'' and that allowing the
southern sea otter to expand its range is ``essential to the species'
survival and recovery.'' Furthermore, FWS has completed a Draft
Evaluation of the Southern Sea Otter Translocation Program, in which
the agency proposes to designate the translocation a failure, and has
initiated development of a Supplemental Environmental Impact Statement
(SEIS) to reevaluate the translocation program. Given the decline in
the southern sea otter population, The Ocean Conservancy concurs with
the biological opinion and believes that moving any animals out of the
management zone would likely result in mortality that would further
impede recovery, in violation of the ESA.
Preventing further range expansion will limit the natural growth
rate of the mainland population. Access to historical habitat may halt
the population decline, prevent nonspecific resource competition, and
decrease the potential for disease by providing more space. Therefore,
The Ocean Conservancy supports declaring the translocation a failure,
eliminating the management zone, allowing the existing population at
San Nicolas Island to remain, and allowing sea otters to naturally
expand their range.
In the past, our organization has engaged in discussions with the
fishing industry about how to recover the southern sea otter while
working to ensure the sustainability of commercial shellfish fisheries.
We would be interested in resuming this dialogue with the fishing
industry to continue to explore potential areas of common ground that
we have identified that, utilizing the existing statutory and
regulatory framework would promote both the recovery of the southern
sea otter and healthy fisheries. In the meantime, we urge Congress not
to amend the MMPA, but to direct FWS to expeditiously complete its
reevaluation of the translocation. We also request that Congress
provide funds to undertake activities that the environmental community
and the fishing industry have identified as beneficial to the sea otter
recovery and fisheries.
II. BACKGROUND
In 1994, Congress reauthorized the Marine Mammal Protection Act. As
part of the reauthorization, a coalition of environmental
organizations, animal welfare groups, commercial fishing industry
representatives, and Alaska Natives, assisted by a professional
facilitator, developed a negotiated proposal to govern the incidental
take of marine mammals during commercial fishing operations. A subgroup
of the negotiating parties also met to address the issue of pinniped
predation on declining salmon stocks. This subgroup proposed to
Congress a multi-phased process to evaluate whether all feasible
methods of non-lethal deterrence had been tried and whether the target
marine mammals were responsible for the fish declines. This proposal
also called for a task force to consult with the Secretary of Commerce
about seals and sea lions considered ``nuisance'' animals because of
their predation of steelhead and salmon, species prized by commercial
and recreational fishermen, at the Ballard Locks in Seattle and in the
Columbia River. Based on the outcome of the consultation and an
evaluation by the task force, the subgroup's proposal suggested
creating a process whereby the Secretary of Commerce could authorize a
State to lethally remove pinnipeds that prey on endangered salmonid
stocks, provided that the nuisance pinniped(s) is identified as
habitually exhibiting dangerous or damaging behavior that could not be
deterred by other means. Congress enacted this proposal, as part of its
1994 amendments. It was ultimately codified at Section 120 of the MMPA.
As amended, the MMPA requires the Secretary of Commerce to engage
in a scientific investigation to determine whether California sea lions
and Pacific harbor seals are having a significant negative impact on
the recovery of salmonid fishery stocks that have been listed under the
ESA or are approaching endangered or threatened status, or are having
broader impacts on the coastal ecosystem of Washington, Oregon, and
California [16 U.S.C. Sec. 1389(f)(1)]. In 1997, NMFS published a
Technical Memorandum with the results of those investigations. The MMPA
also required NMFS to enter into a discussion with the Pacific States
Marine Fisheries Commission to develop recommendations to address
problems NMFS identified in its scientific investigations [16 U.S.C.
Sec. 1389(f)(2)]. In February 1999, NMFS issued a Report to Congress on
the agency's investigations and consultations with the states of
Washington, Oregon, and California concerning the impact of California
sea lions and Pacific harbor seal impacts on salmonid stocks and
coastal marine ecosystems.
III. THE OCEAN CONSERVANCY'S GENERAL RESPONSE TO NMFS': Report to
Congress: Impacts of California Sea Lions and Pacific Harbor Seals on
Salmonids and West Coast Ecosystems
The Report to Congress contains four recommendations: (1) implement
site-specific management for California sea lions and Pacific harbor
seals; (2) develop safe, effective non-lethal deterrents; (3)
selectively reinstate authority for the intentional lethal taking of
California sea lions and Pacific harbor seals by commercial fishermen
to protect gear and catch; and (4) conduct research to fulfill
information needs. The Ocean Conservancy strongly opposes the first and
third recommendations: Congress should neither amend the MMPA to
implement site-specific management for pinnipeds, nor selectively
reinstate authority to allow intentional lethal taking of pinnipeds by
commercial fishermen to protect gear and catch. The Ocean Conservancy
strongly supports the second and fourth recommendations: Congress
should direct NMFS to develop safe, effective non-lethal deterrents and
conduct the research necessary to fulfill significant information gaps.
NMFS' recommendations in the Report to Congress are based on a
scientifically unsubstantiated leap from the conclusions of the Working
Group Report. At no time did the Working Group Report recommend the
lethal removal of pinnipeds. Rather it identified data gaps and
provided recommendations for additional research. Although The Ocean
Conservancy fully supports the Working Group Report's recommendations,
it is our position that, based on the information presented in both the
Report to Congress and the Working Group Report, NMFS fails to make its
case that these species of pinnipeds are ``having a significant
negative impact on the recovery of salmonid fishery stocks'' or ``are
having broader impacts on the coastal ecosystem of Washington, Oregon,
and California.''
California sea lions and Pacific harbor seals are a natural part of
the Pacific ecosystem, opportunistically utilizing a prey source
concentrated by man-made structures (e.g., dams) and habitat changes.
The reasons for salmonid declines are complex, and are largely
unrelated to pinniped predation. Indeed, studies demonstrate that
salmonids make up a very small percentage of pinniped diets. If NMFS
expects to recover salmonid stocks, it must begin by fully addressing
human-induced causes of these declines. Until NMFS has effectively
addressed the human causes of salmonid declines, or until one of the
salmonid stocks is demonstrably threatened with extinction by continued
pinniped predation, there is no justification for NMFS' recommendation
to amend the MMPA to exponentially expand lethal removal
authorizations.
The Ocean Conservancy strongly recommends that Congress instruct
NMFS to continue to evaluate and assess the level of pinniped predation
on salmonids and aggressively pursue the research recommendations
outlined in both the Report to Congress and the Working Group Report.
Furthermore, we strongly recommend that, once data become available,
NMFS compare levels of pinniped predation to the impacts of other
activities (including commercial and sport fishing, dam operations,
silvicultural and agricultural practices), and investigate and propose
actions to mitigate the decline of salmonid stocks by all sources.
Blaming pinnipeds for the salmonid stocks' failure to recover merely
distracts from efforts to find real solutions to the problems facing
the salmonids. Because NMFS was unable to demonstrate that California
sea lions and Pacific harbor seals are ``having a significant negative
impact on the recovery of salmonid fishery stocks'' or ``are having
broader impacts on the coastal ecosystem of Washington, Oregon, and
California,'' no amendments to the existing statutory scheme are
warranted. The Ocean Conservancy strongly urges NMFS to use the
existing tools in the MMPA such as Section 120 and to enforce fully the
prohibition on intentional shooting of marine mammals.
Although The Ocean Conservancy recognizes that NMFS continues to
encounter problems with public interactions with marine mammals,
recovering marine mammal populations also provide tremendous benefits
to coastal communities and to the public. Increasing populations of
both humans and marine mammals along the nation's coasts have brought
about not only competition for space on boats, docks, and beaches, but
also increased opportunities for wildlife viewing, education, and
benefits to coastal tourism.
Increased interactions between humans and pinnipeds potentially
produce ``nuisance'' pinnipeds. The public's desire to feed, swim with,
and otherwise interact with these animals can modify an animal's
behavior and create conflicts when marine mammals do not distinguish
between taking fish out of commercial gear and food from well-meaning
citizens. The Ocean Conservancy will continue our efforts to educate
the public about how enjoy viewing marine mammals from a distance
without modifying their behavior.
The Ocean Conservancy agrees with NMFS that there is insufficient
data to evaluate the impacts of pinnipeds on the marine ecosystem and
the economic losses to the fishery from pinniped depredation of catch
and damage to gear. But we contend that pinniped competition with
humans for fisheries resources is not a sound scientific reason to call
for the lethal removal of pinnipeds. Rather, NMFS and the fishing
industry should reevaluate the fishery management allocation system in
order to provide an adequate allocation to predators (e.g., pinnipeds)
whose very survival is inextricably linked to fishery resources.
Moreover, NMFS and the fishing industry must recognize, as other
industries do, that there are cost associated with doing business and
that these costs include a certain level of acceptable loss due to
interactions with resident wildlife.
Below, we provide more detailed comments on NMFS' recommendations
contained in its Report to Congress.
A. ``Implement Site-specific Management for California Sea Lions and
Pacific Harbor Seals''
The Ocean Conservancy strongly opposes NMFS' ``framework'' proposed
under its first recommendation: ``(1) In situations where California
sea lions or Pacific harbor seals are preying on salmonids that are
listed or proposed for listing under the ESA salmonids or salmon
populations the states identified as being of special concern
(``depressed,'' ``critical,'' or ``sensitive''), immediate use of
lethal removal by state or federal resource agency officials would be
authorized; (2) In situations where California sea lions or Pacific
harbor seals are preying on salmonid populations of concern or are
impeding passage of these populations during migration as adults or
smolts, lethal takes by state or federal resource agency officials
would be authorized if (a) non-lethal deterrence methods are underway
and are not fully effective, or (b) non-lethal methods are not feasible
in the particular situation or have proven ineffective in the past; (3)
In situations where California sea lions or Pacific harbor seals
conflict with human activities, such as at fishery sites and marinas,
lethal removal by state or federal resource agency officials would be
authorized as a last resort when an individual pinniped fails to
respond to repeated deterrence attempts, or when repeated deterrence
attempts do not affect the behavior of an individual pinniped over the
long-term.'' Although all lethal removals would have to be within the
Potential Biological Removal level for the pinniped stock established
by NMFS in accordance with the MMPA, The Ocean Conservancy asserts that
NMFS' proposal is unnecessary and unjustified. Section 120 of the MMPA
already establishes the appropriate procedures for lethal removal of
California sea lions or Pacific harbor seals where these species are
preying upon ESA-listed.
Section 120 requires that, for a lethal take to be authorized, the
applicant (a state) must demonstrate that individually identifiable
pinnipeds are having a significant negative impact on the decline or
recovery of salmonid fishery stocks that are listed or are approaching
the status of threatened or endangered species under the ESA. The Ocean
Conservancy strongly disagrees with the characterization of these
provisions by NMFS and the states of California, Oregon, and Washington
as cost prohibitive, cumbersome, restrictive, and unworkable. We also
dispute the assertion that the amount of evidence needed to establish
that specific pinnipeds are having a significant negative impact on a
salmonid population is ``time-intensive, difficult, and expensive to
obtain.'' The Ocean Conservancy firmly believes that Section 120
provides the flexibility to conserve salmonid stocks and establishes
the appropriate burden of proof to demonstrate both that pinnipeds are
having a significant negative impact on the decline or recovery of
salmonid fishery stocks and that all reasonable and prudent non-lethal
measures have failed.
During the 1994 MMPA reauthorization process, environmental and
fishing interests as well as Congress recognized the need to address
the role of pinnipeds in the conservation of endangered salmonid
populations. The provisions of Section 120 are the result of a
compromise that allows NMFS to take action where necessary to protect
salmonid populations, yet preserves the protective nature of the MMPA.
The Ocean Conservancy believes that a blanket authorization to states
for the immediate use of lethal removal is contrary to the
precautionary protection goals and objectives of the MMPA, will not
guarantee that these pinnipeds receive the protections afforded by the
MMPA, and fails to recognize that lethal removal is a flawed management
tool. A general authorization would grant too much authority and
discretion to state agencies, while removing two key components of
Section 120--scientific review and assessment of existing data, and
public oversight and participation in the process. If pinniped
populations have in fact expanded to the point where they need to be
managed, the MMPA provides a process for transfer of management
authority to the states subject to specified conservation standards.
In this context, it is worth noting that an authorization under
Section 120 has been used only once, at the Ballard Locks in Seattle,
Washington. On June 30, 1994, the Washington Department of Fish and
Wildlife (WDFW) requested authority under Section 120 to kill problem
California sea lions at the Ballard Locks. Evidence indicated that the
non-lethal methods tried underwater firecrackers, chaser boats,
acoustic deterrence and harassment devices, taste aversion
conditioning, experimental barrier nets, trapping and relocation had
not succeeded in eliminating sea lion predation. On January 6, 1995
(less than six months later), NMFS provided WDFW with a three-year
conditioned authority to lethally remove fifteen California sea lions
to protect steelhead salmon from predation at the Ballard Locks.
The Ocean Conservancy believes not only that this single experience
is an insufficient basis for recommending significant statutory
amendments to Section 120, but that it actually demonstrates that the
process worked as intended. Specifically, it took less than six months
from the request letter to the Secretary to the removal of animals at
the Locks. Although NMFS and WDFW accused the process of being
``cumbersome and time-consuming,'' Section 120 enabled wildlife
management officials to conduct removals at the locks expeditiously and
efficiently.
Restoring anadromous fisheries and managing human and pinniped
competition are not easy goals to achieve. The Ocean Conservancy
strongly believes, however, that a lasting solution to these challenges
must be collaborative, must be based on adequate scientific research,
and must address the values and interests of fishers, conservation
organizations, and the general public. There are, no doubt, refinements
that could be made in the process that do not require amendments to the
MMPA. Consequently, we recommend that NMFS and the states of Oregon,
Washington, and California work with the conservation community to
reevaluate the process and devise mechanisms to make implementation of
Section 120 more responsive and effective, but that Congress decline to
amend Section 120 as proposed by NMFS.
B. ``Develop Safe, Effective Non-lethal Deterrents''
The Ocean Conservancy strongly supports NMFS' recommendation that
safe, effective non-lethal deterrents be developed and that these
deterrents should not have detrimental incidental effects. We agree
that research and development of pinniped deterrence methods and
devices should be a priority and should receive adequate funding.
However, The Ocean Conservancy disagrees with the statement in the
Report to Congress that ``lethal removal remains the only effective
alternative until satisfactory deterrence measures are developed.''
Rather, we agree with the Working Group Report's statement indicating
that lethal removal or pinniped population control may not always
result in the expected outcome and may, in fact, be detrimental to fish
populations and the ecosystem as a whole.
Many fishing industries and environmental groups have long
supported the use of non-lethal deterrents. In 1998, representatives
from conservation and animal welfare organizations, commercial and
recreational fishing associations, universities, and federal and state
agencies gathered at the Monterey Bay Aquarium to discuss the
interactions of California sea lions and Pacific harbor seals with wild
salmon stocks and commercial and recreational fisheries that operate
off the West Coast. During these discussion it became clear that
representatives from both the fishing industry and the conservation/
animal welfare community are frustrated with NMFS' failure to issue
final guidance on non-lethal methods to deter pinnipeds from dangerous
or damaging interactions with fishing gear and catch. The group sent a
joint letter to NMFS requesting the immediate release of the non-lethal
deterrents guidelines. Although NMFS originally published draft
guidelines for public comment in the spring of 1995 (60 Fed. Reg. 22345
(May 5, 1995)), nearly six years later, NMFS has ignored this and other
requests and still has not released final guidelines. We believe it is
now time for Congress to direct NMFS to promptly release final
guidelines for the use of non-lethal deterrents by commercial and
recreational fisheries in interactions with marine mammals. In
addition, we believe Congress should amend the MMPA to require NMFS to
promulgate binding and enforceable regulations for the use of non-
lethal deterrents, as set forth in Attachment A.
The Ocean Conservancy continues to believe that the best hope to
address pinniped interactions with salmonid stock and fishermen is to
develop safe, non-lethal deterrents. To further this goal, we also
recommend that MMPA Section 120 be amended to provide for an aggressive
and dedicated research program to develop and test safe, non-lethal
deterrents, as follows:
AMENDMENT--At Section 120 strike existing section (f) and insert
new section (f) as follows:
1) L(A) Within six months of enactment, the Secretary shall
undertake a review of all non-lethal methods that have been used to
deter marine mammals and, in consultation with the Marine Mammal
Commission, representatives of academic and scientific organizations,
environmental groups, commercial and recreational fisheries groups,
gear technologists, and others as the Secretary deems appropriate,
shall develop a research plan for the development and testing of safe,
non-lethal deterrents. In developing the research plan the following
criteria should be considered---- (i) Such deterrents may be used to
deter marine mammal interactions with (a) fishing gear and catch; (b)
aquaculture resources; or (c) salmonid fishery stocks that have been
listed as endangered or threatened under the Endangered Species Act of
1973 (16 U.S.C. Sec. 1531), or that the Secretary finds are approaching
endangered or threatened status; and (ii) The research and development
of such deterrents shall provide for the humane take of marine mammals
by harassment, as defined at Section 3(18)(A)(ii) of this Act.
2) LThe Secretary shall undertake and complete the research plan,
and any related studies, developed pursuant to paragraph (1) not later
than 2 years after the date of enactment.
3) LThe Secretary shall submit a report of the findings and
recommendations for additional research or action to the Committee on
Resources of the House of Representatives and the Committee on
Commerce, Science and Transportation of the Senate 3 year after the
date of enactment.
4) LThe Secretary shall make the report and the recommendations
submitted under paragraph (3) available to the public for review and
comment for a period of 90 days.
5) LFor the purposes of carrying out this section, the Secretary
may accept, solicit, receive, hold, administer, and use gifts, devices,
in-kind contributions, and bequests.
6) LThere are authorized to be appropriated to the Secretary
$1,500,000 annually to carry out the provisions of this subsection.
C. ``Selectively Reinstate Authority for the Intentional Lethal Taking
of California Sea Lions and Pacific Harbor Seals by Commercial
Fishermen to Protect Gear and Catch''
The Ocean Conservancy strongly opposes NMFS' recommendation to
amend the MMPA to allow NMFS to authorize lethal removal of marine
mammals on a case-by-case basis to protect gear and catch in certain
fisheries, even if, as NMFS proposes, the authorization is subject to
the following conditions: 1) there is a demonstrated need; 2) the
lethal authorization would be limited to specific areas and fisheries;
3) fishermen who receive such authorizations should be trained or
demonstrate the ability to distinguish among pinniped species; 4) the
taking would have little effect on the pinniped stock's continued
growth and recovery; and 5) the taking would be within the PBR for the
stock.
In 1994, the environmental community and the fishing industry
negotiated a proposal to prohibit the intentional lethal taking of
marine mammals to protect gear and catch, which became a critical
provision in the 1994 Amendments to the MMPA. Congress' intent in
enacting this provision is clear not only from the plain language of
the statute but also from testimony and statements in the Congressional
Record. The Ocean Conservancy, as one of the negotiating parties, felt
strongly that the fishing industry should not intentionally shoot
marine mammals to deter them from gear and catch. In addition, The
Marine Mammal Center (TMMC) presented compelling evidence that shooting
as a deterrence method is inhumane and often results in wound rather
than dead. The industry conceded that, given the availability of
various non-lethal deterrents, shooting marine mammals to deter them
from fishing gear and catch was not necessary. Furthermore, intentional
shooting of marine mammals is unacceptable to the general public.
Despite the enactment of this hard-won landmark provision,
fishermen continue to shoot marine mammals. In fact, from 1992 to 2000,
TMMC documented 305 gunshot pinnipeds and sea otters along the Central
California coast alone. TMMC further estimates, based on extrapolated
data from estimates of gunshot wounds in live stranded marine mammals,
that between two to three hundred pinnipeds die each year along the
entire California coast from gunshot wounds. Consequently, there is no
reason to believe that NMFS would be able to adequately monitor and
enforce any authorization for lethal removal and compliance with
conditions thereto. Permitting lethal removal to protect gear and
catch, when fishermen continue to disobey the existing law and shoot
marine mammals, would be tantamount to providing the fishing industry
with a blanket authorization to dramatically increase killing and
wounding pinnipeds and sea otters. We strongly oppose any efforts to
lift the existing prohibition on intentional shooting of marine
mammals.
D. ``Information Needs''
The Ocean Conservancy supports NMFS' recommendations for additional
research and the research programs outlined in the Report. However, The
Ocean Conservancy does not support the direct lethal collection of
pinnipeds for analysis of stomach contents given that non-lethal
methods exist to achieve the same objective.
IV.THE OCEAN CONSERVANCY'S VIEWS ON MANAGEMENT AND RECOVERY EFFORTS FOR
THE SOUTHERN SEA OTTER
A. Background
1. the translocation law
Scientists and managers have been concerned for some time that this
already threatened population could be wiped out as a result of a
single large oil spill that would likely drift across the entire extent
of the sea otter's range. In December 1980, the Marine Mammal
Commission recommended to FWS that the agency implement a zonal
management strategy to establish one or more sea otter colonies outside
the existing southern sea otter range, which would ultimately result in
a larger population size and a more continuous distribution of animals
throughout the range.
In 1986, Congress passed the Translocation Law to authorize the
development and implementation of a program to establish at least one
sea otter colony outside the existing sea otter range in California.
The Translocation Law authorized FWS to move a group of southern sea
otters from central California to San Nicolas Island in the Santa
Barbara Channel the translocation zone. FWS believed that this area
would be far enough away from the parent population to prevent animals
moving back to that population, while also providing sufficient space
to allow recovery of the species and protect it from an oil spill off
the central coast of California.
At the same time, the southern California shellfish fishery
expanded to include sea urchins as well as abalone. To protect
commercial and recreational shellfish fisheries that had developed in
the absence of otters, otter-free zones or management zones were
developed to prevent sea otters from recolonizing areas where
substantial shellfish fisheries existed.
In the management (otter-free) zone surrounding the translocation
zone, sea otters would be excluded and only accorded the status of
species that have been proposed for listing (``candidate species'')
under the ESA. Under the Translocation Law, sea otters found in the
management zone must be removed and relocated into either the
translocation zone or to the parent population by non-lethal means. In
addition, the law provides that incidental takes of sea otters by non-
lethal means in the management zone do not violate either the ESA or
the MMPA. The capture and relocation of the sea otters found in the
management zone was designed to contain the experimental translocated
population, minimize conflicts between sea otters and commercial and
recreational fisheries, and protect the otters because protection
measures within the management zone are less stringent. Finally, the
law specifically acknowledges that members of the parent population may
be found in the management zone and requires their removal to maintain
that zone free of otters.
2. implementation of the translocation law
The overall goal was to ensure that 70 sea otters would remain on
San Nicolas Island and form the core nucleus of breeding sea otters.
Within the 1997 to 2002 time frame, the San Nicolas population was
expected to reach its carrying capacity of about 500 animals.
Between 1987 and 1990, 252 sea otters were captured from the
central California coast for translocation to San Nicolas Island, but
only 140 were actually released. These otters did not fare well. Some
returned to the coast, primarily back to their original range of
southern sea otters, but the fate of most is unknown, despite the fact
that all were tagged. Some of these otters may have lost their marking
tags while returning to the mainland, while others probably died. At
least seven of the 140 took up residency at the island, and the
population was estimated to be 14 to 17 in 1998. Since 1990, the
population at San Nicolas Island has not change significantly,
numbering between 6 to 23 animals.
3. failure of the translocation
It is FWS' responsibility to keep the management zone free of sea
otters. Between 1987 and 1994, twenty independent sea otters (10 male
and 10 female) and four dependent pups have been captured in the
management zone and released in the northern portion of the mainland
population.
The containment effort, which includes monitoring, capture, and
relocation of the sea otters, proved expensive and largely
unsuccessful. Support for the program has waned in recent years. In
1990, the California Fish and Game Commission voted to cease supporting
the project, and subsequently, the California Coastal Commission asked
FWS to stop the project. In 1993, four sea otters died within a two-
week period, shortly after release into the parent population. As a
result, relocation/containment efforts were put on hold.
FWS had anticipated that approximately 5 percent of the animals
captured and relocated could die from associated stress, but the
mortality rate in 1993 alone was approximately 16 percent. These deaths
called into question whether the relocation/containment methods were
being conducted by non-lethal means. Since 1993, the FWS has not
removed any otters from the management zone. FWS data indicated that
the numbers of sea otters at San Nicolas Island were continuing to
decline, and the translocation program should be evaluated.
During the past few years, a number of southern sea otters have
entered the management zone. In March 1998, 65 sea otters were found in
and near Cojo Anchorage. By April, the number of otters grew to 101,
mostly male sea otters. From January through February 1999, the number
of sea otters around Gaviota Pier to Cojo Cove (areas within the
management zone) increased from 50 to 152 animals. The possibility that
this many sea otters may inhabit the management zone prompted FWS to
reevaluate the management plan.
The increase in the number of otters in the management zone raised
concerns within the fishing industry that the animals may have
devastating effects on shellfish fisheries in the management zone. On
the other hand, some scientists noted that, given the recent data
indicating that the population has declined by 9% since 1995, the range
expansion was likely not due to an increasing population, but may be a
population in search of new or additional prey, or a population that
may be moving due to limited prey resources in some areas of its range.
The Recovery Team noted that the capture and relocation of a large
number of sea otters could result in the deaths of animals, and disrupt
the existing social structure of resident groups, increase competition
for resources, and very possibly exacerbate the observed population
decline.
B. FWS Actions
Between 1999 and 2000, FWS completed a Biological Opinion (BO)
under the ESA and a Draft Evaluation of the Southern Sea Otter
Translocation Program, in which FWS proposed to designate the
translocation a failure. In addition, during the summer of 2000, the
FWS published a notice of intent and held scoping meetings to prepare a
supplemental Environmental Impact Statement (EIS) that will reevaluate
the current translocation program for southern sea otters and analyze a
number of sea otter management alternatives.
1. fws' current position on containment/translocation
In completing the BO, the FWS determined that moving the animals
out of the management zone would jeopardize the species, in violation
of Section 7 of the ESA. This conclusion was reached because:
<bullet> L``Reversal of the southern sea otter's population decline
is essential to its survival and recovery. Continuation of the
containment program will result in the capture, transport, and release
of large numbers of southern sea otters from the management zone into
the parent population. These actions may result in direct deaths of
individuals and disrupt social behavior in the parent population to the
degree that those affected individuals will have reduced potential for
survival and reproduction. These effects will exacerbate the recent
decline of the southern sea otter population.''
<bullet> L``Expansion of the southern sea otter's distribution is
essential to its survival and recovery. Continuation of the containment
program will result in the exclusion of southern sea otters from the
area south of Point Conception. This effect will perpetuate the
species' artificially restricted range and its vulnerability to the
adverse effects of oil spills, disease, and stochastic events.''
The Ocean Conservancy concurs with the FWS' findings, and fully
supports the jeopardy analysis in the BO.
2. the ocean conservancy's position on containment and translocation
The Ocean Conservancy recognizes that the decision by FWS to
declare the translocation a failure will have ecological effects for
southern sea otters and their habitat, and economic effects on
commercial shellfish fisheries and their future management
requirements. However, we believe that moving any animals out of the
management zone would likely result in mortality that would further
impede the recovery of this species, in contravention of the ESA.
Moreover, we assert that the sea otter population must be allowed to
expand its range, to promote recovery, avoid nonspecific resource
competition, and decrease the potential for disease. Therefore, The
Ocean Conservancy supports declaring the translocation a failure,
eliminating the management zone, allowing the population at San Nicolas
Island to remain, and allowing sea otters to naturally expand their
range to allow for the recovery of the species under the ESA and to
achieve its Optimum Sustainable Population under the MMPA. We urge
Congress not to amend the MMPA to address this issue and, instead, ask
Congress to direct FWS to move forward expeditiously to complete its
EIS on the translocation.
C. Litigation
In April 2000, a segment of the southern California commercial
shellfish fishery filed a lawsuit seeking to force FWS to capture and
remove sea otters from the management zone. The plaintiffs took this
action, even though they were engaged in discussions with the
environmental community in an effort to find consensus on issues of
concern. The Ocean Conservancy, Defenders of Wildlife and Friends of
the Sea Otter successfully intervened in this case on the side of FWS,
despite opposition by the plaintiff fishing groups. The Humane Society
of the United States and the Animal Protection Institute received
amicus curiae status.
The fishing groups who brought this case did not represent the
views of many components of the California fishing community, which
favored instead an approach of trying to achieve consensus through
negotiations. The existence of the lawsuit brought the discussions
between the fishing industry and environmental community to a halt.
Without ever pressing their case, the plaintiff fishing
organizations dropped this case in July, 2001. They dismissed the case
without obtaining any relief or even submitting pleadings. Now that the
lawsuit has been dropped, efforts are underway to explore the
possibility of resuming the discussions.
D. The Next Chapter Looking for Common Ground
The Ocean Conservancy supports public policies that foster healthy
marine ecosystems and the recovery of threatened species, but values
doing so with sensitivity to the needs of fishing communities. We
believe that existing law, including the ESA and the MMPA, provides
appropriate mechanisms for conserving sea otters while addressing the
concerns of fishing communities.
In October 1999, members of the fishing industry and conservation
community met to explore areas of common interest and identify actions
to recover southern sea otters while at the same time ensuring the
sustainability of commercial shellfish fisheries. At their first
meeting group established as an objective: Maintain well-managed and
abundant fisheries, healthy marine ecosystems, and recover the southern
sea otter population.
To achieve this objective, the group framed an action plan that
included three broad-based goals: 1) pollution prevention; 2) southern
sea otter and ecosystem health assessment and maintenance; and 3)
habitat enhancement.
In March 2000, the group devised tasks within the action plan to
achieve these goals and objectives. They are:
1) LSupport State Funding for Ecosystem Health Monitoring: More
than five years of data indicate that nearly 40% of the dead sea otters
examined had an infection at the time of death. We must determine sea
otter infection rates, how and to what degree infections are
communicable, and the incidence and impact of environmental
contaminants, toxins and parasites on sea otters and their critical
habitat. The marine ecosystem health monitoring program should be a
jointly funded cooperative research effort to collect and coordinate
ecological, biomedical, chemical and physical oceanographic and
atmospheric information to identify trends and events affecting otter
and shellfish populations.
2) LFishing Gear Modifications: The commercial fishing industry can
play a leadership role in efforts to avoid sea otter entrapment in
fishing gear by establishing gear advisory groups. The gear advisory
groups could work to mitigate potential entrapment in live fish traps,
including crab and lobster traps, which may be used within sea otter
habitat.
3) LSea Otter Health Assessment: A multi-agency, public/private
effort is needed to assess the health of wild California sea otters. We
propose using the model that NMFS has successfully implemented to
obtain valuable information on the health status of the Hawaiian Monk
Seal population.
4) LJump Start the Sea Otter Recovery Plan: As FWS nears completion
of an updated Southern Sea Otter Recovery Plan, we should work jointly
to secure federal, state, and private funding for its implementation.
5) LEnhance Shellfish Recruitment and Harvest within and beyond the
Sea Otter Range: If adequate research and development funds were
available, fishermen could develop and test devices to enhance
protected habitat for commercial shellfish harvesting. We should work
to engage scientists, engineers, and funders in developing pilot
projects for creation of artificial shellfish refugia and cryptic
habitat.
6) LMap Fisheries and Key Facilities Within Current and Potential
Otter Range: Managers may be able to effectively and cooperatively
develop adaptive conservation and management strategies allowing for
the co-existence of fisheries and sea otters, if information systems
exist to easily identify fisheries, activities, and facilities that may
affect or be affected by current or future overlap of the sea otter
range expansion and fishing grounds.
7) LAdaptive Management Strategies to Address Otter Range
Expansion: To improve conservation and management, scientists must
better understand and develop predictive models to assess the impact of
sea otter movements on fisheries and the ecosystem. This will require
additional research into the dynamics of sea otter range expansion and
correlations to overall indicators of ecosystem health, pollution or
disease conditions and prey availability.
8) LIdentify Mitigation Measures for Fisheries That Could Be
Affected by Sea Otter Range Expansion: Although no one can predict to
what degree sea otters may continue expanding their range, scientists,
fishermen, environmentalists, and managers should work toward
identifying possible measures to reduce potential adverse impacts on
certain fisheries and mariculture projects. The mitigation measures
should help reduce fishery impacts due to area or species closures,
disease or pollution and should take into consideration the social and
economic consequences of changes to the fisheries, marine habitat, and
sea otter recovery brought about by the movement of sea otters.
Both the fishing industry and the conservation community have
expressed an interest in resuming these discussions that were stalled
due to the litigation. The Ocean Conservancy believes that these action
items provide a possible basis to continue these discussions. We will
work to promote both the recovery of the southern sea otter and its co-
existence with healthy fisheries. We request that Congress refrain from
amending the MMPA, but instead support this effort to find common
ground and instruct FWS to actively participate in these discussions.
We anticipate that, where we reach consensus on actions that will
benefit both sea otters and fisheries, we will request that Congress
provide the necessary funding.
V. OTHER MARINE MAMMAL PROTECTION ACT ISSUES
The Ocean Conservancy continues to play a key role in the
implementation of the MMPA. We currently serve on all of the take
reduction teams established by NMFS under the Act and provided our
views on their implementation to the Committee at its hearing on the
MMPA on April 6, 2000. We have witnessed significant progress toward
the MMPA's goal of recovering marine mammal populations. The MMPA has
been and remains an international example for effective conservation
and protection of marine mammals. In our opinion, the problems with the
Act stem not from the MMPA itself, but from ineffective implementation
and a chronic lack of resources.
Consequently, The Ocean Conservancy believes that, at most, only
minor, non-controversial amendments to fine-tune the Act are needed
when the Act is reauthorized. Our attached recommendations provide such
changes. Specifically, The Ocean Conservancy's goals for a
reauthorization are to: (1) preserve gains that were made in 1994
(e.g., Sections 109 and 120); (2) prevent weakening of the definition
of harassment; (3) further define the zero mortality rate goal; (4)
strengthen the MMPA penalty and enforcement provisions to effectively
deter violations of the MMPA; (5) improve the implementation of the
take reduction team process; (6) protect and strengthen the Act's co-
management provisions to allow co-management of non-depleted species/
stocks; (7) increase authorized funding levels for the Act overall, and
specifically the authorized funding levels for the health and stranding
response provisions, (8) expand authority under Section 118 to allow
the Secretary to authorize a take reduction team for fishery
interactions involving prey related issues and other human-related
threats (e.g. ship strikes); and (9) devise and implement a research
plan to develop non-lethal deterrents to prevent marine mammals from
interacting with fishers gear and catch.
In conclusion, the MMPA has many of the tools it needs to protect
marine mammals. Its implementation could be greatly improved if
appropriators would fund the statute at currently authorized levels.
Additionally, NMFS and FWS should work with the environmental community
and the fishing industry to undertake needed research and improve the
MMPA's implementation. At this juncture, these actions may actually do
more to conserve marine mammals than additional amendments to the Act.
______
ATTACHMENT A
THE OCEAN CONSERVANCY
DRAFT MMPA REAUTHORIZATION LANGUAGE
TITLE I CONSERVATION AND PROTECTION OF MARINE MAMMALS
sections 117 & 118
GENERAL COMMENTS: The Ocean Conservancy, formerly the Center for
Marine Conservation, believes that, for the most part, Sections 117
and118 are functioning well and require very little modification. The
methods for determining the potential biological removal level (PBR)
are risk adverse and scientifically sound. Likewise, the process for
gathering information, preparing, and obtaining scientific review of
the stock assessments is working well and has resulted in greatly
improved stock assessments for most marine mammal stocks. There are
several actions that still require regulatory action: (1) definition of
Zero Mortality Rate Goal; (2) guidelines for acceptable methods of
deterrence; and (3) guidelines for the elements that constitute serious
injury. The Ocean Conservancy recommends that NMFS issue these
appropriate notices immediately.
SECTION 118(d)--MONITORING INCIDENTAL TAKES
ISSUE: Assistant Administrator Penny Dalton noted in her June 29,
1999, testimony before the House Resources Committee that: ``Funds for
monitoring programs have been limited; therefore, only fisheries
experiencing frequent interactions with marine mammals have generally
received priority for observer program coverage. In 1997, approximately
1/5 of the U.S. fisheries having frequent or occasional interactions
with marine mammals were observed for these interactions. These large
gaps in our knowledge of fisheries' impacts to marine mammal stocks
makes it difficult to develop appropriate management measures.'' In the
course of the take reduction team process, the fishing industry and
environmental community routinely recommend increased observer
coverage. Unfortunately, limited resources have precluded such
increases. Consequently, The Ocean Conservancy strongly believes that
the Secretary should have the discretion to assess fees, as needed, to
initiate and implement an observer program, particularly for those
fisheries that request such programs.
AMENDMENT--At Section 118(d) insert a new paragraph (11) as
follows:
(11) The Secretary may establish a system of fees to pay for the
costs of implementing an observer program established under this
section.
ISSUE: The National Marine Fisheries Service has raised concerns
regarding whether the agency has the authority to place observers on
vessels in Category I and II fisheries that have not registered and
obtained marine mammal incidental take authorizations. The Ocean
Conservancy believes that NMFS clearly has the authority to place
observers on any vessel within a Category I or II fishery, regardless
of whether the owner or master of the vessel has registered. To make
this point absolutely clear, we believe that the MMPA should be amended
to explicitly provide this authority.
AMENDMENT--At Section 118(d) insert a new paragraph (8) as follows:
(8) The Secretary may require that an observer be stationed on a
vessel engaged in a fishery listed under subsection (c)(1)(A)(i) or
(ii) that is not registered under subsection (c). In such case the
Secretary shall notify the owner and master of the vessel that they are
in violation of section (c)(3)(C) of this title.
SECTION 118(c)--REGISTRATION AND AUTHORIZATION
ISSUE: With Section 118 in force, the interim exemption provisions
embodied in Section 114 are obsolete and no longer in effect, and,
therefore, Section 114 should be removed from the Act entirely and the
necessary technical and conforming amendments made to other provisions
in the Act. In this situation, the following technical amendment
applies:
TECHNICAL AMENDMENT At Section 118(c)(3)(A)(i) delete the phrase
``except that owners of vessels holding valid certificates of exemption
under section 114 are deemed to have registered for purposes of this
subsection for the period during which such exemption is valid.''
ISSUE: During several take reduction team negotiations, the NMFS
has remarked on instances where vessel owners have refused to allow
observers on their vessels and have done so without prosecution.
Moreover, enforcement personnel have indicated that their efforts to
enforce the Act are constrained because NOAA General Counsel has
narrowly interpreted ``engaged in a fishery'' to mean engaged in the
fishery on the day that the refusal occurs. The Ocean Conservancy views
this failure to take observers as a flagrant violation of the Act and
regards NOAA General Counsel's interpretation as inconsistent with the
intent of the Act. Therefore, the following amendments are offered to
ensure that vessel owners are motivated to comply with this provision
of the Act and to clearly state that NMFS has prosecutorial authority
for any violations of this requirement.
AMENDMENT--At Section 118(c)(3)(B) insert new subparagraph (i) as
follows:
(i) Any owner or master of a vessel required by the Secretary to
take on board an observer and who fails to do so shall be deemed to
have violated this title and shall be subject to penalties under this
title.
In addition, The Ocean Conservancy recommends the following
addition to the list of definitions:
AMENDMENT At Section 3 of the Act, insert a new definition (28) as
follows:
(28) The term ``engaged in a fishery'' means to have a valid permit
issued by the Secretary in accordance with the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. Sec. 1801 et seq.) or the
State for any of the fisheries listed under Sections
118(c)(1)(A)(i),(ii), or (iii).
ISSUE: The Ocean Conservancy believes that the Congress should
strengthen the incentive for fishermen to register by allowing NMFS to
seek the forfeiture of the catch from any fishing operations conducted
without the required authorization and to assess a substantial fine
against the vessel. In addition, the fine currently stipulated in the
Act for failure to display or carry evidence of an authorization is not
a sufficient deterrent. This fine must be increased to ensure that
owners obtain, and display or carry, evidence of a current and valid
authorization.
AMENDMENT--At Section 118(c)(3)(C) amend to read: ``shall be
subject to the penalties, fines and forfeiture under Sections 105 and
106 of this title, and for violations of clause (iii) shall be subject
to a fine of not more than $5,000.00 for each offense.''
SECTION 118(f) TAKE REDUCTION TEAMS
ISSUE: Apparently NMFS has yet to realize that consensus is hard-
won, and from the perspective of the individuals engaged in this
process, take reduction teams are critically important to their
livelihood and the conservation of the species. Therefore, NMFS must
view the take reduction team process as a priority partnership for the
agency and all of the various stakeholders. The ground rules require
that all participants have the authority to commit their organizations
to the consensus; NMFS must meet this requirement as well. NMFS
representatives must be active participants, able to legally evaluate
the conservation strategies and commit the agency to the consensus.
They must advise the team as to whether the conservation strategies
will meet the Act's targets, are easily implemented and enforced, and
whether the research recommendations are achievable. It undermines the
process when team members conclude the negotiations with false
expectations that their recommendations will be implemented. To
facilitate decision-making at team meetings, The Ocean Conservancy
recommends that the Regional Administrator, a representative from NOAA
General Counsel, and a NMFS enforcement officer be present during
negotiations when the consensus is being formed.
AMENDMENT Section 118(f)(6)(C) amend the last sentence of this
paragraph to read: ``Take reduction teams shall, to the maximum extent
practicable, consist of an equitable balance among representatives of
resource user interest and nonuser interests, ``and include, as full-
fledged members, representatives from the federal agency offices of
legal counsel, enforcement, and the regional administrator.''
SECTION 118(j) CONTRIBUTIONS
ISSUE: NMFS has been reluctant to fully utilize this provision of
the Act, especially as it pertains to accepting funds from either the
fishing industry or the conservation community to observe a particular
fishery. NMFS claims that it is uncertain whether it could use such
funds to administer an observer or research program. The Ocean
Conservancy believes that this should be clarified, as it was the
intent of the drafters to provide NMFS with the ability to work
cooperatively with various user groups to undertake the necessary
measures to effectively implement this section in the event there were
insufficient federal funds to conduct research or observer programs.
AMENDMENT At Section 118(j) insert the following: For purposes of
carrying out this section, ``including observer, research, and
education and outreach programs,'' the Secretary may accept, solicit,
receive, hold, administer, and use gifts, devises, and bequests.
section 119--marine mammal cooperative agreements in alaska
ISSUE: The Ocean Conservancy supports the notion of co-management
by Alaska Natives and the Federal Government. However, to date, the
agreements that NMFS has entered into with the Alaska Native Community
lack any means of enforcement. To avoid causing the decline of a stock
through subsistence harvest, and to ensure compliance with co-
management agreements, The Ocean Conservancy recommends that a breach
of the terms of the agreement be deemed a violation of the Act.
AMENDMENT--At Section 119, insert a new paragraph (c) and re-letter
the following paragraphs as appropriate:
(c) VIOLATION. The breach of any provisions of a cooperative
agreement, by any Alaskan Native, shall be deemed a violation of this
title and shall be subject to penalties under this Act. Any vessel used
in such violation shall be subject to forfeiture to the United States.
section 120 pacific coast task force; gulf of maine
AMENDMENT--At Section 120 strike existing section (f) and insert
new section (f) as follows:
1) L(A) Within six months of enactment, the Secretary shall
undertake a review of all non-lethal methods that have been used to
deter marine mammals and, in consultation with the Marine Mammal
Commission, representatives of academic and scientific organizations,
environmental groups, commercial and recreational fisheries groups,
gear technologists, and others as the Secretary deems appropriate,
shall develop a research plan for the development and testing of safe,
non-lethal deterrents. In developing the research plan the following
criteria should be considered----
(i) LSuch deterrents may be used to deter marine mammal
interactions with (a) fishing gear and catch; (b) aquaculture
resources; or (c) salmonid fishery stocks that have been listed as
endangered or threatened under the Endangered Species Act of 1973 (16
U.S.C. Sec. 1531), or that the Secretary finds are approaching
endangered or threatened status; and
(ii) LThe research and development of such deterrents shall provide
for the humane take of marine mammals by harassment, as defined at
Section 3(18)(A)(ii) of this Act.
2) LThe Secretary shall undertake and complete the research plan,
and any related studies, developed pursuant to paragraph (1) not later
than 2 years after the date of enactment.
3) LThe Secretary shall submit a report of the findings and
recommendations for additional research or action to the Committee on
Resources of the House of Representatives and the Committee on
Commerce, Science and Transportation of the Senate 3 year after the
date of enactment.
4) LThe Secretary shall make the report and the recommendations
submitted under paragraph (3) available to the public for review and
comment for a period of 90 days.
5) LFor the purposes of carrying out this section, the Secretary
may accept, solicit, receive, hold, administer, and use gifts, devices,
in-kind contributions, and bequests.
6) LThere are authorized to be appropriated to the Secretary
$1,500,000 annually to carry out the provisions of this subsection.
section 101(a)--amendments pertaining to the deterrence of marine
mammals.
ISSUE--Both The Ocean Conservancy and the fishing industry continue
to be extremely frustrated by NMFS' failure to comply with the MMPA's
requirement to publish, in a final rule, guidelines for non-lethal
deterrents. Because we recognize that NMFS cannot enforce guidelines,
The Ocean Conservancy recommends that NMFS promulgate regulations that
delineate acceptable methods to safely deter marine mammals, including
threatened and endangered marine mammals. In addition, the burden of
proof should fall on the proponent of a particular method to
demonstrate that any newly proposed deterrent is safe and effective for
deterring marine mammals.
AMENDMENT--Modify Section 101(a)(4)(B) as follows:
(B) Within six months of enactment,[T]the Secretary shall, through
consultation with appropriate experts, and after notice and opportunity
for public comment, publish in the Federal Register [a list of
guidelines] regulations regarding the methods permissible for [or] use
in safely deterring marine mammals. In the case of marine mammals
listed as endangered species or threatened species under the Endangered
Species Act of 1973, the Secretary shall recommend specific non-lethal
measures that may be used to deter these marine mammals and adopt
regulations under the Endangered Species Act that permit the use of
these methods. Actions to deter marine mammals consistent with such
[guidelines] regulations or specific measures shall not be a violation
of this Act.
Insert a new paragraph (C) and re-letter remaining paragraphs as
appropriate:
(C) Effective 60 days after publication of such regulations in the
Federal Register, persons may only employ deterrents authorized by the
regulations unless proponents of alternative deterrents can demonstrate
that such deterrents are safe, non-lethal methods. Upon such
demonstration, the Secretary may authorize the use of an alternative
deterrent after notice and opportunity for public comment, through
regulation under this Act.
section 101(a)(5)(d)(i)--amendments for small-take provisions
ISSUE: The Ocean Conservancy is concerned that applicants are using
the streamlined mechanism for authorizing incidental takes by
harassment for a period of up to one year to avoid assessment of the
cumulative impacts of activities. Applicants may segment long-term
activities into one-year intervals, seeking a separate authorization
for each, or may seek separate authorizations for each of several
similar or related activities, which by themselves have only negligible
impacts, but may have significant cumulative detrimental affects.
Therefore, we recommend that this Section be amended as follows:
AMENDMENT Insert a new 101(a)(5)(D)(i)(I) as follows:
(i) Will have a negligible impact on such species or stock, with
consideration given to all related activities that may cumulatively
result in more than a negligible impact.
ISSUE: The Ocean Conservancy agrees with the concerns expressed by
NMFS that Section 118 does not cover the incidental take of marine
mammals in the course of recreational fishing. Therefore, this user
group's take is virtually unregulated under the Act. The Ocean
Conservancy recommends that Congress investigate with the agency
mechanisms to amend either the small-take provisions or Section 118 to
include recreational fishers who take marine mammals in recreational
fisheries, using the same gear as that regulated in commercial
fisheries.
section 101(b)--exemption for alaskan natives
ISSUE: The management history of the subsistence harvest of beluga
whales in Cook Inlet illustrates the need for more aggressive and
proactive federal intervention and management to avoid a species
becoming eligible for listing as depleted under the MMPA. The purpose
of the ``strategic'' definition for some marine stocks is to identify
unsustainable levels of take, so that appropriate action can be taken
to avoid listing that stock. While The Ocean Conservancy supports
subsistence, we believe that, in those cases where marine mammal stocks
are designated as strategic, the federal government should intervene
and work with the native community to monitor and regulate harvests to
ensure the long-term health of the stock and the ability to continue
subsistence harvests.
AMENDMENT--At Section 101(b)(3) insert the following:
Notwithstanding the preceding provisions of this subsection, when,
under this Act, the Secretary determines any species or stock of marine
mammals subject to taking by Indians, Aleuts, or Eskimos to be a
strategic stock as defined in Section 3(19) or depleted as defined in
Section 3(1), he may prescribe regulations for the taking of such
marine mammals by Indian, Aleut, or Eskimo described in this
subsection. Such regulations may be established with reference to
species or stocks, geographical description of the area included, the
season of taking, or any other factors related to the reason for
establishing such regulations and consistent with the purposes of this
Act.
section 101(b) documentation required
ISSUE: To clarify that a nation is responsible for reporting on the
aggregate dolphin mortality limit assigned to it under the Agreement
for the International Dolphin Conservation Program, the language in the
Act should be amended to reflect that the nation must provide
information on its dolphin mortality as compared to the aggregate limit
assigned to it vessels.
TECHNICAL AMENDMENT--MMPA Section 101(a)(2)(B)(iii): after the
first word ``limit'' add the phrase ``assigned to that nation's
vessels.''
section 101(a) moratorium and exception
ISSUE: To streamline the Act's provision pertaining to high-seas
drift net fishing and to incorporate by reference the definition of
``large-scale driftnet'' from the Magnuson Act, The Ocean Conservancy
recommends the following technical amendment:
TECHNICAL AMENDMENT--Section 101(a)(2)(F): amend as follows: ``in
the case of fish or products containing fish harvested by a nation
whose fishing vessels engage in high seas large-scale driftnet fishing,
shall require the government of the exporting nation to provide
documentary evidence that the fish or fish product was not harvested
with a large-scale driftnet. For the purposes of subparagraph (F), the
term 'large-scale driftnet fishing' has the meaning given such term in
section 3 of the Magnuson-Stevens Fishery Conservation and Management
Act.''
section 105 and 106--penalties
ISSUE: The Ocean Conservancy believes the penalty provisions of the
Act should be updated to reflect economic changes that have occurred
since they were enacted in 1972. Current penalties are low enough to be
viewed by some violators as an acceptable cost of doing business.
AMENDMENTS
Modify Section 105(a)(1) to allow a civil penalty: ``of not more
than [$10,000] $25,000 for each such violation . . .''
Modify Section 105 (b) to allow a criminal fine: ``not more than
[$20,000] $50,000 for each such violation . . .''
Modify Section 106(b) to allow a civil penalty: ``of not more than
[$25,000] $50,000.''
title iv--marine mammal health and stranding response
ISSUE: In 1994, an amendment was added to Title IV, Marine Mammal
Health and Stranding Response, which allows funds from the Unusual
Mortality Event Fund to be used for the care and maintenance of marine
mammals seized under section 104(c)(2)(D). The Marine Mammal Unusual
Mortality Event Working Group opposes the use of these funds for this
purpose, as does The Ocean Conservancy. Not only could this situation
rapidly deplete funds that are needed to respond to an unusual
mortality event, it was not the intent of either Congress or the
proponents of the original legislation to provide funds for the care
and maintenance of seized animals. This situation should be addressed
in either the Animal Welfare Act or another provisions of the MMPA.
Furthermore, potential contributors to the fund might be deterred by
this provision due to the controversy surrounding marine mammals in
captivity. The Ocean Conservancy recommends that this provision be
deleted.
AMENDMENT At Section 405, delete (b)(1)(A)(iii).
ISSUE: Title IV has been historically under-funded. The Marine
Mammal Health Stranding and Response Act has never received dedicated
funding and, to date, no funds have been appropriated to the Emergency
Response Fund. To support the Act's provisions, the NMFS has had to
cobble together funds from its base funds. In short, funding for
implementation of the Marine Mammal Protection Act, specifically the
Title IV provisions, has created a situation where the agency has had
to ``rob Peter to pay Paul.''
Despite being under-funded, most of the mandated activities have
been initiated, and the Marine Mammal Health and Stranding Response
Program has greatly improved the response to both routine strandings of
marine mammals and unusual mortality events. Nevertheless, unexplained
die-offs of marine mammals have continued on almost an annual basis
along the United States coastline, and NMFS' response to these die-offs
has been hampered by a lack of funding. Without adequate funding, NMFS
cannot be proactive; it cannot develop a strong marine mammal health
assessment program, support volunteer stranding networks, or develop
accurate baseline information on stranding rates, contaminants,
disease, and other factors related to detecting and determining causes
of unusual mortality events. Furthermore, the lack of funds hinders
NMFS' ability to fully develop and implement contingency programs to
respond to die-offs or oil spills. Consequently, NMFS may be unable in
the future to determine the cause of these die-offs of marine mammals--
animals that are potential indicators of the health of the marine
environment.
AMENDMENT--Delete the current language of Section 408 and replace
it with the following language:
Sec. 408. There is authorized to be appropriated to
(1) Lthe Secretary for carrying out this title (other than sections
402 and 405) $1,500,000 for each of five fiscal years beginning in
2003;
(2) Lthe Secretary for carrying out sections 402 and 404,
$1,500,000 for each of five fiscal years beginning in 2003;
(3) Lthe Secretary for carrying out Section 405, $2,000,000 for
each of five fiscal years beginning in 2003;
(4) Lthe Fund, $500,000 for each of five fiscal years beginning in
2003; and
(5) Lthe Secretary of Interior for carrying out this title,
$500,000 for each of five fiscal years beginning in 2003.''
TITLE III INTERNATIONAL DOLPHIN CONSERVATION PROGRAM
section 303--regulatory authority of the secretary
ISSUE: When Congress created the International Dolphin Conservation
Program Act (IDCPA), the intent was to follow the 30 minutes ``after
sundown'' rule that has been used under the previous provisions of MMPA
Section 104(h)(2)(B)(iv) and under the International Dolphin
Conservation Program. To clarify that Congress did not intend to change
the requirement that the sacking up of purse seine nets must begin no
later than 30 minutes after sundown, we recommend that the Act be
amended as follow:
TECHNICAL AMENDMENT: In section 303(a)(2)(B)(v), replace the word
``before'' with ``after.''
section 307(a)--prohibitions
ISSUE: To clarify that the cross-reference in Section 307(a)(2)
deals specifically with purse seine fishing for tuna in the ETP, which
is managed under the IDCP, The Ocean Conservancy recommends the
following change:
TECHNICAL AMENDMENT: At Section 307(a)(2), the cross reference
should be to section 101(e), not 101(d).
section 303 regulatory authority of the secretary
ISSUE: To correct a typographical error, the following change
should be made:
TECHNICAL AMENDMENT: In section 303(a)(2)(B)(x), insert ``or''
after ``serious injury.''
______
Mr. Gilchrest. Thank you very much, Ms. Gaffney. There
seems to be a difference of opinion presented here this
afternoon concerning the issues of salmon and steelhead and sea
lions, seals and otters. And I guess what we are going to
attempt to do in the coming months, after we glean and digest
your testimony, is to determine the best way to proceed.
The issue seems to be, at least part of the issue, can for
example a healthy sea otter population coexist with an
economically profitable commercial fishing operation? And I am
not sure if we will resolve that here this afternoon, but what
I would like to ask the National Marine Fisheries Service, I
guess, and Mr. Thompson and Mr. Rebuck, is sea otter, for
example--because that is what Mr. Rebuck focused in on, so we
will look at that before we take a look at the sea lions--Mr.
Thompson and then Dr. Scordino, if you want to answer this as
well, if you have any information, what is a healthy,
sustainable sea otter population? When could we say it is
recovered? And adding to the complexity of this, if the stock
of a number of fish species is below sustainable rates, how do
we manage to bring the fish stocks up and recover the sea otter
population? Is that possible? How long would it take? Mr.
Thompson?
Mr. Thompson. I was afraid you were going to start with me.
The healthy sea otter population I think I can start to answer,
and that is, the determination is based on a lot of factors,
like we said in the listing before. The small range, which is
expanding. We would look at, there is new information now on
contaminants and the impact of those contaminants on the
population, what kind of condition they would be in.
Mr. Gilchrest. Is cat feces a problem with sea otters?
Mr. Thompson. Apparently disease problems are, there are
some relationships to those that are a problem, yes. There is
also starvation, shark bites. There is lots of things that go
into a healthy population of sea otters. This population is
increasing at about 5 percent per year, which is a slow, stable
or steady growth, but the impacts of other things like
fisheries, we have been able to seem to work through those. So
from the standpoint of the sea otter, I think it can work with
the fishing community.
Mr. Gilchrest. Is there a number you can give us?
Mr. Thompson. The number in the current recovery plan is
about 2,600. The draft that is out for review, there is a lot
of discussion about the number may be slightly higher, need to
be higher.
Mr. Gilchrest. And how many are out there, approximately,
now?
Mr. Thompson. Roughly 2,200 are there right now, so we are
close to the recovery number. Now, that is just the number.
Like I said before, there is lots of other factors that would
have to go into a healthy population.
Mr. Gilchrest. Mr. Rebuck?
Mr. Rebuck. Thank you, Mr. Chairman. I think that what you
propose is doable, but only through zonal management.
Mr. Gilchrest. Pardon me. What?
Mr. Rebuck. Excuse me?
Mr. Gilchrest. Only if what?
Mr. Rebuck. Only through zonal management.
Mr. Gilchrest. Zonal management?
Mr. Rebuck. Zonal management, yes, sir. In 1980--
Mr. Gilchrest. Is this going back, then, to the
translocation and the management areas?
Mr. Rebuck. Actually before that. In 1980 the Marine Mammal
Commission drafted a letter saying that zonal management was a
solution to protection of sea otters and protection of
shellfish resources, and so a lot of us have seized upon that
particular letter. It is in my packet as an exhibit. Since in
my opinion I think it is--
Mr. Gilchrest. What do you mean by zone management?
Mr. Rebuck. Creating zones. Essentially that is what was
accomplished through the public law. The Fish and Wildlife
Service created an otter zone around San Nicolas Island for the
exclusive use of sea otters, but then committed to containment
of those animals at San Nicolas. South of Point Concepcion,
which is Santa Barbara County, California, to the Mexican
border, was a no otter management zone, meaning that the--
Mr. Gilchrest. What would happen if there were otters
there?
Mr. Rebuck. Well, it was the job of the U.S. Fish and
Wildlife Service and the California Department of Fish and Game
to go out and capture any stray animals and then remove them
from that management zone, and the Department of Fish and Game
actually did the bulk of that particular work. They tried very
hard.
Mr. Gilchrest. So it was actually managed for a while that
way?
Mr. Rebuck. It was, yes, for the first couple of years of
the project. By 1993 the Fish and Wildlife Service, based on
mortality in captured animals, determined that they were at
jeopardy and that they would no longer capture these animals.
Now, it is my understanding the public law exempted them from
that jeopardy, so there is a legal issue there.
But I think, adding to this now, since the listing of sea
otters in California in 1977 there has been a significant
reduction in the risk to those animals, and I have identified
15 of them in my testimony for you. And then also the recent
range expansion, I think at some point we should take into
consideration that the expanded range would reduce the risk to
this population of oil spills, and that needs to be factored in
as well.
Mr. Gilchrest. The risk of the, you said oil spills?
Mr. Rebuck. Well, yes. Yes, sir. The primary reason for
listing sea otters in California was the risk of a massive oil
spill along the coast. We now have a $1 billion oil clean-up
program. We have a State Office of Oil Spill Preparation. We
have a clean-up facility at Santa Cruz. We have had tanker
facilities closed at four or five major ports along the coast.
We have tankers using double hulls now. Many of the threats to
the sea otter in 1977 no longer exist or have been
significantly reduced.
Mr. Gilchrest. Dr. Scordino, do you want to make a comment?
Mr. Scordino. No, I--
Mr. Gilchrest. I guess the reason I asked you to be a part
of the question was the fisheries, the various stocks that are
either recreationally or commercially harvested, are many of
them at an unsustainable level? Can you bring up the optimum
yield of those fisheries and at the same time sustain the
present or a slightly increased population of sea otter?
Mr. Scordino. I can't really comment on the sea otter, but
on the status of our West Coast fisheries, our groundfish
fishery, we have a number of populations, fish species, that
are currently on rebuilding plans, where they are below levels
that would provide sustainable yields. So we are in a stage
right now of trying to come up with better fishery management
measures just to control the amounts of removals by fishermen
on the West Coast.
Mr. Gilchrest. So is there any communication? Because you
have a problem with sea otters, you have a problem with
sustaining fish stocks, not to mention sea lions and seals. So
I guess, Dr. Scordino, is there any transfer or exchange of
information between yourself, Fish and Wildlife, on how to
create that management regime?
Mr. Scordino. I will defer to Fish and Wildlife Service,
but the prey species for sea otters, my understanding, is
shellfish, so it is not the finfish resources that we manage
under the fishery management plans.
Mr. Thompson. We have considerable communication going on
with all parties, and one of the things that has been started
recently is that the Monterey Bay Aquarium is hosting a
symposium, in fact once a year, to pull together scientists and
affected parties to look at the impacts of sea otters on those
resources, and we are working closely with the State. As they
brought up earlier, crabs, abalone, lobster, urchins, are the
things that would be most impacted by the sea otter.
Mr. Gilchrest. Ms. Gaffney?
Ms. Gaffney. Thank you. I just wanted to follow up on this
question, because there is actually a very different
relationship between finfish and sea otters than perhaps you
believe. As was mentioned, the primary prey species for sea
otters are the shellfish, and the expected relationship between
sea otters and finfish, particularly some of these groundfish
species off the West Coast that are doing so poorly, is that
the sea otter may actually provide a benefit to those finfish
species.
And the way that occurs is that the sea otter acts as
essentially a keystone species. It is the top. It is the
indicator. And because the sea otter preys on the shellfish,
urchins, abalone, that are grazers, so those are the animals
that eat the kelp, when you reduce the number of grazers in the
ecosystem because the sea otter is preying on those species,
you can have healthier kelp forests.
And many of the groundfish species that we are talking
about, rockfish out in California that are really at
drastically low levels, spend at least part of their life cycle
living in the kelp. Frequently the juvenile phase of their life
cycle is spent in kelp forests. So when kelp forests are
impacted by grazing species, we see declines in finfish, and
there is an expectation that having sea otters as part of that
system can actually provide a benefit to the finfish species,
although certainly may cause declines in the shellfish
fisheries.
Mr. Gilchrest. Sea otters are grazers?
Ms. Gaffney. No, sea otters prey on grazers.
Mr. Gilchrest. Sea otters prey on the grazers, so the kelp
is healthier.
Ms. Gaffney. Healthier.
Mr. Gilchrest. So you have more habitat for finfish.
Ms. Gaffney. Exactly.
Mr. Gilchrest. And the finfish population is likely to
increase with a healthy otter population.
Ms. Gaffney. Right.
Mr. Gilchrest. Mr. Rebuck says no.
[Laughter.]
Mr. Rebuck. I would only ask Ms. Gaffney to cite some
literature that supports that, because I have been hearing this
for 20 years. There is a lack of data that demonstrates that
this is the case.
Mr. Gilchrest. Ms. Gaffney?
Ms. Gaffney. There is a researcher at the University of
California at Santa Cruz, Jim Estes, who does a lot of work on
both sea otter populations in California and also up in Alaska,
and also does work on ecosystem level issues related to marine
biology, and I would be happy to provide some of his
publications for the record if that would be helpful.
Mr. Gilchrest. I would very much like to read it.
Mr. Rebuck. Alaska is not California, sir, ma'am.
Ms. Gaffney. He works in both places.
Mr. Gilchrest. We will take a look at that, and invite him
for the next hearing.
My time is up, and I would like to yield now to the
gentleman from American Samoa, Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman.
Mr. Chairman, I would like to ask unanimous consent that
the statement sponsored by the Humane Society of the United
States be made part of the record, dated October 11, 2001.
Mr. Gilchrest. Without objection, so ordered.
[The information referred to follows:]
Statement of the Humane Society of the United States
On behalf of our more than 7 million members and constituents, The
Humane Society of the United States (HSUS) wishes to thank you, Mr.
Chairman and members of the Subcommittee, for allowing us to submit
this written statement for the record regarding the issues surrounding
abundant pinniped and sea otter populations.
The HSUS plays an active role in working toward protection of
marine mammals in the United States. We continue to work diligently to
maintain protection for pinnipeds. Between 1992 and 1994, The HSUS
participated in an ad hoc stakeholder negotiation that resulted in
proposals to Congress for the Amendments to the Marine Mammal
Protection Act (MMPA or the Act) that were passed in 1994. Since that
time we have served on a number of appointed committees, working groups
and take reduction teams that have arisen from the implementation of
the many provisions that were added to the MMPA in 1994. We have also
testified a number of times before this and other House Committees
regarding the implementation of various portions of the MMPA, most
recently in an April 2000 hearing on oversight of the Take Reduction
Team process. We would like to apprise this Committee of our interests
and concerns relative to portions of the MMPA that pertain to pinnipeds
(seals and sea lions) and sea otters.
Background
During the meetings of the ad hoc multi-stakeholder group that were
held between 1992 and 1994, issues surrounding growing populations of
pinnipeds were discussed in depth. Representatives of animal welfare
and conservation interests, fisheries groups, native groups, the
National Marine Fisheries Service (NMFS), and staff from a number of
Congressional Committees attended the meetings of this ad hoc group. A
sub-group of this larger ad-hoc group devoted a number of meetings
specifically to discussing pinnipeds. In the group, we addressed the
assertion that pinnipeds were causing declines in salmonid populations
and seriously impacting the viability of commercial aquaculture
operations. It was the finding of this negotiating group that there was
insufficient evidence to document these claims.
As a result, the group proposed a process that required an
evaluation of the data surrounding specific incidences in which
pinnipeds were suspected of adversely affecting fish populations. It
called for a task force to evaluate the data and make recommendations
to the Secretary of Commerce regarding possible mitigation measures,
including intentionally killing animals. Data were required to
demonstrate to the task force that specific nuisance animals were
involved and that the removal of these animals would positively resolve
most of the concerns. This process also required a demonstration that
non-lethal measures had been tried and failed prior to seeking
authority to kill animals.
The proposals put forth by the group formed the basis for the
process that Congress ultimately put in place with the 1994 Amendments.
The section of the Act that dealt with pinniped conflicts was codified
as Section 120. During meetings of the ad hoc group, commercial
fisheries representatives supported removal of the authority for
fishermen to kill marine mammals interacting with gear and catch, and
to confine lethal taking to situations in which human life was
jeopardized. Congress adopted this recommendation as well.
The ad hoc negotiating group also discussed predation by seals at
finfish aquaculture sites in Maine. Again, no information was available
to substantiate claims of financial hardship. In the wake of the ad hoc
group's meetings, Congress amended the MMPA to include a provision
under Section 120 that called for the NMFS to convene a task force to
evaluate these interactions with aquaculture and recommend whether or
not mitigation measures should be required.
Since that time a number of task forces have met and stakeholder
negotiations have continued.
Gulf of Maine Pinniped Aquaculture Task Force
This group was tasked by the MMPA with evaluating predation by
seals on finfish in marine aquaculture facilities, primarily in the
State of Maine. The group met a number of times and produced a report
that was conveyed to the NMFS in February 1996. The results of this
report were, in turn, provided in a Report to Congress. The group
agreed by consensus to recommend that before lethal removal of seals
should be considered, three criteria must be met: the consequences of
the depredation most be severe and demonstrable; lethal measures under
consideration must be verified as an effective means of solving the
predation problem; and no non-lethal alternatives are available. The
Task Force could not agree that these criteria had been met in Maine.
No lethal taking authority was recommended. The HSUS believes that
there is no necessity for re-instituting authority for lethal removal
of pinniped by aquaculturists in Maine or elsewhere.
Ballard Locks Task Force
The first plea for the use of authority for lethal removal of
pinnipeds came in June 1994, when the Washington Department of Fish and
Wildlife (WDFW) requested authority under Section 120 to lethally
remove problem California sea lions from the Ballard Locks in Seattle,
Washington. In their request, they stated that non-lethal deterrents
were ineffective and that they could provide evidence that the
predation by California sea lions was a proximal cause of ongoing
declines in migrating steelhead salmon. A task force was convened, and
The HSUS was appointed as a member of the task force. The process was
contentious and many of the independent scientists and environmental
groups felt that the WDFW had not met its burden of proof. Despite a
lack of consensus among the group, in January 1995, the NMFS granted a
three-year authority to remove up to 15 California sea lions. This does
not appear to have been necessary or effective.
In 1996, there were 981 California sea lions in Puget Sound
(maximum peak count). Sea lions were removed in spring 1997. In spring
1997, there were 528 sea lions counted; since that time their overall
numbers have dropped to as low as 220 animals. Concurrently, and
independently of the numbers of sea lions, the steelhead run has
continued to decline. In 1997, there were 620 steelhead salmon counted;
there were 584 in 1998, 220 in 1999, 48 in 2000 and 42 so far this
year. This would seem to support overall evidence that sea lion
predation is neither responsible for the initial declines nor is it the
proximal cause of ongoing declines in endangered fish runs. These
declines continue apace as a result of unmitigated effects of dams and
other human-related habitat destruction and degradation.
Report to Congress - Impacts of California Sea Lions and Pacific Harbor
Seals on Salmonids and West Coast Ecosystems
The 1994 Amendments to the MMPA also required that the NMFS submit
to Congress a report on the impacts of sea lions and seals on
ecosystems on the west coast. Although fishery groups were consulted in
the preparation of this report, conservation interests were not
similarly included. It is hardly surprising, then, that the report
casts a dim light on pinnipeds and their role in the various west coast
ecosystems. The report to Congress made four recommendations: implement
site-specific management for California sea lions and Pacific harbor
seals; develop safe, effective non-lethal deterrents; selectively
reinstate authority for the intentional lethal taking of California sea
lions and Pacific harbor seals by commercial fishermen to protect gear
and catch; and fulfill additional informational needs.
The HSUS strongly opposes the recommendations made in the Report
for site-specific lethal management of California sea lions and Pacific
harbor seals and for reinstating authority for the intentional lethal
taking of these species by commercial fishermen to protect gear and
catch. Based on our review of available data, we do not believe that
removal of pinnipeds will achieve the stated goals of fisheries
protection and enhancement. We strongly believe that sea lion predation
is not responsible for the decline of fisheries along Washington,
Oregon, and California and that it is crucial that managing agencies
mitigate the true sources of the declines.
Recommendations for lethal removal will likely undermine the
report's other recommendations for developing safe and effective non-
lethal deterrents and filling other information needs. We are concerned
that this Report focuses only on the symptoms of the problem of
declining fisheries while completely ignoring the causes and the most
promising solutions to mitigate them.
The HSUS made a number of comments on the report and we continue to
recommend that the NMFS and the Pacific States Marine Fisheries Council
investigate the real and primary cause(s) of the fish run declines
(e.g., hatchery fish competition, fish passage problems due to
construction and operation of fishways and dam, water and general
habitat degradation) and implement solutions to mitigate them. We also
recommend that they conduct studies and implement pinniped deterrence
methods that are found to be humane and realistically promising (e.g.,
alternative barrier designs, expanded acoustic deterrence devices). The
HSUS opposes sea lion removal (lethal or non-lethal), or the use of any
method likely to seriously injure these animals or adversely affect the
ecosystem of which they are a part.
General Issues Relating to Pinniped Predation
Since the Amendments to the MMPA in 1994, commercial and for-hire
fishing boats on the west coast have expressed on-going concerns about
interactions with pinnipeds. This has resulted in a number of
management actions, some of which show promise and others of which are
shortsighted. Many of these highlight the need for non-lethal
deterrents.
The NMFS and the Pacific States Marine Fisheries Commission
proposed testing of an acoustic deterrent device known as a pulsed
power device. The possible use of this device raised concerns by both
marine mammal biologists and acousticians and fishery biologists. The
concerns centered on inadequate research protocols and, more
importantly, the acoustic and concussive characteristics of the device
that indicated that there was a significant likelihood that its use
would result in injuring the sea lions and harming other non-target
marine mammals, fish, turtles and birds. A hearing before the
California Coastal Commission in October 1999 resulted in the
Commission finding that a test of the device in or near the coast of
California was not consistent with coastal protective legislation.
Further, they concluded that no field testing of the device should be
conducted until it could be determined that its use was not likely to
adversely affect marine organisms. While the HSUS has long supported
testing and use of non-lethal measures, we are adamantly opposed to the
use of non-lethal devices whose use may cause more problems than they
solve.
To that end, we also wish to point out that the NMFS has never
issued guidelines for the testing or use of non-lethal deterrents. A
draft of guidelines for the use of non-lethal deterrents was published
by the NMFS in spring 1995; however, no final guidelines were
forthcoming. This is a concern shared by both the fishing industry and
conservation and animal protection organizations.
There have been a number of stakeholder meetings in which pinniped
predation has - been the subject. These include a workshop at the New
England Aquarium that focused on east coast pinnipeds; an evening
session of the August 1997 meeting of the American Fisheries Society in
Monterey California, which brought together scientists and
stakeholders; and meetings at the Monterey Bay Aquarium between fishing
groups, conservation and animal welfare groups, and state managers. At
an April 1998 meeting at Monterey Bay Aquarium, a number of
recommendations were made. Both the fishing groups and conservation/
animal welfare community expressed frustration with the failure of the
NMFS to issue guidelines for appropriate use of non-lethal deterrents
with harbor seals and California sea lions who were interacting with
fishing gear and catch. There was consensus among these disparate
groups that the NMFS should immediately release guidelines or
regulations pertaining to the use of non-lethal deterrents. To this
date, no such guidelines or regulations have been issued. The most
hopeful outcome of this meeting was the obvious degree of support given
by both commercial interests and animal protection groups to the need
for non-lethal deterrents. The NMFS must dedicate additional resources
to this task on a priority basis.
Southern Sea Otters
With regard to management of southern sea otters, the 1994
Amendments deferred to existing provisions in the Act, and did not
recommend changes. The HSUS does not believe it is necessary to amend
the MMPA to address interactions between sea otters and commercial
fisheries, nor to direct recovery or containment measures that can be
enacted in a regulatory context. In particular, the population of sea
otters at San Nicolas Island should remain and sea otters elsewhere
should be allowed to range freely in the wake of the failure of the
translocation efforts and subsequent mainland population declines.
Southern-sea otters are a threatened species and should be allowed to
expand their historic range as efforts to recover their numbers
continue.
Conclusion
The HSUS does not believe that there is a need to amend the MMPA to
further address issues of conflicts with pinniped populations. The NMFS
must devote considerably more time and resources to finding and testing
innovative approaches to non-lethal deterrence that are not likely to
have an adverse impact on animals in the marine ecosystem.
In May 1999, Yale University--completed a survey entitled
``American Perceptions of Marine Mammals and their Management.'' In
this, they found that three fifths of Americans disapproved of reducing
populations of seals and sea lions and more than 90% opposed the use of
lethal practices such as shooting or poisoning seals and sea lions as a
means of reducing conflicts even though these methods were described as
being the least expensive option. Clearly the American people would not
support any changes to the MMPA that would broaden the use of intrusive
or lethal methods for managing conflicts and if necessary are willing
to endure financial sacrifice to ensure protection of marine mammals of
all species.
We would like to thank the Subcommittee for the opportunity to
present our concerns regarding proposals to further amend the Marine
Mammal Protection Act.
______
Mr. Faleomavaega. Mr. Chairman, I take an obvious interest
in the fact that there are some very strong disagreements, and
I presume not only on data but the figures themselves, in terms
of the problems that we have had with sea otters, sea lions,
and I just wanted to ask if there is anybody, hopefully a
neutral party that could give us the facts and the figures. I
assume this will be the National Marine Fisheries Service? Is
that Dr. Scordino?
We happen to have a very strong disagreement, obviously,
between Mr. Rebuck and Ms. Gaffney. Can you give us the true
answer to the controversy here?
Mr. Scordino. Well, one thing, I don't know that there is
any controversy on seal and sea lion population numbers, their
status and increasing population numbers, but I might comment
on the current authorities in the act versus the
recommendations in the report to Congress.
Congress did provide us with new authority in the 1994
amendments under Section 120 that provided a process for a
State to come forward and request authority to remove specific
nuisance animals, problem pinnipeds, and we did use that
authority under Section 120 to issue to the State of Washington
a letter of authorization to remove California sea lions at the
Ballard Locks.
But as we went through that process, one of the things we
found was, the provisions are so stringent that were laid out--
for example, the animals that might be dealt with had to be
individually identifiable animals. When you have 200,000 sea
lions up and down the coast, and 76,000 harbor seals, having
individually identifiable animals requires a long time frame of
work in a specific area, which we had at the Ballard Locks.
We had 10 years of studies. We had branded every single sea
lion that was in the area of the Ballard Locks. We are now up
to something like 890 sea lions have brand numbers on them, so
we know which animals are the ones that come into the locks and
cause the problems, in contrast to those that aren't the
problems, and we leave them alone and they do what they want.
The problem as we move into other systems is we don't have
that long series of studies and that long train of information
with marked animals, etcetera. And the concern is where you
have an ESA listed species and you have animals foraging, the
need to have immediate response isn't there as the Section 120
authority is currently constructed.
Mr. Faleomavaega. Of course, the problem here is not just
in California. This is also true on the East Coast, and I am
sure the Chairman is very much aware of the problem. And I
would like to ask Mr. Fletcher, it is always the question of
commercial fishermen and recreational fishermen that always
seem to be at the short end of the stick here. Am I wrong on
this? What is the dollar value loss that the recreational
fishing industry in California has taken because of the
problems with sea lions?
Mr. Fletcher. Well, a conservative estimate is in the
millions of dollars, but it is difficult to give you a firm
figure, sir, because we have not only fish being removed from
nets and off lines. We have a resultant attitude on the part of
the public that ``Why should I go fishing when all that happens
is I hook a fish and a sea lion eats it?'' And so people who
might otherwise pay money and go fishing, don't, but we can't
quantify that number.
But clearly millions of dollars a year are lost in
commercial fish that are ripped out of nets, off lines, and
millions of dollars in sport fishing revenue are lost because
fishermen choose not to fish anymore because of the very
negative experiences they have at certain times. And Dr.
Scordino made one comment about a study in Monterey Bay that
indicates up to 70 percent of fish that were hooked by
recreational anglers in that area during that study were lost
to sea lions.
We can't tell you how many dollars that might be unless you
measure by a per fish average. And some information I have
indicates that in 1980, 12,459 legal size salmon with an
estimated value of $20 each were lost, for a total loss of
$274,000. By 1995, that number had jumped to 86,700 legal size
salmon at a cost of $1,734,000. Now, that is as of 1995, and
that is for salmon only, which is a small part of the overall
impact of sea lions on recreational and commercial fisheries.
Mr. Faleomavaega. Suppose we go back to the basic issue,
Mr. Chairman. I notice my time is up, and not wanting to pass
the buck, I would like to ask Dr. Scordino, in his best
judgment as the regulator, we gave him this responsibility,
should we pay more heed to the concerns of our recreational and
commercial fishing industry? Somebody has got to eat. You have
got to pay the bills. Or should we continue allowing the sea
lions to do everything and anything they want to do, eat the
fish?
Mr. Scordino. Well, the dilemma we face, I think all of us
collectively, I don't think anyone would disagree with needing
to find a nonlethal way to keep these animals away from fishing
gear. I mean, that is the solution. But you have the problem
that is confounded with animals, as I said, that learn to work
boats, and I am not sure we are going to find nonlethal ways to
keep those animals away from gear without affecting other
species.
So we tried this pulse power device, and we all thought we
had the solution. This was a device that puts out this
underwater noise that would deter the sea lions. But the
problem was, it also raised concerns about what effects did it
have on other species. And we are kind of stuck. We are not
sure where to go with trying to keep these animals away from
fishing boats.
Mr. Faleomavaega. So is it your best opinion, Mr. Scordino,
that we should not make any changes in the current law?
Mr. Scordino. Well, our recommendations, recommendation
number one in that 1999 report suggested you look at providing
authority for State and Federal officials to take care of
individual animals in certain situations, where necessary.
Mr. Faleomavaega. Thank you, Mr. Chairman. My time is up.
Mr. Gilchrest. Thank you, Mr. Faleomavaega.
I just have two follow-up questions. One of the nonlethal
means was, for lack of a better term, a pulse deflector or some
type of acoustic, to make a noise to keep the sea lions away.
Ms. Gaffney, is that an issue with your organization?
Ms. Gaffney. We were not one of the environmental
organizations that specifically raised concerns about that
technology, but I think it is fair to say that we are concerned
about it. There was essentially scientific information that, as
was mentioned earlier, that demonstrated both that the impact
of that specific technology may be unacceptable to the animals
that it is targeting, and may also have impacts on other
nontarget species.
But I think it brings us back to the point, which is that
we really need to take a more dedicated and aggressive approach
to developing nonlethal deterrents. That was one option that
came forward and what we learned was that it was probably not
as good as it initially appeared.
What we are recommending is that the agency essentially
convene all of the stakeholders, the environmental
organizations, the fishing community, as well as the scientific
community, and come up with a specific, systematic approach to
a research plan and to the range of nonlethal deterrents, so
that we can actually move forward and hopefully come up with
some effective alternatives in a reasonable time frame. We just
don't believe that it has gotten the level of attention that it
needs to prove successful.
Mr. Gilchrest. Dr. Scordino, would you? Is that a good
recommendation?
Mr. Scordino. I think we have tried and we would like to
continue to try and find a solution. Maybe getting all the wise
heads together, maybe we can find something. I know Mr.
Fletcher mentioned the industry is interested in pursuing
further experimentation.
Mr. Gilchrest. That wasn't done with the report, the 1999
report?
Mr. Scordino. Well, as of the time of the 1999 report, all
of the technologies that were available to us and we were aware
of weren't showing continued success, and that is where we
were. We kind of put all our eggs in one basket with the pulse
power device and put our efforts into seeing development of
that device, hoping it would provide the kind of solution we
are looking for. But, as I said, it had too much of a solution.
It affected other things, too.
Mr. Gilchrest. So there is an ongoing evaluation of that
report now? I am just not sure I know what the status of--
Mr. Scordino. We should be receiving a final report from
the lab studies on the pulse power device, which as I
mentioned, the preliminary information is showing that it had,
even with its high intensity noise, had limited effectiveness
on sea lions tested in a captive situation.
Mr. Gilchrest. I see. I know not far down the road from
where I live, they used some type of sounding device to keep
turkey buzzards away from a dock. What happened was, though, it
also kept the osprey and the bald eagles and the owls and the
other hawks away from that whole area, so fortunately they
stopped using that. And then, this is a much simpler problem
than what you are facing, people just chased them away, when
they landed on their windshield and ate the windshield wiper,
and then the problem was solved.
Mr. Scordino. I might comment that some of our past
experiments also had the opposite effect, where we tested
devices to keep animals away from gillnets. And what instead
turned out to happen is they served as dinner bells, so when
fishermen turned on the devices under gillnets, it instead
attracted animals, told them that there was a net in the water
and it had fish in it, and we had the opposite effect. So it is
a really tough area to address.
Mr. Gilchrest. Just one other follow-up question. The first
recommendation in your report implements site-specific
management for California sea lions and harbor seals, and you
said that you have identified many of these sea lions. Can that
be used to resolve some of the issues with the commercial and
recreational fishermen? Or is it just, I mean, you have too
many sea lions chasing recreational charter boats, or can you
identify specific sea lions or seals and remove them from the
population and things would improve?
Mr. Scordino. The areas where we have the greatest problems
with California sea lions are open water areas, so, for
example, Monterey Bay. My guess, from what I have seen in
Monterey Bay, is there is probably a group of animals that have
learned to follow the fishing boats, but then they are mixed in
with another 500 to 1,000 animals in the area, which makes
management measures very complicated and difficult. We had the
luxury at the Ballard Locks, it was a closed area, we could
actually trap the animals and brand them so we could track them
over time. But once you get into the ocean, that kind of
approach is real difficult.
Mr. Gilchrest. Mr. Fletcher?
Mr. Fletcher. Thank you, sir. Just one comment. I mentioned
that we have had big problems with sea lions at the bait docks
along the harbors. These are identifiable animals. There is a
very small group of them, and if there is any way to become a
little bit more aggressive in deterring this very small group
of problem animals, at least that one problem area could be
addressed in a very dramatic fashion, because we could identify
these animals. They live there. They could be maybe hazed away
from those facilities with fire hoses or other means that would
be more aggressive.
That might help deal with that particular problem, because
that is a major problem in many of the California ports. The
bait receivers are attacked by these animals, and much of the
bait is chased out, and the animals sometimes haul out on the
receivers and break down the receivers. This is a very small,
identifiable group.
Mr. Gilchrest. Mr. Faleomavaega?
Mr. Faleomavaega. Mr. Chairman, I just have one quick
question to Dr. Scordino.
Has the National Marine Fisheries Service made a
determination of what is considered a reasonable population of
sea lions, or there is no control? I mean, suppose we have a
million sea lions. Are we going to continue repopulating until
we get to 5 million sea lions?
I mean, how far does it go? Is there an estimate, an amount
that the National Marine Fisheries Service says this is a
reasonable amount? In other words, being excessive, and I am
not suggesting that we ought not be mindful of helping God's
creatures, but there is also being excessive in the sense of
200,000 sea lions or sea otters. I mean, where is the limit, or
should there be a limit?
Mr. Scordino. We are currently operating under--the goal of
the Marine Mammal Protection Act is to bring the populations to
their optimum sustainable population level, and what that is,
is the population, it levels out. It stops increasing. With
harbor seals in Washington and Oregon, we can now say they are
at that level. They have kind of leveled out. The populations
aren't increasing.
Mr. Faleomavaega. Have we done the same thing for
California?
Mr. Scordino. California sea lions, it is not as clear. A
number of our scientists, though, believe that the population
is leveling off, but the problem is, when you have these El
Ninos, it knocks--our population index is pup counts, and when
you have an El Nino condition, it reduces pup production
dramatically, so kind of our curve starts over again, so being
able to see that deflection in the curve doesn't happen.
Mr. Faleomavaega. Yes, but--
Mr. Scordino. I think we are, as I said, I think some of
our scientists feel pretty strongly that we are probably close
to OSP for California sea lions, so we may be talking about
200,000 to 250,000 animals on the West Coast as being the OSP
range.
Mr. Faleomavaega. For the sea lions in California--
Mr. Scordino. For California sea lions.
Mr. Faleomavaega. --is it safe to have 200,000 sea lions?
Mr. Scordino. They are currently at over 200,000 right now.
Mr. Faleomavaega. But I am still--is that--maybe I am not
framing my question properly here. My concern is that we want
conservation. My gosh, you know, God made these creatures. We
ought to live and abide by their ability. But when the
overpopulate, when they become excessively more than what a
human being is able to consume, then where do we go from there?
And I am not clear exactly where the National Marine
Fisheries Service is coming into this picture. You are saying
that it is okay to have 250,000 sea lions in California, that
is considered an optimum figure?
Mr. Scordino. Well, what I am saying is that our mandate is
to have these populations at their optimum sustainable
population level, in accordance with the law. So that is
probably what we are looking at, then, is the optimum number
for California sea lions is probably in the 200,000 to 250,000
range. When they go above that, they are starting to exceed
their carrying capacity.
Mr. Faleomavaega. And carrying the food chain, what is the
predator of the sea lion? Sharks?
Mr. Scordino. Sharks, killer whales, and man, you know, and
other environmental--like I said, El Nino conditions, El Ninos
do have an effect on these populations. They move their prey
species into areas that the animals don't normally forage.
Mr. Faleomavaega. It becomes really a policy issue, and I
am trying to figure out which is more important, maintaining
the lives and the needs of our recreational and commercial
fishermen and their families, or continue allowing the
excessive populations of sea lions.
Mr. Scordino. All I can say is, the mandate is in the law,
and we are bound by that.
Mr. Faleomavaega. I'm sorry, Mr.--
Mr. Gilchrest. Mr. Rebuck.
Mr. Rebuck. Maybe I can help you. A number of years ago in
one of the gillnet fisheries there was a take of sea lions in
the range of 5,000-6,000 animals a year, did not put a dent in
the population.
We also have in southern California as of May of this year
a listed invertebrate, the white abalone, Haliotis Sorensini,
which according to the National Park Service, the National
Marine Fisheries Service, there are fewer white abalone than
there are sea otters, and yet the Fish and Wildlife Service
wants to allow sea otters to overlap the range of the white
abalone. So sometimes the decisionmaking is very curious.
Mr. Faleomavaega. Well, one thing is very clear, and I had
a personal experience in not only pressing for resolutions in
the Congress, but the gillnets, drift nets, this is manmade,
where you are talking about 30 miles long of these drift nets
that drop about 30 feet in depth, and it is the number one
killer. I mean, you know, this is man's device, and it is the
most dangerous thing that I have ever seen in my life, where it
kills anything that moves in the ocean.
Mr. Rebuck. In California, sir, drift gillnet fishermen are
limited to one mile of gear, not 30 miles. So that is the
international, you know, high seas fishery.
Mr. Faleomavaega. Well, that is what I am suggesting here,
is that we had to contend with the Taiwanese, the Japanese,
that were doing this.
Mr. Rebuck. I think our people have really led the way in
conservation and methodology.
Mr. Faleomavaega. But I am still puzzled, Mr. Chairman. I
don't know if I have gotten a clear picture from our friends
here. On the one hand we need to press on for continued
conservation of these precious animals, and on the other hand
the needs of our commercial and recreational fishing industry
are at risk. And my question is, where do we draw the line and
how can we best provide, in a regulated forum, for the needs of
both sides? And this is where I am a little puzzled, Mr.
Chairman. Thank you.
Mr. Gilchrest. Thank you, Mr. Faleomavaega.
I sense probably more frustration up here than perhaps out
there, because at least all of you are engaged in this with
your minds and your hands and your activities, so you are on
the front line of seeing what reality is along the West Coast.
But what we will attempt to do, to just give you some
direction as we move along in this--because we are certainly
not going to draw up a reauthorization bill next week, we hope
next spring or early summer--but as we move along on this, some
of the just virtually infinite complexity of these issues, in
my judgment at any rate, is to manage this thing from an
ecosystem perspective, including man as part of the ecosystem.
But I would hope that in this new century we would have the
knowledge, the resources, the ability to cooperate, and the
tolerance for different opinions, to establish a management
regime that is both economically viable and environmentally
sustainable. And as we move through the process, I would
certainly invite all of you to continue to contact us via all
of the manifestations of communication that there are, in
person being probably the best. As we continue the process, we
would like to have your continued input. Thank you all very
much.
I would like to ask unanimous consent that the gentlelady
from Hawaii, Mrs. Mink, be allowed to sit at the dias.
Hearing no objection, so ordered.
Mrs. Mink. Thank you, Mr. Chairman.
Mr. Gilchrest. You are welcome.
Panel number five: Dr. Hal Whitehead, Killam Professor of
Biology, Dalhousie University; Dr. Naomi Rose, Marine Mammal
Scientist, The Humane Society of the United States; Dr. Kurt
Fristrup, Bioacoustic Research Program, Cornell Laboratory of
Ornithology; Dr. Darlene Ketten, Associate Scientist in
Biology, Woods Hole Oceanographic Institution, Assistant
Professor, Harvard Medical School; Admiral Dennis McGinn,
United States Navy, Deputy Chief of Naval Operations, former
Navy pilot in Vietnam, Warfare Requirements and Programs.
I want to welcome all of you here this afternoon, and I
guess this is our last panel. The fifth panel will discuss some
of the issues regarding the importance of national defense and
technology with the ability to be harmonious with the marine
environment in the process. Our first witness will be Dr.
Whitehead. Welcome.
STATEMENT OF HAL WHITEHEAD, KILLAM PROFESSOR OF BIOLOGY,
DALHOUSIE UNIVERSITY, HALIFAX, CANADA
Mr. Whitehead. Mr. Chairman, thank you very much for giving
me this opportunity to talk to you on the naval sonars. I am
going to make my comments on the potential effects of military
sonars from the perspective of a population biologist.
We as a society and you as lawmakers are concerned about
how human activities in the ocean affect the health and
viability of populations, species and ecosystems. These
questions are in the realm of population biology.
Sound is, in many ways, the best channel for communication
and sensing in the ocean. It travels over long distances and
can convey a great deal of information. Marine mammals and
other ocean animals, but especially the toothed whales and
dolphins, have evolved to use sound efficiently for sensing
their environment and communicating with each other.
For some of the same reasons that sound is important to
marine mammals, it is used by navies. The noise produced can
have a range of consequences for ocean life which range from
rupture of organs through permanent hearing loss, temporary
hearing loss, disturbance, masking of sounds, and psychological
effects. All of these six channels may have population level
consequences.
So how can we, the research community, assess these
potential consequences in order to guide you as lawmakers? The
key issue you must understand is that studies of some potential
effects of some sounds on some species, such as research on ear
structure after sound exposure, inform us very little about the
population effects of sounds.
There are about 80 species of whale and dolphin. Noises
vary greatly in a range of characteristics, and can produce
population level effects through at least the six different
channels I have just mentioned. For instance, the Navy-
sponsored studies of four species of baleen whale to reduced-
power LFA sources showed clear behavioral responses, but this
tells us almost nothing about the population effects of the
full source on sperm and beaked whales, which are, for many of
us, the real concern.
However, there are data. In March 2000 a stranding of
beaked and other whales took place in the Bahamas as a result
of naval exercises. For a population biologist, the key
statement in Balcomb and Claridge's report is this: ``None of
the Cuvier's beaked whales that we had documented in our 9-year
study have returned since the March 15 naval exercise. We
consider it entirely plausible that most, if not all, of the
local population of this species was killed on that day.''
We know little of beaked whale population biology, but our
own studies and those of Balcomb and Claridge suggest that
these animals probably generally occur in small local
populations which would be very vulnerable to these kinds of
events.
Some maintain that the Bahamas stranding was a one-off
event caused by special oceanographic circumstances, but this
is not the case. The International Whaling Commission reports
that historically, 8 of 49 beaked whale strandings and all 6
out of 6 multiple species beaked whale strandings occurred
together with military activities. For a population biologist,
these are scary numbers.
But what about LFA? LFA is of a lower frequency than most
other sonars and has enormous range, with one transmission
potentially affecting whales over an area of about the size of
Texas. This, again is scary for a population biologist.
Because LFA is of a lower frequency than the sonars that
operated during the Bahamas stranding, it is sometimes
concluded that it will not be dangerous. This is wrong. We know
so little of how sound affects populations of marine life, that
we cannot conclude that LFA will be better or worse than other
sound sources, but the huge range over which it operates is of
grave concern.
So, unfortunately, as so often in the marine world, you
must regulate and manage based on imperfect knowledge. But from
this population biologist's perspective, it is clear that LFA
is an important threat to marine life.
Thank you very much.
[The prepared statement of Mr. Whitehead follows:]
Statement of Hal Whitehead, PhD, Killam Professor of Biology, Dalhousie
University, Halifax, Canada
I have been asked to comment on the US Navy's use of SURTASS LFA
sonar, as well as other sonar technologies, and their possible effects
on marine mammals. I am very grateful to you for offering me this
opportunity.
I have been studying the population biology of whales, especially
sperm and beaked whales, since 1975, and have published over 100 papers
in refereed journals. I am Killam Professor of Biology at Dalhousie
University and a member of the Cetacean Specialist Group of IUCN, which
allocates conservation priorities for whales and dolphins globally. I
am also a member of the Committee on the Status of Endangered Wildlife
in Canada, which assesses the status of species of animals and plants,
and Co-chair of its Marine Mammal Subcommittee
I will make these comments on the potential effects of military
sonars from the perspective of a population biologist. We as a society,
and you as lawmakers, are concerned about how human activities in the
ocean affect the health and viability of populations, species and
ecosystems. These questions are in the realm of population biology.
Sound is, in many ways, the best channel for communication and
sensing in the ocean. It travels over long distances and can convey a
great deal of information. Marine mammals and other ocean animals have
evolved to use sound efficiently for sensing their environment,
detecting prey and predators, finding and attracting mates, and keeping
in touch with their social partners and young. This is especially the
case for the odontocete or toothed whales which have sophisticated
sonars and social systems. They are critically dependent on sound. As
my wife and colleague, Dr Linda Weilgart, has put it AA deaf whale is a
dead whale.@
For some of the same reasons that sound is important to marine
mammals (communication, sensing the environment, predators and prey) it
is used by navies. Even before the development of LFA systems, the
amount of noise in the oceans increased dramatically from human
activity. Of the various types of noise that we are introducing into
the ocean, military sonars have some features of special concern, such
as high intensities and frequencies within the range that are commonly
used by marine mammals. It can have a range of consequences for ocean
life from rupture of organs, through permanent hearing loss, temporary
hearing loss, disturbance, masking of sounds, and psychological
effects. All of these channels, and especially when they act in
combination, may have population level consequences.
How can the research community assess these potential consequences
in order to guide you as lawmakers? The key issue you must understand
is that studies of some potential effects of some sounds on some
species, such as research on ear structure after sound exposure, and
the US Navy's LFA whale research program, inform us very little about
the population effects of sounds. There are about 70 species of whale
and dolphin, noises vary greatly in frequency, intensity and other
characteristics, and can produce population level effects through at
least the six different routes just noted. It is also important to
realize that animals can be injured by sounds which they cannot hear.
The Navy-sponsored studies of four species of baleen whale to
reduced-power LFA sources showed clear behavioral responses (e.g.
Miller et al. 2000). But this tells us almost nothing about the
population effects of the full source on sperm and beaked whales, which
are, for many of us, the most obvious area of concern.
Studying the population biology of any oceanic species is very
difficult, but there are data on how ocean noise can produce
population-level effects. In March 2000, a multiple-species stranding
of beaked and other whales took place in the Bahamas following, and, as
is now clear, as a result of, naval exercises. There has been a lot of
attention paid to the anatomical studies of the stranded animals, and
these are important. But, for a population biologist, the key statement
in the report is none of the Cuvier's beaked whales that we had
documented in our nine-year study have returned since the March 15
naval exercise... We consider it entirely plausible that most, if not
all, of the local population of this species was killed on that day...
(Balcomb and Claridge, 2001). We know little of beaked whale population
biology, but evidence from the Bahamas project and the only other long-
term study of a beaked whale population which my group carries out off
Nova Scotia (Gowans et al., 2000) indicates that these animals may
generally occur in small local populations near the edges of the
continental shelves. Such populations would be very vulnerable to these
kinds of events.
Some maintain that the Bahamas stranding was a one-time event,
caused by special oceanographic circumstances, but another recent
publication shows that this is not the case. The International Whaling
Commission (2001) reports that 8 out of 49 beaked whale strandings
(1838-1999), and 6 out of 6 multiple species beaked whale strandings
(1974-1999), occurred with military activities. For a population
biologist these are scary numbers, and strongly suggest that naval
activities, and the sounds that accompany them, are frequently lethal
to beaked and other whales and have population-level consequences.
What about LFA? LFA is of lower frequency than most other sonars,
and has increased range. The US Navy has not, to my knowledge, provided
useful ranges. However, 120db is the level at which marine mammals
often display clear reactions to noise. Competent bioacousticans have
calculated that LFA reaches 120db at 500km from the source. Thus any
LFA transmission could potentially affect an area of about the size of
Texas. This again is scary for a population biologist.
Because LFA is of a lower frequency than the sonars that operated
during the Bahamas stranding, it is sometimes concluded that it will
not be dangerous. This is wrong. We know so little of how sound affects
populations of marine life that we cannot conclude that LFA will be
better or worse than other sound sources, but the huge range at which
it may be a threat is of grave concern.
To sum up, we know that more noise is generally bad, and there is
quite good evidence that military sonars can have population level
effects on whales. Because of the difficulties of studying population
level effects directly, the scientific community is unlikely to be able
go very much beyond these summary statements in the medium term. In
this case, as so often in the marine environment, you must regulate and
manage based upon imperfect knowledge. I cannot make a professional
assessment of the military merits of LFA sonar, but there is good
reason to believe that it could have a severe population-level impact
on marine life.
References
Balcomb, K. C., and D. E. Claridge. 2001. A mass stranding of
cetaceans caused by naval sonar in the Bahamas. Bahamas Journal of
Science 5:2-12.
Gowans S, Whitehead H, Arch JK, Hooker SK (2000) Population size
and residency patterns of northern bottlenose whales (Hyperoodon
ampullatus) using the Gully, Nova Scotia. Journal of Cetacean Research
and Management 2:201-210
International Whaling Commission (2001). Report of the Standing
Committee on Environmental Concerns. Journal of Cetacean Research and
Management (Supplement) 3: 255.
Miller, P. J. O. et al. 2000. Whale songs lengthen in response to
sonar. Nature 405: 903.
______
Mr. Gilchrest. Thank you, Dr. Whitehead.
Dr. Rose?
STATEMENT OF NAOMI A. ROSE, MARINE MAMMAL SCIENTIST, THE HUMANE
SOCIETY OF THE UNITED STATES
Ms. Rose. Good day. My name is Naomi Rose. I am the marine
mammal scientist for The HSUS. On behalf of our more than 7
million members and constituents, I wish to thank you, Mr.
Chairman, and members of the Subcommittee for inviting me to
testify on the Navy's SURTASS LFA sonar.
The HSUS has been involved in the issues surrounding LFA
since the existence of this technology first became public
knowledge in 1995. Today I would like to address five main
points concerning LFA and our concerns.
One, regarding the scientific research program or SRP that
the Navy conducted, The HSUS has consistently pointed out the
limitations of this research. While the SRP was a reasonable
beginning, it was never designed to adequately inform the NEPA
process. Its results were clearly incapable of providing enough
information to conclude that LFA would have negligible impacts
on marine life.
Nevertheless, the Navy, NMFS, and some witnesses on this
panel have in fact concluded that LFA, operated under proposed
mitigations, is essentially risk-free. It is germane to point
out that the Navy and most scientists thought the same thing
about mid-frequency sonars prior to the mass stranding of the
beaked whales in the Bahamas in March 2000.
It is not accurate to say that active sonars have been
operating for decades without harm to marine life. Rather,
these sonars have been operating without any observed harm to
marine life, and yet some harm in fact has been correlated with
these activities. It is quite possible, in fact, that standard
active sonars have been harming beaked whales for decades, and
nobody noticed because nobody was particularly looking until
now.
It is important to note that the SRP results could not
disprove the hypothesis that feeding, migrating and breeding
are so important to whales that exposure to LFA transmissions
of up to 155 dB was not enough to cause them to abandon these
behaviors.
Scientists make progress when studying complex subjects not
by proving, but by disproving hypotheses. The Navy's impatience
with scientific process has been apparent from the inception of
the SRP, making its claim that it has based its conclusions
that LFA is benign on sound science especially troubling.
My second point is regarding the 180 decibel safe exposure
level. None of the whales in the SRP were exposed to
transmissions above 155 dB, yet the Navy has determined, and
NMFS concurs, that the safe exposure level for LFA
transmissions for all marine life is 180 decibels.
Sounds at 180 dB are almost 1,000 times more intense than
sounds at 155 dB. From the SRP, we know that baleen whales
exposed to low frequency sounds of up to 155 dB in the short
term changed their vocalization rates, deviated from migratory
paths, displaced themselves from breeding grounds, and
lengthened mating songs.
There is no way, from these results, that anyone can
conclude that exposure to sounds almost 1,000 times more
intense will have no greater effect, especially over the long
term. To conclude that the effect of such exposure will be
negligible is arbitrary.
My third point addresses the comparison between mid-
frequency sonars and LFA. The Navy and NMFS have dismissed as
speculation the possibility that the mass stranding of beaked
and baleen whales in the Bahamas was not an isolated event, yet
as noted in Dr. Whitehead's testimony, of the six known mixed
species mass strandings involving beaked whales before the
Bahamas, all six occurred in proximity to naval maneuvers.
These are remarkable statistics. These correlations are not
proof that active sonars kill beaked whales, but I would like
to point out that the results of the SRP are not proof that LFA
is benign, either.
The Navy, NMFS, and some witnesses here today believe that
comparing mid-frequency sonars to LFA sonar is like comparing
apples to oranges. I believe it is more a matter of comparing
apples to apples, a difference in degree, not kind.
My fourth point is regarding resonance effects. The HSUS
notes that there is virtually no discussion in the SURTASS LFA
documentation of the potential for resonance impacts on marine
mammals exposed to low frequency sound. These are physical
effects that cause reverberations in air-filled cavities,
tissues and organs of marine animals. The common analogy is a
wine glass shattered by an opera singer, so we are talking
about tissue rupture.
As I am not a bioacoustician, I merely wish to point to
this issue as one of serious and legitimate concern. I urge the
Subcommittee to explore this issue further with members of this
panel, but also that members approach additional experts in
bioacoustics, oceanography and the physics of sound, in order
to receive a full picture of the potential negative impacts on
marine life from resonance impacts of LFA.
Finally, the MMPA requires that NMFS set forth regulations
for monitoring and reporting of authorized incidental takes.
The purpose of this provision is to verify that the activity in
question is in fact having only negligible impacts on marine
mammal species and stocks.
As there are no empirical data on the impact of LFA
transmissions on marine mammals at exposures greater than 155
decibels, the impact of exposures between 155 and 180 dB is
inarguably uncertain. Therefore, monitoring marine mammals
between 155 and 180 dB is not only legally required but
scientifically imperative. Despite this, there is no proposal
to require monitoring or reporting of takes at exposures below
180 dB, thus violating the letter and the intent of the MMPA.
In conclusion, The HSUS believes that the results of the
SRP and other research have been overinterpreted and
inappropriately applied to all marine species. We believe that
there is compelling evidence that operational deployment of LFA
will in fact have significant negative impacts on the marine
environment, especially in conjunction with LFA-like sonars
that are being developed in other nations. We also believe that
NMFS's proposed rule violates the MMPA.
Thank you for allowing me to testify today, and I would be
happy to answer any questions.
[The prepared statement of Ms. Rose follows:]
Statement of Naomi A. Rose, Ph.D., Marine Mammal Scientist, the Humane
Society of the United States
Good day. My name is Naomi Rose and I am the marine mammal
scientist for The Humane Society of the United States (HSUS). On behalf
of our more than 7 million members and constituents, I wish to thank
you, Mr. Chairman and members of the Subcommittee, for inviting me to
testify on this panel addressing the US Navy's use of Surveillance
Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) sonar. I
very much appreciate the opportunity this hearing provides to have all
views on this controversial technology presented to this Subcommittee.
BACKGROUND
The HSUS has been involved in the issues surrounding the Navy's use
of SURTASS LFA sonar since the existence of this technology first
became public knowledge in 1995. Along with the Natural Resources
Defense Council and Cetacean Society International, The HSUS has from
the beginning followed the Navy's National Environmental Policy Act
(NEPA) process, which resulted in the publication of a final
Environmental Impact Statement (EIS) in January 2001. I have attended
numerous meetings and presentations by the Navy and have participated
in numerous discussions and debates on this controversial technology. I
also spent three days in 1997 on the Cory Chouest, the Navy research
vessel currently carrying the one operational SURTASS LFA sonar system,
when it hosted a civilian contingent of interested parties during Phase
I of the Navy's Low Frequency Sound Scientific Research Program (LFS
SRP). The HSUS submitted extensive comments on the Navy's draft EIS and
on the National Marine Fisheries Service's (NMFS) proposed rule for a
small take exemption during use of SURTASS LFA sonar during peacetime.
Throughout the NEPA process, The HSUS has consistently pointed out
the limitations of any research carried out under the LFS SRP. While
this research was a reasonable beginning, it was never designed to
adequately inform the NEPA process--the results from the LFS SRP were
clearly incapable of providing adequate information to make careful
management decisions or to conclude that the use of LFA sonar would
have negligible impacts on marine life. A study of far greater scope,
both in terms of species examined and years pursued, would be necessary
before any solid conclusions regarding significant impacts could
possibly be made. Nevertheless, the Navy, NMFS, and some witnesses on
this panel have in fact concluded that LFA sonar, operated under the
mitigations proposed in the final EIS and proposed rule, is to all
intents and purposes risk-free.
It is germane to point out that the Navy (and most scientists)
thought the same thing, based on about the same amount of information,
about the use of mid-frequency sonars prior to the mass stranding of
beaked and baleen whales in the Bahamas in March 2000 as a result of
exposure to standard mid-frequency tactical sonars during a routine
Naval exercise. The Navy and others have stated that active sonars have
been operating for decades in the ocean without harming marine mammals,
but this is not accurate. These sonars have been operating without any
observed or causally-linked harm to marine mammals. It is quite
possible, in fact, that standard active sonars have been harming and
killing marine mammals for decades and nobody noticed because nobody
was looking--until now.
The bottom-line is simple--we do not know enough about marine
mammal hearing (let alone that of fish and invertebrates) and the
impacts of loud, low frequency sound on their ears and other organs to
conclude that the operational use of LFA sonar would be harmless. Yet
this is precisely what the Navy and NMFS have concluded. In fact, we do
know enough to suspect strongly that it will be harmful--precautionary
management compels us to at least delay deployment of this technology
until we have a better understanding of its potential impacts. In fact,
all active sonars should be re-examined in light of the growing
evidence that their use is hazardous to beaked and baleen whales.
Today I would like to address the following points: 1) concerns
with the LFS SRP; 2) the 180 dB criterion for ``safe'' exposure to LFA
transmissions; 3) the comparison of observed impacts on beaked and
baleen whales from exposure to operational levels of mid-frequency
sonars to potential impacts on marine mammals from exposure to
operational levels of LFA sonar; 4) the potential for harmful resonance
effects from exposure to LFA transmissions; and 5) concerns with the
requirements for monitoring and reporting ``takes'' in the NMFS
proposed rule.
1. LOW FREQUENCY SOUND SCIENTIFIC RESEARCH PROGRAM RESULTS
The LFS SRP examined certain short-term behavioral responses of
four species of baleen whales to playbacks of LFA transmissions
transmitted at sound pressure levels (SPLs or volumes) greatly reduced
from operational levels. In all three Phases of the program, focusing
on feeding, migrating, and breeding baleen whales, behavioral responses
were observed, ranging from short-distance displacement to reduced
vocalization rates. While most whales resumed previously observed
behaviors soon after transmissions were discontinued, no long-term
observations were made of individuals exposed to the playbacks. No
whales were exposed to SPLs greater than approximately 155 dB re 1 mu
Pa.
The SRP scientists concluded that exposure to low frequency sound
below 155 dB did not appear to have any short-term biologically
significant impacts on whales. Appropriately for this limited work,
this is a limited conclusion. The team cautioned that these results
were preliminary and of limited application. In subsequent
publications, certain team members indicated some concern about LFA
sonar, concluding that behavioral changes observed during playbacks of
LFA transmissions ``might affect demographic parameters or [they] could
represent a strategy to compensate for interference from the sonar.''
<SUP>1</SUP> In none of their publications did SRP team members
conclude that exposure to operational levels of LFA sonar would have no
significant biological impact on cetaceans (let alone all other marine
animals). This sweeping conclusion was found solely in the Navy's final
EIS (and then copied in NMFS' proposed rule), although the EIS points
to the SRP results for support.
---------------------------------------------------------------------------
\1\ Miller, P.J.O., N. Biassoni, A. Samuels, an P.L. Tyack. 2000.
Whale songs lengthen in response to sonar. Nature 405:903.
---------------------------------------------------------------------------
None of the LFS SRP playback experiments could disprove an
alternative hypothesis--that feeding, migrating, and breeding are so
important to blue, fin, gray, and humpback whales that exposure to
reduced levels of LFA sonar noise is an insufficient stimulus to cause
them to abandon these behaviors. In short, perhaps all the whales in
these experiments were negatively impacted--perhaps they were partially
deafened--but they nevertheless chose to continue their vital life
processes. No one can say if this conclusion is any more or less the
truth than the Navy's conclusion that there was no negative impact. If
adequate prey are few and far between, predator-free migratory
corridors narrow, or safe breeding sites limited, then the introduction
of a source of noise pollution, however damaging, may be a minor
consideration for these animals. This sort of decision-making, weighing
pros and cons, occurs constantly in many species, including human
beings. <SUP>2</SUP>
---------------------------------------------------------------------------
\2\ For example, humans often knowingly remain (with little
behavioral modification) in injurious situations, when livelihood or
housing demands require (e.g., coal miners risking black lung because
the mines are a region's only viable employer; poor families living in
marginal neighborhoods with environmental hazards because it is the
only affordable housing).
---------------------------------------------------------------------------
Ultimately, the Phases of the LFS SRP were designed to test a
single and simple hypothesis: ``It is doubtful that many marine mammals
would remain for long in areas where received levels of continuous
underwater noise are 140+ dB at frequencies to which the animals are
most sensitive.'' <SUP>3</SUP> The results of the LFS SRP disproved
this hypothesis up to 155 dB. Very little else was accomplished and
certainly the hypothesis that LFA transmissions will have a negligible
impact at 180 dB was not proved (nor was any evidence provided to
support it). Science does not in fact prove hypotheses. It disproves
hypotheses. Scientists make progress when studying complex subjects by
eliminating hypotheses that are narrow in scope, approaching the
``truth'' incrementally. The Navy's impatience with the scientific
process has been apparent throughout the NEPA process, making its claim
that its EIS conclusions are based on sound science especially
troubling.
---------------------------------------------------------------------------
\3\ This hypothesis can be found on p. 369 of Richardson, W.J.,
C.R. Greene, jr., C.I. Malme, and D.H. Thomson. 1995. Marine Mammals
and Noise. Academic Press, San Diego. 576 pp.
---------------------------------------------------------------------------
Finally, as a representative for The HSUS, I attended the May 1997
meeting in Boston at which the LFS SRP was first substantially
discussed. I state for the record that my recollection of how species
were selected differs from what is described in the Navy's final EIS
and in NMFS' proposed rule. While the group generally agreed that the
four baleen species selected were likely to be among the most
vulnerable to LFA transmissions, the group also agreed that sperm
whales and beaked whale species were of equal concern. The sperm whale,
in fact, was included in Phase III of the SRP, but in the end no data
were collected on sperm whales because none were observed during the
study period. Beaked whales were not included solely due to logistical
constraints. In addition, the Boston discussion clarified that the four
baleen species were selected as much for their accessibility and the
likelihood of collecting sufficient data as because they were
considered representative models for other baleen whales. Given the
subsequent mass stranding of beaked and minke whales in the Bahamas in
March 2000, after exposure to active sonars used in routine Naval
maneuvers, clearly beaked whales continue to belong on the list of
species potentially most vulnerable to LFA transmissions. The evidence
from the Mediterranean <SUP>4</SUP> and the Bahamas suggests strongly
that SPLs lower than 180 dB for mid-frequency and low frequency sounds
could have lethal effects on several species of beaked (and possibly
baleen) whales, over a relatively large geographic area. The essential
failure of the final EIS or the proposed rule to take these incidents
(as well as other beaked whale strandings coincident with naval
exercises in the Canary Islands and elsewhere <SUP>5</SUP>) and as-yet-
unavailable results from on-going investigations into account when
determining if SURTASS LFA sonar will have only negligible impacts on
marine mammals violates the ``best scientific information available''
standard of the MMPA.
---------------------------------------------------------------------------
\4\ Frantzis, A. 1998. Does acoustic testing strand whales? Nature
392:29. This article concluded that a 1996 mass stranding of beaked
whales along the Greek coastline after a NATO naval exercise testing a
low to mid-frequency sonar was highly unlikely to be unrelated to this
testing.
\5\ International Whaling Commission. 2001. Report of the Standing
Committee on Environmental Concerns, Appendix J. J. Cetacean Res.
Manage. 3(suppl):255.
---------------------------------------------------------------------------
2. THE 180 dB CRITERION FOR ``SAFE'' EXPOSURE TO LFA TRANSMISSIONS
None of the whales in the LFS SRP were exposed to sounds greater
than 155 dB. Yet the Navy has determined, and NMFS concurs, that the
``safe'' exposure level for LFA transmissions for all marine life is
180 dB. This SPL corresponds to a distance approximately 1 km from the
LFA sonar sound source; that is, animals approximately 1 km from the
transmitting SURTASS LFA sonar vessel would hear the sound at an SPL of
approximately 180 dB. I believe not coincidentally, this distance also
corresponds to a distance that trained marine mammal observers can
reliably spot and identify surfacing marine mammals from a ship whose
deck is relatively high off the water.
It is difficult for humans not accustomed to dealing with acoustics
to grasp the leap in intensity (not necessarily in perceived volume,
but in acoustic energy) from 155 dB to 180 dB. Sounds at 180 dB are
almost 1000 times more intense than sounds at 155 dB. From the LFS SRP,
we know that baleen whales exposed to low frequency sounds up to 155 dB
changed their vocalization rates, deviated from their migratory paths,
displaced themselves from one coastal area to another while engaged in
breeding behavior, and lengthened their mating songs. These were all
observable, short-term behavioral changes. There is no way from these
results that anyone can conclude that exposure to sounds almost 1000
times more intense will have no greater effect, particularly if these
effects are difficult or even impossible to detect without closer
observation (for example, hearing damage) or only become apparent in
the longer term. In fact, there is no way to conclude from these
results what effect such exposure would have on these whale species--to
conclude that the effect will be negligible is simply arbitrary.
There are very few empirical data on the impact of low frequency
sound on marine mammals above 155 dB. The studies done to date examined
species held easily in captivity--dolphin and small whale species and
seals and sea lions. The applicability of these results to beaked or
baleen whales is completely speculative. The establishment of 180 dB as
the exposure level beyond which serious injury or even death is likely
to occur in beaked and baleen whales, based on anatomy and other
aspects of biology and physics, is indeed only educated guesswork. If
the Navy and NMFS are going to rely on speculation to guide their
management decisions, then they must do so without prejudice.
3. MID-FREQUENCY ACTIVE SONAR VS. LOW FREQUENCY ACTIVE SONAR
The Navy and NMFS have dismissed as mere speculation the
possibility that marine mammals suffering temporary hearing loss may be
more susceptible to predation or ship strike because they may not hear
predators or ships until it is too late to initiate avoidance. Yet such
a speculation is merely common sense. They have also dismissed as
speculation the possibility that the mass stranding of beaked and
baleen whales in the Bahamas in March 2000 was not in fact an isolated
event. Indeed this is true--an educated speculation based on some
compelling evidence. As noted in other testimony, of the seven now-
known mixed species mass strandings involving at least one species of
beaked whale, all seven occurred in proximity to naval maneuvers. This
is a remarkable statistic. Eight out of 49 mass strandings of Cuvier's
beaked whale have also occurred in proximity to naval maneuvers,
including the stranding along Greece's coastline after a NATO naval
exercise testing a low frequency sonar. These correlations are not
proof that active sonars kill beaked whales--but the results of the LFS
SRP are not proof that LFA sonar is safe either. The seven-out-of-seven
statistic is certainly strongly suggestive--suggestive that in the
presence of naval acoustic activities and perhaps under specific (but
not necessarily uncommon) oceanographic conditions, beaked and baleen
whales are impacted in a way that causes them, if land is nearby, to
strand and die.
The Navy, NMFS, and some witnesses here today believe that
comparing what happened with mid-frequency sonars in the Bahamas to
what may happen with LFA sonar is premature and even baseless. I have
often heard the phrase ``comparing apples and oranges.'' I believe it
is more a matter of comparing two different varieties of apples--in
other words, the two situations are different in degree, not kind. In
my opinion, what is a matter of apples and oranges is establishing a
``safe'' exposure level for marine mammals (based on mere speculation)
of 180 dB while establishing a ``safe'' exposure level for humans
(based on empirical studies of the effect of LFA transmissions on Navy
divers) of 145 dB. Interestingly, the 145 dB criterion is based on a 2%
``very severe aversion reaction'' standard. Thus human divers are
protected at a 2% level based on psychological impact (i.e., it is
assumed that 2% of divers will be affected psychologically when exposed
to 145 dB), while marine mammals are protected at a 95% level based on
physiological impact (i.e., it is assumed that 95% of marine mammals
will be affected physiologically--will suffer temporary hearing loss--
when exposed to 180 dB). Claiming that an exposure level (to anything,
whether it is oceanic noise or arsenic in drinking water) that will
physiologically affect 95% of individuals is ``safe'' is counter to
virtually all human safety standards, where a 5% ``will affect'' level
is more commonly accepted and used. The Navy and NMFS have selected
this far less protective standard for marine mammals despite the fact
that marine mammals are more dependent on sound and more likely to be
exposed to LFA transmissions than human divers.
4. RESONANCE EFFECTS
The HSUS notes that, despite the recommendations of a number of
scientists, there is minimal discussion and no substantive
consideration in any of the SURTASS LFA NEPA or MMPA documentation of
the potential for resonance impacts on marine mammals exposed to low
frequency sound. These are physical effects that do not necessarily
damage hearing but instead cause reverberations in air-filled cavities,
tissues, and organs of marine animals--the common analogy is to a wine
glass shattered by an opera singer's high C. In fact, in several
instances in the various NEPA and MMPA documents, the primary and even
sole impact of concern is identified as auditory effects, despite
increasing evidence that perhaps the primary impact of concern should
be non-auditory effects. As I am not a physicist or a bioacoustician, I
merely wish to point to this issue as one of serious and legitimate
concern. The Subcommittee can explore this issue further with members
of this panel, but The HSUS recommends that members approach additional
experts on bioacoustics, oceanography, and the physics of sound in
order to receive a full picture of the potential negative impacts on
marine life from the resonance effects of LFA and other active sonar
transmissions.
5. MONITORING AND REPORTING ``TAKES''
The MMPA requires that NMFS set forth regulations on the
``requirements pertaining to the monitoring and reporting of [the
authorized incidental takes of small numbers of marine mammals].'' The
Marine Mammal Commission has noted that the purpose of this provision
is to verify that the activity in question is in fact having only
negligible effects on marine mammal species and stocks. As there are no
empirical data on the impact of LFA transmissions on marine mammals at
SPLs greater than 155 dB, the impact of exposures between 155 dB and
180 dB is inarguably uncertain, regardless of ``reasonable''
assumptions, educated speculation, or empirical data using other sound
sources, frequencies, and species. Therefore, monitoring marine mammals
exposed to SPLs between 155 dB <SUP>6</SUP> and 180 dB is not only
legally required but scientifically imperative.
---------------------------------------------------------------------------
\6\ Monitoring impacts at exposures of 155 dB as a lower limit is a
minimum requirement--even better would be to set the lower limit for
monitoring below 155 dB, down to the current ``safe'' level of 120 dB,
in order to collect data seeking to verify the assumption that only
harassment and non-serious injury occur between 120 dB (0% risk) and
180 dB (95% risk).
---------------------------------------------------------------------------
Despite this requirement, the Navy does not intend and NMFS is not
proposing to require monitoring or reporting of takes at exposures
below180 dB, thus violating the letter and intent of the MMPA. The
proposed mitigations are based entirely on the assumption that no takes
other than harassment and non-serious injury will occur at exposures
below 180 dB. Thus the Navy has requested authorization to take small
numbers of marine mammals by harassment and non-serious injury only. By
the Navy's (and NMFS') own definition, these takes will occur between
120 dB and 180 dB (0% risk to 95% risk, respectively). Yet there is no
proposed real-time monitoring or reporting of impacts of LFA
transmissions below 180 dB exposures.
A long-term monitoring program plans to provide annual estimates of
the number of animals injured and harassed (for example, through
coordinating with stranding networks), but given the lack of monitoring
below 180 dB, it is difficult to see how these estimates will be other
than pure guesswork. Stranding records are unlikely to provide direct
evidence of cause, unless qualified marine scientists are on-site
during a stranding event to conduct necropsies on fresh specimens (as
in the Bahamas incident; however, this co-occurrence of a qualified
scientist and stranded whales was a highly unusual event). Therefore
the Navy will have few or no data with which to comply with its
obligation (and plan) to 1) provide actual annual harassment and non-
serious injury estimates; 2) verify the estimates predicted from
modeling; or 3) verify its assumption (with all the attendant
uncertainties) that no serious injuries or deaths will occur between
120 dB and 180 dB.
The Navy's risk analysis assumes that 2.5% of exposed animals will
be harassed or non-seriously injured at 150 dB, 50% at 165 dB, and 95%
at 180 dB. If these assumptions are valid, there could be extremely
large numbers of marine mammals harassed or non-seriously injured by
LFA transmissions. However, given that there will be virtually no
monitoring of marine mammals exposed to SPLs lower than 180 dB, it will
be impossible for the Navy to ground-truth these assumptions. Should
these assumptions be invalid and should even greater percentages of
exposed animals be harassed and non-seriously injured or any
percentages be seriously injured or killed at exposures below 180 dB,
the monitoring requirements as proposed will be unlikely or unable to
determine this.
In fact, the monitoring program in the proposed rule (specifically
the pre-transmission monitoring for the presence of marine mammals and
sea turtles) is designed to exclude marine mammals from the predicted
``serious injury and death'' impact zone within the 180 dB sound field
surrounding the LFA sonar sound source. The monitoring is not designed
(in violation of law) to record what actually happens to marine mammals
within the predicted ``harassment and non-serious injury'' impact zone
between 120 dB and 180 dB. The monitoring program as presented is, in
fact, a mitigation measure, whereas the MMPA sets mitigation and
monitoring apart as two separate requirements. Therefore, the Navy's
(and NMFS') monitoring program will violate the MMPA if implemented as
proposed.
CONCLUSION
The Navy and NMFS not only consider LFA sonar safe to deploy
operationally, they consider an exposure level of 180 dB for low
frequency sound to be safe for all marine life. I cannot emphasize
enough that there is NO empirical evidence supporting this conclusion
for beaked or baleen whales (or for sea turtles, fish, and
invertebrates) and the evidence from studies on other whale and dolphin
species, as well as for seals and sea lions, is at best preliminary and
of limited applicability, due in part to small sample sizes, the use of
sounds that differ in several characteristics from LFA transmissions,
and the non-ideal acoustic environment of the experiments. If it is
appropriate to apply this limited research evidence in support of a 180
dB ``safe'' exposure level to species with different hearing
capabilities and a sound source with different acoustic properties,
then it should be equally appropriate to apply the evidence for
negative impacts of sonar use from incidents involving mid-frequency
sonars to the operational use of LFA sonar. It is inconsistent and
biased to allow apples to be compared to oranges only when it promotes
LFA sonar deployment.
The HSUS believes it is premature to conclude that LFA sonar is
benign. We believe that the results, preliminary and limited in nature,
of the LFS SRP and other research have been over-interpreted and
inappropriately applied to all marine species. We believe that there is
compelling evidence that operational deployment of LFA sonar,
especially in conjunction with LFA-like sonars being developed in other
nations, will in fact have significant negative impacts on the marine
environment, most of which may not become apparent for years and even
decades. We also believe that NMFS' proposed rule is in violation of
the MMPA.
I once again thank the Subcommittee for allowing the differing
views surrounding this controversial technology to be voiced in this
hearing.
______
Mr. Gilchrest. Thank you, Dr. Rose.
Dr. Fristrup. Have I pronounced that right, sir?
STATEMENT OF KURT FRISTRUP, BIOACOUSTICS RESEARCH PROGRAM,
CORNELL LABORATORY OF ORNITHOLOGY
Mr. Fristrup. Better than many of my colleagues. Fristrup.
My name is Kurt Fristrup. I work at the Cornell Bioacoustics
Research Program, the Laboratory of Ornithology, and I would
like to begin by affirming my unequivocal support for the MMPA.
I think it is absolutely imperative. It has been one of the
most important vehicles for marine conservation for the last
two decades, last several decades.
And I think that in the absence of definitive information,
the MMPA's requirement that environmental impact assessments be
based on conservative assumptions is also a critical feature of
the document, even though it sometimes results in what seems
like an onerous regulatory burden. I think that the requirement
for a conservative assumption is good for two reasons.
The first is that many biological changes are irreversible.
The loss of a species through extinction is one obvious
example, but there is increasing evidence that marine
environments can undergo irreversible ecological shifts if
perturbed sufficiently, and there is no question that human
activities, fishing among them, are introducing fairly
significant impacts on marine environments.
But the second excellent reason why we should maintain this
regulatory requirement for conservative assumptions is that it
encourages the stakeholders, the applicants for permits, to
conduct or promote research that will remove significant
sources of ignorance and therefore ease their own regulatory
burden. That is to say, it encourages the very people who need
to apply for permits to promote the process that we would use
to understand better what the problems are in the ocean, and
help us devise more intelligent regulatory procedures. It helps
bring them into this process of learning more about how the
ocean works.
Now, you have asked me as a scientist to try and tell you
what we know about the potential impact of LFA, and as
scientists we are going to be most comfortable when we talk
about the results of repeatable, controlled experiments. We
will be moving onto less sure ground when we talk about
numerical models, where we don't have real data but we can
specify what our assumptions are, and given those assumptions,
what the results turn out to be.
And in the absence of those kinds of information, we have
to resort to things like pointing out anecdotal information
that is suggestive, or we guess, and we sometimes dress up our
guesses as theories. I think it should be obvious to all of you
that when you are making decisions that have wide-ranging
impacts, the first two kinds of evidence should always be
preferred.
Now, regarding the LFA SRP, it was patently obvious 5 years
ago that no team of scientists could possibly study every
species everywhere. There was no chance that all possible
impacts could possibly be determined. What happened was a
relatively public process of trying to identify which species
were the most likely to be at risk, and then to put in place
the best program that could be done to study the reactions of
those animals to controlled exposures of these sonars.
That process resulted in the SRP which did focus on four
species of baleen whales, but also monitored through surveys
the responses of another dozen or more species of marine
mammals that happened to be in the same areas. And I can
emphasize that there were more than 30 biologists involved in
the SRP, even though three or four of us wound up taking the
prominent speaking roles.
And it was conspicuous that during all three phases, none
of those independent researchers reported a behavioral response
that would have triggered us to stop the experiment. We had all
kinds of protocols in place that would call for suspension of
the experiments upon any acute behavioral response. The
striking thing for those of us who expected to see a result was
that there were no repeatable responses observed on the water.
Now, a lot, many, many man-months of patient statistical
effort has allowed us to pull out some consistent responses, or
I should say some statistically average responses to exposure
to this sound. For example, humpback whales off Hawaii, which
sang songs in 1997 or 1998 that were about 13.5 minutes long,
showed a change in average song length of about 40 seconds in
response to LFA exposure, and there were many other interesting
aspects of that response, but it is much smaller than the song-
to-song variance of the same whale, of any individual whale
song.
That is to say, any one singer would change the length of
its song by 2.5 minutes, on average, song-to-song, and yet the
response to the Navy sonar was on the order of 40 seconds. This
is precisely why it is so difficult to document responses to
these sonars. They wound up being smaller than we expected, and
especially small in range of stimulation to the natural range
of behavior for these animals.
With these results in hand, we then tried to model the
potential responses for operational impacts, and that involved
the most extensive acoustic modeling effort I am aware of for
this kind of environmental impact measurement. Those models,
combined with risk function analysis which explicitly
recognizes the potential impact in between 155 and 180 dB, are
what went into the final report, the final environmental impact
statement that tries to provide a prudent, conservative
estimate of the potential impact of Navy LFA operations.
Thank you.
[The prepared statement of Mr. Fristrup follows:]
Statement of Kurt Fristrup, Bioacoustics Research Program, Cornell
Laboratory of Ornithology
My educational and career choices were motivated by an abiding
interest in science, conservation and education. The issues before us
at this hearing, and the divergent opinions we will hear, will be most
effectively resolved if our actions incorporate contributions from all
three disciplines. The rational formulation of environmental policy
must be based on scientific conservation, but it is imperative that we
contemplate public education in this process. In addition to the need
for an informed electorate, enduring efforts to monitor and conserve
natural resources achieve the greatest success when the majority of the
affected population adopts these commitments as their own.
General remarks concerning the MMPA and sound
Marine mammals are the subject of intense popular interest and
concern, so the MMPA reflects a societal priority. However, effective
environmental conservation requires that we focus on the ecological
justification for special regulations pertaining to Marine mammals,
without being distracted by popular sentiments or misconceptions. As
large-bodied predators at the top of the marine food chain, marine
mammals can be used to gauge the status of broad assemblages of marine
resources.
Marine mammals are important indicator species for the``heath of
the world's oceans. There are about 100 species of marine mammals, and
they have a substantial effect on global ocean ecosystems. For example,
a rough estimate of the annual consumption of fishes and squids by
sperm whales alone (1.5 million whales at 200 kg/day translates to
approximately 100 million metric tons per year) is equivalent to the
global annual production of human fishing efforts. Marine mammals must
regularly surface to breath, and many of their sounds can be detected
at ranges from tens to hundreds of miles. Among all marine organisms,
they offer us unique opportunities to detect and observe them.
For marine environments, the sounds of human activities are
especially pervasive. At all frequencies, the absorption of sound
energy by seawater is more than 100-fold less than the absorption of
sound by air. The changing physical properties of seawater with depth,
and the reflective properties of the surface and ocean bottom, often
create channels for very efficient sound transmission. A sound,
especially a low frequency sound, can be audible at very long ranges
from its source.
Hearing is critical for all vertebrates. It is an omnidirectional
sense. No vertebrate species are known to be deaf; in contrast, many
blind species of fish, amphibians, reptiles, and mammals have been
documented. Animals are able to determine the direction to a sound
source, and often the distance as well. For marine mammals, the spatial
scale of their acoustical awareness may span tens or hundreds of miles.
These general considerations would lead us to predict that marine
mammals would react to the sounds of human activities. This expectation
has been confirmed many times by studies of a range of species in
differing environments. In addition to these universally acknowledged
facts, the need to protect marine mammal stocks from substantial losses
due to Navy sonar operations is recognized by all interested parties
(NMFS, Navy, academic scientists, environmental advocates). The
disagreements arise from attempts to translate behavioral reactions to
risk.
Scientifically documenting the link between observed behavioral
reactions and risks to survival or reproduction is challenging. A
seamless chain of empirical evidence will never be available.
Therefore, every environmental analysis should clearly specify the
entire deductive process used to translate behavioral reaction into
risk.
The most likely means of deducing risk will involve explicit
consideration of time or energy budgets. For time budgets, we might
determine the duration of a disturbed behavior pattern upon exposure to
a set of sounds, and express this as a fraction of the total
opportunity perform the normal behavior. For energy budgets, we might
determine the reduction in foraging success or the increase in energy
expenditure due to the changed behavior, as a fraction of the animal's
daily or annual energy budget. The remaining component of this
deductive process would be an estimate of the reductions in survival
probability or mating success due to this fractional loss of energy or
opportunity.
The choice between time or energy budgets for estimating risk must
focus on, the more likely limiting factor. For example, some
opportunities for reproduction may be quite fleeting, and the energy
expended in these efforts may be modest. In these cases, a time budget
must be preferred. Environmental risk assessment must reflect our best
knowledge about the critical environmental factors affecting the health
of populations.
This approach to environmental regulation has the advantage that
effort can- be effectively invested in critical areas by dismissing
cases of negligible impact. Animals may exhibit brief changes in
behavior to any perceivable stimulus. If it can be persuasively
demonstrated that these momentary shifts in attention and activity are
insignificant in relation to both the time and energy budgets of these
animals, then these reactions do not constitute an environmental risk
that merits regulation.
My remarks have focused upon behavioral reactions, because for
almost all sound sources the risk of injury will be confined to a very
small number of individuals (if any). The best evidence, culled from a
wide variety of sources, suggests that permanent shifts in hearing
thresholds will occur at sound levels that are limited to a range of
several hundred meters from our loudest sound sources. Permanent damage
to hearing almost certainly occurs at lower sound levels than damage to
any other tissues. In order for the risk of injury to apply to a
significant fraction of a population, the distribution and-movements of
the animals would have to be very concentrated relative to the position
and movement of the sound source. Given the spatial extent of most
marine mammal populations, very few cases raise this concern.
Here I must also emphasize that in terms of risk of death there is
no distinction between behavioral reactions and injury. A severe flight
or panic reaction to a sound can cause animals to fatally strand on
shore.
I close this section with a conundrum for environmental
conservation. The irreversible nature of many environmental impacts
motivates a cautious approach to assessing risk. Environmental impact
assessments are required to incorporate plausible, worst-case
assumptions. Thus, with complete' knowledge we should obtain less
severe assessments of environmental impact than we are obligated to
make when there are data gaps. This realization may encourage some
environmental advocates to believe that it is in their best interests
to inhibit environmental research or dismiss its findings. This
strategy will be especially attractive to environmental activists who
mistrust the scientific and federal policy processes.
None of us should question the requirement for conservative bias in
environmental risk assessments. However, the potential for strategic
abuse of these statutory requirements would be greatly reduced by more
effective public education regarding environmental policy. This means,
for example, that public hearings regarding policy should invest
serious effort in providing a forum for education and discussion in
parallel with their mission to solicit public comment.
A simple, effective mechanism for public education would to arrange
for poster sessions. to run concurrently with hearings, in an adjacent
room. Individuals, interest groups, regulators, and concerned
commercial or federal organizations would be invited to display their
views and informally discuss them with visitors. Citizens who come to
comment would not have to sit passively listening to other people's
comments, but could circulate in the poster area and participate in
informal discussions.
I suggest this based on my personal experience at NMFS public
hearings regarding their LFA permit decision. Many intelligent and
concerned citizens showed up, but their comments were all too easy to
dismiss because they were misinformed about undisputed facts. The
formal public comment sessions often degenerated into showy displays of
antagonism and emotion. However, at these same hearings I enjoyed many
thoughtful and constructive conversations in the hallways. People were
hungry for facts, and open to new ways of thinking. When these informal
discussions ended with differences of opinion, it was always much
clearer what the basis for disagreement was.
In my experience, better understanding of natural systems has
allowed us to focus on critical environmental questions, and implement
less onerous protective regulations. Environmental research may also
reveal a new class of problems that had not been recognized previously,
and it will always be less expensive to remedy such problems when they
are detected early. Better information is essential for efficient
environmental management and developing a lasting consensus regarding
the conservation of biodiversity. History conclusively demonstrates
that ignorance has never favored the preservation of natural habitats.
Reactions of marine mammals to LFA sonar
The LFA SRP was preceded by several studies showing that that
baleen whales avoided industrial noise sources. Studies of several
species demonstrated changes in movements related to sounds at received
levels between 115 and 125 dB relative to an underwater sound pressure
level of 1 Pa (this common received level reference will be omitted
hereafter). Speaking in relation to the potential for hearing loss,
Richardson of al. 1995 (Marine Mammals and Noise, p. 369) stated: ``It
is doubtful that many marine mammals would remain for long in areas
where received levels of continuous underwater noise are 140+ dB at
frequencies to which the animals are most sensitive.'' Based on these
results, simple calculations indicated that LFA could affect huge areas
of marine habitat. The U. S. Navy funded a Scientific 'Research Program
(LFA SRP) to address critical gaps in our ability to predict the
responses of marine animals to this sound source. In early 1997, the
Navy sponsored meetings at which a collection of independent scientists
and environmentalists identified the most promising opportunities for
filling these data gaps. Three field projects emerged from these
deliberations, and approximately 60 researchers participated in the
resulting data collection.
Given the expectation that LFA signals could evoke acute behavioral
reactions, a wide range of research protocols were adopted by the LFA
SRP to ensure that none of the free-ranging animals understudy could be
permanently affected by the experiments. Foremost among these
precautions were commitments to ensure that no experimental animal
would receive LFA signals at levels exceeding 160 dB, and that no
animals within 3 nautical miles of shore were exposed to received
levels exceeding 140 dB. Observational protocols called for suspension
of LFA broadcasts when any member of the research team witnessed an
acute reaction.
The three field programs of the LFA SRP generated enormous volumes
of data, which are still being analyzed. Focal studies of individual
animal behavior were conducted with received levels ranging from 125 dB
to 155 dB. The most immediate and striking observations were the
failure to observe any obvious response during the experiments., In
terms of behaviors, movements, and the distributions of animals in the
study area, no salient reactions to the LFA broadcasts were noted by
large teams of observers. The reactions we can document emerged after
months of detailed analyses of these data.
For example, after months of detailed analysis we were able to
document that on average, humpback whales changed their song length by
about 50 seconds in response to LFA broadcasts at close range. Humpback
songs are inherently variable in length. Successive songs sung by
individuals differed by 2.5 minutes in length on average, with the mean
song length being 13.5 minutes. We found no association between the
start of transmissions and the end of songs, so humpbacks did not
artificially terminate their songs upon hearing the LFA broadcasts.
However, the response we did measure was contingent on the portion of
the song being sung at the time of the transmission. Humpbacks
sometimes shortened, and sometimes lengthened their songs upon hearing
an LFA broadcast. None of the responses we measured persisted for more
than a few hours after the last transmission.
[GRAPHIC] [TIFF OMITTED] 75640.008
Plot of humpback song length against minutes since last LFA
broadcast. The line indicates the best fit, after accounting for
seasonal, diurnal, and source level factors. The points in the
neighborhood of 1000 minutes and beyond serve as the control measures
here; the apparent anomaly for the rightmost five points is an artifact
of small sample size.
[GRAPHIC] [TIFF OMITTED] 75640.009
Tracks of migratory gray whales observed from shore stations (two
dots above and left of the center of the plots). A 185 dB re 1 mu PA at
1 m sound source (single dot amidst the track lines) was moored in or
near the migration corridor. Panels on the left represent tracks when
the source was off, panels on the right represent tracks when the
source was on. Note that the reaction to the source disappeared when it
was moored farther offshore.
This gray whale experiment was modeled on an early study that
helped establish the original 120 dB received level guideline that NMFS
used to identify behavioral harassment from sound exposure. The
original results were confirmed by the results obtained with the source
in the middle of the migration path. The surprising new result was that
this reaction disappeared when the source was moved offshore. This
latter result was strengthened by additional offshore broadcasts at
source levels of 200 dB. Again, no changes in tracks were observed.
This means that the response is not conditioned on received level
alone; it depends on the position of the source relative to the desired
movement pattern of the animal. The failure of offshore animals to
react at all either reflects the importance of other factors like water
depth and distance from shore, or the reduced sensitivity of the
offshore migrating animals relative to those in the migration corridor.
Four baleen Whale species were closely studied in these
experiments, and the distributions of more than ten other species were
documented by visual surveys during two of the field studies. There was
no evidence of a decrease in sighting rates for any species. So, close
behavioral studies of tens of animals, combined with more distant
observations of hundreds of animals, failed to reveal any reaction that
would plausibly cause a significant change in survival or reproduction.
This research decisively demonstrated that the response to these LFA
broadcasts was much less salient than the scientific community had
expected.
These experiments could not resolve all questions, and it will
never be possible to study every species. Although the species we
studied were chosen because scientists judged them most likely to be at
risk, there are other species that merit similar studies to expand our
results. However, there is n 'o new evidence that suggests another
species will exhibit stronger reactions to low frequency sounds than
the species that we studied. These research results have focused
attention on much higher exposure levels, above the levels that were
initially judged safe for our experiments. However, such studies are
not of primary importance for evaluating the environmental impact of
LFA. Extensive modeling has demonstrated that the vast majority of
animals will be exposed to levels below those tested in our experiments
during normal LFA operations.
I want to close with some general observations that have helped me
understand why it is so easy to overestimate the impact of low
frequency sounds on marine mammals. We forget that marine mammals
experience a world of sound entirely different from our own, and with
very different ears. Marine mammal ears must accommodate vastly greater
changes in pressure than we do. Marine mammals also encounter much
louder sounds in their lives than we do. Undersea seismic events
produce enormously powerful sounds, for which the only terrestrial
analog might be an explosive volcanic eruption. It would be rare for a
human to be close to such an eruption, or survive it, but pelagic
marine mammals probably pass by seismically active areas many times in
their lives. Lightning strikes produce extremely loud sounds in air and
water, but these sounds carry much farther underwater. Finally, marine
mammals produce the loudest sounds in the animal kingdom. Their ears
must have evolved to deal with their own sounds, and with the sounds of
their close neighbors.
Another critical difference between our experience and that of
marine mammals results from the relative sizes of our acoustic
neighborhoods. In general, sound carries much farther in the water than
in air. When we hear a sound, we can be sure its source is close enough
to have a potential impact on us. In contrast, all marine mammals can
hear sounds from very distant sources that they will never encounter.
This suggests that marine mammal attention mechanisms must incorporate
the ability to gauge the distance to a sound source, to diminish their
responses to sounds from distant sources that are irrelevant to them.
The LFA SRP probably evoked stronger reactions than will take place
during normal operations in the open ocean. We achieved the same
received levels that animals would experience during normal operations,
but we brought the ship quite close to the animals (with lower transmit
power levels) to do so. Some of the reactions we documented were
probably amplified by the proximity of the source.
The LFA SRP established a high scientific standard for studying and
estimating noise impacts, and significantly advanced our understanding
of marine mammal responses to noise. New questions 'about Navy
operational impacts on marine mammals have arisen, and the LFA SRP
offers a good initial model for the process that should be used to
address the most significant data gaps. I also advocate broadening the
circle of scientists who participate in this research.
The LFA Environmental Impact Analysis
Although the LFA SRP generated an enormous amount of data, and
answered' several critical questions, many areas of uncertainty remain.
This will always be the case, no matter how much time: and effort are
devoted to filling data gaps. This is why I am unsympathetic to general
claims that more time and research -are needed before a decision can be
reached regarding deployment of LFA. As a scientist, I am always
enthusiastic about more research, but I am skeptical then research
alone can ever resolve these disputes. To make a valid claim that more
research is needed, there must be -a-clear specification of how the
data would significantly change our mutual assessment that the system
can be safely operated. As an aside, I cannot imagine how the results
of the LFA SRP could have been any more conclusive in, reducing our
concerns about the system's, environmental impact.
An unprecedented acoustic modeling effort was developed to
translate the LFA SRP results into a cautious estimate of risk to
marine mammals. The LFA SRP data were used to develop a lower bound for
risk of biologically significant disruption of behavior, and realistic
Navy operational scenarios were simulated to estimate the potential
impact on all marine mammals known to occur in those areas.
This LFA environmental impact analysis incorporated several
conservative assumptions.
1. LBaleen whales were used to model responses of all species. Most
other species have much less acute low frequency hearing, and do not
produce low frequency sounds.
2. LModeled operational scenarios were placed at sites where
significant potential for impact on marine mammal populations was
possible. Stock estimates were biased to exaggerate effects.
3. LThe effects of a series of LFA broadcasts were treated as
cumulative, despite the intervals of silence between broadcasts and the
fact that animals would not hear the signals when they were at the
surface.
4. LA 180 dB criterion for the possible onset of injury was
adopted, based on evidence regarding temporary shifts in hearing
thresholds and other precautionary warnings of physiological effects.
5. LThe function describing risk as a function of received level
was steeper than analogous functions derived from empirical studies of
marine mammal behavior.
The aggregate effect of these assumptions is a substantial
overestimate of impact, which, is the prudent approach to uncertainty
and. data gaps. Some of these individual assumptions may fail to be
conservative, but it is very unlikely that the aggregate results would
underestimate risk.
It is crucial to ensure that the cascade of conservative
assumptions does not yield a completely implausible estimate of risk.
The consequence of grossly inflated risk estimates would be wasteful
expenditure of .public capital and mindfulness -on one problem, when
many critical environmental issues go begging. It would also undermine
the legitimacy of the regulatory process, and encourage potential
subjects to avoid regulation at all costs.
I believe that marine noise pollution is a serious problem that
merits comprehensive review. To effectively reduce marine noise levels,
we will need to identify all activities that introduce significant
sound energy in the oceans. We will need to devise equitable measures
for reducing noise production, and ensure that all responsible parties
consistently comply. Anything less will fail to achieve our shared goal
of protecting marine mammals and conserving ocean habitats.
______
Mr. Gilchrest. Thank you very much. I just wanted to keep
interrupting you and ask you a series of questions while you
were talking, but I will wait until everybody is done with the
testimony. Thank you very much.
Dr. Ketten?
STATEMENT OF DARLENE R. KETTEN, ASSOCIATE SCIENTIST, DEPARTMENT
OF BIOLOGY, WOODS HOLE OCEANOGRAPHIC INSTITUTE, AND ASSISTANT
PROFESSOR, DEPARTMENT OF OTOLOGY AND LARYNGOLOGY, HARVARD
MEDICAL SCHOOL
Ms. Ketten. Chairman Gilchrest, ladies and gentlemen, thank
you very much for allowing me to testify and for asking me to
address what I hope will be useful information from my area of
expertise, which is hearing and hearing loss. I am honored to
be here, mostly because I think this is a very important issue,
and I appreciate the fact that the Committee is willing to go
forward with these testimonies.
Hearing is a significant sense, not just because I work on
it. It is indeed perhaps the most universal of senses. There
are many environments in which some sensory cues are lacking;
lightless environments which have inhabitants that are blind.
Sound is universal. There is no environment except deep space
that is without sound, and to the best of our knowledge there
is no vertebrate that does not hear, no naturally deaf animal.
In water, hearing is actually even more important. In
water, sound is the one physical cue that carries over long
distances with coherent information, with little degeneration
or degradation of that signal. Therefore, many aquatic animals
depend primarily for their sensory inputs on hearing.
Consequently, concerns about impacts from particularly
anthropogenic sound--I am from Harvard, I have to use five
syllables--that is, sounds which humans are putting into the
water, are appropriate. They are timely. But they must not be
unbound. I am concerned that we should instead have our
concerns about impacts focused by factual information and by
reason, as Dr. Fristrup has already touched upon.
The Committee hearing is appropriate and it is an important
step forward to that end. There is a great deal of speculation
around LFA in particular, and I would hope that we could start
instead applying the information we do have.
In terms of assessing risk, allow me to give a few basic
bits of information about hearing and about how hearing is
lost. All mammals have the same basic ear. It is designed to
capture, filter and analyze sound.
But, fortunately for people like me that are interested in
other animals, not all ears are synonymous. They are not all
alike. Structures differ in those ears. That makes for
different hearing capacities, different frequencies and
sensitivities, abilities to hear.
Each species differs in what it hears. Each species has an
ear tuned to its habitat, to its needs. It is the ``breed and
feed'' theory of hearing. You have to hear your predators, find
your mates, communicate with other members of your species.
What harms one, for that reason, will not necessarily harm
another. Hearing may overlap, but they are not synonymous.
Sound is universal, as I have said, but hazards from sound are
therefore not universal.
We fortunately know a good deal about how hearing is lost,
in part because it is so important to us. However, we know
about hearing losses primarily from a human perspective. What
we know about animal hearing loss is largely based on
experimental animals that are used as analogs for human
hearing.
We know hearing is lost by disease, that it is lost by
trauma, and it is lost by noise. Some mention has been made
about sound being used to damage other tissues. I would like to
set that aside. That is an extraordinary sound signal. It is
not what we are talking about in terms of received signals from
sonars or other anthropogenic sound.
Whether any one sound, as I have said, is harmful for one
animal or another is actually a combination of three major
factors. The acronym is IFS: intensity; frequency; and
sensitivity, the ability of the animal to hear that signal. It
has been said that even if you can't hear a sound, it can harm
you. That is not entirely true.
There is no single sound bite that I can give you that is
safe or harmful to all marine animals. What do we know about
marine mammals? Unfortunately, we know relatively little. In
terms of research, as I said, we don't look at natural animal
hearing. We look at them as analogs. Therefore, marine mammal
hearing has been a poor stepchild in the auditory research
domain.
We have so far tested approximately 20 percent of the 110
species of whales, dolphins, other marine mammals, total. They
are all small captive animals, that is to say, smaller dolphins
that usually are high frequency. Behaviorally, we know that
they have a greater frequency range, better acuity. They are
sensitive ears.
From modeling, from anatomy, we know that the larger whales
are the ones that are likely to hear at low frequencies. That
is less than 10 percent of all marine mammals, 10 percent of
species, are likely to be impacted because of their sensitivity
to lower frequency signals. But again, it requires a
coincidence of that species at an intensity that is harmful in
a vicinity where it can cause a disruption, as Dr. Whitehead
has so properly noticed about population level effects.
There is also one other aspect to these ears that is very
important. There is an interesting paradox. The seas are not
silent. They evolve to tolerate noise. There is very good
evidence now that particularly dolphins are somewhat resistant
to acoustic trauma, and that is an area that we really need to
pursue desperately.
The last thing that I wanted to say is that, again, it has
been said a deaf whale is a dead whale. That is not entirely
true. We also know that they do lose hearing, as we do, from
disease, from trauma, and from noise. Again, the possible
impacts of manmade noise are important, but we must also not
assume that every stranded animal has necessarily been impacted
by sound.
The Bahamian beached whale case has been brought up over
and over again. I am a key component of that investigation. It
is not related to LFA. I would be pleased to answer questions
about that.
My last point--and I apologize for going over, I will sum
up--that is, there are multiple sounds and multiple effects
that we are putting out there. Sonars are certainly one of
them. I would much prefer that we direct ourselves to what I
consider an occupational hazard, the long-term noise at lower
levels that is constant and pervasive throughout our oceans.
We are putting sounds into the oceans that are potential
for harm, but I urge caution, not full stop, for any given
program, particularly since if we begin that trend, we may
deter development of useful or innovative sound tools that will
assist us to preserve the animals. Rather, we should weigh each
potential harm carefully, and rationally assess its probability
of impact in the long and short term at population levels.
Thank you very much for your attention.
[The prepared statement of Ms. Ketten follows:]
Statement of Darlene R. Ketten, Ph. D., Associate Scientist, Department
of Biology, Woods Hole Oceanographic Institution and Assistant
Professor, Dept. of Otology and Laryngology, Harvard Medical School
MARINE MAMMAL AUDITORY SYSTEMS: A SUMMARY OF AUDIOMETRIC AND ANATOMICAL
DATA AND ITS IMPLICATIONS FOR UNDERWATER ACOUSTIC IMPACTS
Terminology
Audiogram: A graph of hearing ability charting frequency (abcissa) vs.
sensitivity measured as sound pressure or intensity (ordinate).
Cetaceans: Whales and dolphins
decibel (dB): a scale based on the log ratio of two quantities. It is
commonly used to represent sound pressure level or sound intensity. The
value of the decibel depends upon the denominator used, or reference
pressure. Therefore the decibel level of sound is properly stated in
the form of n dB re n microPa . The microPascal is a unit of pressure;
e.g., 100 dB re 20 microPa in air equals 160 dB re 1 mu microPa in
water.
infrasonic: below 20 Hz, the lower limit of human hearing
kHz: kilo Hertz. A Hertz (Hz) is a measure of sound frequency equal to
1 cycle/sec, therefore a kHz is one thousand cycles per second.
Mysticetes: Baleen or moustached whales, which include rorquals. The
largest whales, all of which are opportunistic gulp or seine feeders.
They are not known to echolocate.
Octave: An octave is broadly defined as a doubling of frequency. Thus,
a one octave shift from 500 Hz is 1,000 Hz, and from 3,000 Hz, it is
6,000 Hz. Adult humans have on average an 8-9 octave functional hearing
range from 32 Hz to 16 kHz.
Odontocetes: toothed whales. All are believed to echolocate; i.e., to
use a biosonar for imaging the environment via sound and sound
analyses.
Pinnipeds: Seals, sea lions, walruses.
ultrasonic: above 20 kHz, the upper limit of human hearing.
Introduction
Concomitant with man's increasing use of the oceans is an increase
in the ocean's acoustic budget. In the mid 1970's, it was estimated
that noise from human related activity was increasing in coastal areas
and shipping lanes at 10 dB per decade. Given our ever increasing
activity in all seas and at all depths, this figure is not surprising.
It may even be too conservative., Anthropogenic noise is an important
component of virtually every human endeavor in the oceans, whether it
be shipping, transport, exploration, research, military activities,
construction, or recreation. For some activities, such as military and
construction, impulsive and explosive devices are fundamental tools
that are intermittent but intense; for others, such as shipping, the
instantaneous noise may be less, but sound is inherent in daily
operations and is therefore a constant, pervasive by-product. Because
these activities span the globe and produce sounds over the entire
audible range of most animals, it is reasonable to assume that man-made
noise in the oceans can have a significant adverse impact on marine
species. Because marine mammals are especially dependent upon hearing
and in many cases are endangered, the concern over noise impacts on
these animals is particularly acute. Our concern is both logical and
appropriate, but it is also, at this time, unproved and the range of
concerns is unbounded. For responsible stewardship of our oceans it is
imperative that we begin to measure and understand our impacts, and,
more important, that we proceed with a balanced and informed view. To
that end, this hearing is a significant, positive step.
Hearing for any animal is an important sense. Many sensory cues are
limited in their distribution and utility. Sound however is literally
universal While many animals inhabit lightless environments and are
blind, there are no known vertebrates that are naturally, profoundly
deaf. There is no habitat, except space, that is soundless, and sound
is such a significant cue, carrying such a wealth of information that
hearing is well developed in virtually every animal group. We employ
sound and hearing both passively and actively, listening not only in
the dark but even while asleep. The cues are constant and diverse,
providing information on the direction and nature of the sources and
how they change through time. Sound is a key element for survival and
hearing is a key component of communication, mate selection, feeding,
and predator avoidance.
For marine mammals, hearing is arguably their premier sensory
system. It is obvious from their level of ear and neural auditory
center development alone. Dolphins and whales devote three fold more
neurons to hearing than any other animal. The temporal lobes, which
control higher auditory processing, dominate their brain, and they
appear to have faster auditory and signal processing capabilities than
any other mammal. Since the late 1950's we have been aware that
dolphins, at least, use very high ultrasonic signals as a form of
biosonar. Using sound they can distinguish amongst different metals and
detect differences as small as a few mm in two objects. To date,
despite 50 years of research on dolphin biosonar, we are still
incapable of duplicating some of their feats. However, despite the
multifaceted evidence we have for exceptional and diverse hearing in
marine mammals, we still know very little about how and what they hear.
This statement summarizes and critiques existing auditory data for
marine mammals. It was compiled primarily as a background document for
assessing potential impacts of anthropogenic sounds, including long-
range detection or sonar devices. To that end, it has the following
emphases: a description of currently available data on marine mammal
hearing and ear anatomy, a discussion and critique of the methods used
to obtain these data, a summary and critique of data based on hearing
models for untested marine species, and a discussion of data available
on acoustic parameters that induce auditory trauma in both marine and
land mammals. In order to place these data in an appropriate context,
summaries are incorporated also of basic concepts involved in
underwater vs. air-borne sound propagation, fundamental hearing
mechanisms, and mechanisms of auditory trauma in land mammals. Lastly,
to maximize the utility of this document, a brief discussion has been
included on the potential for impact on hearing from several recently
proposed devices and an outline of research areas that need to be
addressed if we are to fill the relatively large gaps in the existing
data base.
Mammalian Hearing Fundamentals
The term ``auditory system'' refers generally to the suite of
components an animal uses to detect and analyze sound. There are two
fundamental issues to bear in mind for the auditory as well as any
sensory system. One is that sensory systems and therefore perception
are species specific. The ear and what it can hear is different for
each species. The second is that they are habitat dependent. In terms
of hearing, both of these are important issues.
Concerning the first issue, species sensitivities, all sensory
systems are designed to allow animals to receive and process
information from their surroundings which means they act as highly
selective filters. If every environmental cue available received equal
attention, the brain would be barraged by sensory inputs. Instead,
sensory organs are essentially multi-level filters, selecting and
attending to signals that, evolutionarily, proved to be important.
Most animals have vocalizations that are tightly linked to their
peak hearing sensitivities in order to maximize intra-specific
communication, but they also have hearing beyond that peak range that
is related to the detection of acoustic cues from predators, prey, or
other significant environmental cues. Consider, in general, how
predator and prey are driven to be both similar and different
sensorially. Because their activities intersect in place and time, they
need, for example, to have similar visual and auditory sensitivities,
but, ideally, different fields of view and hearing ranges. Similarly,
two species living within similar habitats or having common predators
and prey have some hearing bands in common but will differ in total
range because of anatomical and functional differences that are species
dependent and reflect other ``species-specific'' needs. Thus, each
animal's perceived world is a different subset of the real physical
world; i.e., it is a species-specific model, constructed from the
blocks of data its particular sensory system can capture and process.
Two species may have overlapping hearing ranges, but no two have
identical sensitivities. This is of course the case with piscivorous
marine mammals, their fish targets, and with their prey competitors. It
is also the case with whales and ships. They both have navigational and
predator detection needs.
In animal behavior, this concept is called the Umwelt (von Uexkull
1934). As a technical term, Umwelt means an animal's perceptually
limited construct of the world. In common usage, it means simply the
environment. This dual meaning reflects the complex interaction of
sensory adaptations and habitat, which leads us to the second issue;
i.e., the relation or influence of habitat on sensory abilities. While
senses are tuned to relevant stimuli by evolution they are nevertheless
limited by the physical parameters of the habitat.
Mechanistically, hearing is a relatively simple chain of events:
sound energy is converted by bio-mechanical transducers (middle and
inner ear) into electrical signals (neural impulses) that provide a
central processor (brain) with acoustic data. Mammalian ears are
elegant structures, packing over 75,000 mechanical and electrochemical
components into an average volume of 1 cm3. Variations in the structure
and number of ear components account for most of the hearing capacity
differences among mammals.
Hearing ranges and the sensitivity at each audible frequency
(threshold, or minimum intensity required to hear a given frequency)
vary widely by species). ``Functional'' hearing refers to the range of
frequencies a species hears without entraining non-acoustic mechanisms.
In land mammals, the functional range is generally considered to be
those frequencies that can be heard at thresholds of 60 dB SPL, a
decibel measure of sound pressure level. The basis for this measure and
how it differs in air and water is explained in the next section.
By example, a healthy human ear has a potential maximum frequency
range of 0.02 to 20 kHz but the normal functional hearing range in an
adult is closer to 0.040 to 16 kHz (Fig. 1). In humans, best
sensitivity (lowest thresholds) occurs between 500 Hz and 4 kHz, which
is also where most acoustic energy of speech occurs (Schuknecht 1993,
Yost 1994). Sounds that are within the functional range but at high
intensities (beyond 120 dB SPL) will generally produce discomfort and
eventually pain. To hear frequencies at the extreme ends of any
animal's total range generally requires intensities that are
uncomfortable, and frequencies outside or beyond our hearing range are
simply undetectable because of limitations in the ear's middle and
inner ear transduction and resonance characteristics. Through bone
conduction or direct motion of the inner ear, exceptionally loud sounds
that are outside the functional range of the normal ear can sometimes
be perceived, but this is not truly an auditory sensation.
``Sonic'' is an arbitrary term derived from the maximal human
hearing range. Frequencies outside this range are deemed infrasonic
(below 20 Hz) or ultrasonic (above 20 kHz) sonic. We know that many
animals hear sounds inaudible to humans; consider the training whistles
in common use that are silent to humans but clearly audible by dogs .
Most mammals have some ultrasonic hearing (i.e., can hear well at
frequencies >20 kHz) and a few, like the Asian elephant, Elephas
maximus, hear and communicate with infrasonic signals (<20 Hz).
[GRAPHIC] [TIFF OMITTED] 75640.031
Figure 1. Zones of hearing vs. potential impact areas are shown for
human hearing. The bottom curve shows the average human threshold in
air vs. frequency (Yost, 1994). The white zone represents the generally
safe zone. The gray zone represents the region in which temporary
hearing loss is likely, but depends upon a combination of intensity vs.
length of exposure. Note that the border for probable onset of
temporary threshold shift is generally 80 dB over minimum threshold and
essentially parallels the normal human hearing curve. Discomfort and
pain are by contrast essentially flat functions independent of hearing
threshold, with onsets near 120 dB re 20 microPascal (approximately 182
dB re 1 microPascal equivalent).
That brings us to three major auditory questions: 1) what are the
differences marine and land mammal ears, 2) how do these differences
relate to underwater hearing, and 3) how do these differences affect
the acoustic impacts?
To address these questions requires assimilating a wide variety of
data. Behavioral and electrophysiological measures are available for
some odontocetes and pinnipeds, but there are no published hearing
curves for any mysticete. We have anatomical data on the auditory
system for approximately one-third of all marine mammal species,
including nearly half of the larger, non-captive species. These data
allow us to estimate hearing based on physical models of the middle and
inner ear. To some extent it also allows us to address potentials for
impact. For marine mammals it is necessary to bring both forms of data,
direct from behavioural tests and indirect from models, to bear. Before
beginning those discussions, however, it is necessary to explain a few
of the ``rules'' for sound in water vs. air.
Sound in air vs. water
Hearing is simply the detection of sound. ``Sound'' is the
propagation of a mechanical disturbance through a medium. In elastic
media like air and water, that disturbance takes the form of acoustic
waves. Basic measures of sound are frequency, speed, wavelength, and
intensity. Frequency, measured in cycles/sec or Hertz (Hz), is defined
as:
f = c/lambda
where c = the speed of sound (m/sec) and lambda is the wavelength (m/
cycle).
The speed of sound is not invariable; it depends upon the density
of the medium. Because water is denser than air, sound in water travels
faster and with less attenuation than sound in air. Sound speed in air
is approximately 340 m/sec. Sound speed in sea water averages 1530 m/
sec but will vary with any factor affecting density and any ocean
region can have a highly variable sound profile that may change both
seasonally and regionally. For practical purposes, in water sound speed
is 4.5 times faster and, at each frequency, the wavelength is 4.5 times
greater, than in air.
How do these physical differences affect hearing? Mammalian ears
are primarily sound intensity detectors. Intensity, like frequency,
depends on sound speed and, in turn, on density. Sound intensity (I) is
the acoustic power (P) impinging on a surface perpendicular to the
direction of sound propagation, or power/unit area (I=P/a). Intensity
for an instantaneous sound pressure for an outward traveling plane wave
in terms of pressure, sound speed, and density is defined
mathematically as:
[GRAPHIC] [TIFF OMITTED] 75640.032
where Pm is the pressure measured and Pr is an arbitrary reference
pressure. Currently, two
standardized reference pressures are used. For air-borne sound
measures, the reference is dB re 20 gPa rms, derived from human
hearing. For underwater sound measures, the reference pressure is dB re
1 mu Pa.
Decibels are a logarithmic scale that depends on reference
pressure. In the earlier hypothetical example, with identical reference
pressures, the animal needed a sound level 35.5 dB greater in water
than in air. However, if conventional references for measuring levels
in air vs. water are used, the differences in reference pressure must
be considered as well. This means he underwater sound pressure level in
water if measured with conventional reference pressures would need to
be 61.5 dB re 1 mu Pa greater in water to be equivalent to the decibel
in air or dB re 20 Pa in air. Thus, the rule of thumb is that to
compare air vs underwater sound intensities, the numerical value of the
water sound pressure level must be thought of as being reduced by 61.5
dB to be comparable numerically to an intensity level reported in air.
It is important to remember that these equations describe idealized
comparison of air and water borne sound. In comparing data from
different species, particularly in comparing air based land mammal and
marine mammal hearing, experimental condition differences are extremely
important. We have no underwater equivalent of anechoic chambers, often
results are obtained from one individual that may not have normal
hearing, and test conditions are highly variable.
Mechanisms of Acoustic Trauma
Temporary vs, Permanent Threshold Shifts
Because of our considerable interest in human hearing and how
hearing is lost or may be ameliorated, noise trauma is a well-
investigated phenomenon. For the sake of completeness in the following
discussion, noise trauma has been divided into lethal and sublethal
impacts, although only sublethal impacts are likely to be relevant in
the case of long-range sonar devices. Lethal impacts are those that
result in the immediate death or serious debilitation of the majority
of animals in or near an intense source; i.e., profound injuries
related to shock wave or blast effects which are not, technically, pure
acoustic trauma. Lethal impacts are discussed briefly at the end of
this section. Sublethal impacts are those in which a hearing loss is
caused by exposures to sounds that exceed the ear's tolerance to some
acoustic parameter; i.e., auditory damage occurs from exhaustion or
over-extension of one or more ear components. Of course, sublethal
impacts may ultimately be as devastating as lethal impacts, causing
death through impaired foraging, predator detection, communication,
stress, or mating disruption, but the potential for this type of
extended or delayed impact from any sound source is not well understood
for any mammal.
Essentially whether there is any hearing loss and, if so, what
portion of hearing is lost, comes down to three interactive factors:
Intensity, frequency, and sensitivity.
To determine whether any one animal or species is subject to a
sublethal noise impact from a particular sound requires understanding
how its hearing abilities interact with that sound. Basically, any
noise at some level has the ability to damage hearing by causing
decreased sensitivity. The loss of sensitivity is called a threshold
shift. Not all noises will produce equivalent damage at some constant
exposure level. The extent and duration of a threshold shift depends
upon the synergistic effect of several acoustic features, including how
sensitive the subject is to the sound. Most recent research efforts
have been directed at understanding the basics of how frequency,
intensity, and duration of exposures interact to produce damage rather
than interspecific differences: that is, what sounds, at what levels,
for how long, or how often will commonly produce recoverable (TTS -
Temporary Threshold Shift) vs permanent (PTS) hearing loss.
Three fundamental effects are known at this time:
1) Lthe severity of the loss from any one signal may differ among
species.
2) Lfor pure tones, the loss centers around the incident frequency.
3) Lfor all tones, at some balance of noise level and time, the
loss is irreversible.
Hearing losses are recoverable (TTS - temporary threshold Shift) or
permanent (PTS) primarily based on extent of inner ear damage the
received sound and received sound level causes. Temporary threshold
shifts (TTS) will be broad or punctate, according to source
characteristics. The majority of studies have been conducted with cats
and rodents, using relatively long duration stimuli (> 1 hr.) and mid
to low frequencies (1-4 kHz) (see Lehnhardt, 1986, for summary). Inner
ear damage location and severity are correlated with the power spectrum
of the signal in relation to the sensitivity of the animal. Virtually
all studies show that losses are centered around the peak spectra of
the source and are highly dependent upon the frequency sensitivity of
the subject. For narrow band, high frequency signals, losses typically
occur only in or near the signal band, but intensity and duration can
act synergistically to broaden the loss.
The point cannot be made too strongly that this is a synergistic
and species-specific phenomenon. Put simply, for a sound to impact an
ear, that ear must be able to hear the sound, and, equally important,
the overall effect will depend on just how sensitive that ear is to the
particualr sound. For this reason there is no single, simple number;
i.e., no one sound byte, for all species that accurately represents the
amount of damage that can occur.
In effect, the duration of a threshold shift, is correlated with
both the length of time and the intensity of exposure. In general, if
the duration to intense noise is short and the noise is narrow, the
loss is limited and recoverable. In most cases a signal intensity of 80
dB over the individual threshold at each frequency is required for
significant threshold shifts (see Fig. 1). This finding led to the
current OSHA allowable limit of 90 dB re 20 tPa for human workplace
exposures for broad spectrum signals (Lehnhardt, 1986).
Unlike TTS which is highly species dependent, PTS onsets are more
general. One important aspect of PTS is that signal rise-time and
duration of peak pressure are significant factors. Commonly, if the
exposure is short, hearing is recoverable; if long, or has a sudden,
intense onset and is broadband, hearing, particularly in the higher
frequencies, can be permanently lost (PTS). In humans, PTS results most
often from protracted, repeat intense exposures (e.g., occupational
auditory hazards from background industrial noise) or sudden onset of
intense sounds (e.g., rapid, repeat gun fire). Sharp rise-time signals
have been shown also to produce broad spectrum PTS at lower intensities
than slow onset signals both in air and in water (Lipscomb, 1978;
Lehnhardt, 1986; Liberman, 1987). Hearing loss with aging (presbycusis)
is the accumulation of PTS and TTS insults to the ear. Typically, high
frequencies are lost first with the loss gradually spreading to lower
frequencies over time.
In experiments with land mammals, multi-hour exposures to narrow
band noise are used to induce both TTS and PTS and initial shifts are
often in the 10's of decibels. Work to date on marine mammals has been
much more conservative with relatively short exposures that induce less
than 10 dB of shift which is considered invariably temporary.
Consequently there are serious concerns that the numbers from current
experiments cannot be used to extrapolate PTS from TTS data as the
current curves are not yet at the conventional or comparative TTS
frontier as defined for land mammals and humans. As noted above, most
mammals with air-adapted ears commonly incur temporary losses when the
signal is 80 dB over threshold. The only other available data for
underwater shifts are from experiments that produced TTS in humans for
frequencies between 0.7 and 5.6 kHz (our most sensitive range) from
underwater sound sources when received levels were 150-180 dB re 1 mu
Pa (Smith and Wojtowicz 1985, Smith et al. 1988). Taking into account
differences in measurements of sound pressure in air vs. water
(equations 4 and 5), these underwater levels are consistent with the
80-90 dB exposure levels that induce TTS in humans at similar
frequencies in air.
Blast Injury
Simple intensity related loss is not synonymous with blast injury.
Acoustic trauma induced by sudden onset, loud noise ( a ``blast'' of
sound) is not synonymous with blast trauma, nor are noise and blast
effects of the same magnitude. Blast injuries generally result from a
single exposure to an explosive shock wave which has a compressive
phase with a few microseconds initial rise time to a massive pressure
increase over ambient followed by a rarefactive wave in which pressure
drops well below ambient.
Blast injuries may be reparable or permanent according to the
severity of the exposure and are conventionally divided into three
groups based on severity of symptoms, which parallel those of
barotrauma:
[GRAPHIC] [TIFF OMITTED] 75640.033
Moderate to severe stages result most often from blasts, extreme
intensity shifts, and trauma; i.e., explosions or blunt cranial impacts
that cause sudden, massive systemic pressure increases and surges of
circulatory or spinal fluid pressures (Schuknecht, 1993). Hearing loss
in these cases results from an eruptive injury to the inner ear; i.e.,
with the rarefactive wave of a nearby explosion, cerebrospinal fluid
pressures increase and the inner ear window membranes blow out due to
pressure increases in the inner ear fluids. Inner ear damage frequently
coincides with fractures to the bony capsule of the ear or middle ear
bones and with rupture of the eardrum. Although technically a pressure
induced injury, hearing loss and the accompanying gross structural
damage to the ear from blasts are more appropriately thought of as the
result of the inability of the ear to accommodate the sudden, extreme
pressure differentials and over-pressures from the shock wave.
At increasing distance from the blast, the effects of the shock
wave lessen and even though there is no overt tissue damage, mild
damage with some permanent hearing loss occurs (Burdick, 1981, in
Lehnhardt, 1986). This type of loss is generally called an asymptotic
threshold shift (ATS) because it is the result of saturation or in
simpler terms extension past the breaking point of body and certainly
auditory tissues.
There is no well defined single criterion for sublethal ATS from
blasts, but eardrum rupture, which is common to all stages of blast
injury, has been moderately well investigated. Although rupture per se
is not synonymous with permanent loss (eardrum ruptures can repair
spontaneously if less than 25% of the membrane is involved or can be
repaired surgically with no hearing loss if greater areas are
compromised), the incidence of tympanic membrane rupture is strongly
correlated with distance from the blast (Kerr, & Byrne, 1975). As
frequency of rupture increases so does the incidence of permanent
hearing loss. In zones where >50% tympanic membrane rupture occurred,
30% of the victims had long term or permanent loss. Trauma to other
areas of the auditory system such as the outer canal and middle ear
bones are not nearly as well investigated. In light of concerns from
the Bahamian beaked whale incident, this is an area warranting more
research.
Concerning survivable blast trauma, in general, complex and fast-
rise time sounds cause ruptures at lower overpressures than slow-rise
time waveforms, and smaller mammals will be injured by lower pressures
larger animals. Of the animals tested to date, sheep and pig have ears
anatomically closest to those of whales and seals. The air-based data
for pigs and sheep imply that overpressures >70 kPa are needed to
induce 100% tympanic membrane rupture. However, cross-study/cross-
species comparisons and extrapolations are risky because of radically
different experimental conditions as well as differences in acoustic
energy transmission in the air and water. The data available for
submerged and aquatic animals imply that lower pressures in water than
in air induce serious trauma (Myrick et al., 1989; see also summary in
Richardson, et al. 1991). For submerged terrestrial mammals, lethal
injuries have occurred at overpressures-->55 kPa (Yelverton, 1973, in
Myrick, et al., 1989; Richmond, et al., 1989). In a study of Hydromex
blasts in Lake Erie the overpressure limit for 100% mortality for fish
was 30 kPa (Chamberlain, 1976). The aquatic studies imply therefore
that overpressures between 30 and 50 kPa are sufficient for a high
incidence of severe blast injury. Minimal injury limits in both land
and fish studies coincided with overpressures of 0.5 to 1 kPa.
Marine Mammal Hearing
Hearing research has traditionally focused on mechanisms of hearing
loss in humans. Animal research has therefore emphasized experimental
work on ears in other species as human analogues. Consequently we
generally have investigated either very basic mechanisms of hearing or
induced and explored human auditory system diseases and hearing
failures through these test species. Ironically, because of this
emphasis, remarkably little is known about natural, habitat-and-
species-specific aspects of hearing in most mammals. With marine
mammals we are at an extreme edge of not only habitat adaptations but
also of ear structure and hearing capabilities.
The same reasons that make marine mammals acoustically and
auditorally interesting; i.e., that they are a functionally exceptional
and an aquatic ear - also make them difficult research subjects. Marine
mammal hearing has for many decades been the poor stepchild of our
country's auditory research program. Consequently, we now find
ourselves for multiple reasons in need of precisely the basic research
information that we lack. Nevertheless, we can address some issues
about marine mammal hearing, both directly and inferentially from the
data in hand. While there are large gaps remaining in our knowledge,
progress has been made on some fronts related to sound and potential
impacts from noise.
Marine mammals, and whales in particular, present an interesting
hearing paradox. On one hand, marine mammal ears physically resemble
land mammal ears. Therefore, since many forms of hearing loss are based
in physical structure, it is likely hearing damage occurs by similar
mechanisms in both land and marine mammal ears. On the other hand, the
sea is not, nor was it ever, even primordially, silent. The ocean is a
naturally relatively high noise environment. Principal natural sound
sources include seismic, volcanic, wind, and even biotic sources.
Whales and dolphins in particular evolved ears that function well
within this context of high natural ambient noise. This may mean they
developed ``tougher'' inner ears that are less subject to hearing loss.
Recent anatomical and behavioral studies do indeed suggest that whales
and dolphins may be more resistant than many land mammals to temporary
threshold shifts, but the data show also that they are subject to
disease and aging processes. This means they are not immune to hearing
loss, and certainly, increasing ambient noise via human activities is a
reasonable candidate for exacerbating or accelerating such losses
Unfortunately, existing data are insufficient to accurately predict
any but the grossest acoustic impacts on marine mammals. At present, we
have relatively little controlled data on how the noise spectrum is
changing in oceanic habitats as a result of human activities. We also
have little information on how marine mammals respond physically and
behaviorally to intense sounds and to long-term increases in ambient
noise levels. Our current inability to predict the impact of man-made
sounds in the oceans has spawned serious and occasionally vituperous
debates in the scientific community as well as costly legal battles for
environmental and governmental organizations. Ironically, our data gaps
may also be hampering the development and deployment of even simple
devices such as effective acoustic deterrents that could decrease
marine mammal by-catch. This testimony will not fill the gaps in our
knowledge but rather will discuss our current data base on both
acoustic trauma and on the sound profiles of ocean habitats in the
context of what we know about species variations in marine mammal
hearing. It will focus on how species vary in their potential for
impact and on how we may go about determining whether auditorially
fragile species coincide with ``acoustic hotspots'' where man's sonic
activities, particularly sonars as an issue for this committee, may
damage hearing and disrupt key behaviours.
The data available show that all marine mammals have a
fundamentally mammalian ear which through adaptation to the marine
environment has developed broader hearing ranges than are common to
land mammals. Audiograms are available for only 10 species of
odontocetes and 11 species of pinnipeds. All are smaller species which
were tested as captive animals. However, there are 119 marine mammal
species, and the majority are large wide-ranging animals that are not
approachable or testable by normal audiometric methods. Therefore we do
not have direct behavioral or physiologic hearing data for nearly 80%
of the genera and species of concern for coastal and open ocean sound
impacts. For those species for which no direct measure or audiograms
are available, hearing ranges are estimated with mathematical models
based on ear anatomy obtained from stranded animals or inferred from
emitted sounds and play back experiments in the wild.
The combined data from audiograms and models show there is
considerable variation among marine mammals in both absolute hearing
range and sensitivity. Their composite range is from ultra to
infrasonic. Odontocetes, like bats, are excellent echolocators, capable
of producing, perceiving, and analyzing ultrasonics frequencies well
above any human hearing. Odontocetes commonly have good functional
hearing between 200 Hz and 100,000 Hz (100 kHz), although some species
may have functional ultrasonic hearing to nearly 200 kHz. The majority
of odontocetes have peak sensitivities (best hearing) in the ultrasonic
ranges although most have moderate sensitivity to sounds from 1 to 20
kHz. No odontocete has been shown audiometrically to have acute; i.e.,
best sensitivity or exceptionally responsive hearing (<80 dB re 1 mu
Pa) below 500 Hz.
Good lower frequency hearing appears to be confined to larger
species in both the cetaceans and pinnipeds. No mysticete has been
directly tested for any hearing ability, but functional models indicate
their functional hearing commonly extends to 20 Hz, with several
species, including blue, fin, and bowhead whales, that are predicted to
hear at infrasonic frequencies as low as 10-15 Hz. The upper functional
range for most mysticetes has been predicted to extend to 20-30 kHz.
Most pinniped species have peak sensitivities between 1-20 kHz.
Some species, like the harbour seal, have best sensitivities over 10
kHz. Only the elephant seal has been shown to have good to moderate
hearing below 1 kHz. Some pinniped species are considered to be
effectively double-eared in that they hear moderately well in two
domains, air and water, but are not particularly acute in either.
Others however are clearly best adapted for underwater hearing alone.
To summarize, marine mammals as a group have functional hearing
ranges of 10 Hz to 200 kHz with best thresholds near 40-50 dB re 1 mu
Pa. They can be divided into infrasonic balaenids (probable functional
ranges of 15 Hz to 20 kHz; good sensitivity from 20 Hz to 2 kHz;
threshold minima unknown, speculated to be 60-80 dB re 1 mu Pa); sonic
to high frequency species (100 Hz to 100 kHz; widely variable peak
spectra; minimal threshold commonly 50 dB re 1 mu Pa), and ultrasonic
dominant species (200 Hz to 200 kHz general sensitivity; peak spectra
16 kHz to 120 kHz; minimal threshold commonly 40 dB re 1 mu Pa).
[GRAPHIC] [TIFF OMITTED] 75640.034
Figure 2. Underwater audiograms for odontocetes and pinnipeds. For some
species, more than one curve is shown because data reported in
different studies were not consistent. Note that for both the
bottlenose dolphin and the sea lion, thresholds are distinctly higher
for one of the two animals tested. These differences may reflect
different test conditions or a hearing deficit in one of the animals.
(Summary data compiled from Popper 1980; Fay 1988; Au 1993; Richardson
et al. 1995. Beluga: White et al. 1978; Awbrey et al. 1988 and Johnson
et al. 1989. Killer Whale: Hall & Johnson 1971 and Hall & Johnson 1972.
Harbor Porpoise: Anderson 1970 and Anderson 1970a. Bottlenose Dolphin:
Johnson 1967 and Ljungblad et al. 1982b. False Killer Whale: Thomas et
al. 1988a. California Sea Lion: Schusterman et al. 1972; Kastak &
Schusterman 1995 and Schusterman, Balliet & Nixon 1972. Northern Fur
Seal: Moore & Schusterman 1987; Babushina et al. 1991 and Schusterman &
Moore 1978a. Harbor Seal: Mohl 1968; Mohl 1968a; Kastak & Schusterman
1995 and Terhune & Tumbull 1995. Ringed Seal: Terhune & Ronald 1975a.
Harp Seal: Terhune & Ronald 1972. Monk Seal: Thomas et al. 1990b.).
[GRAPHIC] [TIFF OMITTED] 75640.035
Impacts and Sonar
Since the development and use of SONAR in World War II, acoustic
imaging devices have been increasingly employed by the military,
research, and commercial sectors to obtain reliable, detailed
information about the oceans. On one hand, these devices have enormous
potential for imaging and monitoring the marine environment. On the
other hand, because echo-ranging techniques involve the use of intense
sound and because hearing is an important sensory channel for virtually
all marine vertebrates, existing devices also represent a potential
source of injury to marine stocks, both predator (marine mammals) and
their prey. Therefore, a reasonable concern for any effort involving
active sound use in the oceans is whether the projection and repetition
of the signals employed will adversely impact species within the
``acoustic reach'' of the source. Realistically, because of the
diversity of hearing characteristics among marine animals, it is
virtually impossible to eliminate all acoustic impacts from any
endeavor, therefore the key issues that must be assessed are: 1) what
combination of frequencies and sound pressure levels fit the task, 2)
what species are present in an area the device will ensonify at levels
exceeding ambient, and 3) what are the potential impacts to those
species from acoustic exposures to the anticipated frequency-intensity
combinations.
In order to assess potential impacts, it is necessary to obtain the
best possible estimate of the coincidence of acoustic device parameters
and auditory sensitivities for animals that may be exposed. Because
marine mammals are both an important group in terms of conservation and
are generally considered to be acoustically sensitive, the primary goal
of this document is to provide a detailed summary of currently
available data on marine mammal hearing and auditory systems, and where
possible to put that data into a functional or comparative context. The
key issues addressed are: 1) how do marine mammal ears differ from
terrestrial ears, 2) how do these differences correlate with underwater
sound perception, 3) what is known from direct measures about marine
mammal hearing sensitivities, 4 ) what can be reliably extrapolated
about the frequency sensitivity of untested species from currently
available auditory models, and 5) how sensitive to acoustic impacts are
these ears.
Conclusions
The consensus of the data is that virtually all marine mammal
species are potentially impacted by sound sources with a frequency of
300 HZ or higher. Any species can be impacted by exceptionally intense
sound, and particularly by intense impulsive sounds. However, at
increasing distance from a source, which is the realistic scenario as
opposed to at source, the effects are a composite of three aspects:
Intensity, Frequency, and Individual Sensitivity. Briefly, if you
cannot hear the sound or hear it poorly, it is unlikely to have a
significant effect. If however, you have acute hearing in the range of
a signal, be it prop noise or a sonar, there is a potential for impact
at a greater range than for a source you hear poorly. Because each
species has a unique hearing curve that differs from others in range,
sensitivity, and peak hearing, it is not possible to provide a single
number or decibel level that is safe for all species for all signals.
Relatively few species are likely to receive significant impact for
lower frequency sources. Those species that currently are believed to
be likely candidates for LF acoustic impact are most mysticetes and the
elephant seal as the only documented lower frequency sensitive
pinniped. Most pinnipeds have relatively good sensitivity in the 1-15
kHz range while odontocetes have peak sensitivities above 20 kHz. It
must be remembered that received levels that induce acoustic trauma, at
any one frequency, are highly species dependent and are a complex
interaction of exposure time, signal onset and spectral
characteristics, as well as received vs. threshold intensity for that
species at that frequency.
Pilot studies show that marine mammals are susceptible to hearing
damage but are not necessarily as fragile as land mammals. The
available data suggest that a received level of approximately 140 dB re
1 microPascal which is in the 80-90 dB range over species-specific
threshold for a narrow band source will induce temporary for hearing in
and near that band in pinnipeds and delphinids (Ridgway, pers. comm.;
Schusterman, pers. comm.). Estimates of levels that induce permanent
threshold shifts in marine mammals can be made, at this time, only by
extrapolation from PTS and trauma studies in land mammals.
Blasts are cardinal sources, capable of inducing broad hearing
losses in virtually all species but some resistance or tolerance may
occur based on body mass of marine mammals compared to most land
mammals tested.
For all devices, the question of impact devolves largely to the
coincidence of device signal characteristics with the species
audiogram. Because the majority of devices proposed use frequencies
below ultra or high sonic ranges, odontocetes, with relatively poor
sensitivity below 1 kHz as a group, may be the least likely animals to
be impacted. Mysticetes and pinnipeds have substantially greater
potential than odontocetes for direct acoustic impact because of better
low to mid-sonic range hearing.
Behavioral perturbations are not assessed here but a concern is
noted that they are an equal or potentially more serious element of
acoustic impacts. While auditory trauma, particularly from short or
single exposures may impair an individual, that is unlikely to impact
most populations. Long term constant noise that disrupts a habitat or
key behaviour is more likely to involve population level effects. In
that sense, the question of individual hearing loss or animal loss form
a single intense exposure is far less relevant to conservation than
more subtle, literally quieter but pervasive source that induces broad
species loss or behavioural disruption.
Mitigation of any source or estimation of impact requires a case by
case assessment, and therefore suffers from the same chronic lack of
specific hearing data. To provide adequate assesments, substantially
better audiometric data are required from more species. To obtain these
data requires an initial three-pronged effort of behavioural
audiograms, evoked potentials recordings, and post-mortem examination
of ears across a broad spectrum of species. Cross-comparisons of the
results of these efforts will provide a substantially enhanced
audiometric data base and should provide sufficient data to predict all
levels of impact for most marine mammals. To achieve this goal without
bias involves advocacy and funding from a broader spectrum of federal
and private sources. That in turn is likely to require a significant
effort in public education about the real underlying issues that will
supplant current misdirections or precipitous reactions on the part of
many groups concerned with marine conservation.
Summary
Major impacts from noise can be divided into direct physiologic
effects, such as permanent vs. temporary hearing loss, and those that
are largely behavioral, such as masking, aversion, or attraction.
Although there is no substantial research accomplished in any of these
areas in marine mammals, behavioral effects have been at least
preliminarily investigated through playback and audiometric
experiments, while marine mammal susceptibility to physiologic hearing
loss is virtually unexplored. Despite increasing concern over the
effects on marine mammals of man-made sound in the oceans, we still
have little direct information about what sound frequency-intensity
combinations damage marine mammal ears, and at present there are
insufficient data to accurately determine acoustic exposure guidelines
for any marine mammal.
Is acoustic trauma even moderately debatable in marine mammals?
Recalling the paradox mentioned earlier, there are a variety of reasons
to hypothesize that marine mammals may have evolved useful adaptations
related to noise trauma. Vocalizations levels in marine mammals are
frequently cited as indicating high tolerance for intense sounds. Some
whales and dolphins have been documented to produce sounds with source
levels as high as 180 to 220 dB re 1 mu Pa (Richardson et al., 1991;
Au, 1993). Vocalizations are accepted indicators for perceptible
frequencies because peak spectra of vocalizations are near best
frequency of hearing in most species, but it is important to recall
that the two are not normally precisely coincident.
It must be borne in mind also that animals, including humans,
commonly produce sounds which would produce discomfort if they were
received at the ear at levels equal to levels at the production site.
Arguments that marine mammals, simply by nature of their size and
tissue densities, can tolerate higher intensities are not persuasive.
First, mammal ears are protected from self-generated sounds not only by
intervening tissues (head shadow and impedance mismatches) but also by
active mechanisms (eardrum and ossicular tensors). These mechanisms do
not necessarily provide equal protection from externally generated
sounds largely because the impact is not anticipated as it is in self-
generated sounds.
Our active mechanisms are initiated in coordination and in
anticipation of our own sound production. Just as the level of a shout
is not indicative of normal or tolerable human hearing thresholds,
source level calculations for vocalizations recorded in the wild should
not be viewed as reliable sensitivity measures. Further, the large head
size of a whale is not acoustically exceptional when the differences in
pressure and sound speed in water vs. air are taken into account. As
noted earlier, ear separation in a bottle-nosed dolphin is acoustically
equivalent to that of a rat when the distances are corrected for the
speed of sound in water. Exactly how head size in water affects
attenuation and even reception of incoming sounds has not been
investigated and remains an important open question.
Data from several pilot studies may, however, provide some useful
insights into both facets of the paradox. In one investigation
(detailed below, Ketten et al, 1993; Lien et al. 1993), ears from
humpbacks that died following underwater explosions had extensive
mechanical trauma while animals that were several kilometers distant
from the blasts and at the surface showed no significant behavioral
effects. These findings indicate adaptations that prevent barotrauma do
not provide special protection from severe auditory blast trauma, but
it remains unclear whether lower intensity purely acoustic stimuli
induce temporary and/or acute threshold shifts in marine mammals.
A second study compared inner ears from one long-term captive
dolphin with a documented hearing loss with the ears of one juvenile
and two young adult dolphins (Ketten et al., 1995). Studies of the
oldest dolphin ears showed cell loss and laminar demineralization like
that found in humans with presbycusis, the progressive sensorineural
hearing loss that accompanies old age. The location and degree of
neural degeneration implied a substantial, progressive, hearing loss
beginning in the high frequency regions, precisely the pattern commonly
observed in humans. A review of the animal's behavioral audiogram
subsequently showed that over a 12 year period this dolphin's hearing
curve shifted from normal threshold responses for all frequencies up to
165 kHz to no functional hearing over 60 kHz prior to his death at age
28. For this animal at least, the conclusion was that significant
hearing loss had occurred attributable only to age-related changes in
the ear. Similar significant differences in the hearing thresholds
consistent with age-related loss in two sea lionshave also been
reported by Kastak and Schusterman (1995).
The problem of hearing loss has not been realistically considered
prior to this point in any systematic way in any marine mammal. In
fact, the most studied group, odontocetes, have generally been thought
of as ideal underwater receivers. A captive animal's age or history is
not normally considered in analyzing its auditory responses, and, in
the absence of overt data (e.g., antibiotic therapy), we assume a test
animal has a normal ear with representative responses for that species.
It is not clear that this is both reasonable and realistic.
Particularly when data are obtained from one animal, it is important to
question whether that hearing curve is representative of the normal ear
for that species. The pilot studies noted above clearly suggest age
and/or exposure to noise can significantly alter hearing in marine
mammals, and in some cases (compare the two curves shown in figure 2A
for bottlenosed dolphins), it is clear that some individual differences
have been observed in ``normal'' captives that may be the result of
permanent hearing loss. The fact that some studies show losses in
marine mammals consistent with age-related hearing changes. Disease
also complicates the assumptions that any animal has normal hearing or
that the only source of a loss found is from anthropogenic sources
based on small samplings of populations.
Natural loss should be considered in any animal for which there is
little or no history, therefore the finding of a single animal with
some hearing decrement in the vicinity of a loud source cannot be taken
as a clear indicator of a population level hazard from that source. On
the other hand, because of the importance of hearing to these animals,
it is also unlikely that a high incidence of loss will be normally
found in any wild population, and a finding of substantial hearing loss
from, for instance, a mass-stranding or fishery coincident with a long-
term exposure to an intense source would be appropriate cause for
significant concern.
Of course, acoustic trauma is a very real and appropriate
physiologic concern. It is also one for which we can ultimately, given
proper research, obtain a data that will allow us to provide a usable
metric. That is, given that we know sound level X induces TTs while Y
induces PTS, for frequency Z in a specific species, we can apply these
data to the estimated exposure curve for that species and determine its
risk of hearing loss. Because of the importance of hearing to marine
mammals, understanding how man-made sources may impact that sense is an
important and reasonable step towards minimizing adverse impacts from
man-made sound sources in the oceans.
However, it is equally important to consider that sub-trauma levels
of sound can have profound effects on individual fitness. These effects
can take the form of masking of important signals, including
echolocation signals, intra-species communication, and predator-prey
cues; of disrupting important behaviors through startle and repellence,
or of acting as attractive nuisances, all of which may alter migration
patterns or result in abandonment of important habitats. Unfortunately,
these issues are beyond the scope of this document as well as the
expertise of the author and therefore cannot be usefully discussed
here. Nevertheless, it is important to at least note the concern, and
above all to suggest that there is a substantial need for field
monitoring of behaviors in wild populations in tandem with controlled
studies directed at expanding our audiometric data and understanding of
acoustic trauma mechanisms.
As indicated earlier, there are no discrete data at this time that
provide a direct measure of acoustic impact from a calibrated,
underwater sound source for any marine mammal. Preliminary data from
work underway on captive cetaceans and pinnipeds (Ridgway, pers. comm.;
Schusterman, pers. comm.) suggest that odontocetes may have higher than
typical tolerances for noise while pinnipeds are more similar to land
mammals in their dynamic range for threshold shift effects. This
response difference as well as the difference in hearing ranges - if
these data are shown to be robust - suggest that pinnipeds are the more
acoustically fragile group from most anthropogenic sound sources and
that odontocetes are relatively immune or require substantially higher
sound levels to incur TTS.
In terms of the sonars or in effect any human acoustic device, the
principal concerns are to determine a balance of frequencies vs. level
vs. duty cycle that will effectively detect targets at long ranges but
will not repel nor harm marine mammals within that sound field. To
accomplish these goals it is necessary to determine and balance the
following components:
1. LWhat are the effective frequencies for operation.
2. LWhat are the hearing curves for species within the sound field?
The fundamental concern is to avoid impact or harassment in the
short term, as well as preventing long-term, multiple exposure effects
that can compound the probability of hearing loss.
For all species, the first issue in the proposed devices is signal
shape, or rise time and peak spectra. As discussed earlier, impulsive
sound has substantial potential for inducing broad spectrum, compounded
acoustic trauma; i.e., an impulsive source can produce greater
threshold changes than a non-impulsive source with equivalent spectral
characteristics. Consequently, impulse is a complicating feature that
may exacerbate the impact. Conventional suggestions for minimizing such
effects are to ramp the signal, narrow the spectra, lower the pressure,
and/or alter the duty cycle to allow recovery and decrease impact. Once
again, however, it must be recalled that which if any of these measures
is important to the marine mammal ear has not been determined. Further,
it is also important to consider the trade-offs each implies in
operational effectiveness of the sonars in question. If decreasing one
aspect increases the parameters of another, the composite effects must
always be kept in mind.
High intensity, ultrasonic devices of course have enormous
potential for serious impact on virtually every odontocete and their
deployment in pelagic fisheries raises the greatest concern after
impulse or explosive sources. Such devices are relatively unlikely,
however, because they are unsuitable for longer range detection. With
high frequency sonic range devices, the possibility of profound impact
from disruption or masking of odontocete communication signals must
certainly be considered, as well as the possibility of coincident
impacts to pinnipeds. Because the majority of devices proposed use
frequencies below ultra or high sonic ranges, odontocetes may be the
least likely to be impacted species.
Most odontocetes have relatively sharp decreases in sensitivity
below 2 kHz (see fig. 3). If frequencies below 2 kHz are employed with
a non-impulsive wave-form, the potential for impacting odontocetes is
likely to be drastically reduced, but it must also be borne in mind
that it is non-zero. In every case, the difference between some to
little or no significant physiologic impact will depend upon received
levels at the individual ear. For the purposes of general discussion, a
theoretical comparison is shown in Figure 3 for marine mammals
audiograms compared with a human audiogram.
[GRAPHIC] [TIFF OMITTED] 75640.036
Because mechanisms and onset levels of TTS and PTS are still
unresolved for marine mammals, this curve is presented largely for the
purposes of gross comparisons of spectra of different sources with
animal hearing ranges and is not intended to suggest mitigation
guidelines. What the figure suggests is that the Mysticetes (which are
speculated to have a hearing curves similar to but at lower frequencies
than odontocetes)and the majority of pinnipeds have substantially
greater potential than odontocetes for direct acoustic impact from low
to mid-sonic range devices. However, depending upon the diving and
foraging patterns of these animals in comparison to the sound field
propagated by LF sonars or other devices, the risks to mysticetes and
the majority of pinnipeds may be substantially less than a simple sound
analysis would imply. That is, given that substantial numbers of these
marine mammal groups are either not present or are infrequently found
in the areas and depths ensonified there is little probability of any
one animal encountering a signal with an intensity and a period of time
that will induce acoustic trauma, despite their better absolute
sensitivity to the signal.
Mitigation, like estimation of impact, requires a case by case
assessment. At this time we have insufficient data to accurately
predetermine the underwater acoustic impact from any anthropogenic
source. Consequently, it is not possible to definitively state what
measures will ameliorate any one impact.
For the immediate future and in the absence of needed data, a best
faith effort at mitigation must be founded on reasoned predictions from
land mammal and the minimal marine mammal and fish data available. It
is reasonable to expect, based on the similarities in ear architecture
and in the shape of behavioral audiograms between marine and land
mammals, that marine mammals will have similar threshold shift
mechanisms and will sustain acute trauma through similar mechanical
loads. Therefore, fast-rise impulse and explosive sources are likely to
have greater or more profound impacts than narrow band, ramped sources.
Similarly, we can expect that a signal that is shorter than the
integration time constant of the odontocete, mysticete or pinniped ear
or which has a long interpulse interval has less potential for impact
than a protracted signal; however, simply pulsing the signal is not a
sufficient strategy without considering adequate interpulse recovery
time. Strategies, such as compression, that allow the signal to be near
or below the noise floor are certainly worth exploring. Certainly, no
single figure can be supplied for these values for all species. Because
of the exceptional variety in marine mammals ears and the implications
of this variety for diversity of hearing ranges, there is no single
frequency or combination of pulse sequences that will prevent any
impact. It is however, reasonable, because of species-specificities, to
consider minimizing effects by avoiding overlap with the hearing
characteristics of species that have the highest probability of
encountering the signal for each device deployed.
To that end, substantially better audiometric data are required.
This means more species must be tested, with an emphasis on obtaining
audiograms on younger, clearly unimpaired animals and repeat measures
from multiple animals. Too often our data base has be undermined by a
single measure from an animal that may have some impairment. It is
equally important to obtain some metric of the hearing impairments
present in normal wild populations in order to avoid future over-
estimates of impact from man-made sources. To obtain these data
requires a three-pronged effort of behavioural audiograms, evoked
potentials on live strandings, and post-mortem examination of ears to
determination of the level of ``natural'' disease and to hone
predictive models of hearing capacities.
The most pressing research need in terms of marine mammals is data
from live animals on sound parameters that induce temporary threshold
shift and aversive responses. Indirect benefits of behavioral
experiments with live captive animals that address TTS will also test
the hypotheses that cellular structure in the inner ear of odontocetes
may be related to increased resistance to auditory trauma. Combined
data from these two areas could assist in determining whether or to
what extent back-projections from land mammal data are valid.
Biomedical techniques, such as ABR and functional MRI, offer
considerable potential for rapidly obtaining mysticete and pinniped
hearing curves. Evoked potential studies of stranded mysticetes are of
considerable value but must also carry the caveat of determining how
reliable is a result from a single animal that may be physiologically
compromised. Post-mortem studies should be considered on any animal
that is euthanized after an ABR with the goal of both providing data
about the normality of the ear and supplying feedback to modeling
studies of hearing ranges. Otoacoustic emission experiments are not
considered to be a viable approach for cetaceans; they may provide
basic hearing data in pinnipeds but are technically difficult.
Playback studies are a well-established technique but because of
the uncertainties about individually received levels they may not
considerably advance our knowledge of acoustic impact per se unless
tied to dataloggers or very accurate assessments of the animal's sound
field. Tagging and telemetry are valuable approaches particularly if
linked to field or video documentation of behavior that is coordinated
with recordings of incident sound levels at the animal. Telemetric
measurement of physiological responses to sound; e.g., heart rate, may
be valuable, but little is currently known of how to interpret the data
in terms of long term impact.
Permanent threshold shift data may be obtainable by carefully
designed experiments that expose post-mortem marine mammal specimens to
either intense sound and explosive sources since these effects are
largely detectable through physical changes in the inner ear. These
studies would also substantially increase the species diversity of the
available data base because most marine mammal species will not be
testable with conventional live animal audiometric techniques. Lastly,
because many impact models depend upon assumptions about received
levels at the ear, these projections would clearly be enhanced by basic
measures on specimens of the underwater acoustic transmission
characteristics of marine mammal heads and ears.
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______
Mr. Gilchrest. Thank you very much, Dr. Ketten.
Admiral McGinn?
STATEMENT OF VICE ADMIRAL DENNIS V. McGINN, DEPUTY CHIEF OF
NAVAL OPERATIONS FOR WARFARE REQUIREMENTS AND PROGRAMS, UNITED
STATES NAVY
Admiral McGinn. Thank you, Mr. Chairman, members of the
Subcommittee. I am Admiral Dennis McGinn, the Deputy Chief of
Naval Operations for Naval Warfare Requirements and Programs.
Prior to coming to Washington 1 year ago, I was the commander
of the United States Third Fleet, with an area of
responsibility in the eastern Pacific from the Date Line to the
high tide mark of the North American coast, and before that I
have commanded carrier battle groups and an aircraft carrier.
All of that by way of saying that my presence here in
Washington is significant as a Deputy Chief of Naval
Operations, but my heart belongs at sea and I have spent some
time there.
I welcome this opportunity to appear before you today to
testify on sonar, the SURTASS Low Frequency Active program, the
Marine Mammal Protection Act, and Navy research. I also want to
thank you for your interest in the readiness of our armed
forces, in particular our United States Navy.
Let me start by saying that we in the Navy take our legal
obligations to protect the world's oceans, marine mammals and
endangered species, very, very seriously. We are proud of the
cutting edge scientific research we have conducted and funded
on the potential effects of acoustic sources on marine mammals.
Important as it is, our environmental stewardship has come
at a price, such as increased monetary expenditures, extended
time away from home for our sailors, restrictions on training,
as well as lengthy delays in deploying weapons systems such as
LFA that are considered essential to national security. I must
emphasize that at this critical time in our Nation's history,
trends toward increasing encroachment on military training and
operations, excessive regulation and unnecessary litigation
clearly hamper our ability to achieve and maintain critically
needed readiness that our citizens expect and deserve from our
armed forces.
The United States Navy has used sonar for more than six
decades. Sonar is generally broken into two methods of use:
active and passive. Active sonar is a signal or a ping
transmitted, and then the reflection of that sound is received.
Passive is simply listening for sounds emitted by ships or
submarines, such as engine vibrations.
Active sonar can be divided into three categories based on
sound frequency: low, less than 1 kHz; medium, 1 kHz to 10 kHz;
and high frequency, above 10 kHz. The lower the frequency, the
less the sound signal and the return are attenuated as they
pass through the water column and the further they will travel,
as has been noted.
We currently operate several variants of our standard hull-
mounted and mid-ranged sonar on both surface ships and
submarines. These sonars have been used since the 1960's. We
also use sonar to detect mines and to guide torpedoes and other
weapons systems. We use it on fathometers to measure ocean
depth. We use side scan sonar to perform oceanographic mapping.
It is used to navigate. It is used to find shipwrecks. We use
systems similar to sonar for underwater communications, to
measure global warming, and in many other types of research. We
have a great deal of experience with sonar and have rarely
observed any significant, long-term environmental impact that
has been adverse.
Sonar is an extremely vital source of information for a lot
of purposes, and most importantly, sonar-based mine and
antisubmarine warfare systems allow us to keep Americans, our
sons and daughters, out of harm's way on Navy ships.
The SURTASS LFA system is a key national security asset
required to protect our forces at sea. The United States and
its military forces must have the ability to ensure access to
key strategic areas and to project power decisively throughout
the world, at sea, in the air, and on land, in space and
cyberspace, in order to prevail in peace and in time of
conflict such as that in which we are currently engaged.
A key to our Navy's ability to project power is our ability
to protect our forward-deployed naval forces against threat of
opposing force submarines. With the sound quieting capability
of potential threat submarines nearing parity with our own, the
Navy embarked on an extensive research program to develop new
technology to detect submarines.
A very effective technology to emerge from this effort is
Low Frequency Active sonar. When combined with the SURTASS
passive sonar capability, we have an effective long-range
detection platform to meet the rising threat from modern quiet
diesel submarines.
A fleet commander or a joint force commander needs an
effective active and passive sonar total sensor system that we
can bring to bear against opposing forces. And even with our
current and projected capabilities, including SURTASS LFA, we
face a tremendous challenge to counter the threat posed by
modern quiet diesel and nuclear-powered submarines, especially
in the challenging littoral areas of the world where our
Nation's interests lie.
As a long-range sensor, LFA provides naval commanders with
a valuable tool that allows us to conduct surveillance of the
undersea battle space and to alert our ships to the presence
and location of threat submarines at ranges that provide
sufficient reaction time to neutralize that threat.
I know that the undersea picture is sometimes difficult to
envision, so I will use an air threat analogy to illustrate the
importance of SURTASS LFA. When we send aircraft into hostile
areas, they are accompanied by our Hawkeye E2C aircraft or Air
Force AWACS surveillance platforms which use high power, long-
range air search radar systems to provide long-range detection
of potential enemy threats and then to direct friendly forces
to neutralize those threats. As a battle group commander, I
would not send my aircraft into harm's way without the use of
surveillance aircraft wherever and whenever possible.
The same holds true for our ships sent into harm's way
against diesel submarines. LFA is required to ensure threat
submarines are detected, tracked and destroyed prior to
reaching a weapon release point against our ships.
Another key point is that the Navy has conducted a
comprehensive environmental review on the effects of LFA on
marine mammals. Leading scientists in the field of underwater
acoustics and marine mammal biology have conducted independent
studies that carefully examine how LFA sonar would affect
marine mammals, those marine mammals most likely to be
affected, and the potential effect on human divers. These
studies have concluded, and we concur, that we can use LFA
safely and effectively to carry out critical missions without
any significant or long-term adverse effects on the marine
environment or on marine mammals.
Some concerned parties claim we have not done enough to
study this issue, and cite the lack of long-term effect
studies, the number of marine mammals studied, and other real
world limitations of the testing performed to date. The cost of
that additional testing that these parties demand to conduct
studies on every possible potential impact to marine mammals
and humans, tens of years, tens of millions of dollars, is
exorbitant and unreasonable and constitutes yet one more form
of encroachment on our ability to deliver the kind of readiness
this Nation needs.
I would note on a philosophical note that few significant
endeavors in life, from embarking on a campaign to eradicate
the scourge of terrorism or passing significant new legislation
or even choosing a place to live or work, can be embarked upon
with the absolute certainty that these parties demand of the
United States Navy in deploying LFA. We believe that the right
and balanced course of action is to conduct thorough studies to
understand the most significant likely potential effects and
then, informed by that knowledge, to decide whether to move
forward in a responsible way, using reasonable and effective
mitigation efforts and carefully monitoring the results to
detect any unforeseen effects over the long term.
While LFA is a new Navy warfighting application, we have
concluded through this independent scientific research that the
use of LFA with appropriate mitigation measures is highly
unlikely to affect the health of marine mammal populations and
human divers. We are fully committed to a long-term monitoring
plan to verify the results of that research and to evaluate the
impacts of LFA. We have set aside funds to continue this
effort.
I ask you to carefully consider the Navy's high priority
requirement for LFA, the extensive research and analysis
carried out to date, and the independent scientists' opinions,
as you deliberate upon the use of this valuable national asset.
Additionally, and on a final note, the Navy supports
efforts of the Department of Commerce, NOAA, and the National
Marine Fisheries Service to reauthorize the Marine Mammal
Protection Act, and we have worked closely with NOAA to prepare
an amendment to the definition of ``harassment'' in that act.
The current definition is overly broad and ambiguous, allowing
for any potential disturbance of marine mammals by naval
activities, including sonar operations, to be considered
harassment.
The proposal, which follows recommendations from a recent
report for Congress conducted by the National Research Council,
will tie harassment to abandonment or significant alteration of
behavior patterns related to important biological functions
such as migration, feeding, or nursing. With this amendment,
the Navy will have increased clarity regarding application of
the Marine Mammal Protection Act, and therefore greater
operational and training flexibility.
Finally, with regards to research, the Navy funds the
majority of all marine mammal research in the world. Your Navy,
through our Environmental Consequences, Underwater Sound, and
Effects of Sound on a Marine Environment programs, provided
approximately $7 million in fiscal year '01 for research
directly related to assessing and mitigating the effect of
noise from Navy activities in the marine environment. The
funding planned for '02 calls for an increase of that amount of
over $2 million, a total of over $9 million. To date, Navy's
research efforts in support of global environmental concerns
have provided tremendous insight on acoustic phenomena in the
oceans.
Once again, Mr. Chairman and members of the Committee, I
welcome the opportunity to appear before you today, and I look
forward to answering your questions. Thank you, sir.
[The prepared statement of Admiral McGinn follows:]
Statement of Vice-admiral Dennis V. McGinn, Deputy Chief of Naval
Operations for Warfare Requirements and Programs, U.S. Navy
Good afternoon Chairman Gilchrest, Delegate Underwood, members of
the Fisheries Conservation, Wildlife and Oceans Subcommittee, and
ladies and gentlemen. I am here today to provide testimony on Navy
Sonar, the Surveillance Towed Array Sensor System Low Frequency Active,
or SURTASS LFA sonar, the Marine Mammal Protection Act and future Navy
research into the effects of underwater sound on the marine
environment. As the Director of Warfare Requirements and Programs, I am
responsible for equipping our sailors with the most capable weapon
system so that they can carry out their missions in most effective
manner. This is my duty under the President, the Commander in Chief,
and I mean to fulfill that obligation to the best of my ability. The
topic I am here to address today is very important to fulfilling that
charge. That duty took on new relevance one month ago today (September
11, 2001). While the Navy takes its environmental responsibility
seriously, working to protect and enhance natural resources and
endangered species in our fleet operating areas and training ranges,
there must be a balance between environmental concerns and our national
security. We are ready today to help defend this nation, but current
regulatory trends and litigation are worrisome. Our ability to work
around environmental challenges is not infinite and our future
readiness could be placed at risk.
The United States Navy has used SOund NAvigation Ranging or
``SONAR'' for more than five decades. Sonar is generally broken into
two methods of use, active and passive. Active sonar is a signal or
``ping'' transmitted and then a reflection of that sound is received.
Passive is simply listening for sounds emitted by ships or submarines,
such as engine vibrations. Active sonar can be divided into 3
categories; low (< 1kHz), medium (1kHz-10kHz) and high frequency
(>10kHz). The lower the frequency, the less the signal and the return
are attenuated as they pass through the water column and the further a
they will travel. We currently operate several variants of our standard
hull mounted mid-ranged sonar on both surface ships and submarines.
These have been in use since the later 1960s. We also use sonar to
detect mines, to guide torpedoes and other weapon systems. We use it on
fathometers to measure ocean depth, to perform oceanographic mapping,
for navigation, and to find shipwrecks. We use systems similar to sonar
for underwater communications, to measure global warming, and many
other types of research. We have a great deal of experience with sonar
and have rarely observed any significant adverse effect on the
environment. Sonar is an extremely vital source of information, and
most importantly, it allows us to keep our sons and daughters out of
harms way.
My staff and I have studied the relevant data and information on
SURTASS LFA--we have read the Environmental Impact Statement (EIS),
listened to briefings from the sponsor and program office and, of
course, have read counter-arguments from environmental organizations on
why the Navy should abandon SURTASS LFA. My testimony today is divided
into four sections:
<bullet> LThere is an immediate and critical national security need
for the SURTASS LFA technology in the Fleet's arsenal. The Chief of
Naval Operations and the Fleet Commander in Chiefs have reviewed and
validated the urgent military need for this sensor system.
<bullet> LThe SURTASS LFA EIS is the most comprehensive and
exhaustive scientifically-based EIS ever undertaken by the Navy for a
major seagoing combat system. This will be clear when I take you
through each step of the EIS process that we have been conducting since
1996.
<bullet> LNext, I will address the extensive scientific research,
studies and analyses that went into the EIS process and, most
importantly, the conclusions reached by the independent scientists that
conducted the research.
<bullet> LFinally, the Navy is planning to implement a long term
monitoring plan, which will continue independent research on possible
effects from underwater low frequency sound.
The bottom line: SURTASS LFA can be operated safely and
effectively.
1. The Navy has an immediate, critical need for SURTASS LFA. By
law, the Navy's primary mission is to maintain, train and equip combat-
ready Naval forces capable of winning wars, deterring aggression and
maintaining freedom of the seas. Antisubmarine warfare, or ASW, is a
critical part of that mission. The Chief of Naval Operations (CNO) has
stated that ASW is essential to sea control and maritime dominance.
Many nations throughout the world can employ submarines to deny access
to forward regions or to significantly delay the execution of crucial
Navy operations. Because of its inherent stealth, lethality, and
affordability, the submarine is a powerful threat. In 1998 the Chief of
Naval Operations emphasized the importance of ASW in protecting our
national security and set the direction for achieving operational
primacy in ASW. He stated that the Navy's goal is to have the best-
trained ASW force in the world, with the right set of tools to prevail
in any type of conflict, including the kind we are now facing in the
Middle East. My goal here today is to show you why I believe one of the
primary ASW tools must be SURTASS LFA.
Many of the opponents of SURTASS LFA say that the Cold War is over
and question the need for the SURTASS LFA system. Despite the end of
the Cold War, the submarine threat remains real and in some ways has
become more challenging. Of the approximately 500 non-U.S. submarines
in the world, 224 are operated by non-allied nations. Many of these are
the more advanced, quieter diesel-electric submarines that present a
real threat to U.S. forces. The Russian Federation and the People's
Republic of China have publicly declared that the submarine is the
capital ship of their navies. Many potential adversarial countries have
essentially done the same, including Iran and North Korea. A former
Indian Navy submarine admiral has commented that developing nations
desire submarine forces because they are the most cost-effective
platform for the delivery of several types of weapons; they counter
surface forces effectively; they are flexible, multi-mission ships;
they are covert and can operate with minimal political ramifications;
and they can operate without supporting escorts. Submarines are ideal
weapons for states that lack, or cannot afford, the capability to
assert sea control in their own (or others') waterspace. They can
operate in an opponent's backyard. Even in the face of determined sea
control efforts, they can conduct stealthy and intrusive operations in
sensitive areas, and can be inserted early for a wide range of tasks
with a high degree of assured survivability. When equipped with mines,
advanced torpedoes, anti-ship or land-attack missiles, a submarine is a
potent tactical and political weapon. Ladies and gentlemen, in today's
unpredictable world, we must recognize that the advanced, quiet
submarine is potentially a terrorist threat. A single diesel-electric
submarine that is able to penetrate U.S. or multinational task force's
defenses could easily undermine military efforts to thwart hostile
enemy forces and change the balance of political support for U.S.
involvement in armed conflict.
A recent U.S.-Australian ASW exercises with the new Australian
Collins-class diesel-electric submarine demonstrated that new
technology is needed to detect a modern diesel-electric submarine
operating on battery power. We have to reduce the limits of detection
for the submarines of today and tomorrow, and SURTASS LFA does that.
Nations of concern continue to build and sell new classes of highly
capable submarines, and to operate its newest vessels outside of home
waters.
These nations are also investing heavily in submarine technology,
including designs for nuclear attack submarines, strategic ballistic
missile submarines, and advanced diesel-electric boats. The President's
National Research Council has projected that by 2035, U.S. military
forces may be seriously and competently challenged by submarines from
major powers like Russia and China, or from a number of potentially
unfriendly nations. By 2030, it is projected that 75 percent of the
non-U.S. submarines will have advanced capabilities, including air-
independent propulsion that allows 30-50 days of submerged operations
without surfacing or snorkeling. When these units are in a defensive
mode, that is, not having to travel great distances or at high speed,
they have a capability nearly equal to that of a modern U.S. nuclear
submarine. At minimal cost, this capability can be readily obtained,
including highly capable weapons, in some cases consisting of nuclear
devices.
Quieting technology continues to proliferate, which will render
these advanced diesel submarines difficult, if not nearly impossible to
detect, even with the latest passive sonar equipment. This is where
SURTASS LFA comes in--its state-of-the-art towed array provides the
Navy with the world's best deep and shallow-water (littoral zone) low
frequency passive acoustic sensor, called SURTASS. When SURTASS by
itself proves inadequate in detecting and tracking submarines, its
active component, LFA, is used--which is a set of acoustic transmitting
source elements suspended by cable beneath the ship. These elements,
called projectors, produce the active sound pulse, or ``ping,'' which
allows for such long-range detections of otherwise concealed
submarines. Its extended detection ranges are achieved using low-
frequency signals in the 100-500 Hertz frequency band, and high-gain
receivers in the SURTASS towed array to pick up the returning echoes
from the ping reflecting off the target submarine. Thus, SURTASS LFA
meets the U.S. need for improved capability to detect quieter and hard-
to-find foreign submarines at long range, and provides adequate time to
react to and defend against potential submarine threats.
As an example of the importance of ASW, we need only return to the
1982 Falklands conflict. The Royal Navy established regional maritime
dominance in the Falklands with a single submarine attack, the sinking
of the Argentine cruiser General Belgrano by the nuclear-powered attack
submarine Conquerer. Had the single Argentine Type 209 diesel-electric
submarine that got underway been successful in just one of several
attacks and sank or seriously damaged one of the British small-deck
aircraft carriers or logistics ships, the outcome of that conflict
might have been very different.
The Navy chose to develop LFA sonar because it is superior to
alternative technologies. Examination of the potential threat led Navy
to identify a need for long-range detection, before a hostile submarine
could maneuver into its weapon-release range. The use of conventional
technologies to accomplish this is infeasible from tactical and
economic perspectives. The Navy also recognized that passive sonar
would be insufficient for long-range detection against advanced
submarines.
The Navy also studied several non-acoustic ASW technologies in the
1980's as potential candidates for use in detecting submarines,
including radar, laser, magnetic, infrared, electronic, electric,
hydrodynamic, and biologic detection systems. While some of these have
demonstrated limited utility in detecting submarines, none has provided
U.S. forces with long-range detection and the necessary longer reaction
times.
The Navy concentrated on LFA because it is well established that
low frequency sounds (below 1,000 Hertz) propagate in seawater more
effectively and at greater distances than mid-frequencies (1,000 to
10,000 Hertz) and high frequencies (10,000 to 100,000 Hertz). The
Navy's evaluation of how LFA sonar could be configured and employed to
provide for long-range submarine detection.
The SURTASS LFA EIS is the most comprehensive and exhaustive
scientifically-based EIS ever undertaken by the Navy for a major
seagoing combat system. Moreover, the Navy has gone to virtually
unprecedented lengths to inform and involve the public. Since the
release of the Notice of Intent in the Federal Register five years ago,
the Navy has held three public scoping meetings in 1996, eight public
outreach meetings in 1997-98, and three public hearings on the Draft
EIS in 1999. Written and oral comments on the Draft EIS were received
from over 1,000 commentors, including federal, state, regional and
local agencies, environmental groups and associations, as well as
private individuals. In addition, the Navy established the SURTASS LFA
Scientific Working Group in 1997. This distinguished panel was made up
of independent scientists from a wide variety of marine laboratory and
academic organizations, as well as a representative from the non-
governmental environmental groups opposed to LFA. The panel met
periodically to determine the critical data gaps that needed to be
addressed to evaluate the effects of low frequency sound on the marine
environment, and to review the results from the SRP field experiments.
The Navy is the lead agency for the proposed action, with NOAA
Fisheries acting as cooperating agency due to their expertise on marine
mammal issues. At the outset of the process, the Navy delineated five
Principles for development of the EIS:
1. LConduct scientific studies on the potential effects of low
frequency sound on marine life and human divers.
2. LMaintain scientific rigor throughout development of the EIS.
3. LUse an independent scientific team to review and edit the EIS.
4. LPreserve an open process with maximum public engagement.
5. LProvide adequate funding for scientific research to address
critical data gaps and furnish a meaningful and understandable EIS to
the public.
The Analytical Process for development of the EIS included the
following:
1. LScientific literature review and determination of data gaps.
2. LScientific screening of marine animal species for potential
sensitivity to low frequency sound.
3. LScientific research on the effects of low frequency sound on
humans in water and marine mammals.
4. LDevelopment of a scientific method for quantifying risk to
marine mammals.
5. LAnalytical acoustic modeling of representative cases for the
deployment of SURTASS LFA.
6. LEstimation of marine mammal stocks potentially affected and the
effects on fish and sea turtles.
7. LEstablishment of mitigation and monitoring to minimize effects
to a negligible level.
In developing the framework for the EIS, the Navy recognized that
it needed to address some outstanding issues. First, there were
concerns over the adequacy of scientific information on the impacts of
LFA sounds upon human divers. Because data on the effects of low
frequency sound on humans is limited, the Navy sponsored independent
scientific research to study the effects of low frequency sound on
human divers. This research was conducted by the Office of Naval
Research and the Naval Submarine Medical Research Laboratory, in
conjunction with scientists from the University of Rochester, Georgia
Institute of Technology, Boston University, the University of
Pennsylvania, Duke University, the Applied Research Laboratory, the
University of Texas, and Divers Alert Network. Based upon the results
of this research, the Naval Submarine Medical Research Laboratory--the
same organization responsible for the dive tables used by all
recreational and commercial divers--established a 145-dB received level
criterion for recreational and commercial divers.
There was also the issue over the adequacy of scientific
information on the impacts of sound upon marine animals. Because data
on the effects of low frequency sound on marine animals in general, and
particularly on certain sensitive marine mammals species, is limited,
the Navy conducted a series of original scientific field research
projects to address the data gaps on the effects of low frequency sound
on the marine environment.
Recognized world experts in the fields of marine biology and
bioacoustics were allowed to independently plan and organize a series
of Navy-sponsored scientific field research projects to address the
most critical of the data gaps on the effects of low frequency sound on
the behavioral responses of free-ranging marine mammals. This research
effort was the 1997-98 Low Frequency Sound Scientific Research Program,
or SRP. The goal of the SRP was to evaluate avoidance reactions to
SURTASS LFA sounds by sensitive species during critical biological
behaviors. At the time of the SRP field tests, the prevailing theory
was that a 140 dB received level would drive marine mammals away.
Testing was conducted in three phases:
a) Phase I was conducted with blue and fin whales feeding off the
southern California coast, using three research vessels, including the
Cory Chouest with the LFA system on it, small aircraft for aerial
surveys, autonomous seafloor acoustic recording units, and the Navy's
sound surveillance system, or SOSUS. This was the most extensive real-
world field experiment using large baleen whales that has ever been
undertaken. Initial analysis of SRP Phase I data indicated a slight
decrease in whale vocal activity during LFA transmissions. However,
subsequent, more detailed analysis using data from all three types of
passive receivers on ships and the seafloor showed no significant
differences in vocal activity between the LFA transmission periods and
the non-transmission periods.
b) Phase II was conducted with gray whales migrating southward
along the central California coast, using a boat with a single LFA
source element deployed over-the-side, an observation boat with
hydrophones deployed over-the-side to verify received levels at the
whales, and shore observers using state-of-the-art theodolite
telescopes to track the whales. Phase II was conducted by some of the
same scientists who conducted similar testing in 1983 and 1984, which
showed the gray whales reacting to 120 dB received levels. During Phase
II, when the sound source was placed directly in the path of the
migrating gray whales, they showed a modest avoidance reaction by
deflecting a few hundred yards around the source at received levels of
138 to 144 dB. However, when the source was moved one nautical mile
farther out to sea and the source level adjusted so that the exposure
level at the animals in the migration corridor remained the same, the
whales did not exhibit avoidance of the signal.
c) Phase III was conducted with breeding humpback whales off the
Kona coast of the Big Island of Hawaii, using Cory Chouest with the LFA
system, a Navy SURTASS ship with its passive towed array, an
observation boat to verify received levels at the whales, and shore
observers with theodolite telescopes. During Phase III, about half of
the singing humpback whales showed what at first appeared to be
avoidance level responses and cessation of singing when exposed to LFA
signals at received levels of 120-155 dB. However, an equal number of
singing whales exposed to the same levels of LFA signals showed no
avoidance or cessation of song. Of the whales that did stop singing,
there was little response to subsequent LFA transmissions, as most
joined with other whales or resumed singing within less than an hour of
exposure to the LFA sounds. Those that did not stop singing, sang
longer songs during LFA transmissions, and returned to their baseline
levels after LFA transmissions stopped. The independent scientists who
designed and conducted this experiment determined that this brief
interruption, followed by resumption of normal interactions, is similar
to that seen when whales interrupt one another or when small vessels,
like whale-watching boats, approach an animal. If whales are in a
breeding habitat and such vessel interactions are frequent, the
aggregate impact of all disruptive stimuli could effect significant
biological functions. However, LFA will be operated well offshore of
humpback breeding areas. It is highly likely that the cumulative impact
of numerous inshore vessel interactions will cause significantly
greater impact on these animals than that caused by infrequent offshore
LFA transmissions.
In summary, this $10 million SRP, conducted independently by world-
renowned marine biologists and bio-acousticians, collected much-needed
data on the reaction of marine mammals considered to be most
susceptible to low frequency sounds--baleen whales. The results of
these field studies led to the determination that the LFA sonar system
could be operated safely with the restrictions and mitigation proposed
in the EIS.
SURTASS LFA can be operated safely and effectively.
Marine mammals are constantly exposed to natural and man-made
underwater sounds. We must look at the range of effects and the factors
that are likely to cause responses in marine mammals. A sound must be
perceived by the animal to evoke any behavioral response. However, it
must be recognized that many sounds that are heard by marine mammals
may evoke no response. Some sounds may evoke aversive responses at low
received levels, but all sounds will evoke aversive responses when the
received levels are sufficiently high to be uncomfortable. At even
higher levels, such sounds can cause physical injury.
Marine mammals have evolved over millions of years with exposure to
a wide range of acoustic signals at various levels of sound. Much of
this exposure is from biological sources. However, natural sounds
produced by volcanism, lightning strikes and weather (wind and rain)
also contribute to the natural noise floor of the ocean. Since many
marine mammals rely on underwater sound for communication and echo-
location, this would imply that they have very good hearing recognition
and localization ability. It is also safe to assume that marine mammals
cannot hear below the lowest background (ambient) noise level in the
ocean and will not incur physical injury from sound levels that their
ancestors likely experienced on an annual basis.
For marine mammals, a signal must be 10 to 15 dB above the ambient
noise level (per Hertz) for it to be recognized. Unless a signal is
perceived to be very close or threatening, another 10 to 20 dB increase
in sound level would most likely be required to evoke behavioral
reactions. For a 200-Hertz signal, average ocean ambient noise values
range from 60 to 95 dB. Depending on background noise, for a marine
mammal to hear and recognize a signal, it would have to be at a
received level of 70 to 110 dB at the animal. At received levels of 80
to 130 dB, behavioral reactions are possible, depending on the
characteristics of the signal. Sounds that portend lethal dangers, such
as predators, ice breaks and marine mammal alarm calls, are likely to
evoke strong behavioral reactions. In these examples, flight and
interruption of significant biological behavior is almost a certainty.
The 1997-98 SRP field experiment results show that blue, fin, humpback
and gray whales did not perceive LFA signals as threatening.
When a sound is perceived as potentially dangerous, its loudness is
probably not the overriding factor. The proximity of the signal to the
marine mammal and the rate of approach are most significant in
determining the immediacy of the threat. An example of the importance
of source location was shown in the SRP Phase II experiments off the
central California coast where a sound source was placed directly in
the path of migrating gray whales, which follow a relatively
predictable corridor close to shore. The animals showed a modest
avoidance reaction by deflecting a few hundred yards around the sound
source. When the sound source was moved one mile farther out to sea
(even when the source level was adjusted so that the received level to
the animals in the migration corridor remained the same) the whales did
not exhibit avoidance of the signal.
In the absence of a threatening signal, marine mammals are not
expected to alter their behavior unless and until sound levels become
uncomfortable or significantly impair the perceptions of sounds that
are critical for their behavior. Impairment of a marine mammal's
perception of critical sounds is called masking. Masking effects in
marine mammals caused by LFA would be temporary and negligible because
LFA's bandwidth is limited to approximately 30 Hz, signals do not
remain at a single frequency for more than 10 seconds, and the system
is off at least 80 percent of the time. For humans, discomfort is
highly dependent on the type of signal. Soft, mellow sounds are
regarded as comfortable and sharp, pitched sounds (e.g., fingernails on
a chalkboard) are uncomfortable. The SRP field study measured the
response or, lack of response, of marine mammals to discomforting LFA
sounds at exposure levels up to 155 dB. The onset of mild discomfort,
for a 200 Hz signal lasting up to 100 seconds and transmitted
approximately every 15 minutes, is estimated, using a human model in
air, to be 50 to 60 dB above hearing threshold. This equates to
approximately 130 to 140 dB received levels for baleen whales--the
species believed to possess the best hearing capability in the LFA
frequency band. For a 200 Hz signal lasting up to 100 seconds and
transmitted every 15 minutes at 130 dB to 140 dB received levels, some
marine mammals may temporarily avoid the sound, but more than likely
will tolerate it. When the received level at the animal increases to
approximately 165 dB, scientists estimate that up to 50% of baleen
whales are likely to experience sufficient discomfort that they will
take measures to avoid the sound. However, the reaction is dependent
upon the behavior involved. If engaged in a critical behavior, such as
feeding, they may choose to tolerate the discomfort for the nutritional
benefit. If the sound received level reaches 180 dB, it is doubtful
that animals will tolerate the signal for any reason. Above 180 dB, a
200 Hz signal lasting up to 100 seconds and transmitted every 15
minutes creates an increasing likelihood of injury as exposure levels
rise. Included in this injury zone above 180 dB is the possibility of
hearing loss and tissue damage from direct and resonance effects.
Extensive mitigation and monitoring requirements will be levied on
all LFA operations. Geographic restrictions dictate that received
levels will always be below 180 dB within 12 nautical miles of any
coastline, and any NOAA and Navy-designated offshore biologically
important area. Received levels will not exceed 145 dB in the vicinity
of any known commercial or recreational dive sites. Monitoring
mitigation procedures include daylight visual monitoring for marine
mammals and sea turtles, passive listening with the SURTASS towed array
to detect sounds generated by marine mammals as an indicator of their
presence, and high frequency sonar to detect, locate and track marine
mammals, and possibly sea turtles, near the LFA vessel to ensure they
do not enter the 180-dB LFA Mitigation Zone.
The SRP field study results demonstrate that, while not impossible,
the planned operations of LFA are highly unlikely to cause injury,
especially given the operational restrictions and mitigation measures
that will be employed in conjunction with all LFA operations. Extensive
analysis has shown that a small number of animals will be exposed to
levels above 165 dB, up to a maximum range from the source of
approximately 30 nautical miles under optimal acoustic propagation
conditions that may occur no more than 10 percent of the time. In
general, exposure levels are more dependent on the depth of the animal
than its range from the source. Therefore, the 30-nautical mile maximum
needs to be tempered with the depth dependence of the sound field.
Received levels up to 140 dB can range out to 300 nautical miles but,
again, only under optimal conditions and assuming the animal is located
in the narrow depth zone of highest sound level. At these ranges, the
animal will move out of the small volume of high sound energy by simply
changing depth. In ocean areas with water depths less than 4,000 feet,
the ranges are significantly shorter (down to 10 percent of the above
maximum ranges).
It is possible to hear LFA at long ranges. However, merely hearing
the LFA signal does not constitute an impact--an important point that
LFA opponents fail to acknowledge time and again. Given that the LFA
signal does not seem to be intrinsically threatening or annoying to
marine mammals, in the case of simply being able to hear the signal,
the animal will necessarily be far from the source. Thus, it will not
find itself within the area where a significant change to a
biologically important behavior could occur; more than likely animals
will have no reaction at these low exposure levels.
In summary, the potential impact on any stock of marine mammals
from injury is considered negligible. The potential impact on any one
marine mammal from significant change in a biologically important
behavior--such as migrating, breeding, feeding, or sheltering--is
considered minimal. Because there is some potential for incidental
takes by harassment, the Navy is requesting a Letter of Authorization
under the Marine Mammal Protection Act from NOAA Fisheries for the
taking of marine mammals incidental to the employment of SURTASS LFA
sonar. Additionally, the Navy is consulting with NOAA Fisheries under
Section 7 of the Endangered Species Act.
The Navy's Long Term Monitoring Plan. As discussion of these three
important points shows, the Navy has done the research and analysis
that demonstrates that it can deploy this vitally needed ASW system
safely and effectively. Findings from the SRP field-testing did not
reveal any significant change in a biologically important behavior in
marine mammals. Additionally, risk analysis conducted in the EIS
estimated very low risk to marine mammal species. The Navy's planned
long-term monitoring efforts go even further, with its commitment to
future monitoring, and research on possible effects from underwater low
frequency sound. Upon issuance of a Letter of Authorization by NOAA
Fisheries, the Navy will provide a detailed Long Term Monitoring Plan,
which will include:
1. LNavy and independent scientific analyses of the effectiveness
of the proposed mitigation measures, including verification of the
high-frequency monitoring sonar performance.
2. LCareful measurement and modeling of the LFA sound field at
various depths and ranges prior to and during operations to ensure
compliance with the 180-dB geographic restriction and the 145-dB diver
criterion.
3. LAdditional research conducted in collaboration with other Navy
oceanographic research laboratories and U.S. academia, such as Woods
Hole Oceanographic Institution and Scripps Institution of Oceanography.
The Navy will solicit the best-qualified independent marine biologists
to help address the outstanding critical issues on the direct and
indirect effects of man-made low frequency sound on marine mammal
stocks. When security classification and SURTASS LFA ship operations
scheduling allow, the Navy will encourage cooperative research efforts
using SURTASS LFA sonar at sea.
4. LIncident monitoring will comprise two parts. First,
recreational and commercial diver incident monitoring, and secondly,
marine mammal stranding incident monitoring. The Navy will maintain
close coordination with the principal clearinghouses for information on
diver-related incidents, namely the National Association of Underwater
Instructors (NAUI), the Professional Association of Diving Instructors
(PADI) and the Divers Alert Network (DAN). The Navy will also
coordinate with NOAA Fisheries and the principal marine mammal
stranding networks to correlate analysis of any whale strandings with
LFA operations.
Some members of the general public have taken an intense interest
in the problem of underwater noise, particularly focusing on SURTASS
LFA. Unfortunately, the concern and controversy over the SURTASS LFA
sonar system is largely based on misinformation that has appeared in
the press, direct mail, the Internet, and during public hearings.
Professional marine biologists and bio-acousticians believe there is
reason for concern about higher noise levels in the ocean, but not for
the kind of unreasoned fear that SURTASS LFA now generates in the
general public. Therefore, I would like to address some of the
misrepresentations of SURTASS LFA. For the record, I owe this part of
my testimony to NOAA Fisheries.
1. LFA is the loudest human noise in the oceans, amounting to an
acoustic holocaust. The maximum exposure an animal could possibly
receive from LFA is 215 dB. This is not close to the loudest sound
marine animals may be exposed to in their everyday environment. Each
year about one trillion lightning strikes hit the ocean surface with
sound levels around 260 dB. About 1,000 underwater earthquakes,
landslides and volcanic eruptions exceeding 230 dB occur annually in
the Pacific Ocean alone, and over 10,000 occur that exceed 205 dB. The
loudest non-explosive anthropogenic noise in the ocean is from airgun
arrays used in seismic exploration. There are about 150 seismic vessels
operating worldwide this year, with source levels up to 255 dB, and
capable of shooting every 10 seconds--any one of these can put more
acoustic energy into the ocean annually than LFA. The most energetic
noise in the oceans is from commercial shipping. If LFA and all other
human-generated impulsive noises could be eliminated, noise levels
would continue to rise because of shipping alone.
2. LFA is a billion times louder than a 747 jet engine. Within 200
yards, LFA is approximately the same as a 747 engine, if one could
operate under water. Beyond 200 yards, LFA forms an omni-directional
beam that is narrow in the vertical. Outside this beam, at any given
distance, the LFA sound is comparable to a jet engine at the same
range. Inside the beam, LFA is about 30 dB louder, which would be
perceived by a human as about six times louder, not a billion times.
3. The safety zone used for LFA, 180 dB received level, was
invented for LFA, and is not based on science. The 180 dB safety zone
was recommended by an expert panel in 1997 for seismic operations off
California. Although it is true that no one study has proven the safety
of this level for marine mammals, several lines of credible research
suggest that 180 dB is a safe and conservative level for preventing
injury from low frequency sound. Furthermore, the 180 dB level makes
common sense, given the animals' environment. For example, 180 dB is
about half the sound pressure level that an animal would receive from a
nearby blue whale call, which is about 186 dB at the source.
4. Sonar has caused beaked whale deaths, which proves that LFA will
also. It is not possible that all sonars will affect all species of
marine mammals equally. Sonars differ in operating characteristics, and
marine mammal species differ in the sounds to which they are
susceptible. Opponents of LFA intentionally obscure these facts in an
attempt to prove by analogy that LFA poses specific dangers. The
scientific truth about sonar and beaked whales is that tactical sonar
may be implicated in the strandings of six beaked whales on nearby
beaches in the Bahamas in March 2000. They then apparently died from
exposure. Tissues from two of the animals are being intensely studied
by the Woods Hole Oceanographic Institution and NOAA Fisheries for the
mechanism that could have caused their deaths. Six other episodes are
known when sonar is believed to have operated near where beaked whales
died. However, no tissues were collected from any of these events, and
nothing is known about the types of sonar, or the time or distance
separating them from the dead whales. Without this information, science
cannot prove whether sonar did or did not cause whale deaths. These
events are important because they point out the scientific truth about
LFA--that there is no evidence that LFA has ever caused a stranding,
much less a mortality. Furthermore, its operation will come with
extensive mitigation measures that will make strandings highly
unlikely. It should be noted that no mitigation was used with any of
the other seven events.
5. Resonance explains all previous stranding events caused by
military sonar and makes deaths from LFA inevitable. Resonance is an
untested hypothesis about the cause of the deaths of six beaked whales
in the March, 2000 Bahamas stranding incident. Resonance is only one of
three different hypotheses about the Bahamas strandings that NOAA
Fisheries and the Navy are addressing. It should be noted that there
are currently no resonance data available from any marine mammal tissue
of any marine mammal species. Mathematical calculations leading to a
hypothesis that resonance might have caused the beaked whale deaths in
the Bahamas are not acceptable evidence that resonance was in fact the
cause. Only physical experiments, now under way, can show whether
resonance may be implicated in the whales' mortality. Until then, we
should not assume that all active sonar can cause whale deaths by
resonance.
In summary, the Navy recognizes that the potential impact of man-
made sound in the ocean is an issue of public and scientific concern.
The Navy cares about the ocean habitat, and its efforts are directed
toward marine conservation. The environmentally responsible deployment
of SURTASS LFA is an important Navy priority. The Final EIS
demonstrates that LFA can be used safely relative to both human and
marine life by restricting where and when it operates and by using
validated mitigation measures. The Navy has relied on a group of
independent scientists from respected scientific research
establishments, such as Woods Hole Oceanographic Institution, Cornell
University, the University of California and the University of
Maryland. These are internationally recognized experts in bioacoustics
and marine animal behavior. Their reputations are based on many years
of impeccable research and personal scientific integrity. They deal in
scientific fact, not emotional rhetoric and the facts show that the
deployment of SURTASS LFA sonar can be safely employed in our oceans.
Finally, the Navy would like to add its support to the efforts of
the Department of Commerce, NOAA, and NMFS to reauthorize the MMPA. The
Navy will work with these and other federal agencies to ensure that any
MMPA amendments proposed by the Administration will balance properly
the goals of environmental protection and military readiness. The
current definition of ``harassment'' is broken into two parts. The
first part, known as ``Level A'' harassment, deals with physical injury
to marine mammals. The second part, known as ``Level B'' harassment,
deals with behavioral modifications to marine mammals. Under both
parts, the potential to injure or disturb a marine mammal amounts to
harassment of the marine mammal. Additionally, with regard to Level B
harassment, the mere causing of a disruption to an animal's behavior
patterns amounts to harassment. These overly broad and ambiguous terms
allow for many naval activities, including operation of sonar, to be
considered harassment. A recent National Research Council report to
Congress recommended changes in the statutory definition of harassment.
Changes along the lines of those recommended by the NRC could bring
greater clarity to the MMPA, narrow the focus of harassment, and offer
the Navy increased flexibility in its operations while still protecting
marine mammals.
With regards to research, the Navy funds the majority of all Marine
Mammal research in the world. The Navy provided approximately $7M in
fiscal year 01 for research directly related to assessing and
mitigating the effect of noise from Navy activities on the marine
environment. The funding plan for fiscal year 02 calls for an increase
of approximately $2M to $7M, contingent on final budget approval and
recent events.
The Office of Naval Research (ONR) research program is divided into
two major components: 1) Environmental Consequences of Underwater Sound
(ECOUS) and 2) Effects of Sound on the Marine Environment (ESME). The
goal of ECOUS is to develop data on marine animal hearing and
behavioral response to sound with an emphasis on marine mammals as the
group most likely to be sensitive to manmade noise, to encourage new
technologies that will make this job easier (such as new listening
technologies to detect marine mammal sounds) and to develop databases
and educational resources to enable Navy personnel and the public to
better understand and respond to this issue. ESME is a recent program
that grew out of ECOUS, and has been funded at an annual level of about
$2M since fiscal year 00. ESME is intended to take the information
garnered from ECOUS, and other sources, and incorporate this
information into a predictive modeling and planning toolkit for Navy
and other users. The intent of ESME is to allow users to anticipate the
likely outcome of a planned action, and design that action for minimal
environmental impact.
Over half of the ONR program funds go outside the Navy to
independent research institutions and universities. All participants in
the program are encouraged to publish their results in peer-reviewed
open professional literature, and to report their findings at open
professional meetings in relevant subject areas (e.g. acoustics, animal
behavior, hearing, ecology). The ONR program is externally reviewed by
an independent board of visitors approximately once a year, and
receives input from the National Academy of
Sciences, the Marine Mammal Commission and other independent
oversight bodies. A complete list of research activities sponsored in
fiscal year 00-01, containing a 2-5 page summary of each project, can
be found at the ONR website (www.onr.navy.mil).
In addition to the ONR S&T projects mentioned above, Navy invested
$3M in FY01 and is planning a similar amount in fiscal year 02 to take
advantage of our years of experience in sonar operations and our
knowledge of underwater sound in an attempt to monitor marine mammals.
Equipment and techniques originally developed to detect the sounds
emitted from submerged submarines may have practical application in
detecting and tracking marine mammals. This has significant potential
since many marine mammals use calls, sounds of a various nature when
under the surface, as a form of social communication, or to determine
the location of prey, etc.
Our attempts to detect these calls and determine what species of
animal is calling, and under what circumstance may provide valuable
information and understanding. First, we will be able to significantly
improve our estimate of how many animals of a certain species are
within a Navy ocean region of interest. This type data is critical to
the analysis used to determine the potential effect of Navy operations
on marine mammals. Second, we will be able to mitigate any potential
effect by detecting the presence of a marine mammal within an area, and
therefore cease or modify the scheduled operations.
Third, by acoustically monitoring marine mammals we may be able to
measure any changes in their behavior providing information on the
potential long-term effects from various Naval activities.
If it were possible to predict realistically how many marine
mammals of a given species were expected in any given ocean region,
Navy planners could, when there is an option, schedule training
exercises at locations to limit any potential effect. A more realistic
estimate of the number of animals expected must include knowledge of
the factors which govern where marine mammal go in the ocean, and for
what reasons. The Navy is investigating these habitats and attempting
to correlate them with the known physical environment. When we have
that information we will be able to predict or forecast marine mammal
movement and abundance that will improve our ability to mitigate. The
research to date has provided much insight on acoustic concerns in the
ocean including the alarming overall rise of ambient noise and the
potential masking of marine mammal communication by unregulated
commercial shipping and seismic surveying.
The Navy is a good steward of the ocean and we have maintained a
reasonable balance between national security and environmental
concerns. We hope to continue that relationship as we forge ahead in
this new century.
______
Mr. Gilchrest. Thank you very much, Admiral.
I guess what we are going to try to figure out here is,
between this afternoon and the next several months, how does
noise, human-caused noise in the ocean, affect the marine
ecosystem as a whole? That includes fish, from my perspective,
but this afternoon we are focused on marine mammals and whales
in particular.
And what we are looking for as Members of Congress is to
gather the best available data on--I'm going to make an attempt
at this, Dr. Ketten--anthropogenic noise, and ways that we can
modify it so it doesn't have a negative impact. And we will not
only work with the Marine Mammal Protection Act and all of you,
but certainly we would like to work with the International
Maritime Organization to see if we can get the international
community, in the design of their ships, to find ways to modify
the sound.
I would guess, Admiral McGinn, that the Navy has already
figured out how to run a ship with no noise. Maybe we can adapt
those particulars and engineer that for the commercial sector
of the marine transportation system.
But, Dr. Ketten, you made a statement about LFA that I
found interesting. You said it did not cause the beaching of
those whales in the Bahamas, and I would like to know how you
can say that categorically. Might it have been some other type
of sonar, some other range of noise in the ocean? Do you have
some idea of what caused those whales to be beached in the
Bahamas?
Ms. Ketten. Yes, sir. The reason I said LFA had nothing to
do with it was, to the best of my knowledge there was no low
frequency, LFA or another acronym for similar devices, exercise
underway at the time. What we have is a case of 14 animals that
beached. Of those, six died, eight were returned to the water
successfully. The six that died were examined by me and other
pathologists.
I am getting to the answer. That is, we know what killed
the animals, and it was the complications of beaching. That is,
they died of hyperthermia, overheating under their own fat and
body loads, as well as, in a few animals' cases, severe trauma
from going across reefs or being bitten by sharks in beaching.
That is the cause of death.
What we did find in those animals, what I found in those
animals, were a suite of traumas that were unusual, and in fact
which we have not seen in other animals to date. Those were
auditory traumas or acoustic induced traumas, we believe. The
specific traumas are consistent with a pressure induced injury,
and at the time what I asked for were records of the area, to
determine if there had been explosions, which could also
provide these same damages, or other sounds.
I believe it has been generally acknowledged by the Navy as
well as by NOAA Fisheries, who sponsored me to do the work,
that the coincidence of the sonars in what was called an
unusual sound duct, that is, an unusual sound profile that
developed in the water, so that there was very little
degradation of the sound as you would normally find, very
little attenuation of it, the animals found themselves in
essentially a spherical area where they were not getting away
from an intense signal.
It was a combination also, please note, these were beaked
whales that stranded, that died, and they are the only ones
with these traumas. None of the other species, there were two
other species that stranded, had any of those traumas. So there
is a specificity to the trauma, and it is to just beaked
whales. It was a mid-range sonar, again.
Mr. Gilchrest. What were the other whales that were
beached?
Ms. Ketten. There were two Minke whales and one spotted
dolphin. Minke whales and spotted dolphins are not uncommon
stranders in those areas, and the two Minke whales survived.
They just came on shore briefly and went right back off. The
spotted dolphin did die. The pathology on that was that it was
an emaciated, very weak animal with a lot of infections. It
stranded on the opposite side of the island, and we decided--
Mr. Gilchrest. That might have been a coincidence, you are
saying?
Ms. Ketten. Exactly. Right. Precisely, a coincidental
stranding.
Mr. Gilchrest. The beaked whales that did have the trauma,
was the trauma in the ear? Was there a rupture in the ear, a
damage to their tissue? And then can you determine what was--
well, it seems that you are saying that the damage to the
tissue in those whales that were beached happened perhaps as a
result of some type of sonar being emitted, but that they were
caught in, I don't know, an underground chasm in which, if they
could have gone to the right or left, they may have escaped the
trauma?
Ms. Ketten. I apologize for the complexity of this. The
situation is that they had hemorrhages in the brain area,
outside the brain, in the fluid surrounding it. It is called
the subarachnoid space. It is the fluid cushion that surrounds
our brains. The brains themselves were not compromised. So
there were some hemorrhages in that space. There were
hemorrhages in--
Mr. Gilchrest. And what would cause a hemorrhage like that?
Ms. Ketten. Allow me to just say there were two other
areas, and that is the key to this, is there were some
hemorrhages around the ears and some hemorrhages in fats in
their jaws that are associated with channeling sound to their
ears.
You do see the same type of bleeding, except not in the fat
since we don't have them, in humans, and in experimental
animals that have been exposed to some forms of sound. In
humans we see the same suite of traumas also, however, in
individuals that are prone to bleeding, hemophiliacs, end stage
leukemics.
You can see it--there were a possible seven causes that are
consistent with this suite of traumas. We eliminated some, like
birth trauma from forceps. I don't think there is an obstetrics
ward out there. That one I was pretty sure was not the case.
As I mentioned, explosions are a possibility. There were no
explosions that anyone could detect. Intense impulse noise,
sonic booms, intense impulsive sonars which are not
attenuating, at exceptional high levels. Anything that was a
high impulse noise. A gun going off alongside your head can
induce this.
However, and here is the key element, why I am not saying
absolutely sonar per se did it, is an animal that is simply
stressed, which is prone to bleeding, may also have had those
same hemorrhages. And it is very complex for us right now to
say which thing it was or if it is a combination.
I have two other pathologists who are experts in the
appropriate area looking into the question of whether or not
beaked whales in fact have some tendency to bleeding. It is
called diathetic disease. It may be that it is a combination of
beaked whales being sensitive to the sonars, being in a sound
field that stressed them, and then going on shore.
One thing that I need to mention is that we don't know
about the entire population. We know only about the six animals
that died on shore. As I mentioned, eight were returned to the
water successfully.
Mr. Gilchrest. Eight beaked whales?
Ms. Ketten. Yes, and also we did patrol the area by air and
boat for over a week, and no other whales were found stranded
or dead in the vicinity. You would expect if they had died that
they would have come to the surface.
Mr. Gilchrest. Thank you very much. I have some other
questions, but I will yield now to Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman. I am most
impressed with the distinguished members of the panel this
afternoon. And there have been some interesting differences of
opinion, too, about the issues, and I would like to ask Admiral
McGinn, there is a very obvious disagreement with the purpose
of the Navy's experimentation. You have indicated that for some
60 years the Navy has had extensive experience in understanding
sonar. I am not very familiar with SURTASS LFA that you had
indicated earlier in your statement. Is the Navy still
continuing research using dolphins for purposes of carrying
mines and things of that sort?
Admiral McGinn. Yes, sir. We have a variety of marine
mammal programs, some of them unclassified, some of them
classified. I would welcome any member of the Committee, if you
wanted to visit us, to visit our facilities to talk to the
marine biologists that work with these wonderful animals, and
we can also provide you a briefing on any of our programs along
those lines.
Mr. Faleomavaega. Where is your facility?
Admiral McGinn. Principally in the San Diego area.
Mr. Faleomavaega. Mr. Chairman, I want to be the first
volunteer of the Committee to go to San Diego.
[Laughter.]
Admiral McGinn. Sir, if I could make a recommendation, I
recommend January as the best time to go out there.
Mr. Faleomavaega. I absolutely agree with you on that.
Mr. Gilchrest. Mr. Faleomavaega, Mr. Underwood and I have
already planned a trip, and you can accompany us, but our trip
is to the northern part of Alaska to study the polar bears. So
you are welcome on that one.
Mr. Faleomavaega. Mr. Chairman, you are welcome to go see
the polar bears, but I am going to San Diego.
[Laughter.]
Mr. Faleomavaega. But as you had indicated, Admiral McGinn,
on questions of national security, I don't think there is any
question in anybody's mind the importance of that, the security
of our Nation. The thought that came to my mind, is it any
different using dolphins for the purposes in the same way that
we use dogs? I don't know if that is a proper way to describe
it. In heat of battle and the situation, they are just as much
subject to dangerous situations as you would have dolphins
carrying mines of the sort. Do you see any distinctions? Are
they about the same, or do you think it is inhumane to use
dolphins for the same purposes?
Admiral McGinn. I do not, sir, and I think the analogy to
using canines for the variety of purposes that we see them used
right now in this national crisis, whether it is for finding
survivors or remains, whether it is for detecting explosive
devices, whether it is for security, protecting key areas and
citizens, we use animals in a very humane way, and we use them
because they have abilities and senses that we simply do not
have. That is certainly the case in our use of marine mammals.
They are absolutely wonderful animals, well cared for and
humanely treated, and they are invaluable in the areas that we
use them in.
Mr. Faleomavaega. Was the Navy involved in any research, as
it was suggested earlier by Dr. Ketten, about the beaching of
these whales in the Bahamas? Can you--
Admiral McGinn. Yes, sir, we con--
Mr. Faleomavaega. --share with us what your findings is in
terms of--
Admiral McGinn. --we conducted what I would describe as a
more operational investigation related to that grounding in the
Providence Channel in the Bahamas, and as a result of that, we
changed our operational pattern and procedures in there. That
was an area that was unique to our operations. We were moved to
that area because of restrictions on the ability to train in
the Vieques, Puerto Rican area, in the Virgin Island Channel,
which is a much wider channel and has much better
characteristics for sound attenuation than in the Providence
Channel. So as a result of our operationally oriented
investigation, which was supported in part by the scientific
investigation, we have placed restrictions on operations of
ships and the types of operations that you can do in the
vicinity of the Providence Channel.
Mr. Faleomavaega. Now, it is Dr. Whitehead's best opinion
that it was because of naval operations that caused the deaths
of these whales, and of course there is disagreement with Dr.
Ketten, as well, but what is the Navy's position in that
allegation?
Admiral McGinn. In that particular case, in that particular
well-documented and scientifically researched case, where we
can make fact-based opinions, we believe that the possibility
was strong enough to cause us to alter our operational
patterns. We would not want to apply that rule broadly, if we
did not have the facts to do so.
Mr. Faleomavaega. But did you scientifically also do a
study like Dr. Ketten did, actually cutting up the whale to
find out exactly the auditory system, what caused it or
possibilities that--
Admiral McGinn. No, sir, we did not, but I will defer to
Dr. Ketten to give you the relationship with the Navy
investigation and the scientific research. But we made
available funds to do that, to follow on this investigation to
its full conclusion.
Mr. Faleomavaega. Does the Navy also provide funds to Dr.
Whitehead and Dr. Rose on a conservation basis about their
studies of mammals and--
Admiral McGinn. I would like to defer to them. Perhaps they
could give you a better answer, sir. I am not aware of any that
we do.
Mr. Faleomavaega. But probably more than any Federal agency
in the whole government that I am aware of, the Navy is
probably the repository of just about everything and anything
dealing with sound systems, sonar, both machine operated as
well as using animals for--
Admiral McGinn. Yes, sir, that is true. And as a result, as
you probably know, of the end of the Cold War, we have been
able to increase the sharing of marine data, information,
scientific data with a much broader community in an
unclassified way, and that has helped us all to learn more
about this planet and the 70 percent of it that is covered by
water.
Mr. Faleomavaega. I am sorry my time is up, Mr. Chairman,
but I will be your first volunteer to go to San Diego.
Mr. Gilchrest. We will accept that, Mr. Faleomavaega. We
will probably have another round, so you will be able to ask
more questions if you have them.
Mrs. Mink?
Mrs. Mink. Thank you very much for the courtesy of inviting
me here to the podium. I have been with this issue a long time,
through various name changes of the various experiments that
have been conducted in the ocean for acoustic impacts.
I would like to get back to the beaching of the 16 whales
in the Bahamas. From the Navy point of view, Admiral McGinn,
can you conclude for us what the Navy found as the reasons for
those 14 whales being beached in the Bahamas?
Admiral McGinn. To the extent of my present knowledge on
that, the results are inconclusive to this date. There is still
a report that we are awaiting from, I believe, Dr. Ketten and
perhaps others, that has more scientific data. But to my
knowledge, we have not come to a conclusion, a definitive
conclusion, that it was the use of mid-frequency range sonars
that directly caused that beaching of the whales.
Mrs. Mink. Yet the information that you did receive caused
you to alter your plans, you testified, so there must have been
data there that was of sufficient merit to conclude that the
operations that you had conducted could have contributed to
this event, and therefore you changed. All I am trying to find
out is--
Admiral McGinn. Yes, ma'am.
Mrs. Mink. --what was that data that caused you to make
that shift in policy?
Admiral McGinn. I would characterize it as we took the
prudent and conservative course of action, based on the
circumstantial evidence surrounding that beaching. And it was
for that reason, erring on the side of the conservative, that
we imposed that. It wasn't any specific, fact-based conclusion
that caused us to do that.
Mrs. Mink. So what level of sonar soundings were in place
at that time, that could have been responsible for the
beaching?
Admiral McGinn. I am sorry, madam, could you--
Mrs. Mink. What was the level of the sounds that were
produced by your particular testing or whatever, that could
have led to the beaching?
Admiral McGinn. I would like to--
Mrs. Mink. I am trying to get a distinction between LFA and
medium level. What, in your data sheets, what was the level of
soundings that--
Admiral McGinn. I would like to take that question for the
record, but I would like to comment on the distinction between
the kinds of operations that were being conducted in the
Bahamas, in the Providence Channel, and this whole issue of
LFA. We are talking about two different frequency bands with
quite different propagation characteristics in the water
column.
The LFA issue is not related to what happened in the
Providence Channel in the Bahamas. There was no LFA operation.
It is not relevant in terms of the sound amplitude of LFA
regarding that incident. But I will get back to you on
precisely, to the extent of our knowledge, the level of sound,
of the sonars that were being used in those naval operations.
I have been handed a note that there is a joint Navy-NOAA
investigation. NOAA has the lead on it. We are supporting them.
And the results are pending, and I think they will be released
in a matter of weeks, and certainly not more than a couple of
months.
The reason that I emphasized our cessation of operations in
that particular area was based on an operationally oriented as
opposed to a scientific investigation as to the cause of the
beaching.
Mrs. Mink. To the extent that you have concluded that the
beachings of the 14 whales had nothing to do with low frequency
matters, what was the frequency that was recorded in the
Bahamas that led to the beaching in the first place?
Admiral McGinn. I would request that I take that question
for the record, and we will provide you with a response with
all of the parameters that we know about that sound signal.
Mrs. Mink. Now, is any part of the LFA testing considered
classified information, to which you cannot provide a public
hearing such as this the information that we might need?
Admiral McGinn. Well, some of it is, because we don't want
to advertise, especially in a public forum, the effectiveness
against various types of underwater targets like diesel
submarines. But a great deal of it, as it relates to protecting
the marine environment and protecting marine mammals, is a
matter of public record, and we are more than happy to share
whatever data we can.
Mrs. Mink. Well, I know my time is up but I have one more
question of Dr. Whitehead, because it is your testimony that
really concurs with mine, in which you categorically state that
it is clear that the naval exercises and LFA were responsible
for the whales being beached in the Bahamas. So can we have
your comment to the series of questions that relate to that
particular incident, so it might have some clarity on the
matter?
Mr. Whitehead. Yes. As all of us I think have pointed out,
the ocean is a hard place to figure out what is going on, but
the sequence of events in the Bahamas was as clear a proof of
the cause, the ultimate cause of what happened, as you are ever
likely to get in the ocean.
Dr. Ketten says it wasn't the sonar that caused them to
die, but as Dr. Balcomb, who did the studies, has pointed out,
to say that the whales died from beaching is rather like saying
that if you chase buffalo over a cliff, it is falling on their
noses that killed them rather than being chased.
So to me the Bahamas evidence is very clear, and when that
is backed up with evidence from previous naval exercises, for
instance an exercise which took place in Greece a few years
ago, that there was another multiple stranding of beaked whales
soon after the use of sonars, in this case low-frequency
sonars, and the statistical evidence, looking back over the
historical record, of the congruence between these strandings
of several species of beaked whale together with military
activities, I think we have got something we have really got to
worry about.
And I appreciate that you here in the United States and all
of us have to be concerned about protecting your Nation at the
moment, but we must also be concerned with what we do as we do
that, and I hope you will. Thank you.
Mrs. Mink. In the case of the Mediterranean incident, how
many whales were beached and how many died? Do you have those
figures, for the record?
Mr. Whitehead. I don't have them with me at the moment, I
am afraid.
Mrs. Mink. If he might provide that, just to complete the
record, I think you very much, Mr. Chairman.
Mr. Gilchrest. Yes, ma'am.
Mrs. Mink. Oh, I have the statement from my colleague from
Hawaii, Congressman Abercrombie, who asked me to insert it at
this point in the record.
Mr. Gilchrest. Mr. Abercrombie. It will be, without
objection.
Mrs. Mink. Thank you.
[The prepared statement of Mr. Abercrombie follows:]
Statement of Hon. Neil Abercrombie, a Representative in Congress from
the State of Hawaii
Mahatma Gandhi once said that the greatness of a nation can be
judged by the way a society treats its animals.
The United States, and Hawaii in particular, have been blessed with
a tremendously rich and diverse array of whales, dolphins, and other
marine mammals that inhabit our oceans. These animals have lived here
for millions of years and many of them, especially the whales and
dolphins, are extremely intelligent.
I am concerned about recent allegations that there is inconclusive
scientific evidence that supports the U.S. Navy's contention that the
Surveillance Towed Array Sensor System Low Frequency Active Sonar
(SURTASS LFA) is not harmful to these species. Some groups have
proffered evidence indicating that low frequency active sonar may be
linked to internal bleeding, disorientation, hearing loss, and other
negative consequences for whales and other marine life. And recent
beaked whale strandings in the Bahamas demonstrated that active sonar
may even have lethal effects on these animals.
For many years our marine mammals have suffered from hunting,
pollution, overfishing, and other human disturbances. This has placed
many species on the Endangered Species Act's endangered list. Now it
appears that we may be making matters worse for our marine mammal
populations with the introduction of harmful sonar technology. The
Marine Mammal Protection and Endangered Species Acts ensure that future
threats to these species are minimized. There is reason to believe that
low frequency active sonar presents just such a threat.
As a result of the National Marine Fisheries Service's (NMFS)
proposed rule, which would allow the Navy to proceed with deployment of
this sonar system, I have heard an outcry from constituents who are
concerned about the rule's impact. The NMFS recently received public
comments from eighty organizations and individuals from the scientific
and environmental communities in response to its proposed rule for the
taking of marine mammals incidental to Navy operations of the SURTASS
LFA sonar. All of these responses were opposed to the deployment of the
LFA sonar system. Needless to say, there is widespread concern in these
communities that the use of the SURTASS LFA sonar in our oceans
presents an unacceptable risk to marine species and their habitat. Such
strong and credible comments from organizations like the Marine Mammal
Commission, the Natural Resources Defense Council and the Humane
Society of the United States cause me to be skeptical about the
deployment of this sonar at this time. I urge NMFS to delay the
decision on this matter until there is conclusive scientific evidence
that this technology will not negatively impact marine mammals.
Over the years I have worked very hard to protect, conserve and
restore our marine species. For some species, such as humpback whales,
these efforts have been extremely successful. The tremendous popularity
of whale-watching cruises are an indication of just how much public
support and interest there is in the well-being of these magnificent
creatures. I also believe in a strong national defense and have
previously supported funding for the Navy to explore new sonar
technology. However, I am concerned that we may be too hasty in
deploying a sonar that may prove injurious to marine mammals. I believe
that there are serious questions that need to be answered before such
deployment. It would be wrong to deploy the low frequency active sonar
system until we know that it will not harm our marine mammal community.
Perhaps more research into marine mammal hearing could provide answers
to these questions.
It is my understanding that there may be opportunities to develop
advanced passive sonar systems that would not have the same sort of
consequences for marine mammals. I believe the Navy has testified
before Congress that some of these new passive systems are able to
detect targets to a degree previously thought unobtainable. I encourage
the Navy to exhaust these options before pushing forward with a
technology that appears to be harmful.
Finally, I am concerned about the totality of human induced noise
that is currently polluting our oceans. Over the years ocean noise has
greatly increased as fishing, shipping and mineral exploration has
expanded globally. When this noise is combined with the noise caused by
existing military hardware such as the mid-frequency sonar I find
myself asking just how much noise can we introduce into our oceans
before it seriously affects our marine environment. I believe that all
noise pollution that currently exists in our oceans should be examined
in conjunction with the SURTASS LFA sonar.
______
Mr. Gilchrest. Just a couple of follow-up questions to get
it clear in our mind a little bit more, and I understand that
some of these questions that we ask, we are not asking you to
multiply 10 by 10, where there is no question what the answer
is. I guess what I am trying to figure out is--well, first of
all, LFA, SURTASS LFA, was not used, it is my understanding,
during that operation.
Admiral McGinn. No.
Mr. Gilchrest. LFA wasn't used, but there was a more
traditional mid-range sonar used?
Admiral McGinn. Yes, sir.
Mr. Gilchrest. And during this operation there was a type
of--which isn't normally used by the Navy in this particular
vicinity for naval operations, but because of something that
happened, I guess in Vieques, the operation was moved to a
different location--but there was a type of a channel that the
ships were going through, that if there were in fact marine
mammals or whales in that channel, they didn't have an easy
escape route.
Now, Dr. Fristrup, you made a comment earlier about a
series of research activities that you were involved in to see
which type of range of frequency had a reaction to whales in
various places. Based on that research and your understanding
of the type of range that different size marine mammals will
find damaging, what would you say--and we in Congress very
often go on guesses, so I would just ask you your best
assessment--under this circumstance in the Bahamas, where there
were numerous beached whales, most of which were beaked whales,
based on the range of acceptable frequency in a beaked whale
before it causes some type of damage or trauma, could mid-level
sonar, under the conditions of that naval operation in that
channel, if the beaked whales were in that channel and couldn't
escape, could that sonar have caused them trauma so they became
disoriented and beached themselves?
Mr. Fristrup. I have to resist a considerable temptation to
pass this to Darlene because it is really more her area of
expertise, but I would like to say one thing, and that is, I
don't think anyone should overstress the unique physical
conditions that take place in the ocean, because there may be
other times and places in the ocean where similar conditions
occur.
What needs to happen is for us to learn, rather than
speculate about whether those unique conditions caused the
problem or whether this particular species has a problem, we
just need to go about this in a fairly systematic, rational way
and find out what the critical factors are. The fact that there
are Navy operations all over the world that don't correspond
with strandings suggest that it is not a universal feature of
Navy operations.
And every Navy operation probably has a unique combination
of factors involved--different instruments, different sonars,
different operational procedures, different numbers of ships--
and so the process of teasing apart what the critical issues
are, it is fundamentally sort of a research problem. It is not
the kind of research problem I intend to, I would like to
pursue, but how you pursue that problem is known.
And I think the report, the joint Navy-NOAA report,
probably is going to go a long way to answering part of these
questions, and that areas, it should also clearly identify the
data gaps where we can't resolve the issues, and that
identifies a really obvious point of new research. And I think
the best way to resolve these issues is to continue to bring in
larger, you know, expand the group of scientists who are
brought to bear to work on this, so that the results that we
develop are not resting too heavily on any one set of
shoulders, and also to benefit from the broader range of
perspectives and expertise that could be brought to the
problem.
Mr. Gilchrest. Thank you very much. I guess you would at
least, you would probably conclude that the Navy's action was
prudent.
Mr. Fristrup. Yes, absolutely, and I would also conclude
that if we are talking today about a direction of future
research, where we should worry about the impacts, human
impacts, noise in the ocean, we have clearly identified one
area that merits attention.
Mr. Gilchrest. And that is?
Mr. Fristrup. And that would be these higher frequency
sonar issues.
Mr. Gilchrest. Higher frequency as opposed to lower
frequencies?
Mr. Fristrup. Right. My guess would be that the--well, I
will back up 1 second and say that clearly what we have to be
concerned about when it comes to ocean noise is the number of
sound sources that are involved in any one particular activity
and what their movement patterns are, where they occur relative
to the animals we are concerned with.
I think you can fairly quickly do some sort of back-of-the-
envelope calculations and figure out which programs or which
human activities, commercial shipping among them, really merit
some careful attention. So I think it is pretty clear we can
look at the ocean noise budget, we can sort of break out what
the top five potential issues are, and let's just begin working
on them the same way we have worked on other ocean noise
problems.
Mr. Gilchrest. Are you aware if that is being considered
by--
Mr. Fristrup. I believe actually that one of the
constructive changes I have seen at NOAA over the last 5 years
is that they are very much taking this approach to identifying,
in a general way, what the ocean noise problems were. I think
NOAA used to confront a problem where they had a very severe
regulatory requirement in the original Marine Mammal Protection
Act, one that was probably impractical to apply uniformly or
equitably, and so they restricted their attention to the few
cases that were easily managed. And I think they and the Marine
Mammal Protection Act have been moving in the direction of more
reasonable regulations, more reasonable basis for assessing
risk, and therefore have been able to expand the scope of their
consideration to address the entire problem.
Mr. Gilchrest. I see. Is there a difference? What is worse
on marine mammals--and I know it will vary from the size of the
mammal, physiology, and I guess I suppose even fish--is the
noise from an oil tanker or a bulk carrier of sugar or coal to
an ocean liner to a Navy sonar, or drilling from an oil drill,
which one of those would be considered worse, or are they just
different depending on the species, or is the fact that the
noise budget has increased in the ocean at an accelerating rate
in this century?
And, Dr. Ketten, you made a comment earlier about dolphins
can evolve quickly. Can they evolve quickly enough to accept
the noise of the 20th and the 21st century?
Ms. Ketten. Thank you. I was hoping I would get that one.
Some of this I know.
In terms of increases in noise in the environment, there is
in fact a National Academy of Sciences panel that is addressing
the question of ambient noise. It just began, and it is trying
to determine exactly what are the manmade sources going into
the ocean and how they have changed over time.
There is one publication from the 1970's that suggests, and
it is very likely to be a conservative number now, that noise
in the ocean is increasing at the rate of 10 dB per decade,
which is a substantial increase, all from shipping. To put some
of this noise into perspective, and some of the side effects to
put into perspective, if we can go back to the beached whales
for just a moment, I neglected to say that those traumas that I
described in the experimental animals and in humans are not
fatal, and any hearing loss is temporary.
That is why I am not saying that the sonar activity, even
if it directly caused the hemorrhages, was not the cause of
death. I don't know that it wouldn't do it, but at least in all
other animals, including humans, it would not.
Mr. Gilchrest. I will ask you later about Rush Limbaugh.
[Laughter.]
Ms. Ketten. I know that one, too.
In terms of what is worse--and thank you, Mr. Chairman, you
have mentioned fish, also turtles, there are a great many
animals out there that can be impacted. I think it is not just
marine mammals, and indeed if we begin to affect their prey
species, it could be a far more important impact than just on
the marine mammals themselves. It depends on each species.
A very high frequency sound is most likely to impact
dolphins, the animals that use ultrasonics, which frankly hear
really poorly at the end of something like a low frequency
sonar. Dolphins do not hear well in the 500 Hz, which is one of
the areas of the range of LFA.
As opposed to that, though, some baleen whales, elephant
seals, do hear well in those lower frequencies, but the
majority of marine mammals are high frequency to very high,
ultrasonic sensitive animals. Therefore, for them we are more
concerned about very high frequency sources, or for all
animals, impulse noise.
You mentioned airguns and drilling. That is a universally,
close to universally potentially damaging signal, if you are
close enough to it. And in fact, again to put the beaked whales
into perspective, Dr. Whitehead mentioned six incidences which
are over the last 45 years, and the total number of animals
impacted in that case has been approximately 85.
In the last 5 years, in the North Sea we are seeing animals
with clearly serious stress, probably from the drilling and
seismic oil exploration activity combined with shipping. Those
animals are coming on shore. We have had over 200 animals in
the last 5 years, with various pathologies in their ear areas.
So that is why it is on the verge of OSHA. It is a question of
trade-off of the exposure to the signal that you are sensitive
to versus time.
And again, we have all brought in questions of shipping.
Tankers, because it is 24/7, 24 hours a day, 7 days a week,
throughout the North Atlantic and Northern Pacific waters.
There is only one area of the oceans that we think are probably
not so severely impacted, and that is the far South Pacific,
and I recommend going there to check that out.
Mr. Gilchrest. The Antarctic? Well, maybe we can--
Ms. Ketten. No, Tahiti.
Mr. Gilchrest. Oh, Tahiti. Oh, I guess the Antarctic is the
real South Pacific. We could go to the Ross Sea--
Ms. Ketten. Yes.
Mr. Gilchrest. --and watch the killer whales.
Admiral?
Admiral McGinn. Mr. Chairman, I think this line of thinking
about perspective and scale is really, really an important one.
I have a few factoids about noise in the ocean, and I think
just about all of us witnesses have said in one way or another
that it is a noisy world we live in, and that applies to our
oceans as well.
But commercial shipping is responsible for over 90 percent
of the low-frequency ambient noise, manmade ambient noise, in
the ocean, and it is currently effectively unregulated. I am
referring back to a comment that you made earlier, that perhaps
we could apply research dollars to that problem and affect the
marine environment in a much, much more effective way than we
are doing in focusing on one weapon system for one service.
I think this point of us being responsible stewards, we
answer the telephone, we answer the mail. We are there 24/7,
and as a responsible service and a responsible armed service,
we take seriously our obligation to address these issues. But
because of that sense of responsibility that we have, I think
we tend to become more of a target for these types of
inquiries, injunctions, lawsuits, legislation, policy
regulation, than others, just because we can be held to a
higher standard.
That is not to say that I disagree with the standard. We
want to be good stewards. We are. We have a good record of
stewardship. But we need to put these things in perspective. We
can spend a tremendous amount of time and money on Low
Frequency Active, and the world effectively is crashing down
upon us in terms of noise in the ocean.
In a given year, over a trillion lightning strikes hit
somewhere in the ocean, producing sound levels of up to 260
decibels. Underwater earthquakes and other phenomena on the
ocean bottom occur annually in the Pacific, 1,000 in a typical
year in the Pacific, exceeding 236 decibels. That is naturally
produced noise.
The Navy operates less than 4 percent of the total ship
traffic in U.S. waters, and far less than that on a percentage
basis in international waters. We are down to 310 ships from a
high of nearly 600 in the times of the Cold War, and we operate
them more responsibly each year as a result of us learning from
our research dollars and the research of others.
So I think this idea of perspective, and not just focusing
on one area to protect marine mammals, is a very, very good
line of inquiry. Thank you, sir.
Mr. Gilchrest. Thank you, Vice Admiral McGinn.
My time has expired, and I don't know, Mrs. Mink, did you
have any follow-up questions? No, I will let Dr. Rose say
something, but first I will yield to you, Mrs. Minke.
Mrs. Mink. I wanted to follow up on the Admiral's comments.
I have here a GAO report that was issued in 1992, which
undertook an analysis of the SURTASS program, and in it it says
that it was designed for acoustic signals in the very deep open
oceans. But with the end of the Cold War and the collapse of
the Soviet Union, it points out, the SURTASS turned to the
current coastal shallow waters for their acoustic experiments.
And I am impressed by all the noise clutter that you just
testified to. It was almost deafening to imagine what it sounds
like, with all the ships and everybody going by. Of what value
is the LFA studies for the Navy if you are colliding with all
these other noises in the coastal areas?
Admiral McGinn. There are two significant things that have
happened since 1992 when that GAO report was made. One is that
we have learned a great deal more about the characteristics and
the functionality, the capabilities and limitations of Low
Frequency Active sonar used in conjunction with the SURTASS
system, and we find that it has applicability not just in the
deep blue water environment but indeed in littoral areas, not
necessarily right up close to shore or where most marine
habitats are, but in the approaches to choke points in deeper
water, where it is very, very effective.
The other thing that has happened significantly since that
1992 report is the production and proliferation, to nations
unfriendly to the United States, of ever more quiet diesel
submarines, and the increase of the threat level of the
weapons, the torpedoes, the missiles that they carry and the
mines that they can disperse, to deny not just military
shipping but commercial shipping from these essential
commercial waterways and on the high seas. So those are the two
things that happened.
Were LFA SURTASS not an effective ASW sensor, we would not
be spending a dollar on it. We can't afford to waste dollars on
things that we know don't work or aren't relevant to not just
the present conditions we find ourselves in, but to the future.
So we believe, based on good experimentation, on threat
analysis, that LFA has a great deal of relevance to future
threats.
Mrs. Mink. The report also says that between '92 and '98
the Navy spent $1.2 billion on the SURTASS program, and you had
19 ships at that time and you were planning to build more.
Could you tell me how many are now in operation, and what the
annual cost of the program is? You noted that $9 million only
was going for research, so what is the total cost of the
program of which $9 million is for research?
Admiral McGinn. I would like to take that question for the
record. I don't have specific facts on that, and I want to make
sure we are accurate on that.
Mrs. Mink. Thank you, Mr. Chairman.
Mr. Gilchrest. Thank you, Mrs. Mink.
Dr. Rose? We will give you the last word.
Ms. Rose. I appreciate that very much. I always like
getting the last word. I just wanted to make two points.
One is on the probability that we would even be here
discussing what happened in the Bahamas, were it not for the
rather extraordinary coincidence of having a marine mammal
researcher who happened to have one of those beaked whales
beach right on his, basically his front yard.
In other words, going back to my testimony where I pointed
out that it is quite possible, I don't know what the
probability is at all, but it is possible that these sorts of
things have been happening for some time and nobody has been
aware of it because nobody has been looking.
It has been pointed out, you know, the extraordinary, you
know, physical circumstances of this stranding, that is, the
sound duct and the Providence Channel and all of that, but the
additional extraordinary element of this stranding was that Ken
Balcomb was there in the Bahamas, you know, and he saw a beaked
whale come up on his beach, and then subsequently throughout
the day kept finding more and more, and was running around and,
if I may be a little gruesome here, cutting their heads off and
sending them, very fresh, to Dr. Ketten and others.
The fact is that there have been, you know, a number of
strandings of beaked whales, some of which have been in fact
with nearby naval activities, where by the time anybody got to
the bodies, they were highly decomposed. That is the norm. That
is the way it usually is.
And I guess what I am trying to point out is that the level
of certainty that perhaps Admiral McGinn is asking for proof
that LFA isn't safe, is also an unreasonable request. I mean,
you really can't get more of a smoking gun than I think you got
in the Bahamas, and if you are asking for more proof than that
or more certainty than that, I am very concerned about how we
are going to move forward with management of sound in the
oceans.
The second point I would like to make is that we may very
well be holding the Navy to a fairly high standard, and I
appreciate the point that the Admiral was making, but the fact
is, is that what they are pursuing in some of the National
Environmental Policy Act procedures and processes they are
going through and that NMFS is going through, is they are
establishing a noise standard that will have very broad
application, not just for the Navy's sound activities but
perhaps for shipping and for seismic exploration and for a
number of other acoustic activities in the ocean, and that
sound standard at the moment is hovering at about 180 decibels
for continuous intermittent noise in low frequencies.
And I just again would turn back to my testimony to
emphasize that there are no empirical data between about 155,
which is as high as the SRP went, and 180, and that is a large
leap in terms of acoustic energy. So to say that that 180 dB is
a safe exposure level, it concerns me, because it may very well
have broad application, not just to the Navy. It is not just
the Navy we are talking about here. We are talking about
standards for noise, anthropogenic noise in the environment,
that may have very broad applications under the MMPA.
Mr. Gilchrest. Well, thank you very much.
Dr. Ketten, you want to respond to that?
Ms. Ketten. I would like to correct some misstatements,
possibly because the information has not yet come out from NOAA
Fisheries report. There have been a couple of things that have
been said which I believe were maybe misunderstood publicly.
In the first case, as far as the probabilities being an
important issue, the unfortunate--fortuitous, though--finding
by Mr. Balcomb of the beaked whales, that is not how the
incident came about. And indeed there are a great many people
who follow strandings in the Bahamas. We do know from the
stranding records that this is an unusual stranding. There has
only been one other beaked whale that stranded in 50 years in
the Bahamas.
It was not he that first reported it. The strandings were
first reported through Dr. Bater, who is a veterinarian in
charge of strandings in Grand Bahama. It did not have anything
to do with Mr. Balcomb in that case. The first reports came to
me 24 hours before Ken Balcomb contacted me. He did not cut off
the heads and send them to me. As most strandings occur, people
like me are notified and if we can t all, often pro bono, we go
to the strandings, and that was the case here. Some heads were
brought to my laboratory by me for examination later, with his
assistance.
So in terms of it could have just been coincidence that
they were found, that is clearly not an element in this case.
There were over five different reports of the strandings on the
very first day, within a few hours, and indeed I would find it
very surprising if beaked whales would not be noticed,
particularly in a tourist area like Grand Bahama. They were
noticed.
That was the one thing that in particular I wanted to make
sure was made aware to the Committee. That is, we have not had
an exceptional finding based on we lucked into seeing them, but
rather the exception in this case was that, in part because of
the Greek strandings, there is a worldwide awareness
particularly about beaked whales and sonars.
The other thing I would like to correct is, the LFA
exercise that was coincident with the beaked whale strandings
in Greece--there were 12 animals, incidentally, that stranded
at that time--there was also a concerted use of mid-range
sonars simultaneously with the LFA case on that exercise, and
there is a panel that reviewed it. Unfortunately, none of the
animals were examined, so we didn't have any concrete data. All
we had was just the coincidence, and the panel at that time was
concerned.
It is not LFA, however, was our finding after the Bahamian
incident. It is necessary to look at these things in the
perspective of time.
Thank you very much for allowing me to make those comments.
Mr. Gilchrest. You are very welcome.
Dr. Rose has her hand up.
Ms. Rose. Just a quick response to Dr. Ketten. I wasn't
trying to toot Ken Balcomb's horn. That is fine. I totally
understand that, that there was an awareness, because this was
a very public, if you will, stranding in a tourist area, and
there was a stranding network there that responded to that. I
still think that is relatively unusual, because most strandings
apparently of beaked whales occur in areas where by the time
they reach the animals, they are in fact rather decomposed. So
the fact that she was able to collect, herself and through the
assistance of others, you know, these fresh heads--I keep
saying that, and it sounds so gruesome--but these fresh heads,
was in fact relatively unusual, and I do stand by that.
The other thing is that I am not saying that we are not
concerned about mid-frequency sonars. We certainly are, you
know. We are here to talk about LFA, however, so we are
concentrating on that.
Mr. Gilchrest. What is the range of a beaked whale? Where
does it go?
Mr. Whitehead. We know very little about beaked whales, but
my group has carried out the longest and most detailed study of
any beaked whale population. And one of the features of the
population we study is that it has a very limited range.
Whereas animals like sperm whales or humpback whales will range
over thousands of kilometers, these beaked whales stay in
relatively small ocean areas a few tens of kilometers across.
Mr. Gilchrest. So it could be a beaked whale population in
the South Atlantic or Mid-Atlantic, it could be another beaked
whale population in the Mediterranean?
Mr. Whitehead. Very much so, and even on smaller scales. We
find that the beaked whales we study, which have a population
size of 130 and are genetically different from the nearest
other population, inhabit three nearby canyons along the edge
of the Continental Shelf, which is one of the reasons I am
concerned that the Navy stresses that these sonars will be
particularly useful in those kinds of environments.
Mr. Gilchrest. I see. Well, we will continue to proceed
with all this. Maybe the next time we can talk about jet skis
and noise.
[Laughter.]
Mr. Gilchrest. Maybe we can eliminate those little
critters. But thank you all very much for your testimony, and
we probably, in the next couple of days--we don't want to
overburden all of your activities, certainly--but we would like
to send you a series of follow-up questions over the next
couple of weeks. Thank you all very much.
The hearing is adjourned.
[Whereupon, at 4:26 p.m., the Subcommittee was adjourned.]
[The prepared statement of the Animal & Plant Health
Inspection Service follows:]
Statement of Dr. Chester Gipson, Acting Deputy Administrator for Animal
Care, Animal & Plant Health Inspection Service, United States
Department of Agriculture
Mr. Chairman and Members of the Subcommittee, I thank you for the
opportunity to testify on behalf of the U.S. Department of Agriculture
on the Marine Mammal Protection Act (MMPA) and the 1994 Amendments to
the Act. USDA has had no significant problems implementing the
reauthorized MMPA (1994). We continue to work with our counterparts at
the Department of Commerce and the Department of the Interior to
improve and enhance compliance with the MMPA.
The Department's Animal and Plant Health Inspection Service (APHIS)
is responsible for the administration and enforcement of the Animal
Welfare Act (AWA). The Department of Commerce's National Marine
Fisheries Service (NMFS) and the Department of the Interior's Fish and
Wildlife Service (FWS) share responsibility for the administration and
the enforcement of the MMPA.
The AWA requires, among other things, the humane care, handling,
treatment, and transportation of regulated animals within the United
States and its territories. APHIS maintains sole jurisdiction under the
AWA for establishing and enforcing standards for the humane handling,
care, treatment, and transportation of marine mammals in captivity by
dealers, research facilities, exhibitors, intermediate handlers, or
carriers.
The MMPA requires that marine mammals that are taken or imported
must be under permits issued by NMFS and/or FWS and that the permits
must specify the methods of capture, supervision, care, and
transportation that must be observed pursuant to taking or importation.
The MMPA specifies that a permit may be issued to take or import a
marine mammal for the purposes of public display only to a person who
is registered or holds a license under the AWA. The MMPA also requires
that persons maintaining marine mammals in the United States for
purposes of public display be registered or hold a license under the
AWA. APHIS notifies NMFS and FWS of all new AWA license applications
which involve marine mammal species and provides their representatives
the opportunity to accompany the APHIS inspector to the facility to
ascertain if all MMPA requirements are understood and met by the
licensee. Foreign facilities receiving marine mammals that are or have
been subject to U.S. jurisdiction must, among other things, meet
standards comparable to the captive care and maintenance standards of
the AWA. The FWS and NMFS must be notified at least 15 days in advance
of the sale, purchase, export, or transport of captive marine mammals.
To further the purposes of the MMPA and the AWA as they relate to
the humane care, handling, treatment, and transportation of marine
mammals and to the export of marine mammals from the United States to
foreign facilities, the NMFS, FWS, and APHIS have signed a memorandum
of understanding (MOU), dated August 1998, outlining their respective
independent and collaborative roles in these areas. This MOU provides
clear implementation strategies for the MMPA that ensure that the
proper care of these mammals is a top priority. The MOU also formalizes
information sharing among the agencies. This formalized information
sharing has led to better and more strategic enforcement actions and
opportunities for all the agencies and has resulted in greater
compliance with both the AWA and MMPA.
APHIS has also been working with NMFS to address how to handle the
definition of an exhibitor when applied to several seal and sea lion
stranding and rehabilitation facilities. These facilities frequently
carry out activities, like allowing the public to view rehabilitating
animals, that potentially fall under the jurisdiction of both APHIS and
NMFS. At this time, NMFS is developing internal guidelines for
stranding facilities. Once these guidelines are completed, APHIS will
review and coordinate with NMFS to ensure relevant provisions are
consistent with the spirit of the AWA and NMFS requirements under the
MMPA.
Recently, NMFS issued a proposed rule that addressed public display
rules for marine mammals. The comment period for the proposed rule
closes on November 2. APHIS will be commenting on the rule; our goal is
to prevent any unnecessary overlap between agencies.
APHIS has also embraced the negotiated rulemaking process as we
continue to amend the AWA regulations for marine mammals, a process
begun in 1994. The Federal Advisory Committee Act was used to put
together a group of stakeholders and regulators that were able to come
to consensus on 13 of the 18 sections of the AWA regulations that
needed to be updated. The Advisory Committee worked together to develop
the revised regulations, which were based on advances made in care and
handling of marine mammals over the last 14 years. The regulations
reflect new standards in marine mammal care based on current general,
industry, and scientific knowledge. The changes touch on many aspects
of captive marine mammal care including handling, veterinary care, and
facility operations. The final regulations were published in January,
2001, and have been implemented by APHIS.
The remaining five of the 18 provisions of APHIS' marine mammal
regulations will be amended using standard rulemaking procedures. We
anticipate issuing an advance notice of proposed rulemaking (ANPR)
shortly.
Changes under the 1994 MMPA amendments affirmed that APHIS has sole
jurisdiction over ``swim with the dolphin'' (SWTD) programs than
involve captive marine mammals. Traditionally SWTD programs are ones
where people interact in the water with marine mammals, most commonly
bottlenose dolphins. In the absence of the NMFS permitting process,
which changed in the 1994 MMPA, APHIS issued a proposed rule in January
of 1995 to close any regulatory gaps pertaining to how AWA standards
applied to these programs. A final rule was published in 1998. However,
in the time that had elapsed, significant changes had occurred in the
kind of SWTD programs being offered. There are now more of them, and a
new type of shallow water interactive program has emerged.
These shallow water or ``wading'' programs needed to be
appropriately and fairly integrated into the regulations to be
consistent with the MMPA's and AWA's goal of ensuring the safety and
proper care of marine mammals in captivity. Accordingly, after much
deliberation and consultation with various interested parties, APHIS
suspended enforcement of the regulations in 1999. A comment period
followed and APHIS has reviewed all information collected to date. This
issue will be included on the ANPR for the remaining five provisions of
APHIS' marine mammal regulations.
We will continue to work to enhance implementation of the MMPA and
the AWA. That concludes my prepared remarks. I would be happy to
respond to any questions you may have.
______
[Responses to questions submitted for the record follow:]
Responses from Dr. William Hogarth, Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
questions from chairman wayne t. gilchrest
1. The MMPA defines harassment very broadly, including minor
behavioral modifications. Should the definition be changed to include
only those activities that may present long-term impacts to individuals
or to populations?
The current definition of ``harassment'' in the MMPA must be
clarified in order to (1) provide greater notice and predictability to
the regulated community, and (2) improve the enforceability of the
prohibition. However, it is important that any clarifications not
compromise conservation measures. Additionally, the definition should
be clarified and focused to address activities directed at marine
mammals to prevent cumulative adverse effects of behavioral
modifications. Cumulative short-term disturbance may lead to long-term
impacts to individuals or populations, such as disturbances caused by
the recent expansion of irresponsible and dangerous wildlife viewing
practices. However, it is not practical to regulate all marine
activities that have the potential to cause occasional incidental
disturbance, but not injury of the animals (e.g., routine vessel
traffic).
In negotiations with other affected federal agencies, NMS has
formulated a revised definition of ``harassment'' that accounts for
short-term impacts directed at specific individuals, species, or stocks
of species and for long-term impacts associated with behavorial
modification. This revised definition is part of the MMPA
reauthorization proposal that is currently undergoing interagency
review and that will be presented soon to the Congress.
It is important that the definition of harassment not be restricted
to activities that present long-term impacts, because such impacts may
not be observed or measured until they have already occurred. By then,
it is too late to take steps to protect the animals.
2. The feeding of wild dolphins is considered a `take' under the
MMPA. The NMFS had been conducting outreach and educational programs in
the Gulf of Mexico and in the South Atlantic where these feedings tours
have occurred. What is the status of these activities? Does Congress
need to make additional changes to the Act to regulate or prevent such
activities?
Despite NMFS' considerable efforts over the past decade to educate
the public that feeding activities are harmful to the animals,
dangerous to people, and illegal under the MMPA and its implementing
regulations, feeding of wild dolphins by the public persists in some
areas. Specifically, feeding activities have been known to occur in
Florida (Panama City, Nokomis/Venice, Key West, Indian River), South
Carolina (Hilton Head), and Texas (Corpus Christi).
<bullet> LIn 2001, NMFS contracted with dolphin researchers from
the Mote Marine Laboratory to conduct an education and outreach docent
program in the Nokomis/Venice, FL area to address chronic dolphin
feeding activities in the local waterways. The researchers observed
boaters routinely feeding and harassing a particular adult male dolphin
who bit several people trying to feed him. The researchers approached
boaters who were violating the MMPA, advised them that their activities
were illegal and offered copies of NMFS' ``Protect Dolphins'' outreach
materials. However, 61% of the people who were approached indicated
that they already knew their activities were illegal. The researchers
documented that violations of the MMPA were infrequent when marked
enforcement vessels were present. NMFS enforcement efforts in the
Nokomis/Venice area to date have resulted in more than 472 vessel
operator contacts, including two citations issued for ``harassment,''
four Notices of Violation and Assessment issued for feeding with fines
of $100 each, and three written warnings.
<bullet> LIn 2001, NOAA issued a Notice of Violation and Assessment
against a commercial operator in Panama City, FL for feeding dolphins.
The operator did not contest the charges and paid a $600 civil fine.
<bullet> LIn 2000, NMFS sent a letter of concern to a corporation
that owns a nationwide chain of hotels regarding that corporation's
advertisements in Panama City, FL and Hilton Head, SC that depicted
guests feeding and harassing wild dolphins. In response to NMFS'
concerns, the corporation agreed to remove the advertisements and
delete the photographs depicting dolphin feeding from their image
library.
<bullet> LIn 1999, an Administrative Law Judge upheld a $4,500
civil fine against a Panama City, FL boat rental company and its boat
operator for illegally feeding wild dolphins. The incident occurred
during a June 1998 excursion off Panama City's Shell Island and nearby
jetty, a destination popular with residents and tourists for feeding
the local dolphin population. Ruling from the bench, the judge called
the charges ``serious,'' upheld the fine assessed by NOAA, and ordered
the boat company to post a federal ``no dolphin feeding'' sign and a
poster on the grounds and counter of its facility. In addition, charges
were brought against the vessel operator for these violations in a
separate proceeding, since he was operating under and had violated the
provisions of his U.S. Coast Guard licence.
NMFS' regulations implementing the MMPA are clear that feeding wild
marine mammals is illegal. However, problems remain with commercial
entities publishing advertisements in magazines and on the Internet
that depict feeding and harassment activities. Due to other important
priorities that also require enforcement, NMFS has been unable to
devote significant enforcement and litigation resources on a sustained
basis in areas where dolphins have become habituated to people and beg
for handouts.
3. How has the NMFS dealt with criticisms regarding concerns that
while NMFS worked with the Take Reduction Teams, in some cases, the
measures the Teams recommended were ignored. Does the Agency believe
this was an isolated incident occurring with only one Team? Has the
Agency developed measures to prevent this from happening again?
NMFS works very hard to implement Take Reduction Team (TRT)
recommendations and has not ignored any of the TRTs' recommendations.
However, due to a variety of factors, such as funding, staff, or
logistical considerations, it is not always possible to implement each
of the recommendations made by a TRT immediately or exactly in the way
recommended by the TRT. Due to the wide scope and number of
recommendations made to NMFS by TRTs, it is generally necessary to
prioritize the recommendations upon which to focus both effort and
resources.
For example, TRTs have recommended increased observer coverage.
NMFS agrees that observer coverage is important for estimating marine
mammal bycatch for some fisheries. However, observer programs are
expensive and NMFS may not have the resources available to observe a
fishery at the level recommended by a Take Reduction Team. NMFS does
work to ensure that observer coverage is statistically appropriate. In
other situations, placing observers on a vessel may not be feasible.
For example, some fisheries operate with small vessels that are not
capable of carrying an observer in addition to the necessary crew. In
such instances, NMFS has worked to develop alternative methods of
collecting the necessary data.
In another instance, NMFS determined it was necessary to modify a
recommendation made by the Mid-Atlantic Harbor Porpoise TRT in order to
implement the recommendation as a regulation. The TRT recommended gear
restrictions for the fish species targeted. However, bycatch occurred
according to the type of gear used, which is associated with but not
specific to target fish species. Regulations addressing gear used in a
specific time and area are enforceable, but it is much more difficult
to both comply with and enforce regulations based on target species. As
a result of these two factors, NMFS modified the recommendation
submitted by the TRT, and explained the reasons for modifying the
recommendation during the process of developing the regulations as
required by the MMPA. NMFS believes that the ultimate outcome addressed
the recommendation in a more effective manner.
In the case of the Atlantic Offshore Cetacean TRT, the TRT and NMFS
staff devoted much time and energy to developing a take reduction plan.
However, in the course of developing the regulations to implement the
plan, two of the three fisheries addressed by the plan were closed
through fishery management actions. Some of the recommendations
developed by the TRT to address the third fishery (Atlantic pelagic
longline) were included as part of the Highly Migratory Species Fishery
Management Plan, instead of through a separate Take Reduction Plan.
Although NMFS did not implement an Atlantic Offshore Cetacean Take
Reduction Plan by regulation, some of the measures were implemented and
others were no longer appropriate because of changes in the fishery.
Since the TRT met, the Atlantic pelagic longline fishery has undergone
a number of changes due to both fishery management and protected
species management for turtles. NMFS continues to monitor the fishery
through the observer program and, if needed, will convene a TRT to
address its effects in relation to marine mammals.
4a. How often does the Agency conduct stock surveys for marine
mammal populations?
NMFS conducts an extensive stock assessment effort every year, but
this does not mean that new data are collected every year for each of
the nearly 150 stocks of marine mammals for which NMFS is responsible.
The annual effort for each stock varies according to conservation
necessity. For some stocks that are small and are declining, or have
declined in the recent past, such as western north Atlantic right
whales, Cook Inlet beluga whales, and Hawaiian monk seals, NMFS
conducts a full survey annually. At the other extreme, there are stocks
of marine mammals, such as Hawaiian cetaceans or cetaceans in waters
surrounding U.S. territories in the Caribbean and Pacific that have
never been assessed reliably due to a lack of resources. Other stocks,
such as Alaska harbor seals, are surveyed every several years. For
harbor seals, NMFS surveys part of Alaska each year and completes a
rotation at the end of five years.
NMFS apportions its limited resources to conduct stock surveys
based on its determination of the level of risk to the stock from human
activity. For those stocks that are not perceived to be at a high level
of risk from human activity, the abundance surveys are completed on a
very long time frame (e.g., not more often than every 10 or 15 years).
For those stocks that suffer mortality at or near their Potential
Biological Removal level (or those that can be surveyed at the same
time as such a stock), NMFS is able to maintain a four-year schedule
for abundance estimates. As long as the stock is not declining or
increasing dramatically, such a rotation is sufficient for tracking
population trends.
4b. There has been some concern that the Atlantic coastal
bottlenose dolphin population has increased and may not need to be
designated as a strategic stock and hence, not need a take reduction
plan. What type of data is being used as the basis for NMFS'
determination?
As defined by the MMPA, there are several means by which a marine
mammal stock may be designated as strategic. The term ``strategic
stock'' is defined in section 3(19) of the MMPA to mean a marine mammal
stock ``(A) for which the level of direct human-caused mortality
exceeds the potential biological removal level; (B) which, based on the
best available scientific information, is declining and is likely to be
listed as a threatened species under the Endangered Species Act [ESA]
of 1973 within the foreseeable future; or (C) which is listed as a
threatened species or endangered species under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), or is designated as depleted
under this Act [MMPA].''
Atlantic coastal bottlenose dolphins qualify as strategic for two
reasons: (1) the stock is designated as depleted, and (2) direct human-
caused mortality, in this case from commercial fishing activities,
exceeds the potential biological removal level. NMFS has begun to re-
evaluate the depleted status of Atlantic coastal bottlenose dolphins on
a stock-by-stock basis. New scientific data indicates that the stock
structure may be much more complex than once believed, and once such
information is fully developed and peer reviewed it would be
appropriate to re-evaluate the depleted determination. However, even if
the stock was determined not to be depleted, the level of fishery-
related mortality in relation to the potential biological removal level
is such that the stock would still be considered strategic, and
therefore NMFS would be required under the MMPA to develop and
implement a Take Reduction Plan.
NMFS designated the stock as depleted based on an analysis of
historical stranding patterns relative to strandings during a large-
scale mortality event that occurred in 1987-1988. This analysis also
took into account natural mortality rates and birth rates. NMFS
determined that the annual natural mortality increased by over 65%
during the mortality event, and that even if the natural birth rate
remained constant (i.e., assuming the mortality event did not reduce
birth rates), the increase in mortality was over 50% of the population.
NMFS' determination that human-caused mortality exceeds the
potential biological removal level is based on stock structure,
abundance, and mortality data. Stock structure for bottlenose dolphins
has been developed using genetic, telemetry, isotope ratio, and photo-
identification methodologies. Currently, seven seasonal ``management
units'' have been identified, although additional stock structure may
be found with more research. Except for the long time series of
photographs of dolphins used in photo-identification, all of the data
used to determine stock structure have been collected since 1997, and
much of it during 1999-2000. Abundance estimates for each management
unit were based on six survey programs that were conducted between 1995
and 2000. Additional coast-wide abundance surveys are planned for the
winter and summer of 2002, if funding is available. If logistically
feasible, genetic biopsies will also be collected. The resulting
potential biological removal level is calculated using the best
abundance estimate for each management unit. Bycatch for each
management unit is determined from observer coverage in the fisheries
which interact with this stock; the Mid-Atlantic coastal gillnet
fishery and Southeastern U.S. shark gillnet fishery.
5. NMFS has released its report Impacts of California Sea Lions and
Pacific Harbor Seals on Salmonids and West Coast Ecosystems. Does the
Agency recommend implementing the recommendations of the report? Will
these recommendations be included in an Administration bill? Has the
agency made any further progress in developing new, non-lethal means of
chasing off California sea lions and Pacific Harbor Seals?
NMFS continues to support three of the recommendations. The first
recommendation is to ``Implement site-specific management authority
that would allow state and federal officials to lethally remove
pinnipeds where necessary to protect ESA listed salmon and other marine
resources.'' Although NMFS continues to support the concepts related to
site specific management measures, we do not expect to include these
measures in the upcoming Administration bill. Existing provisions of
the MMPA allow NMFS to address the known applications where lethal take
authority has been needed, such as to protect Lake Washington steelhead
as they migrate through Ballard Locks. Other instances of predation,
where the scientific record is not as full as the one at Ballard Locks,
have not been identified at this time. The provisions in section 101(c)
that allow people to take marine mammals if ``imminently necessary''
would apply to human safety concerns. It may also be possible to apply
the authorities within section 109(h) to protect human health and
welfare; however, application outside the stranding response program
has not been attempted or tested.
The second recommendation to ``Develop safe and effective non-
lethal deterrent technologies'' has been pursued by NMFS. But, we have
found through studies that acoustic technology, which initially
appeared promising, may not provide a safe, effective approach to long-
term deterrence of sea lions in open water applications due to affects
on other marine species. However, in limited, restricted areas, such as
at the Ballard Locks in Seattle, WA, non-lethal acoustic deterrence
measures appear effective in addressing California sea lion predation
on steelhead. NMFS is currently supporting a new line of studies by
Moss Landing Marine Laboratory to conduct basic behavioral studies on
sea lions to determine what ``cues'' they use to find hooked fish.
These studies would describe the ``cues'' involved in interactions with
fishing operations and ways to possibly ``mask'' or eliminate those
cues to avoid interactions.
The third recommendation to ``Reconsider the prior MMPA
authorization that allowed commercial fishers to lethally take
pinnipeds as a last resort to protect their catch and gear in specific
fishery areas where economic impacts are occurring'' is no longer
supported by NMFS and will not be included in the Administration bill.
As described in my testimony, this recommendation was the subject of
most negative comments from the public, but it remained in the Report
so that Congress would have background information if it chose to
reconsider the 1994 amendments that eliminated the prior authorization
that allowed commercial fishers to kill marine mammals as a last
resort. Following the submission of the Report, NMFS learned that many
participants in current commercial and recreational fisheries do not
necessarily desire to have this authority. Rather, these parties have
expressed the need to have safe, effective non-lethal deterrents
available to them, and authority for state and federal managers to
remove problem animals where necessary when non-lethal measures are not
effective.
The fourth recommendation to ``Implement the studies necessary to
obtain additional information on the expanding pinniped populations and
their impacts on other resources, especially ESA listed salmonids'' has
been underway by NMFS and the States since fiscal year 1998 with
Congressional action to increase NMFS' base funding for studies on
pinniped impacts on salmonids and West Coast ecosystems. These studies
have resulted in new information, since the 1999 Report to Congress, on
1) pinniped predation on salmonids in several river systems on the West
Coast; 2) updated population status of harbor seals and sea lions which
are noted for showing that harbor seals in Washington and Oregon are at
their optimum sustainable population level (OSP); 3) updated
information on sea lion interactions with the salmon troll fishery and
the southern California partyboat fishery; and, 4) information on the
effectiveness and utility of acoustic devices as non-lethal deterrents.
6. The Navy's use of SURTASS LFA sonar has been linked by some to
marine mammal stranding events. What information does the Agency have
on these events and can the Agency make a determination that this sonar
technology was responsible for the stranding?
SURTASS LFA sonar has never been linked to any marine mammal
stranding event. Only one vessel is presently equipped with SURTASS
LFA, and it was in the Pacific and not operating at the time of a
stranding event in the Bahamas in March 2000. The Navy and NMFS noted
that the stranding of 17 beaked whales in the Bahamas in March 2000
coincided with the Navy's use of tactical mid-frequency sonars in a
unique undersea topography during an anti-submarine warfare exercise.
These mid-frequency sonars operate in a different frequency band than
SURTASS LFA (3,500 to 5,000 Hz compared to less than 500 Hz for LFA),
produce shorter pings at shorter intervals than SURTASS LFA, and have a
faster rise time (speed of the onset of the sound). These technical
differences suggest that species which could potentially be affected by
tactical sonars would not be affected by LFA. Some environmental groups
have glossed over the differences in operating characteristics of
sonars in arguments for stopping the deployment of SURTASS LFA. They
assert, without evidence, that LFA will have the same effects as mid-
frequency tactical sonar because of a process called acoustical
resonance. This assertion lacks merit. No data have ever been published
on resonant frequencies for any species of marine mammal. Warnings of
tissue damage from resonance are all based on mathematical
calculations. Experts in the field believe that these calculations use
incorrect assumptions and constants, and are therefore not valid
forecasts of tissue effects. The mitigation measures proposed for LFA
are currently adequate to protect marine mammals from resonance effects
that are based on more reasonable assumptions and constants.
7. Sharon Young of the Humane Society testified that the Atlantic
Large Whale Take Reduction Team ``has been a resounding failure.'' Do
you agree?
NMFS does not feel that the Atlantic Large Whale Take Reduction
Team has been ``a resounding failure.'' The TRT process is extremely
complex, involving multiple stakeholders and serving as a forum to have
all views aired. The goal of the Atlantic Large Whale Take Reduction
Team (ALWTRT) is to reach a consensus on modifications to the Atlantic
Large Whale Take Reduction Plan (ALWTRP) that will reduce right whale
mortality and serious injury. It is a challenging process and NMFS has,
to the best of the agency's ability, implemented the recommendations of
the team.
Up through 2000, the death rate of the North Atlantic right whale
has exceeded the birth rate. The 2000/2001 season has been the most
promising to date, with 31 calves born (4 deaths). Because no
population can sustain a high death rate and low birth rate
indefinitely, the current combination places the North Atlantic right
whale population at high risk of extinction. Entanglements of right
whales in gillnet and lobster gear continue to occur despite measures
developed in the initial ALWTRP.
On May 4, 2000, NMFS reinitiated consultation on several fishery
management plans, following new entanglements that resulted in serious
injuries and at least one right whale mortality. NMFS completed
consultation on June 14, 2001, and concluded that the current ALWTRP
needed to be revised. NMFS Protected Resources Division has developed
one Reasonable and Prudent Alternative (RPA) with multiple management
measures that collectively are designed to avoid the likelihood of
jeopardy for right whales from the continued implementation of the
multispecies, spiny dogfish, monkfish, and lobster fisheries. The RPA
will minimize the interaction with right whales and multispecies, spiny
dogfish, monkfish, and lobster gear and expand gear modifications to
the Mid-Atlantic and Southeast waters. The RPA includes gear
modifications, seasonal area management, and dynamic area management.
Final rules on these management measures were sent to the Federal
Register on December 31, 2001.
8. Sharon Young of HSUS testified that ``NMFS has undermined their
functioning by bowing to political manipulation.'' What is your
reaction?
Many groups, including resource users and conservationists,
regularly criticize NMFS' actions as either not going far enough to
safeguard a protected species or going too far in regulating the
resource-using community. These groups are all, to some extent, part of
the politics inherent in the policy making process. NMFS will always be
exposed to and pressured by partisan interests, but political
considerations are not used in making decisions. Rather, NMFS continues
to listen to the views of all interested and affected parties and to
make policy and stewardship decisions based upon careful consideration
and the best available information.
9. Can you give us some information on the geography of beaked
whales and inform the Subcommittee on whether there is a local
population that resides near the Bahamas? At the hearing, Dr. Hal
Whitehead made a statement that he thought this population was
destroyed by the military activities undertaken by the Navy. Do you
have any information on the status of this population?
NMFS has no specific information on the status of beaked whales in
Bahamian waters. Worldwide, the numbers and behavior of beaked whales
are not well known because the animals tend to be shy and avoid survey
vessels. NMFS recognizes a Western North Atlantic stock of beaked
whales, which includes animals in the Bahamas. However, the agency does
not recognize beaked whales in Bahamian waters as a separate or local
population.
10. Is the NMFS researching the overall noise budget of the Ocean?
If so, can you give the Subcommittee information on how loud ship
traffic, oil drilling, small boat traffic and other anthropogenic
noises are in the ocean? Can you also give the frequency of these
activities and the hearing frequencies of marine mammals so the
Subcommittee can get a better understanding of what activities occur in
the hearing frequencies of marine mammals and other marine animals like
fish and turtles.
Noise budget
NOAA is not presently researching the noise budget of the oceans,
but it has plans to do so if funds become available. The agency has the
technical tools needed, but such research is costly. NOAA maintains
three acoustic arrays that monitor earthquakes and other geological
activity, whale calls, and some human sounds, such as seismic
exploration (airgun) sounds. NOAA also receives a data stream from
several of the Navy's Sound Surveillance System (SOSUS) sites. These
combined capabilities are the start of a proposed global acoustic
monitoring network that will produce a proper noise budget for the
oceans, as well as long-term measurements of the ambient noise level.
Loudness of human sources
NOAA has no information on the loudness (in scientific terms, the
sound pressure level, or level) of human sources that is any different
from that published in Richardson et al.1995 [Marine Mammals and Noise,
1995. Academic Press, NY]. The loudest human sounds, other than
explosions, come from seismic airgun arrays that may operate at 255 dB.
Military sonars produce levels of 235-240+ dB, and various kinds of
sidescan sonars, bottom profilers, and fish finders may operate at 225
to 235 dB. The loudness of a sound, while easy to understand, is not
necessarily the most important measure of the danger a sound could
potentially pose to marine mammals. The length of time the sound lasts,
the rate at which it is repeated, the frequency, and the rise time are
also important considerations. For example, an airgun shot may have a
sound pressure level of 255 dB but it only lasts for milliseconds.
Supertankers or icebreakers may produce a sound of 215 dB, but this
sound may last for days. Since total sound energy is a combination of
peak pressure and the time the sound is on, the supertanker produces
much more energy than an airgun and creates problems that shorter,
louder signals do not, such as masking (one sound covering another).
Frequently repeated loud sounds are probably more dangerous than single
loud sounds, and sounds that begin suddenly (like an explosion) are
usually more harmful than sounds that begin slowly. As a result, in
order to judge the dangers of human noise, much more information than
level (loudness) is needed.
The loudness of human sources must be compared to other sounds in
the oceans. Blue, fin, and humpback whales all produce calls at around
185 dB. Beluga, false killer whales, bottlenose dolphins, and sperm
whales all make echolocation clicks at about 225 dB, and they often
produce these sounds in the near vicinity of others. In addition, there
are about a trillion lightning strikes per year in the oceans (about
260 dB), thousands of earthquakes of various loudness, and storm-driven
waves. The oceans have always had more background noise than humans
experience in air. Finally, marine mammals have various adaptations for
great changes of pressure when they dive (sometimes over 1,000 m).
Evolution in a noisy environment and adaptation to extreme pressure
change are two reasons why human hearing is a poor model for marine
mammal hearing.
Frequencies of human sources
Human sounds vary from 10 Hz to several hundred kHz (1 kHz = 1,000
Hz), depending on the application. No animal can hear this entire range
of frequencies. Low frequency sounds (below 1,000 Hz) are produced by
shipping, seismic exploration, drilling, and explosions. Higher
frequencies (3.5 kHz to 300 kHz) are used in various kinds of sonar,
fish finders, sidescan sonar, and the like. The lower the frequency the
farther the sound propagates before being absorbed by sea water. The
higher the frequency the more resolution it gives as a sonar source.
Marine mammals fall into about four groups in terms of ear
function. Low frequency specialists have the greatest sensitivity
(meaning they require less sound to detect that a sound is present) at
frequencies between 10 and 250 Hz. The large whales make up this group.
High frequency specialists have their greatest sensitivity from 50 kHz
to 100 kHz. Some, like harbor porpoise and river dolphins, echolocate
in the 200 to 250 kHz range. Mid frequency specialists comprise two
groups, seals and toothed whales, separated mainly by anatomy. Their
``best'' frequencies are between 1.2 kHz and 30 kHz.
Turtles and most fish hear exclusively in the low frequency range
(less than 1,000 Hz). A few fish, like herring and shad, hear quite
well at 20 kHz.
As in the question of loudness, one needs much information other
than frequency to judge the danger of a human sound. Animals generally
do not respond to frequencies above or below their hearing range. The
reader should consult Richardson et al., 1995, for a more thorough
background on the marine mammals and noise issue.
11. How many veterinarians, marine biologists, marine mammal
specialists are on staff at NMFS that could be used to inspect public
display facilities?
The 1994 amendments substantially limited the responsibilities of
NMFS with regard to public display and as a result the agency has
devoted very limited staff resources to this aspect of the MMPA. NMFS
staff do not conduct inspections of public display facilities and we
depend fully on APHIS to conduct inspections to monitor animal care and
maintenance. When we receive complaints about animal care matters, we
notify APHIS, and they arrange for inspections. On rare occasions, we
have sent enforcement agents or marine mammal specialists to a facility
to investigate or take action on matters of MMPA compliance, in
consultation with APHIS, or when that agency has not had authority to
take action (e.g., when a facility closes its doors and no longer has
an active exhibitor's license). We devote approximately one FTE
position to maintaining the inventory of captive marine mammals,
responding to FOIA requests, conducting liaison with FWS, APHIS and the
Marine Mammal Commission with regard to public display, and drafting
regulations for this program. With such limited staff, it would be
unrealistic for us to take a more active role in facility inspections.
However, our proposed public display regulations specify that holders
of marine mammals must make animals and animal records available to
NMFS for inspection, so that on the rare occasions when we need to take
such action, we have clear authority to do so. Such inspections would
focus on MMPA compliance alone (such as inventory reporting), and not
on areas that would overlap with the Animal Welfare Act (AWA), such as
animal care and handling concerns. These are some examples of occasions
when NMFS has made site visits since 1994:
<bullet> LWhen a small facility in Maine went out of business,
APHIS contacted NMFS to assist, using MMPA authority, in the transfer
of several harbor seals to a zoo that could care for them permanently.
Services of both a NMFS enforcement agent and a biologist were needed
on site to assure that this transfer went smoothly.
<bullet> LBoth agencies were involved in issues surrounding a
facility in the Florida Keys that violated both the AWA and the MMPA.
Dolphins were not appropriately cared for, and were released from their
enclosure to the open water on a number of occasions. MMPA authority
was needed to carry out rescue of released dolphins, and seizure of the
remaining dolphins.
<bullet> LA NMFS biologist accompanied an APHIS inspector to visit
a facility holding California sea lions. The NMFS biologist was able to
verify the marine mammal inventory reporting and also provided
information on the species that was helpful to the APHIS veterinarian.
12. When might the Administration bring forth a bill on the
reauthorization of the Marine Mammal Protection Act?
NMFS anticipates that an Administration proposal may be transmitted
to Congress soon.
questions from ranking member robert a. underwood
1. Dr. Hogarth, you mentioned briefly the issue of definitions
within the MMPA, specifically the definition of ``harassment'' as it
relates to a taking. Does NMFS feel this definition needs to be
changed, or just clarified? Should harassment be legal?
The current definition of ``harassment'' in the MMPA must be
clarified in order to (1) provide greater notice and predictability to
the regulated community, and (2) improve the enforceability of the
prohibition. Additionally, the definition should be clarified and
focused to address activities directed at marine mammals to prevent
cumulative adverse effects of behavioral modifications. However, it is
important that any clarifications not compromise conservation measures.
Cumulative short-term disturbance may lead to long-term impacts to
individuals or populations, such as disturbances caused by the recent
expansion of irresponsible and dangerous wildlife viewing practices.
However, it is not practical to regulate all marine activities that
have the potential to cause occasional incidental disturbance, but not
injury of the animals (e.g., routine vessel traffic).
``Harassment'' is an important element of the definition of
``take'' and should remain part of this definition for the conservation
of marine mammals and their populations.
2. Why was the Take Reduction Team for Bottlenose Dolphin initial
meeting cancelled and when will it now meet?
The first Bottlenose Dolphin Take Reduction Team meeting was
originally scheduled for September 12-14, 2001. However, due to the
terrorist events that occurred on September 11, NMFS canceled that
meeting, both because of the effect of the attacks on people and the
resulting travel difficulties. The rescheduled meeting was held on
November 6-8, 2001.
3. As stated in Dr. Reynolds testimony, the AOCTRT was disbanded
after two of the fisheries ceased to operate. There is still a TRP in
effect. What are the monitoring plans for this Plan and what will be
done to ensure that it is still followed and effective?
A Take Reduction Plan was submitted to NMFS but was not implemented
into regulation as the ``Atlantic Offshore Cetacean Take Reduction
Plan.'' However, aspects of the plan submitted by the Atlantic Offshore
Cetacean Take Reduction Team (Team) to address the Atlantic pelagic
longline fishery were incorporated into the Highly Migratory Species
Fishery Management Plan. NMFS recently disbanded the Team because many
changes have occurred to the fisheries intended to be addressed by the
Team. Two of the three fisheries to be addressed by the Team were
disbanded due to fishery management actions. The third fishery, the
Atlantic pelagic longline fishery, has undergone a number of changes
due to fishery management and protected species management for turtles.
NMFS has continued to place observers in the Atlantic pelagic
longline fishery, and Congressional appropriations for Atlantic and
East coast observers in fiscal year 01 and fiscal year 02 have allowed
the agency to further increase observer effort in the fishery. As a
result, monitoring of the interactions between the fishery and marine
mammals continues. If that monitoring indicates that effects on marine
mammals are occurring at levels of concern, NMFS will take action to
convene a Take Reduction Team to address those issues.
4. I noted with interest that you say in your written testimony
that NMFS has finally published regulations to implement the 1994
amendments as they pertain to the management responsibilities for
captive marine mammals held for public display purposes. Could you
please explain why it has taken NMFS nearly 7 years to prepare these
regulations? What issues have contributed to this delay?
Summary
Most of the provisions of the 1994 amendments, now reflected in the
proposed regulations, have long since been implemented through interim
procedures. NMFS' emphasis since 1994 has been on developing a database
system for the marine mammal inventory; meeting with the other
cooperating agencies (USDA's Animal and Plant Health Inspection Service
[APHIS], the U.S. Fish and Wildlife Service [USFWS] and the Marine
Mammal Commission) to reach a common understanding of most aspects of
the 1994 amendments; and working with holders of marine mammals to
develop procedures for notifications of transfers and other
requirements of the amendments. Delay in publication of the proposed
regulations occurred due to limited staffing for public display and the
Presidential election and transition, which placed lower priority on
routine procedural regulations.
Background
A proposed rule was published in October 1993 to consolidate into a
single set of regulations all permitting requirements under the MMPA,
the Endangered Species Act, and the Fur Seal Act to take, import, or
export protected species under NMFS jurisdiction for purposes of
scientific research, enhancement, or public display. However, the
amendments to the MMPA that were enacted in April 1994 significantly
changed the scope and extent of permitting authority for public display
purposes, thus eliminating the basis for many of the provisions
concerned with public display in the proposed rule, as well as the
regulations then in effect. A final rule was prepared and published in
May 1996 to implement certain parts of the 1993 proposed rule that were
not as significantly affected by the 1994 amendments. That final rule,
effective on June 10, 1996, established basic reporting, record-keeping
and other permit requirements under the Act to take, import and export
marine mammals for purposes of scientific research, enhancement,
photography and, where captures and initial imports are involved, for
public display. Because of the magnitude of the changes that were made
in the Act's public display provisions, it was decided that most
requirements specifically concerned with capturing, importing,
exporting, or transporting marine mammals for public display under the
MMPA as amended could only be addressed in the form of a new proposed
rule.
To implement the 1994 amendments as effectively and consistently as
possible, our initial emphasis was on developing procedures for the
inventory/notification system, and on negotiating a revised Memorandum
of Agreement (MOA) with USFWS and APHIS for consistent implementation
of public display requirements. The MOA was signed by all three
agencies on July 21, 1998, clearing the way for drafting proposed
regulations.
______
Responses from Marshall Jones, Acting Director, U.S. Fish and Wildlife
Service, U.S. Department of the Interior
questions from chairman wayne t. gilchrest
Question 1: Has the Service reviewed the Suarez Brothers Circus
case and made any determinations on whether illegal documents were used
to get the animals into United States territory? Will the Service
withhold a CITES export permit until such determinations are made? What
actions will the Service take if illegal documents were used?
Answer: On May 5, 2001, the Service issued a permit to Circo
Hermanos Suarez S.A. (Suarez Brothers Circus) for the import of seven
polar bears for public display purposes. At the time of issuance, the
Service did not have any reason to believe the animals were possibly
being moved under false documents. As required by the Marine Mammal
Protection Act (MMPA), when the Service reviewed the application, it
required the Circus to provide documentation demonstrating that the
bears were not taken while pregnant; nursing, or less than eight months
old, whichever occurs later; obtained from a depleted stock; or taken
in an inhumane manner. The Circus provided certification statements
from the foreign zoological institutions for the foreign captive-born
bears, and a certification statement from the Government of Manitoba,
Canada, that allowed the Service to determine that the animals were not
obtained in a prohibited manner. These certification statements
satisfied the Service regarding the source and origin of the bears for
purposes under the MMPA.
Under CITES, no import authorization is required for Appendix II
species as long as a valid re-export certificate has been issued by the
country of export. When the Service reviewed the MMPA application, it
noted that the CITES documents for the bears' travel between the
Dominican Republic and Jamaica appeared to have minor discrepancies not
uncommon for multiple re-exports. Within this context, the Service
determined that the discrepancies were not substantive in nature, and
were not suggestive of questions concerning the true identity of any of
the bears. The Service concluded that the discrepancies were not
germane to the decision to issue an MMPA import permit, and notified
the permittee that these discrepancies should be rectified prior to
importing the animals.
Approximately one month after the Service issued the permit and the
bears were imported to Puerto Rico, it received a letter from Dr. Terry
L. Maple, President and CEO of Zoo Atlanta, Atlanta, Georgia, regarding
the origin of one of the bears, ``Alaska.'' Dr. Maple's June 7, 2001,
letter noted that ``Alaska'' appeared to be traveling on questionable
documentation, and he expressed concern that the bear may actually have
died in a German zoo. The information provided by Zoo Atlanta was
further investigated by the Service. The German CITES Management
Authority was contacted regarding the CITES document they had issued to
re-export this bear from Germany. The Management Authority noted that
they had issued the CITES re-export certificate for ``Alaska'' and
could not confirm that the bear had died in Germany. The Service's
Division of Law Enforcement also forwarded a request for investigative
assistance to INTERPOL and the U.S. Customs Service Attache Office in
Berlin, Germany. The Service also undertook DNA analysis of the bear
and has determined, through that analysis, that the bear imported by
the Circus was not the animal described on the CITES re-export
certificate from Jamaica. On March 6, 2002, the Service executed a
court-ordered seizure of that bear. An investigation continues.
The Service also recently received an application from the Suarez
Brothers Circus for the re-export of these animals. The Service will
evaluate it under all relevant provisions of the laws governing these
animals.
Once the Service's investigation has been completed, it will review
the information on the degree and specifics of any violations. If the
Service investigation reveals that the Suarez Brothers Circus
deliberately submitted false paperwork, the Service will consult with
the U.S. Department of Justice regarding appropriate legal action. The
Service appreciates your concerns and will keep the Committee updated
as this matter progresses.
Question 2: When might the Administration bring forth a bill on the
reauthorization of the Marine Mammal Protection Act?
Answer: The Service and the National Marine Fisheries Service have
been working diligently, along with other Federal agencies, to develop
a proposal to submit to Congress. This proposal is under final review
within the Administration so that it will be ready to transmit to the
Congress.
Question 3: Is a reassessment of the M'Clintock Channel population
due to lower population estimates and its subsequent removal from the
Service's approved population list, that allows for the import of polar
bear trophies, an indication that Canada is not managing its polar bear
populations appropriately?
Answer: The Service does not believe that the population decline in
the M'Clintock Channel population implies Canada is not managing its
polar bear populations on a sustainable basis. Canada has a robust
management program that is periodically reviewed by polar bear
scientists and managers through meetings of the Federal-Provincial
Polar Bear Technical Committee (PBTC), Polar Bear Administrative
Committee, and the IUCN (World Conservation Union) Polar Bear
Specialist Group. There has been considerable discussion of Canada's
population management, and Canada continues to look at new models and
research data to better manage their polar bear populations. Canada is
examining options that include scaling back harvest rates in small
populations while performing more frequent inventories of larger
populations. It also anticipates that new models will help it identify
where it needs to modify harvest levels, prior to the next population
inventory, due to changing environmental conditions or optimistic
population estimates. The Service participates in the annual PBTC
meeting and continues to work with Canada to receive the most recent
information on Canada's management program to ensure that the import of
polar bear trophies is allowed only from populations that are being
maintained at sustainable levels.
Question 4: Many would argue that if managed correctly sport hunts
of polar bears can be a useful management tool. The focus of these
hunts being the large bull males, instead of the females or cubs. In
addition, Canadian sport hunts, for example, bring needed funds into
native villages in Canada where the meat of the animal is left for
subsistence use by the natives. Does the Service agree that if managed
correctly sport hunts of polar bears can be a useful management tool?
Answer: The Service recognizes that sport hunting has been
demonstrated to be compatible with sound conservation practices, and
can be a useful management tool under certain conditions. Canada has
incorporated sport hunting as one aspect of its management program for
polar bears. The selective harvest of 2 males to 1 female is utilized
to conserve the population by reducing the impact of the harvest of
females. Sports hunters prefer to harvest large males in lieu of
females, and hunts that focus on males allow for a greater harvest than
a harvest that takes an equal number of males and females. The Service
uses scientific criteria to evaluate Canadian sport-hunting programs
for polar bear populations, and issues permits to import trophies based
on sustainable harvest.
The Service also recognizes that sport hunting plays an important
economic and cultural role to local Canadian people. This system has
been responsible for providing an economic infusion to many
economically depressed communities. Communities widely support sport
hunting, and village Hunter and Trapper Associations are responsible
for determining the portion of the annual harvest to be allocated for
sports hunters.
From a management perspective, the foundation for any sport hunt or
subsistence harvest is accurate population information on which to base
a sustainable harvest level. Accurate information regarding the harvest
is also essential to evaluating the effect of the harvest; as harvests
approach the maximum sustainable level, the need for accurate
information becomes more critical. Resource managers, when provided
with accurate population and harvest information, are able to determine
harvest limits which are sustainable under either a subsistence
harvest, sports harvest, or combination of these hunt types. The
Service uses a statistical analysis to determine the level of
uncertainty for population data. Where uncertainty is high, greater
caution must be used in making management decisions.
In the United States, the MMPA establishes a moratorium on take of
polar bears; however, Section 101(b) of the MMPA provides an exception
to the moratorium on taking for coastal Alaska Natives for subsistence
purposes.
questions from congressman walter b. jones
Question 1: There are a number of compelling questions, related to
the case of the polar bears owned by the Suarez Brothers Circus, that I
believe need to be answered. Regardless of the fact that polar bears
probably do not belong in a traveling, tropical menagerie, I am alarmed
by the threat to human safety revealed in the US Animal and Plant
Health Inspection Service (APHIS) report dated June 7. The report
describes that the polar bears were confined in a facility that had a
wall flimsy enough for the inspector to push over with one hand. Upon
APHIS's return for a second inspection on June 21, the flimsy wall had
not been fixed. There was apparently no follow-up inspection by APHIS
in July, until the Puerto Rican Department of Natural Resources filed
cruelty charges against the circus. I would like to hear APHIS's
explanation on all of this. I have a letter from Dr. Terry Maple of Zoo
Atlanta written to APHIS, in which Dr. Maple describes his surprise
that APHIS would grant the Suarez operation a permit for exhibition.
Dr. Maple points out that the Suarez Brothers Circus uses doctored
records to identify their animals and the Suarez Brothers claimed that
one of their bears came from Zoo Atlanta, when in fact, that bear had
died in a German Zoo in 1994. The use of falsified records is grounds
for denying the owners a permit for exhibition. So why was one granted?
APHIS, while invited to testify, declined the Committee on Resources
request, so I pose this question to my friends with the United States
Fish & Wildlife Service. I understand that accurate records describing
the history of the bears is required for import and export permits (as
well as permits for exhibition). Why was this deceptive organization-
complete with falsified records--given an import permit for these
animals? And what is the status of the export permit?
Answer: The Service appreciates the concerns raised regarding the
adequacy of facilities used by Suarez Brothers Circus to house polar
bears. The Service is working closely with APHIS to ensure that the
bears are held in compliance with requirements of the Animal Welfare
Act.
As discussed above in our response to Chairman Gilchrest's Question
1, the Service received information regarding the questionable origin
of a polar bear ``Alaska'' approximately one month after we had issued
an import permit. When the Service reviewed the application, the
documentation regarding the source of the polar bears provided by
Suarez Brothers Circus appeared to be authentic. In light of Dr.
Maple's correspondence, the Service's Division of Law Enforcement
investigated the assertion that ``Alaska'' was imported under false
documentation. Based on subsequent DNA analysis, the Service executed a
court-ordered seizure of the bear on March 6, 2002. The investigation
continues.
If the Service's investigation provides evidence that a permit for
import was secured based on the submission of deliberately false and/or
misleading information, the U.S. Department of Justice will be
consulted regarding appropriate legal action.
The Suarez Brothers Circus recently applied for a permit to re-
export these animals. The Service will evaluate the application under
the appropriate criteria for permit issuance under CITES. Further, any
violations found against the Suarez Brothers Circus will also be
considered in the review of the application for re-export of these
animals. The Service will keep the Committee informed as the
investigation progresses.
questions from ranking member robert a. underwood
Question 1: Do we have accurate stock information for those that
will be affected by the U.S. - Russia Agreement on Polar Bear
conservation? How will enforcement against poaching and stock
information be maintained on these remote populations?
Answer: Issues of population size, harvest limits, and enforcement
programs would be addressed by the U.S.-Russia Polar Bear Commission to
be created under terms of the bilateral conservation agreement. The
Commission is also charged with forming a scientific advisory group to
provide technical advice and guidance to the Commission as it designs
management and enforcement programs to implement the bilateral
agreement.
A variety of information will be available for the Commission and
its scientific advisory group, including historic harvest rates and
data on population growth in adjacent polar bear populations that are
believed to be similar to the Chukchi/Bering Seas population. Much of
this information will be compared to the situation in the Beaufort Sea,
where long term population data are available from mark and recapture
programs conducted since 1968. Other information includes the results
of aerial polar bear surveys conducted in the Eastern Chukchi Sea
during August 2000.
Historically, during the 1960s and early 1970s, statewide harvest
rates of 260 bears per year are now known to have been unsustainable.
Both the Beaufort Sea and Chukchi/Bering Seas populations were
depressed due to excessive harvest rates. The Beaufort Sea population
rebounded in the 20-year period following cessation of sport hunting in
1973 and a greater than 50 percent reduction in total take. The
population is thought to have reached the carrying capacity of the
environment and leveled off during the 1990s. The Chukchi/Bering Seas
population is thought to have experienced the same growth pattern.
In August 2000, the Service successfully conducted aerial surveys
to estimate the abundance of polar bears in the Eastern Chukchi Sea and
portions of the Beaufort Sea. The survey indicates that approximately
1,500 polar bears were present in the area. These data are believed to
corroborate population recovery in the Chukchi Sea region.
Statistically defensible quantitative information on the size of the
Chukchi/Bering Seas polar bear population is currently unavailable. The
most recent estimate of the population size is 2,000 to 5,000 bears,
based on an extrapolation of the annual number of dens that occur on
Wrangel Island, Russia, where the vast majority of polar bear cubs in
this population are born.
To assist in enforcement, a marking, tagging, and reporting system,
similar to one successfully used by the Service in Alaska since 1988,
is anticipated to be instituted in Chukotka, Russia. The Service's
program requires hunters to tag the skulls and hides of harvested bears
with unique serialized tags, which allows for enforcement against
individuals in possession of untagged hides. If the treaty is ratified
and implemented, the number of tags issued during any given year would
be based on the sustainable harvest limits and allocations as
determined by the Commission. The Commission would also review and
approve programs to enforce provisions against illegal take or trade in
violation of the U.S.-Russia polar bear conservation agreement and to
verify that harvest monitoring programs are operating effectively.
Question 2: What is the status of the supplemental environmental
impact statement (SEIS) for southern sea otters that the Fish and
Wildlife Service is currently developing? Are you on track to complete
this SEIS by September, 2002?
Answer: The Service expects to complete the draft supplemental
environmental impact statement in 2002. Following public hearings, a
written comment period, and revision as necessary, a final document is
expected sometime next year. The supplement will update information,
reevaluate the existing translocation program, and analyze our options
for the program.
Question 3: You generally state in your written testimony that co-
management with Native Alaskans has been a successful venture and note
the cooperative agreements in place, including the agreement with the
Alaska Sea Otter and Steller Sea Lion Commission. Considering the fact
that Steller sea lions have been listed on the ESA for some time due to
a steep decline in the stock, and also that Alaska sea otters are now
under review by the Service for potential listing under the ESA because
this population too, has dramatically declined, I am somewhat surprised
to hear your bullish optimism about co-management. Would you please
comment on this?
Answer: The Service believes that co-management with Alaska Native
continues to be a useful partnership. While the basis for co-management
is to address issues related to subsistence harvest, the cooperative
projects provide a wide range of information important for
understanding marine mammal species and the environment in which they
live. For example, Alaska Native hunters collect tissue samples used
for contaminant analysis, genetic studies, and evaluation of other
health and population parameters. A compilation of traditional
knowledge about polar bear habitat use provides useful insight into
this far-ranging species that is difficult to study. Given the remote
areas and broad geographic ranges inhabited by Arctic marine mammals,
the information gathered by Native hunters who live, hunt, and travel
through the same remote environment significantly contributes to our
understanding of these environments and animals.
It is true that Steller sea lion populations and the Aleutian
Island population of Alaska sea otters are declining. However, in
neither case is the level of subsistence harvest a factor in the
decline of the species. The subsistence take of Aleutian sea otters is
less than a dozen animals a year, whereas the documented sea otter
decline throughout the Aleutians, due to as yet undefined causes, is a
loss of tens of thousands of animals in the past decade.
questions from congressman frank pallone
Question 1: Under the MMPA, parties must apply for import permits
before bringing marine mammals or their parts into the country.
Recently, a Mexican circus with 7 polar bears wishing to enter Puerto
Rico requested an MMPA import permit from the Fish and Wildlife
Service, providing CITES documentation and other required materials.
Based on this documentation, there appears to be a serious question as
to the provenance of at least one if not all of these bears.
Subsequently a letter from Terry Maple of Zoo Atlanta confirmed that
the identity of at least one bear--the one called ``Alaska'' in the
CITES documentation--was falsified. What does the agency do to verify
the provenance of animals (or parts) to be imported? If there are
serious questions about provenance, how is it possible for an import
permit to be issued? Given that these questions regarding provenance
remain to this day, how will the agency address these questions when
the circus applies for an export permit under CITES? Is it in fact
possible for an export permit to be issued while such questions remain?
Answer: The Service's review of the Suarez Brothers Circus
application for the import of the polar bears included an evaluation of
the documents on the actual source of the bears. This information
included supporting documents from the relevant foreign sources, e.g.,
the Government of Manitoba, Canada. At the time the Service reviewed
the application, there was no reason to believe that the animal known
as ``Alaska'' was any other than the one indicated. One month after the
permit was issued, the Service received new information that brought
into question the provenance of that animal. The Service undertook
further investigation of the identity of the bear in question. That
investigation resulted in the court-ordered seizure of the bear on
March 6, 2002. If it is determined that Suarez Brothers Circus
submitted deliberately false and/or misleading information, we will
consult the U.S. Department of Justice regarding appropriate legal
action against the Circus. The Suarez Brothers Circus recently applied
for a CITES certificate to re-export the remaining bears. The Service
is currently evaluating this application and will not make a final
decision on the re-export certificate until it is satisfied regarding
the origin and provenance of these animals.
Question 2: The MMPA requires that facilities keeping marine
mammals in captivity offer an education or conservation program based
upon professionally recognized standards of the public display
community. On May 5, 2001, the U.S. Fish & Wildlife Service authorized
the Suarez Bros. Circus to import seven polar bears into Puerto Rico.
The bears are used in circus routines where they are forced to balance
on an oversize ball, walk upright on their hind legs, climb steps, and
go head first down a slide while a trainer repeatedly hits them with a
stick and whips them on the face, back, sides, and hindquarters.
Baltimore Zoo Executive Director Roger Birkel reviewed videotape taken
of these performances and stated in a letter that ``[The use of
physical force coupled with the obvious lack of message...leaves the
observer with a negative impact and a complete lack of respect and
understanding for the animals.'' Knoxville Zoo staff veterinarian Dr.
Ed Ramsey reviewed videotape and stated in a letter, ``I think the only
thing the public learned from watching this act is that it is okay to
force bears to do things by hitting them.'' Additionally, the circus is
not distributing educational material about polar bears, allowing the
public to view the polar bears between shows with informational signs,
or conveying an educational message during the show as specified in the
permit. Why has the U.S. Fish & Wildlife Service not revoked the
circus' import permit for failing to offer an education or conservation
program in violation of the MMPA?
Answer: The Suarez Brothers Circus provided a detailed program and
information packet with their application regarding their intended
outreach and conservation message to be used in association with the
public display of the polar bears. This included information regarding
polar bear biology as well as relevant laws and international treaties
associated with this species. The Service provided comments to the
Suarez Brothers Circus regarding deficiencies in their message. The
Suarez Brothers Circus acknowledged our comments and provided
supplemental information in support of their application, and it was
determined that the information met the criteria for the public display
of these animals. On October 23, 2001, the Suarez Brothers Circus
provided us with a copy of their informational handout (please see
Attachment 1) produced in Spanish, as well as a video of a performance
of the bears which included a discussion on polar bear conservation.
The Service believes that the information that the Suarez Brothers
Circus provided demonstrates that they are providing a conservation
message that is consistent with the MMPA requirements for the public
display of the bears. Should the Service determine that the Suarez
Brothers Circus is no longer providing a conservation message, and is
not reasonably likely to do so in the near future, as required by
Section 104(c)(2)(D)(ii) of the MMPA, then appropriate action would be
initiated, including a possible revocation of the permit.
______
Responses from John E. Reynolds III, Chairman, Marine Mammal Commission
questions from chairman wayne t. gilchrest
1. The MMPA defines harassment very broadly, including minor
behavioral modifications. Should the definition be changed to include
only those activities that may present long-term impacts to individuals
or to populations?
First, it should be recognized that there are differing
interpretations of the existing definition of harassment under the
Marine Mammal Protection Act. This is discussed more completely in our
response to Mr. Underwood's first question, which is provided below.
For purposes of this question, we note that the definition of Level B
harassment refers to the disruption of ``behavioral patterns.'' Thus,
it is unclear that all minor behavioral modifications (e.g., those that
elicit a one-time response) fit within the definition. It is also
unclear precisely when disturbance is severe enough or frequent enough
that it rises to the level that it constitutes a disruption of a
behavioral pattern (as opposed to a behavior).
As we explained at the October 11 hearing, it would be
inappropriate for the Commission to recommend or endorse specific
legislative proposals until an Administration position has been
formalized. Inasmuch as a proposed Administration bill is still
undergoing interagency review, we remain unable to offer specific
changes or to make specific recommendations with respect to revisions
we would like to see made to the harassment definition. We nevertheless
will try to respond, at least generally, to your question within these
constraints.
The Commission is aware that the National Research Council convened
a panel on marine mammals and low frequency sound that, among other
things, looked at the MMPA's definition of harassment (National
Research Council 2000). One of the recommendations of the panel was to
change the coverage of the definition away from short-term responses to
focus on ``longer-term, significant physiological and behavioral
effects...'' (Id. at 67.) In the abstract, this is a worthwhile
proposal. Were we able to distinguish readily between those impacts
that are transitory and that, by themselves, or in combination with
other disruptions, will have no long-term adverse effects on the
survival of an individual marine mammal or its reproductive success,
and those that will have more significant ramifications, such a
proposal would be rather attractive.
However, when assessing activities that cause behavioral
modification, we often cannot distinguish between those activities that
will have significant, long-term effects and those that will not. For
example, a disturbance that causes what might appear to be a relatively
minor change in a marine mammal's migratory route could have
unforeseen, and possibly significant, consequences by causing increased
energy expenditures or by exposing the animal to an increased risk of
predation. Until we have the capability to distinguish reliably between
what is and is not significant, or what will or will not have long-term
consequences, the Commission believes that it would be ill-advised to
adopt a definition that excludes consideration of short-term impacts
entirely.
It is also worth noting that humans are inclined to judge the
severity of a disturbance to a marine mammal based on our perception
and understanding of the nature and intent of the disturbing action.
Marine mammals are not able to make those same judgments and may
perceive a potentially disturbing stimulus very differently. Further,
the sensitivity of marine mammals to disturbance may vary in ways that
we do not fully appreciate, as a function of their age and sex, the
season, their reproductive condition, their physiological condition,
their previous experience with the disturbance, the nature of the
disturbance, its persistence, the number of times disturbed, and other
factors that, when taken cumulatively, may alter the sensitivity of an
individual animal to disturbance.
2. Is a reassessment of the M'Clintock Channel population due to
lower population estimates and its subsequent removal from the
Service's approved population list, that allows for the import of polar
bear trophies, an indication that Canada is not managing its polar bear
populations appropriately?
The situation with respect to the M'Clintock Channel population of
polar bears illustrates both the strengths and weaknesses of Canada's
polar bear management program. on the one hand, managers relied on an
outdated population estimate to establish quotas, thereby setting
unsustainable harvest limits that probably helped to drive down the
abundance of polar bears within the M'Clintock Channel management unit.
on the other hand, once the problem was identified, Canadian officials
responded fairly quickly by taking steps to institute revised harvest
limits.
In its 1995 comments on the Fish and Wildlife Service's proposed
findings concerning the importation of polar bear trophies from Canada,
the Commission raised several concerns. The Commission indicated that
the greatest uncertainty regarding the formula being used to set
harvest limits was the reliability of the population estimates being
used. If a population estimate has low precision or is too high, the
Commission noted that use of the formula could lead to overharvesting.
This appears to be precisely what has happened in the case of the
M'Clintock Channel population.
The Commission recommended that the Service consider at least two
ways to address the problem of positively biased population estimates.
First, we indicated that, rather than relying solely on qualitative
assessments of the reliability of these estimates (i.e., good, fair,
poor), quantitative estimates of standard errors and, where possible,
identification of likely biases should be provided. In this way,
informed decisions could be made about the risks associated with
reliance on particular population estimates. Second, the Commission
believed that, in the face of such uncertainty, it would be more
appropriate to use minimum population estimates in setting taking
limits (as the United States has done in calculating potential
biological removal levels), rather than mid-point estimates.
The Commission also noted that the program established by Canada
for assessing the size and trends of its polar bear populations is
based on a 20-year cycle. Thus, it may be several years before possible
problems related to overharvest are detected and may be several decades
before reliable data on population trends for all management units are
developed. The population estimate used to establish quotas for the
M'Clintock Channel population was derived from a 1978 survey. The new
abundance estimate that brought the depletion of the population to
light is based upon a study conducted during 1998-2000. Had Canada been
relying on a more recent, but equally flawed, population estimate to
establish the harvest limit for the M'Clintock Channel population, it
might have been a decade or more before the overharvesting problem was
identified.
One of the safeguards against overharvesting identified by the
Service in its final rule authorizing polar bear imports that made it
more willing to accept the 20-year assessment cycle was the familiarity
of local hunters with the relative abundance of bears in the areas
where hunting occurs. It was believed that the hunters would likely
detect any significant increase or decrease in polar bear numbers. If
the recent population estimate is correct, then our experience with
M'Clintock Channel seems to undermine the basis for such reliance.
Either the number of bears had been significantly overestimated in 1978
(underscoring the need to use minimum population estimates when there
is considerable uncertainty), and the population remained relatively
stable over the ensuing 20 years, or local hunters were unable to
detect a decline of nearly 60 percent within that time span.
Another point made by the Commission in its 1995 comment letter was
that the model being used by Canada to set harvest limits would result
in conservative management for populations near carrying capacity, but
would allow populations below their maximum net productivity level to
remain depleted indefinitely. Thus, now that the M'Clintock Channel
population is considered to be depleted, it should be permitted to
recover before the full harvest established using Canada's model is
allowed to be taken.
Information from the more recent population surveys also indicates
that the sex ratio of the M'Clintock Channel population is skewed, with
65 percent of the adult bears being female. While the natural sex ratio
may be skewed toward females in species with polygynous breeding
strategies, the observed ratio may also reflect the effects of the
increasing number of sport hunts in the area, which tend to target the
larger male bears. Data provided by the Canadian Wildlife Service
indicate that sport hunts in the M'Clintock Channel management unit
were almost nonexistent prior to 1995, and increased markedly (to 17)
in 1997, after the regulations authorizing the importation of trophies
to the United States were published. In 1997 and 1998, sport hunting
accounted for 60 percent and 50 percent, respectively, of the polar
bears harvested in M'Clintock Channel during those years. As discussed
further in our response to the next question, targeting large males or
skewing sex ratios could have both beneficial and adverse consequences,
indicating the need for careful monitoring of the population under such
circumstances.
We note that the Fish and Wildlife Service's original proposal
would have limited the taking of polar bears in sport hunts to 15
percent of the total number of bears taken in the Northwest
Territories. Such a provision was dropped by the Service in the final
regulations. If, however, sport hunting accounts for a substantial
percentage of the removals, hunters are preferentially targeting large
male bears, and the sex ratio becomes skewed to the point that it
results in conservation problems, then the Service may need to revisit
its proposal by considering, at least for the smaller populations,
setting a cap on the proportion of takes that be allocated to sport
hunters.
3. Does the Commission agree that if managed correctly sport hunts
of polar bears can be a useful management tool? The focus of these
hunts being the large bull males, instead of the females or cubs. In
addition, Canadian sport hunts bring needed funds into native villages
in Canada, where the meat of the animal is left for subsistence use by
the natives.
Hunting can be an effective tool for managing wild populations.
Hunting is a form of predation and predation has been recognized as one
of the factors controlling wild populations. However, it does not
necessarily follow that hunting is always useful or appropriate.
The size of wild animal populations is a function of the addition
of new animals through immigration and reproduction, and the removal of
animals through mortality and emigration. Assuming that emigration and
immigration are about equal, factors that increase mortality or
decrease reproduction may impede population growth or recovery, whereas
factors that decrease mortality or increase reproduction may contribute
to population growth or recovery. Males contribute to population growth
by breeding, but also may impede growth by killing juveniles. In
polygynous species like polar bears, some males may not be required for
breeding, as other more dominant males may assume all breeding
privileges. In such cases, the loss of some males may not necessarily
be an impediment to population growth and may actually facilitate
growth if it leads to a reduction in male-related juvenile mortality.
On the other hand, removal of the large, most reproductively successful
males from a small population may be problematic if (1) selective
removal of large males affects the dominance hierarchy, allowing
smaller, less biologically fit males to reproduce, or (2) removal
occurs to such an extent that insufficient numbers of males are
available for breeding and the reproductive rate declines. Conceivably,
then, both beneficial and adverse consequences could result from the
selective hunting of large adult males. Although hunting may be used to
achieve conservation objectives and to provide a source of revenue for
Native communities, it must be monitored and managed carefully to
ensure that adverse effects do not exceed beneficial effects, both to
polar bear populations and to the Native communities that depend upon
them.
4. How does the cumulative effect of all of the noise in the ocean
affect the environment? How loud is the ocean without human-caused
noise?
It is difficult to say how loud the ocean would be without human
noise. Due to the sound-transmission properties of water, human-caused
noise may be heard over great distances. In addition, levels of both
naturally occurring and human-caused noise vary over time and area,
making it difficult to generalize about sound levels in the absence of
human noise. An assessment of naturally occurring levels may be easiest
in areas like the Antarctic, where relatively little human-caused noise
is generated. But again, sound travels great distances in the ocean and
both proximate and distant human sounds may be detected even in the
remote Southern Ocean.
We do not know what cumulative effect human sources have had on the
marine environment. Although noise is an integral part of the ocean
environment, our understanding of its role in the environment and the
effects of added human-caused noise is still relatively rudimentary.
Naturally occurring sources of noise include, among other things,
seismic activity, lightening strikes, ice movements and cracking,
storms, wind, precipitation, waves, and marine organisms. Taken
together, sounds from naturally occurring and human sources comprise
the ambient or background levels of noise in the environment. Ambient
levels vary by frequency, season, and region as a function of the
occurrence of these sources of noise, their distance, and sound
transmission properties of the affected ocean environment. Ambient
levels may vary from 20 to 40 decibels (dB)<SUP>1</SUP> (based on the
Wenz curves with units of 1 mu Pa 2/Hz) at mid to higher frequencies,
but increase to as much as 80 to 90 dB at low frequencies and, under
unusual conditions (e.g., earthquakes), increase to 140 dB or more. An
increase in wind speed from 5 to 10 knots causes a 5 dB increase in
ambient ocean noise across most frequencies of biological relevance.
---------------------------------------------------------------------------
\1\ ``Decibels'' are used to indicate the ratio of sound pressure
levels at the source relative to 1 microPascal (mu Pa) at one meter
from the source. In our responses below, the notation ``dB re 1 mu Pa @
lm'' has been shortened to ``dB''.
---------------------------------------------------------------------------
The introduction and increase of anthropogenic sound in the marine
environment can have many effects, depending on the nature of the
sound, its source location, and the marine organisms exposed to it.
These effects, as they relate to marine organisms, can be divided into
four categories. First, the sound may be of such high energy that it
causes physical injury or death to marine organisms within certain
distances from the source. Possible sources of such sounds include
explosive blasting (e.g., channel widening), seismic testing (e.g., for
oil and gas exploration), and sonar systems. Second, sound may be of
intermediate levels where it does not cause physical injury but results
in disturbance or stress, which could in turn have serious secondary
consequences (e.g., disruption of breeding, feeding, or other important
biological functions, changes in distribution and movement patterns,
decreases in immune system function, and decreases in reproduction and
survival).
Third, the addition of human sounds to naturally occurring sound
levels may diminish the effective use of sound by marine organisms.
Some marine organisms, most notably cetaceans, have developed the
ability to use sound for a variety of purposes such as communication,
location and capture of prey, detection of predators, investigation of
their surroundings, and orientation. They are able to do so only to the
extent that they can distinguish particular sounds from background
noise. ``Masking'' of sounds by introduced anthropogenic noise may
diminish or interfere with these functions, with potentially serious
consequences. Fourth, human sounds may affect marine mammals indirectly
through their effects on other marine organisms, such as fish. The
extent of such indirect effects is unknown.
Although assessments of noise effects often focus on a single type
of introduced noise, marine organisms must cope with the cumulative
effects of all these sounds, plus the effects of other anthropogenic
influences on the marine environment (e.g., pollution, competition with
fisheries, vessel traffic). In addition, while the ability of marine
organisms to use sound has evolved over millions of years, the changes
resulting from anthropogenic input may be occurring at a rate that is
greater than the ability of marine life to adapt.
As noted earlier, we presently are unable to describe with
confidence the full nature and extent of effects from anthropogenic
noise in the marine environment. Our inability to describe these
effects does not mean that such effects do not occur. Rather, it
reflects our relatively rudimentary understanding of sounds in the
marine environment and our limited ability to assess the impacts of
introduced anthropogenic noise, even when considering single sources
over relatively short periods. Much work needs to be done before we can
begin to develop a reliable understanding of the long-term effects of
the multiple sound sources to which marine organisms are exposed
throughout their ranges.
5. Has there been a pattern of increasing noise in the world's
ocean over the past few decades? What are the sources. with the
greatest contribution to this increase? How does this increase affect
marine mammal populations, and how widespread are these effects?
There is general agreement that ocean noise has been increasing
over the past few decades. Ross (1976) estimated that ambient noise
levels rose 10 dB between 1950 and 1975 due to increased shipping
noise. The National Research Council (1997) estimated that ocean noise
at 100 Hz has increased by about 1.5 dB per decade since the advent of
propeller-driven ships. The increasing number and size of commercial
ships is consistent with these estimates of increasing ambient noise in
the ocean. Although noises can travel great distances in the ocean, the
nature, volume, and effects of noise can vary over space and time, and
much remains to be learned about spatial and temporal trends in noise.
Commercial shipping appears to be the greatest source of
anthropogenic noise in the ocean environment. Other important sources
of ocean noise include seismic exploration for oil, gas, and other
minerals; oil and gas drilling; marine construction; sonar systems used
by fishing and military vessels; blasting for demolition, construction,
and widening of ship channels; dredging; aircraft; icebreakers; and
recreational vessels.
As noted in our response to the previous question, marine mammals
may be affected in at least four ways by the increase in anthropogenic
noise: they may be physically injured or even killed, they may be
stressed and have biologically important behaviors disrupted, they may
be impaired in their use of sound-based sensing mechanisms by the
masking of, and the diminished ability to detect, important sounds as a
result of increased background noise, and they may be affected
indirectly through noise-effects on other marine organisms. Populations
of marine mammals may be adversely affected if the noise leads to a
decrease in reproductive or survival rates. Such effects may occur not
only as a result of direct injury, but in more subtle ways, such as
changes in movement patterns, foraging, or other behaviors. These
changes, for example, may affect the feeding success of individuals or
increase the energy expenditures of animals along their migratory path
in ways that ultimately manifest themselves at the population level.
The available evidence suggests that marine mammals may change
migratory paths as a result of noise, may abandon prime feeding areas,
may abandon rookeries and haulouts, or display other responses that
could compromise their reproduction and survival. However, it is not
currently possible to state how widespread these effects are, as
research on the effects of ocean noise on marine mammals is a
relatively new endeavor and we are only beginning to understand the
role of noise in marine mammal behavior and population dynamics.
Nevertheless, there is growing concern that anthropogenic noise may
pose serious risks to marine mammals and other marine organisms.
In view of this concern, the National Academy of Sciences is
preparing a report on ``Assessing Ambient Noise in the Ocean with
Regard to Potential Impacts on Marine Mammals'' with the following
charge:
This study will evaluate the human and natural contributions to
marine ambient noise and describe the long-term trends in
ambient noise levels, especially from human activities. The
report will outline the research required to develop a model of
ocean noise that incorporates temporal, spatial, and frequency-
dependent variables. Recommendations will be made on the
research needed to evaluate the impacts of noise from various
sources (natural, commercial activities, and acoustic-based
ocean research) on marine mammal species.
This study was requested by the National Oceanographic Partnership
Program with funds provided by the office of Naval Research, the
National Oceanic and Atmospheric Administration, the National Science
Foundation, and the U.S. Geological Survey. The report is due in
January 2003 and should provide a comprehensive overview of the
uncertainties and what will be required to resolve them.
6. How do we evaluate long-term effects versus short-term effects
of noise in the ocean on marine animals? Can ship noise be worse for an
animal than an interaction with a sonar test?
Generally both short- and long-term exposure to noise may result in
injury, behavioral changes that may affect reproduction and survival,
masking of noise that may disrupt important behaviors that depend on
production or detection of sounds (e.g., predation, detection of
predators, communication), or effects on other marine organisms
ecologically important to marine mammals. Studies of short-term noise
effects should include research related to all of these effects, such
as the study by Schlundt et al. (2000) to investigate the onset of
temporary hearing loss, and the behavioral studies conducted under the
Navy's Low Frequency Sound Scientific Research Program. Behavioral
studies focus on observations of individual animals or groups of
animals to assess possible changes in foraging behavior, movement
patterns, reproductive behavior, habitat-use patterns, or physiology
(e.g. exhibited signs of increased stress). For example, short-term
observations of the western Pacific population of gray whales in 2001
suggested that those animals abandoned primary feeding habitat during
nearby seismic testing for oil and gas, and then re-occupied that
habitat when the testing stopped (National Marine Fisheries Service,
pers. comm.).
Studies of the long-term exposure to noise focus on population-
level effects that may or may not be obvious on a short-term basis.
Such changes might include persistent or even permanent changes in
foraging patterns or distribution (such as may occur with the western
Pacific gray whale population just mentioned), long-term abandonment of
otherwise preferred habitat (e.g., rookeries or haulouts), declines in
reproductive rates or success, increased mortality, changes in animal
condition, and, ultimately, population decline.
Long-term studies are particularly important because they provide
an opportunity to increase the rigor or power of research to detect
significant effects if they occur. Short-term noise-induced changes in
marine mammal behavior may be difficult to detect or may appear to be
relatively subtle or insignificant to human observers, but their
significance may be more apparent over time if seemingly small effects
combine to result in significant changes in reproduction or survival.
For example, the changes observed in migration of eastern Pacific gray
whales during the Low Frequency Sound Scientific Research Program may
seem insignificant in the context of a single season's migration, but
long-term changes in movement patterns or habitat use could have
significant consequences for this population. Similarly, the Navy's
study of the sensitivity of humpback whales to sounds in their breeding
habitat focused on short-term singing behavior of adult males. However,
the long-term responses of adult female humpback whales is probably a
better measure of noise effects, as the reproductive success of adult
females is likely a more important determinant of population status and
recovery. In addition, long-term studies are required to determine if
repeated exposure to sound levels causing temporary threshold shift
(hearing loss) is leading to permanent loss.
Importantly, an effective program of long-term studies on the
effects of noise will require careful planning to ensure the program is
rigorous, comprehensive, effective, and reliable. The thoughtful
development of a long-term plan would seem to be the first and perhaps
most important step in addressing concerns about the long-term effects
of anthropogenic noise in the ocean environment.
With respect to the question about whether ship noise can be worse
for an animal than an interaction with a sonar test, the answer depends
largely on the conditions under which the animal is exposed. Ships
generate loud noises and are a growing concern, although these sounds
are generally audible from considerable distances and therefore animals
may have an opportunity to respond before sound levels become
intolerable (i.e., there is some degree of warning). Also, because ship
travel may be more routine than sonar testing, animals may have
adjusted to or otherwise learned to accommodate ship noise. Ship
sounds, which have their primary energy at frequencies below 1 kHz, are
believed to have little impact on small cetaceans and many pinnipeds,
but may be much more critical for baleen whales and elephant seals. In
general, important considerations for comparing the impacts of ship
noise to those associated with sonar operations include the location of
the sources, the loudness of the noises, their duration and frequency,
the extent to which they may startle an animal, the animal's previous
experiences with each noise, its activity, its age and sex class, its
reproductive and physiological condition, the effects on ecologically
related species, and other sources of noise in the animal's
environment. Exposure to a single sonar test or the passage of a single
ship may not have significant lasting effects. Repeated exposures,
however, may cause significant permanent effects, such as abandonment
of important habitat.
questions from ranking member robert underwood
1 . You only mention briefly that the definition of ``harassment''
may come up in the reauthorization bill. Could you please identify the
Commission's stance on the definition?
At the October 11 hearing, we explained that it would be
inappropriate for the Commission to recommend or endorse specific
legislative proposals until an Administration position had been
formalized. Although considerable work has been done toward completing
a proposed bill, concurrence on all issues under consideration has not
yet been reached within the Administration. Thus, we are still unable
to offer specific amendatory language with respect to the harassment
definition. We can, however, identify, problems with the existing
definition and possible alternatives being proposed by others that
Congress might want to consider as it moves forward with
reauthorization of the marine Mammal Protection Act.
First, the introductory clause to the existing definition requires
that harassment be caused by an ``act of pursuit, torment, or
annoyance...'' Some have suggested that, under this provision, any
action that annoys (i.e., disturbs) or could annoy (or disturb) a
marine mammal fits within the definition. This limitation has led
others to a much narrower interpretation. Some have suggested that
harassment occurs only if the disturbance or injury to which a marine
mammal is subjected is caused intentionally. That is, pursuing,
tormenting, or annoying an animal is an action that requires intent.
Clearly, this is not what Congress had in mind when it enacted the
harassment definition in 1994. Otherwise, it would have made no sense
to provide for the incidental taking of marine mammals by harassment
(which generally occurs unintentionally), which Congress specifically
did under section 101(a)(5)(D). From the marine mammal's perspective,
it makes no difference whether any disturbance or injury that results
from a person's actions was intentionally inflicted or not; it would
have the same effect on the animal's behavior or health and,
ultimately, on its survival and reproductive success. In light of the
apparent ambiguity of. the existing provision, it seems that Congress
may want to consider clarifying the types of actions that would
constitute harassment.
Second, to constitute Level A harassment, an action need not result
in an injury to a marine mammal, or even create the likelihood that an
injury might result, but only present the potential for such an injury.
Similarly, the definition of Level B harassment does not require that
disturbance occur or be likely, only that there be a potential for such
disturbance. Some have argued that, by relying on a determination of
potential injury or disturbance, the Act has created a highly
subjective standard that could be interpreted as including even the
remotest possibility that injury or disturbance might occur. Therefore,
Congress might want to consider some clarification that would add an
element of likelihood to the definition.
Others, such as the National Research Council panel that reported
on marine mammals and low-frequency sound (National Research Council
2000), have taken issue with the breadth of the type of injuries or
behavioral modifications that are included within the existing
harassment definition. They believe that the definition should be
modified to ``differentiate between immediate injury and longer-term,
significant physiological and behavioral effects that may affect the
growth, reproduction, or mortality of animals.'' (Id. at 67.) With
respect to Level B harassment, the panel suggested the following
redefinition:
Level B - has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing meaningful
disruption of biologically significant activities, including
but not limited to, migration, breeding, care of young,
predator avoidance or defense, and feeding.
(Id. at 69.)
While the Commission is sympathetic to the concerns raised by the
panel, we believe that its proposal suffers from some of the same
problems as the existing definition. It introduces two subjective and
ambiguous terms - ``meaningful'' and ``biologically significant.'' Even
were there a common understanding of these terms, their inclusion
appears to be premised on an unrealistically high assessment of our
ability to differentiate between biologically significant and
insignificant responses. By doing so, the proposed definition
effectively reverses the precautionary burden of proof that has been
the hallmark of the Marine Mammal Protection Act since its inception in
1972. For example, under existing law, a person seeking to undertake an
activity that likely will incidentally take marine mammals is required
to obtain an authorization and to demonstrate that the taking will have
a negligible impact on the affected marine mammal stocks. Under the
panel's proposed definition, this burden would be switched, such that
it would be incumbent upon the regulatory agencies to demonstrate not
only that marine mammals are likely to be disturbed, but that the
effects of the disturbance are somehow likely to undermine the growth,
survivorship, or reproductive success of those animals. Recognizing the
limited resources available to the agencies responsible for
implementing the Act, and science's limited ability to project the
long-term impacts of short-term disruptions, there is a substantial
risk that adverse, and possibly irreversible, impacts (e.g.,
abandonment of certain areas) might occur before the agencies are able
to demonstrate that meaningful disruption of biologically significant
activities is being caused by disturbance. The problem is further
complicated when from repeated exposures to a single source of sources
over a broader range, are factored into the existing level of
uncertainty, it would be burden of proof to the regulatory agencies as
the cumulative impacts, either disturbance or to multiple equation. In
light of the inappropriate to shift the panel has recommended.
The panel's proposed redefinition of Level B harassment also
creates possibly insurmountable enforcement difficulties for the
regulatory agencies. Under the most common scenario, an enforcement
case brought for harassment would be based upon someone intentionally
chasing, swimming with, or otherwise disturbing a marine mammal. Let us
say, for example, that a person riding a jet-ski chases a dolphin 100
yards downshore along a beach. When the dolphin stops, the jet-skier
again pursues the dolphin, which moves farther down the shore. This
scene is repeated two or three more times. In such an instance there
should be no question that harassment has occurred. However, under the
panel's proposal, the National Marine Fisheries Service could
successfully bring an enforcement action only if it showed that the
offender not only caused the disturbance, but that some biologically
significant activity of the dolphin had been meaningfully disrupted.
Arguably, causing a dolphin to swim an additional 400 or 500 yards
during the course of a day does not rise to this level. Similarly,
disrupting the animal's feeding, resting, or other such activities for
10 or 15 minutes might not have any long-term effects that would rise
to the level of meaningful disruption. Unless such a link were made, no
taking would have occurred.
2. Though you never mention it in your statement, the issue of Navy
sonar systems is one that is extremely contentious and also before the
Subcommittee today. I know that the Commission submitted detailed
comments to NMFS and the Navy. Could you please outline the
Commission's views of the Navy sonar systems, and the research that has
been done to formulate both the draft and final environmental impact
statements?
We recognize that the issue of Navy sonar systems is extremely
contentious and welcome the opportunity to comment on it. We have
attached a copy of our 5 June 2001 letter to the National Marine
Fisheries Service regarding the proposed implementation of the
Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active
(LFA) sonar system. The letter provides comments on an application from
the Navy requesting an incidental take authorization under section
101(a)(5) of the Marine Mammal Protection Act. Under that provision,
the applicant and the National Marine Fisheries Service, as the
proponent of the proposed regulations, carry the burden of
demonstrating that deployment and operation of the SURTASS LFA sonar
system will have no more than a negligible impact on the potentially
affected marine mammal species and stocks. We confine our comments to
the SURTASS LFA sonar system because we do not know the specifics of
other Navy sonar systems. Nonetheless, we may have similar concerns
about those other systems depending upon the sound characteristics of
what is being deployed, where it is being used, what marine mammals
might be affected and in what ways, and so on.
The Navy, in cooperation with other research agencies and
scientists, has done a commendable job of initiating useful
investigations into the potential effects of SURTASS LFA sonar
operations. This effort combined the resources and expertise of several
participants and provides a model for cooperative efforts needed to
address remaining questions about the potential effects of SURTASS LFA.
Nevertheless, because important questions remain unresolved, the Marine
Mammal Commission believes that considerable monitoring and additional
research are warranted to provide a better understanding of possible
effects. We present our concerns under four headings: 1) research
related to injury and behavioral harassment, 2) mitigation of effects,
3) monitoring and reporting of effects, and 4) general comments.
Research related to injury and behavioral harassment - With respect
to marine mammals, the Navy's program focused on the potential for
SURTASS LFA sonar operations to injure marine mammals or cause
behavioral harassment that could lead to population-level effects. The
draft environmental impact statement suggested that 180 dB was a
reasonable and conservative expected lower limit for temporary
threshold shift (temporary hearing loss) based on evidence of hearing
loss in humans, audiometric and anatomical data from some marine
mammals, and a study by Ridgway et al. (1997; later expanded and
reported by Schlundt et al. 2000). The study by Ridgway et al. (1997)
provided the only evidence based on actual tests of hearing in live
marine mammals (bottlenose dolphins), and was cited heavily in the
proposed rule for the small take authorization. The results of the
study were consistent with the hypothesis that 180 dB is a reasonable
expected lower limit for temporary threshold shifts in marine mammals.
However, as the investigators themselves pointed out, the study could
not,.and did not, address all the pertinent questions related to the
potential for injury. In this regard:
<bullet> LThe study used bottlenose dolphins, which may or may not
be good indicators of hearing sensitivity and propensity for threshold
shifts in other marine mammals.
<bullet> LThe sensitivity of the animals was tested to sounds of
one-second duration, whereas SURTASS LFA sonar transmits sounds for
periods of between 6 and 100 seconds, and it is known that the sound
levels needed to cause temporary threshold shifts decrease as the sound
duration increases.
<bullet> LFrequencies tested in the study were 3, 20, and 75 KHz,
whereas SURTASS LFA sonar transmits sounds less than 1 KHz.
The study was then expanded to include two beluga whales, and to
include tests at 0.4 kHz and 10 kHz (Schlundt et al. 2000). Sounds
projected at the lower frequency of 0.4 kHz comprise a better model for
tests of the potential effects of SURTASS LFA, and increase our level
of confidence that threshold shifts are less likely to occur as a
result of SURTASS LFA sound transmissions at received levels less than
180 dB. Nonetheless, as bottlenose dolphins and beluga whales may not
be good indicators of the vulnerability of other species, and as the
sounds used in these tests were only of one-second duration, the
Commission believes that additional testing of this type is warranted.
To address the question of behavioral harassment, the Navy
established a Low Frequency Sound Scientific Research Program to
investigate the effects of LFA transmissions on four species of large
whales (blue, fin, gray, and humpback) during feeding, migration, and
breeding. The following points illustrate the limitations of these
studies and the need for additional monitoring and research on possible
behavioral effects.
<bullet> LThe four whale species used in the study were thought to
have the greatest hearing sensitivity at the frequencies used by
SURTASS LFA. However, the sensitivity of some other species is poorly
known. Although SURTASS LFA sonar uses lower frequency sounds than the
mid-range sonars involved in the recent Bahamas incident, the
occurrence of those strandings clearly indicates that much remains to
be learned about the potential effects of sonar sounds in the variable
marine environment.
<bullet> LChanges in behavior were observed in migrating gray
whales and humpback whales, but the significance of those changes is
unknown. While some were inclined to dismiss the changes as
insignificant and temporary,. in our view, such a dismissal is
premature based on the information currently available.
<bullet> LThe studies were short-term in nature and were not
designed to determine the long-term significance of exposure to SURTASS
LFA sounds.
<bullet> LThe whales in the studies were subjected to sounds of
less than 155 dB, well below the levels to which they might be exposed
(up to 180 dB) by SURTASS LFA operations. Although some whales may
themselves generate sounds of 180 dB or more, it is not clear that they
will respond in a similar fashion or be otherwise unaffected by the
sounds of a comparable loudness produced by SURTASS LFA sonar.
Here, too, the Commission believes that these studies provide
useful information about potential behavioral responses of marine
mammals to SURTASS LFA. The Commission does not believe, however, that
without additional safeguards, these results are sufficient to ensure
that significant adverse effects will not occur.
Mitigation of effects - To limit the potential for injury or
behavioral effects on marine mammals, the Navy proposed three
mitigation measures: 1) halting transmissions whenever a marine mammal
is known to be sufficiently close to the sound projectors to be exposed
to sounds greater than 180 dB, 2) modifying nearshore operations so
that sound levels do not exceed 180 dB within 12 nautical miles of
mainland or island coastlines, 3) excluding operations within offshore
areas of biological importance, including Arctic and Antarctic regions.
Although these mitigation measures are likely to reduce the potential
effects of SURTASS LFA sound transmissions, they do not provide the
requisite assurances that the transmissions will have negligible
effects on marine mammal populations. In a 5 June 2001 letter
(attached) to the National Marine Fisheries Service on the small take
authorization for SURTASS LFA, the Marine Mammal Commission identified
the limitations of available information in assessing the possible
effects of SURTASS LFA sonar and suggested further research to address
these needs.
<bullet> LThe detection of marine mammals near the sound projectors
depends on (1) visual observations, which are limited by daylight and
sea surface conditions, (2) passive acoustic devices, which require
that animals make detectable sounds as they pass near the projectors,
and (3) high frequency marine mammal monitoring (HFM3) sonar, which is
considered to be the most effective detection system, but which has not
been fully tested and may itself have significant detrimental effects
that warrant investigation.
<bullet> LLimiting the exposure of marine mammals to sound levels
less than 180 dB may reduce the potential for injury to a negligible
level, but does not necessarily reduce the potential for significant
behavioral effects. Inasmuch as adverse effects may occur at received
sound levels below 180 dB, additional studies are needed to provide
insights into behavioral responses (both short- and long-term) to sound
levels greater than 155 dB.
<bullet> LThe Navy and the National Ocean Service have offshore
areas of biological importance, but areas merit such protection.
Extensive data patterns and distribution apparently have not been
designation of such areas and further review seems identified a total
of four it is likely that many more on marine mammal movement
considered in the warranted.
Monitoring and reporting - The Navy's proposed monitoring program,
as described in its environmental impact statement, consists of the
three detection methods described above (visual observation, passive
acoustic monitoring, and HFM3 monitoring), plus an effort to correlate
stranding data with SURTASS LFA operations. In its 5 June 2001 letter
to the National Marine Fisheries Service, the Commission expressed its
concern that the proposed rule authorizing small takes of marine
mammals was not adequate to provide the information necessary to (1)
document how and how many marine mammals are taken incidental to the
transmissions, or (2) validate the assumptions used to conclude that
SURTASS LFA operations will have only negligible impacts on marine
mammals. The limitations of monitoring near the sound projectors are
described above. It is our understanding that the National Marine
Fisheries Service and the Navy are working closely to assess the
efficacy of the proposed mitigation measures. Nevertheless, at this
time the efficacy has not been demonstrated and, even under the best of
conditions, the monitoring program is designed only to detect short-
term impacts to animals that might be injured by sound transmissions.
If the proposed monitoring methods are inadequate for detecting
behavioral effects on a long-term basis, serious effects could occur
but go unnoticed. Efforts to correlate stranding data with SURTASS LFA
operations also will have limited utility as animals affected in
offshore areas will be less likely to strand on beaches where they
could be detected. In addition, the stranding data collected may not be
adequate to detect all or even a portion of the animals that could be
affected, and results of correlations are likely to be confounded by
other factors that cause stranding.
General comments - In a general sense, the concerns raised above
are similar to those raised with respect to the potential ecological
consequences of many human activities in the marine environment. An
activity has been proposed that may have clear social, economic, or
security benefits, but that also could result in potentially serious
detrimental effects on marine ecosystems. Useful research has been
conducted through commendable cooperative efforts by the Navy and other
researchers. Nevertheless, the Commission believes that much remains to
be learned before it is possible to conclude that detrimental, and
possibly irreversible, effects are unlikely to occur. In resolving the
questions of whether and how to proceed with such activities, the small
take provisions of the Marine Mammal Protection Act reflect a
precautionary approach, requiring the responsible agencies to proceed
cautiously in the face of uncertainty. This might be accomplished by
issuing a limited authorization coupled with a rigorous long-term
research and monitoring effort that would allow for the development of
SURTASS LFA operations while maximizing the probability that potential
detrimental effects will be both identified and maintained at
negligible levels. The model of cooperative research already developed
could vastly improve our understanding of the potential effects of
SURTASS LFA sonar operations if given sufficient support and continued
under a well-directed research plan.
Finally, the potential effects of SURTASS LFA sonar operations must
be evaluated in the context of other human sources of noise in the
oceans. Marine mammals and other marine life are confronted with a
combination of natural and human-related sounds, and the effect of any
one source must be evaluated in the context of all the others. As the
amount of noise introduced into the marine environment is growing, a
robust plan is needed to assess and prevent its potential detrimental
effects.
3. The recent marine mammal issue with the Suarez Circus in Puerto
Rico has brought to light some problems within traveling facilities
that display captive marine mammals, as well as with the administrative
performance of both the Animal and Plant Health Inspection Service
(APHIS) and the U.S. Fish and Wildlife Service (FWS). Could you please
state the Commission position on the Suarez Circus polar bears? Does
APHIS or FWS have sufficient regulatory ability under the MMPA or
Animal Welfare Act to seize the polar bears? What should APHIS and the
FWS be doing now to ensure the humane care and treatment of these
animals, including if necessary, the seizure of these animals on behalf
of the U.S. government?
What regulatory errors occurred in the licensing or permitting of
this facility that allowed these bears to be imported into the U.S. in
the first place?
Commission position - As reflected by the Commission's letters to
the Animal and Plant Health Inspection Service and Fish and Wildlife
Service, our general position with respect to the Suarez Circus polar
bears is one of concern. Although no Commission representative has
visited the facility, if the reports and video tapes that we have
received from some of those who have visited the facility accurately
portray the conditions under which the animals are being maintained, we
are led to one of two alternative conclusions - either the facility has
failed to meet the applicable care and maintenance standards or the
``minimum standards'' promulgated by APHIS are too minimal to
accomplish the stated goal of the Animal Welfare Act, which is to ``to
ensure that the animals are provided humane care and treatment.''
Among the Commission's key concerns are the temperatures at which
the bears have been maintained, and the fact that the bears have
apparently not always been kept in quarters that are sufficiently
cooled or provided access to sufficiently chilled pools of water. In
this regard, we note that the applicable regulations specify that
marine mammals ``shall not be housed in outdoor facilities unless the
air and water temperature ranges which they may encounter ... do not
adversely affect their health and comfort.'' At several times during
their stay in Puerto Rico, the bears at the Suarez Circus have been
exposed, sometimes for prolonged periods, to temperatures in excess of
80 F. This is well outside the normal temperature ranges to which polar
bears are exposed and, unless there is some way for them to avoid such
exposure, can be expected to adversely affect their comfort, and
possibly their health.
The controversy surrounding the Suarez Circus bears also
underscores the problems associated with relying largely on subjective
standards regarding areas of compliance under the Animal Welfare Act,
as APHIS does with temperatures. There is no clear-cut demarcation of
what constitutes an acceptable temperature range for maintenance of the
animals. Thus, it is difficult for the Service, the facility, the
Commission, and others to assess whether or not the facility is in
compliance. The standard applied by APHIS may even vary if different
inspectors are sent to the facility on different days. While the
development of such universal objective standards may be a good idea as
APHIS reviews and updates its marine mammal regulations, establishment
of objective review criteria is essential to address specific problem
situations such as that involving these bears. The bears have now been
in Puerto Rico for more than half a year, and we still do not have a
good understanding of what temperature range APHIS thinks is acceptable
for maintenance of the bears or of the agency's rationale for such a
determination.
We also do not know how well the facility is complying with the
requirement to keep temperatures within an acceptable range during
those times when an APHIS inspector is not present. Based on the number
of times that APHIS inspectors have noted high temperatures within the
facility and the reports by others that cooling equipment has not been
used continuously, the Commission questioned the appropriateness of
relying exclusively on facility personnel to compile such records and
recommended that the Service install or require the facility to install
a tamper-proof thermometer to monitor temperatures within the facility
on an ongoing basis. The Service responded that there is no regulatory
requirement for a facility to record pool temperatures, and thus,
apparently, no heightened requirement for a facility to demonstrate
compliance even when repeated problems have been documented. The
Service further replied that, because regulations regarding
temperatures are ``performance-based,'' it would be inappropriate to
require the facility to meet an ``engineering standard'' that would
require it to implement around-the-clock temperature
monitoring.<SUP>2</SUP>
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\2\ Despite the Service's characterization of these standards, it
would seem that establishing a set temperature range for maintaining
the bears would be performance-based, while specifying how those
temperatures are to be achieved would be engineering-based.
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A related issue is whether and when polar bears need to be provided
with access to pools of chilled water. The Animal and Plant Health
Inspection Service has determined that denying the bears access to such
pools (and air conditioning) for the 65 percent of the time they are in
the transport vehicle is acceptable, provided (with one notable
exception<SUP>3</SUP>) that access is given during the periods between
8 a.m. and 5 p.m. Aside from the question of maintaining polar bears at
appropriate temperatures, there is a separate requirement under the
space requirements applicable to facilities maintaining polar bears
that each primary facility include a pool of water of specified
dimensions. Presumably this requirement means not only that such a pool
be present, but that the bears be provided reasonable access to it.
Further in this regard, the applicable regulations specify that an
enclosure that does not meet the minimum space requirements (which in
this case includes the requirement pertaining to a pool of water)
cannot be used for permanent housing purposes.
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\3\ For unexplained reasons, the Service has determined that the
facility may keep the bears without access to air conditioning or pools
of water on Sunday afternoons, during the hottest part of the day.
---------------------------------------------------------------------------
The Commission also has raised concerns about the adequacy of the
facility's veterinary program and the appropriateness of the training
methods being employed. These are detailed in letters already provided
to your office and will not be repeated here. APHIS has yet to respond
to our questions concerning the legality of the reported training
methods, which allegedly include striking and prodding the bears to
induce them to perform. As for the issues concerning medical care,
APHIS has determined that the facility was not at fault in the 1998
death of one of its bears from dirofilariasis, a condition that, if
treated promptly, should not have been life-threatening. The Service
has yet to respond to the Commission's questions regarding the
diagnosis and treatment of other possible medical conditions the bears
may be experiencing.
The Service did, however, decline to provide the Commission with
copies of any medical records concerning the Suarez Circus bears. The
Service noted that such records, although available for review by its
inspectors, are not submitted to the Service and that it could not
compel the facility to provide them to ``outside parties.'' This
dismissal of our request fails to recognize the oversight function and
unique role of the Commission concerning activities of Federal agencies
pertaining to marine mammals. We believe that the Service could compel
the facility to provide it with these records and, if obtained, that
the Service would have to provide them to the Commission if requested,
subject, of course, to the privacy and information protection
provisions applicable to all Federal agencies. Without access to such
information, the Commission's ability to carry out its responsibilities
under the Marine Mammal Protection Act is compromised. Thus, to the
extent that there is any ambiguity, the Commission believes that action
should be taken to clarify that the Commission shall have access to
such materials in situations where legitimate questions concerning the
care and maintenance programs at a facility have been raised.
Another of the principal recommendations made by the Commission
regarding the Suarez Circus bears was for APHIS, in cooperation with
the Fish and Wildlife Service, the Commission, and outside experts, to
undertake a thorough, unannounced inspection of the facility so that
the continuing allegations of non-compliance can be laid to rest. The
Service has responded that, because of its ongoing investigation of the
facility, it would be inappropriate to convene such a review panel at
this time.
Seizure authority - Both the Animal and Plant Health Inspection
Service and the Fish and Wildlife Service can, under their respective
authorities, seize animals under certain circumstances. The Animal
Welfare Act, at 7 U.S.C. Sec. 2146, directs the Secretary of
Agriculture to promulgate regulations as deemed necessary ``to permit
inspectors to confiscate or destroy in a humane manner any animal found
to be suffering as a result of a failure to comply with any provision
of [the Act) or any regulation or standard issued thereunder...'' The
Service has characterized its authority in this regard as follows
Our authority to confiscate animals is limited to a narrow set
of circumstances in which a licensee refuses or otherwise fails
to provide proper care for animals that are found to be
suffering. The licensee must be notified of any intent to
confiscate the animals for noncompliance with the AWA
regulations and be allowed an appropriate period of time, as
determined by our Animal Care program, to correct the
noncompliance. If the facility corrects any cited problem and
provides the requested care, the animals are not confiscated.
This description, however, varies somewhat from the applicable
regulatory provision (9 C.F.R. Sec. 2.129), which could be interpreted
as permitting confiscation prior to conducting a hearing, if a finding
is made that an animal is suffering or distressed or the animal's
health is in danger.
In any case, however, the Service has notified the Commission that,
while ``several problems'' have been recorded concerning the
maintenance of the polar bears at the Suarez Circus, ``our inspector
has not observed signs of animal suffering that would prompt
confiscation of the animals.''
Section 104(c)(2)(D) of the Marine Mammal Protection Act, 16 U.S.C.
Sec. 1374(c)(2)(D), authorizes the Secretary of the Interior to revoke
a public display permit and to seize the marine mammals maintained
thereunder if (1) the Secretary finds that the facility no longer meets
the requirements pertaining to education or conservation programs and
public accessability, or (2) the Secretary, with the concurrence of the
Secretary of Agriculture, finds that the facility no longer meets the
requirements pertaining to licensing under the Animal Welfare Act and
is not reasonably likely to meet those requirements in the near future.
With respect to this last criterion, the Animal and Plant Health
Inspection Service has taken the position, albeit in a different
context, that license suspension (as opposed to license revocation) is
all that is required to make such a finding, provided that there is a
reasonable basis for believing that the facility will not come into
compliance with all Animal Welfare Act requirements in the near future.
In revoking a permit under the Marine Mammal Protection Act, the
Fish and Wildlife Service is required to follow the procedures set
forth in section 104(e) of the Act, which affords the permittee a right
to a hearing prior to any such revocation. Although Constitutional due
process requirements would also apply to a seizure of animals for
noncompliance, the Act does not specifically require that such an
action is subject to the procedural requirements of section 104(e).
Thus, the statute arguably provides sufficient latitude for the Service
to seize animals if their health or welfare is jeopardized by the
noncompliance, and to conduct a hearing after the animals are in the
Service's custody.
Needed actions - The most crucial thing that we believe the
Services should be doing is reviewing the adequacy of the facility's
care and maintenance program. As noted above, because of the questions
that have been raised with respect to the adequacy of APHIS' monitoring
of the facility, we believe that the best way to accomplish this would
be to conduct an interagency inspection involving the Services, the
Commission, and appropriate outside experts. While we do not know the
precise details of the inspections that have been conducted, from the
records available to the Commission, it appears that they have been
carried out by a single inspector. Because of the subjectivity involved
in determining compliance with several components of the care and
maintenance standards (such as what constitutes an acceptable
temperature range), it would make sense to have a broader review.
Further in this regard, we note that APHIS inspectors have a wide range
of responsibilities concerning the care and maintenance of a variety of
species. While we have no information concerning this particular
inspector's areas of expertise, it may be that he is not a polar bear,
or even a marine mammal, specialist. Thus, it would seem prudent to
include veterinarians and others with such expertise in an inspection
of the facility to obtain their advice in making the required findings.
Among other things, they would be able to assess the health of the
bears and review the adequacy of the medical, as well as the husbandry,
program.
Also, as noted above, APHIS should take steps to enhance its
ability to monitor compliance by the facility during those times when
its inspectors are not present. While this is not something that is
routinely done, it seems to be the only way in this instance to address
the numerous complaints concerning the conditions under which these
bears are being maintained. At a minimum, the Commission believes that
the temperatures of the enclosures in which the bears are housed and
the temperatures of the pools of water they are provided should be
monitored by an independent source on an ongoing basis. The Commission
has recommended that this may best be accomplished by installing
tamper-proof recording thermometers.
The Commission also has recommended that APHIS review the
appropriateness of maintaining polar marine mammals in outdoor
facilities in tropical environments. If, based on such a review, the
Service determines that such displays are appropriate in some
instances, it should provide additional guidance to delineate
specifically the conditions under which these exhibits are allowed.
Further, the Service should undertake a review of its standards in
light of the problems that have arisen in the Suarez Circus in an
effort to make them more objective, and thus more enforceable and more
easily understandable by the regulated community and the public. At the
very least, the Service should take action to set specific performance
criteria with respect to allowable temperatures for the maintenance of
the Suarez Circus polar bears. The Service should also review with the
facility when the bears are expected to be housed in the primary
facility and when, and under what conditions, they may be maintained
elsewhere.
APHIS also needs to respond to the questions raised in the
Commission's 4 October letter concerning the legality and
appropriateness of using training methods that involve the striking or
prodding of the animals. Depending upon the Service's response, it
should either take action to enforce this prohibition at the Suarez
Circus or take action to reinstate the specific prohibition against
such practices that had, until recently, been included in section 3.108
of its marine mammal regulations.
With respect to actions needed to be taken by the Fish and Wildlife
Service, the Commission recommends that the Service move promptly to
conclude its investigations of the identities and origins of the Suarez
Circus bears and take any remedial action that might be warranted based
upon those results. The Service also needs to conclude its efforts to
resolve the issues concerning the facility's compliance with the
education or conservation program requirements of the Marine Mammal
Protection Act. Further, and perhaps more important, the Service should
encourage the Animal and Plant Health Inspection Service to undertake
the interagency inspection of the facility recommended by the
Commission and should assist in facilitating such a review.
Permitting and licensing issues - There are at least two things
that the Commission believes the reviewing agencies should have done
prior to authorizing the importation of the Suarez Circus polar bears
that they apparently did not do. With respect to the Fish and Wildlife
Service, we believe that it should have done more to resolve questions
concerning the accuracy of the CITES documentation and the identities
and origins of the bears prior to issuing a permit. In this regard, the
Commission and others who commented on the permit application
identified several discrepancies and inaccuracies that we believe
should have been resolved before permit issuance. Nevertheless, it
appears to the Commission that the Service issued the permit before
fully resolving these matters. In its 8 May 2001 response to the
Commission's comments, the Service noted -
We share the Commission's concern regarding these apparent
inconsistencies, and have communicated our concern to the
applicant. Further, in our letter to the applicant ... we have
noted these apparent inconsistencies and informed the applicant
that it is his responsibility to ensure that the CITES re-
export documents, needed to export these animals from Jamaica,
should correspond to the correct CITES original documents...
Subsequently, in a 4 October 2001 letter to the Service, the
Commission raised concerns about the identity of one of the bears,
based on a statement from the director of Zoo Atlanta that one of the
bears allegedly born at the zoo had in fact died years earlier. This
issue is currently being investigated by the Service. While this is
appropriate, the Commission believes that, had the Service thoroughly
investigated the irregularities in the documentation at the outset,
this problem, and perhaps others, would have been detected prior to
permit issuance. That was the appropriate time to resolve such issues.
Knowing the true identities of the bears is key to making informed
determinations regarding the required findings under the Marine Mammal
Protection Act, e.g., whether the bears were or might have been
pregnant or nursing, or less than eight months old, at the time of
taking, or possibly were taken in violation of the laws of their
countries of origin. While it is possible that the Service conducted
enough of an inquiry to have addressed these questions prior to issuing
the permit, the Service, after much prompting, has yet to provide any
information to the Commission to indicate that this was the case.
The second area of concern involves the pre-licensing inspection of
the facility conducted by the Animal and Plant Health Inspection
Service. The Commission believes that the Service should have made a
more concerted effort to ascertain compliance with all aspects of the
applicable care and maintenance requirements at the outset. For
example, during the first inspection of the facility after the polar
bears arrived in Puerto Rico, no mechanical ventilation or cooling was
being provided in the primary enclosure; the pools of water, although
present, were not being cooled; and, although the transport vehicle
where the bears are being housed much of the time has an air
conditioner, it was not being used. Presumably, these problems could
have been foreseen and prevented if, during the pre-licensing
inspection, the Service pursued with the facility the temperatures at
which the bears would be maintained while in Puerto Rico and its plans
for achieving them. The answers to such questions also should have
prompted inquiries about the facility's plans concerning the extent of
time the bears would be housed in the transport vehicle, rather than
the primary enclosure. Also, the death of a polar bear from heart worm
while the facility was touring in Mexico should have alerted the
Service to possible problems with the medical care program, sufficient
to prompt additional inquiry. Yet, based on the initial on-site
inspection report, the inspector noted that one of the bears was
suffering from some sort of infection on its face (possibly mange), but
had not been examined by the attending veterinarian. Apparently, it was
only at the inspector's prompting that an examination was conducted.
Moreover, the inspector found that medical records were lacking or
incomplete for that animal.
citations:
National Research Council. 1997. Technology for the United States Navy
and Marine Corps, 2000-2035: Becoming a 21st century force.
National Research Council. 2000. Marine Mammals and Low Frequency
Sound, Progress since 1994. National Academy Press, Washington,
D.C.
Ridgway, S.O., D.A. Calder, R.R. Smith, T. Kamolnick, C.E. Schlundt,
and W.R. Elsberry. 1997. Behavioral responses and temporary
shift in masked hearing threshold of bottlenose dolphins,
Tursiops truncatus, to 1 second tones of 141 to 201 dB re i Pa.
Technical Report 1751, July 1997. Naval Command, Control and
Ocean Surveillance Center, RDT&E Division, San Diego, CA.
Ross, D. 1976. Mechanics of underwater noise. Pergamon, New York.
Schlundt, C.E., J.J. Finneran, D.A. Carder, and S.H. Ridgway. 2000.
Temporary shift in masked hearing thresholds of bottlenose
dolphins, Tursiops truncatus, and white whales, Delphinapterus
leucas, after exposure to intense tones. Journal of Acoustical
Society of America 107(6):3496-3508.
______
Response from Margaret F. Hayes, Director of Office of Ocean Affairs,
Bureau of Oceans and International and Scientific Affairs, U.S.
Department of State
question from ranking member robert a. underwood
l. In regards to the U.S./Russia polar bear treaty, is it your
opinion that the Russian Federal Government will provide the necessary
resources for research, enforcement and management? Is it implied in
this agreement that the U.S. will shoulder the financial burden to
support this new polar bear commission?
ANSWER: Article 8, Paragraph 4 of the Agreement stipulates: ``The
Contracting Parties shall be responsible for organizing and supporting
the activities of their respective national sections as well as the
joint activities of the Commission.'' By signing the Agreement the
Russian Federation made a commitment to ``take such steps as are
necessary to ensure implementation of this Agreement.'' (Article 10,
Paragraph l.)
The draft legislation necessary for the U.S. to implement the
Agreement includes a section (Section 9) on ``Authorization of
Appropriations'' to meet the new obligations the Agreement creates. We
anticipate that a portion of these funds could support joint research
and management activities identified by the Commission, including
certain collaborative programs between the two countries. The funding
situation in Russia is less clear; however, we understand that some
level of financial support has already been given to the Chukotka
Branch of the Pacific Ocean Institute for Fisheries and Oceanography
(TINRO) to plan and design a harvest monitoring and enforcement
program.
______
Responses from Charles Johnson, Executive Director, Alaska Nanuuq
Commission
questions from chairman wayne t. gilchrest
1) What is the status of the polar bear populations in Alaska and
Russia? Do you have any knowledge on the status of polar bear
populations world wide?
There are two populations of polar bear in Alaska, the Southern
Beaufort Sea population and the Chukchi/Bering Sea population.
The Southern Bering Sea population is shared by the North Slope of
Alaska and Western Northwest Territories and the Yukon in Western
Canada. This population has been heavily studied and closely monitored.
Using new methods Steve Anstrup of USGS, who has conducted much of the
studies, has revised the minimum population estimate upward from 1800
to 2250 animals. It is thought that the population grew during the 70's
and 80's and leveled of during the 90's as the numbers neared carrying
capacity.
This view is also reflected in the observations and encounters of
villagers and hunters in their reports of more bears coming near the
villages.
The hunting of this population is managed by an agreement between
the Inupiat of the North Slope Borough and the Inuvialuit of the
Northwest Territories. This is a voluntary agreement that sets equal
harvest quotas for Alaska and Canada. The agreement also seeks to
protect females and females with cubs. During the last ten years out of
a total quota of 800 animals, 680 have been taken. The percentage of
females taken has declined to a third of the take. The success of this
agreement has insured that the population of polar bears in the
Southern Beaufort Sea remains healthy and vibrant.
The Chukchi/Bering Seas population has not been as heavily studied
as the Southern Beaufort Sea population. The range of this stock has
been established by radio collar satellite tracking and extends from
west of Wrangel Island in Chukotka to Point Barrow in Alaska and south
to St. Lawrence in Alaska. Based on harvest data, observations of
density and other observations it is thought this population has grown
similarly to the Southern Beaufort population. It is estimated at
between 2000 and 5000 animals and appears to be healthy.
Not as much is known of the other populations in Russia. The
Barents Sea population is shared with Norway and is estimated at
between 2000-5000 animals. The Kara Sea population is largely unknown
and is in a relatively unproductive area. The Laptev Sea is estimated
at between 800-1200 animals, but with a high degree of uncertainty.
As for the status of polar bear populations world wide, the IUCN
Polar Bear Specialist Group met in Greenland in June 2001 to review
polar bear status. Based on historical harvest levels and current
management practices the world population is estimated at between
21,500-25,000. Most of the population levels are stable with the
exception of the Northern and Southern Beaufort Seas, which are thought
to be increasing, and the Baffin Bay and Davis Straits population,
which are thought to be decreasing due to climate change. As the report
of the meeting is finalized we can send you a copy.
2) Do think the sport hunting of polar bears, as Ms. Young stated
in her testimony, has been the cause of the decline in polar bear
populations throughout their range worldwide? Isn't it true that sport
hunts bring in much needed money to native villages in Canada and focus
primarily on males, not females or cubs, and can help in the survival
of these populations?
Sport hunts are only conducted in Canada. Each village is allocated
a quota, which is part of a sustainable harvest limit for each
population. Each village can use its quota for subsistence or it can
set aside part of the quota for sport hunting. These quotas are
strictly enforced. Sport hunting can only be done with a village guide
and dog teams. The use of snow machines is not allowed. The level of
the harvest is the meaningful statistic, not who harvests the animal.
As long as harvest levels, including sport hunting, are within the
sustainable harvest limit, the polar bear populations should remain
stable and healthy.
Sport hunters want trophies and the trophies are big males. By
targeting big males pressure is taken off the females and females with
cubs. Since big males are the primary predator of cubs, reducing their
numbers may have a positive effect on the survival of cubs.
Sport hunts are an economic boost for the villages. The villages of
northern Canada get up to $17,000 USD for a hunt. To bring an observer,
such as a cameraman costs another $10,000 USD. From the reports of the
hunter associations, the sports hunts are sold out as much as five
years in advance.
3) What assurances have the Russians given to ensure that
subsistence hunts will remain within the quotas determined by the
International Commission established by the Treaty? If there are
overage, how will they be handled? Should there be any concern for
unauthorized hunts occurring in Russia?
Russia has signed the treaty and thus has obligated itself to abide
by the terms of the treaty. The Ministry of Natural Resources and the
government of Chukotka have been working with the Association of
Traditional Marine Mammal Hunters of Chukotka (ATMMHC) to develop
regulations to manage the hunt of polar bears. These regulations will
include marking and tagging of legally taken hides, enforcement
measures, seasons and licensing.
One of the methods of managing quota overages may be to set block
quotas for a five year period such as is done by the Alaska Eskimo
Whaling Commission. If a quota is exceeded in one year it can be
adjusted for a following year.
The U.S. Fish and Wildlife Service and the Alaska Nanuuq Commission
will conduct a marking and tagging workshop for our Russian colleges
this winter in Nome.
Illegal hunting in Russia is of great concern. Many Russians are
under the miss conception that hunting is now legal since the treaty
has been signed. They don't understand that it must be put in force by
legislation in the U.S. or by decree in Russia. Another concern is that
reports indicate military personnel who may be difficult to prosecute
are doing some of the hunting.
The Alaska Nanuuq Commission and the Association of Traditional
Marine Mammal Hunters of Chukotka are undertaking a public education
campaign in Chukotka to promote polar bear conservation and to educate
the hunters about the treaty and its provisions. Calendars, which are
popular in Russia, are being developed for this purpose.
question from ranking member robert a. underwood
1) Mr. Johnson, with the provisions of the draft Polar Bear Treaty
between the United States and the Russian Federation, how capable do
you feel is the ability for the native managers to prevent poaching and
enforce the provisions of the Treaty?
When Ambassador Ushikov signed the Treaty in October 2000 he noted
that this is the most democratic treaty Russia has ever agreed to. For
the first time native peoples participated in the negotiations and the
implementation of a treaty.
The native peoples of Chukotka were severely repressed by the
Stalinist government of Governor Nazarov. He ordered the Yupik Society
of Chukotka dissolved for failing to comply with reporting requirement
he secretly ordered. He would close airports where we had planned
workshops with the ATMMHC. He would impose licensing requirements that
could not be met by our USFWS biologists working with the Association
and Nanuuq Commission.
The U.S. Fish and Wildlife Service has published a report on polar
bear habitat use in Alaska taken. from the observations of native
hunters. This report contains denning areas, hunting and feeding areas
and migration and movement routes by seasons. This report covers half
of the Chukchi/Bering Sea population.
In 1997 the Alaska Nanuuq Commission received a three year grant to
conduct the same study in Chukotka by interviewing knowledgeable native
hunters. We decided that with proper training the study could be
conducted by the ATMMHC. This would give them the experience and
credibility to be involved in management. We are now in the last year
of that study.
In January of this year a new Governor took office in Chukotka.
Governor Abramovich has publicly and privately given his strongest
support to native groups and their involvement in project such as ours.
While there is still many of the old regime beaurocrats still in place
the ATMMHC and we have been given hope for the future.
The ATMMHC will be meeting with representatives of the government
of Chukotka and the Ministry of Natural Resources in Anadyr in January
2002 to develop regulations and enforcement procedures for the polar
bear hunt. This is a new process and has the full public support of the
very popular governor of Chukotka, who has gone out of his way to
promote involvement of native peoples of Chukotka in his government.
With his support the Director of our habitat study program in Chukotka,
a Chukchi native, Dr. Vladimir Etylin, has been elected to the National
Duma (Parliament). He is essentially Chukotka's answer to Alaska's Don
Young. We are counting on his support and influence to help the ATMMC
successfully enforce the provisions of our Agreement.
For these reasons the Alaska Nanuuq Commission feels that the
Association of Traditional Marine Mammal Hunters of Chukotka will be
able to transition from banned hunting with poaching to a successfully
managed legal hunt.
We thank you for the opportunity to provide more information and
will gladly answer any other questions.
[Attachments to Mr. Johnson's responses follow:]
[GRAPHIC] [TIFF OMITTED] 75640.038
[GRAPHIC] [TIFF OMITTED] 75640.039
______
Responses from Sharon Young, Field Director for Marine Issues, The
Humane Society of the United States
questions from chairman wayne t. gilchrest
1. Your testimony discusses the Canadian polar bear hunt and its
adverse effects on populations. Is your organization opposed to hunting
in general?
The Humane Society of the United States (HSUS) is opposed to
hunting for sport, trophy and recreation but understands the need for
subsistence hunting. We believe the characterization of wild animals as
``game'' denies their intrinsic value and belittles their ecological
importance. It is the goal of the HSUS to ensure the ethical
stewardship of wildlife and its environment.
The HSUS recognizes that the welfare and responsible management of
animals may, on occasion, necessitate the killing of wildlife. When
such killing is permitted, it must be used as a last resort, be
demonstrably necessary, be conducted by responsible officials and the
methods utilized must result in an instantaneous and humane death.
The HSUS also recognizes that the legitimate needs for human
subsistence may necessitate the killing of wildlife. In such cases,
killing must be accomplished in a humane and non-wasteful manner and
must not involve endangered or threatened animals. Nor should such
hunting result in the de-stabilization of populations.
2. You testified that Alaskan Native harvest, in some cases, has
exceeded PBR for that population. Other than the situation with Cook
Inlet beluga whale harvests that have been addressed, can you give the
Subcommittee any examples?
Endangered Steller sea lions have a Potential Biological Removal
(PBR) level of 208. This stock continues to decline. The level of
native hunting of Steller sea lions exceeds PBR. The most recent kill
estimate in the official National Marine Fisheries Service (NMFS) stock
assessments is for the year 1997. No data on native hunting has been
provided since that time; however, as of 1997, natives killed an annual
average 353 animals from this declining stock. We have no way of
knowing how many were killed in the past 4 years.
Similarly, several hundred spotted seals are killed each year by
natives, with no harvest data available for Alaska as a whole since
1993. Spotted seals have no known PBR, so hunting may be occurring at a
level that is detrimental to the population.
Although the egregious situation of hunting of Cook Inlet beluga
whales has been addressed for the time being, beluga whales are hunted
elsewhere as well. Beluga whales in the Eastern Bering sea stock are
hunted in levels above their PBR. These belugas have a PBR of 129 and
native hunting of this stock exceed PBR in four of the five years
between 1993 and 1997 which is the most recently available data. We do
not know how many may have been killed since 1997.
The NMFS Alaska regional stock assessments state that for virtually
all marine mammal stocks hunted by natives, estimates of native hunting
should be considered underestimates, so hunting of other species may
also be occurring at levels of concern. We believe it is critical that
hunt data be more current (stock assessments generally have data no
more recent than 1997) and that Native villages provide a full
accounting for kills as well as struck and loss levels to assist in
understanding the true status of marine mammal stocks in Alaska.
3. Mr. Marks testified that the six-month requirement for action
once a TRT has been convened prevents often necessary research
initiatives on things like gear modifications to be tested for their
efficiency. Do you agree that there should be more flexibility in that
requirement?
There have been cases in which the six-month time period for the
TRT meetings has been limiting, but not with regard to hindering gear
research. In the case of the Atlantic Large Whale TRT, the team was
close to reaching consensus on important measures to protect endangered
whales, but NMFS refused to allow an additional meeting. As a result,
there was no agreement possible. This in turn resulted in divisive
lobbying and heated public hearings that may well have been
unnecessary.
I do not agree with Mr. Marks that flexibility in the six-month
requirement will allow development of take reduction strategies that
would not otherwise be available within the six-month time period.
Innovative gear research requires systematic testing that generally
takes more than a year to provide reliable results. A delay of this
amount of time would be unconscionable, since most take reduction teams
are already convened well after they were mandated. For example, the
take reduction team for coastal bottlenose dolphins in the mid-Atlantic
was mandated in 1995, but not convened until 2001. Because of these
delays in convening teams, both the government and the fishing industry
are aware that strategies need to be developed long before the team is
convened to discuss them. This time could be (or could have been) used
to devise and test strategies, rather than waiting until after a team
is convened.
The HSUS opposes changing the language of the MMPA to delay the
deadlines in the Act. This would simply compound the existing
propensity of the NMFS to ignore legal deadlines.
The take reduction teams generally recommend a suite of options,
often including additional gear research and testing. Some of this gear
research can be conducted subsequent to the meetings under experimental
fishing permits, even in areas closed to fishing. An example of this is
the harbor porpoise take reduction team and the testing of acoustic
deterrent devices known as pingers which are now in broad use. In this
manner, gear modifications can be iterative. Some, based on current
knowledge and available technology, can be immediately implemented;
while others are tested and implemented as they prove effective. This
obviates the need for extending the initial take reduction team
process.
4. You discuss actions and inaction taken by the National Marine
Fisheries Service and failures of budgeting and enforcement. Has it
occurred to the environmental community that some of its own lawsuits
against the Agency may be causing some of the inaction due to its
budget being used for court costs instead of management and
conservation measures?
The HSUS does not believe that this sort of criticism is valid.
Inaction is not the result of lawsuits. Lawsuits are the result of
inaction. The HSUS and other environmental organizations do not bring
suit against an agency until all other options have been exhausted and
the Agency's lack of response has created a crisis situation. If the
agency were to do its job, there would be no lawsuits; and in the case
of our MMPA-related suits, the courts have been quick to order the NMFS
to comply with the law.
It is a sad commentary that increased attention and funding
generally are not directed toward species in crisis until lawsuits area
filed or threatened. Cases in point are Steller sea lions, northern
right whales, manatees and bottlenose dolphins in the mid-Atlantic. The
federal government should be proactive, not reactive.
The situation of the harbor porpoise TRT exemplifies this. So dire
was the level of mortality to the stock, that Congress recognized it
specifically in Section 120 of the 1994 amendments to the MMPA, which
provided specific dates for reducing mortality of harbor porpoise.
Recognizing the difficulty of reducing such a high level of mortality,
the mandated deadlines would have given the New England gillnet fleet
six additional months to reduce the mortality levels. Despite this, the
harbor porpoise take reduction team was not convened when mandated.
When it was convened, the Team reached consensus on its
recommendations. The NMFS did not publish these recommendations
according to the schedule in the MMPA, instead, over a year later, it
issued proposed regulations that were never finalized nor implemented.
Despite repeated promises to publish a take reduction plan, the NMFS
did not do so. It was not until court intervention that resulted from a
lawsuit filed by the HSUS and the Center for Marine Conservation, that
the NMFS published the plan it had written well over a year before.
Since that time, the NMFS has reported to the harbor porpoise team
that mortality levels have declined, and they are now at or below PBR.
They have also reported that federal fishery observers have documented
harbor porpoises killed in areas that are supposed to be closed to
fishing and in nets that do not have ``pingers'', even though they are
required. Despite a unanimous recommendation by the Take Reduction Team
that enforcement action should follow violations of the Act, the NMFS
has done nothing to prosecute these violations, nor to ensure that
others do not occur. Funds for enforcement are from a different line
item in the budget from funds used for MMPA implementation.
The crisis of budgeting results, in part, from the fact that the
NMFS has taken money from the MMPA implementation funds to use for base
operating costs (administrative support salaries, building costs, etc.)
thereby reducing the funds available for implementation of the goals
and mandates of the MMPA and recommendations of Take Reduction Teams.
5. If the take of harbor porpoise was reduced, why should it matter
if this was the result of the take reduction plan or actions by the
fishery management council?
Take Reduction Plans should be implemented under the authority of
the MMPA. Fishery Management Council (FMC) actions are taken for the
purpose of groundfish conservation. The New England FMC has seen fit to
coincide some of its mandates for fishing effort reduction and closures
to protect spawning groundfish, with times and places that result in
reduced harbor porpoise mortality. It need not have done so, and may at
any time change these closures if it feels that groundfish conservation
would be better served by changing the timing and placement of the
closures.
For example, harbor porpoise bycatch was extremely high in the mid-
coast area in the vicinity of an offshore feature called Jeffreys
Ledge. This is a year-round closed area for groundfish conservation
which the council is considering re-opening for some or all of the
year. If it does so, the NMFS itself acknowledges that it is quite
likely that harbor porpoise mortality will increase once again. Actions
implemented under the MMPA are intended to protect the marine mammals
and are not necessarily changed as a result of changing FMC mandates
for fish conservation. Many of the current measures that have been
implemented under the auspices of the FMC should be implemented under
the MMPA.
6. You discuss the merits of having a marine mammal inventory in
your testimony and state that if Mexico had a similar inventory for its
animals those animals would be better protected. How exactly would an
inventory protect captive marine mammals? Isn't it the guidelines and
requirements of the MMPA and Animal Welfare Act that protect marine
mammals in captivity? Shouldn't Mexico adopt these types of Laws, not
just implement an inventory?
I do not believe that the HSUS suggested that it would be
sufficient merely to have a marine mammal inventory in Mexico. In our
testimony, we pointed out that the lack of an inventory caused a
serious problem for Mexico's regulators as they attempted to track
mammals in captivity. Clearly they also need to pass protective laws
and regulations.
The principal way an inventory helps protect captive animals is
that it allows independent evaluation of mortality and survivorship. If
the information on the number of animals in a facility and information
on births and deaths of their animals is considered proprietary, then a
large (and statistically valid) database will be lost - a database that
can be used to evaluate the efficacy of regulations to protect captive
animals in keeping with the desire of the American public to assure
humane treatment.
Since 1985, there have been at least three separate independent
evaluations of survivorship of typically held captive marine mammals.
Two were conducted by US government biologists and one by a non-
governmental animal welfare organization. All would have been
impossible without the marine mammal inventory reports mandated by the
MMPA. These evaluations showed persistent, higher mortality rates in
captive cetacean species vs. their wild counterparts, although
bottlenose dolphin differences were no longer statistically significant
by the mid-1990s. As a result, we know that there was much room for
improvement in the husbandry practiced by certain facilities and we
know that current levels of regulation had thus far not led to
improvement of survivorship in those facilities.
In addition to facilitating tracking of trade in marine mammals, a
marine mammal inventory allows regulators to note trends (for instance,
in causes of death) that may assist in refining regulations. Again, if
this type of information is considered proprietary, it would be
impossible to put together a complete picture of health trends in
captive marine mammals. In fact, all zoo species should have to submit
this type of information to a central database (whether governmental or
non-governmental), but unfortunately most non-endangered and non-
threatened animal species are not specially protected by law. Marine
mammals ARE, for obvious reasons (their unique aquatic habitat,
ecological niches, and physiological adaptations). It is both
appropriate and vital that the marine mammal inventory be maintained -
the data it provides are essential if regulators are truly to protect
these vulnerable animals.
The HSUS is concerned that the captive display industry wishes to
abolish this inventory. As a matter of good husbandry, such data would
normally be kept by any facility. The HSUS wonders why the captive
display industry wishes it to be considered proprietary and unavailable
to researchers or the public for scrutiny.
questions from ranking member robert underwood
1. You expressed concern in your statement in regards to the delay
by NMFS in publishing a take reduction plan for the Gulf of Maine
harbor porpoise. However, you also acknowledge that despite this delay,
actions taken by the New England Regional Fisheries Management Council
had reduced incidental mortality of harbor porpoise to approximately
the PBR level. My question is, if the results are what matters most,
and if as you say, mortality declined due to actions taken by the same
management body that would be responsible for implementation of the
take reduction plan anyway, why are you so concerned with delays in the
process if the outcome was successful?
As was explained in question 5 above, the New England Fishery
Management Council (FMC) has coincided some of its closures for
groundfish conservation with times and areas of historically high
harbor porpoise mortality. If the council changes the configuration of
these closures to better conserve the fish, they may inadvertently
increase the mortality of the harbor porpoise, whereas a plan
implemented by NMFS under the MMPA would assure adequate protection of
the mammals.
The delay may seem irrelevant since, by the end of 1999, mortality
of harbor porpoise was successfully reduced to a level that is
approximately the PBR level; but it is not irrelevant at all. The MMPA
mandated that a take reduction team be created in 1995, when the annual
fishery-related mortality of harbor porpoise was close to 2,000
porpoise a year and PBR was 483 animals per year. Instead, the Team was
not convened for the Gulf of Maine until February 1996 and not until
February of 1997 for the mid-Atlantic. Both teams reached a general
consensus on take reduction measures that the NMFS neither published
nor enacted until 1999; a delay of three and two years respectively.
In 1996, approximately 1,500 harbor porpoises died. In 1997, almost
1,400 harbor porpoises died. In August of 1998, the HSUS and the Center
for Marine Conservation filed suit against the NMFS. In 1998, the
mortality was 788 porpoises. Currently, the mortality level is
approximately at the PBR level. If the NMFS had implemented its plan
under the MMPA, and on schedule, it would have been in place in 1996.
As a result of the delay, instead of approximately 500 harbor porpoises
dying each year--for a total of 1,500 animals during 1996-1998; more
than 3,600 porpoises died in that same time period. Over two thousand
animals needlessly lost their lives because the NMFS delayed
implementing a take reduction plan. We find this a matter of great
concern.
2. I think your clarification of the intent of the zero mortality
rate goal is helpful. However, if it is clear that the intent of the
language is not to actually achieve zero mortality, but rather, to
reduce marine mammal mortalities to levels that are biologically
insignificant, should not the language of the Act be changed to
acknowledge this reality?
I believe that the Act is clear. It states that fishery-related
mortality should be reduced to ``insignificant levels that are
approaching a zero mortality and serious injury rate.'' It does not say
zero. The current language states that it should be insignificant, and
the stipulation that it should be ``approaching zero mortality and
serious injury'' is simply an acknowledgment of the desire of the
American public to see that marine mammals are not killed in fisheries
up to their maximum biologically sustainable level (PBR), but at a
level that is as low as is feasible. We do not believe that the
language of the Act needs to be changed.
3. You are highly critical of the Atlantic Large Whale Take
Reduction Team, noting that in your opinion the TRP has been ``a
resounding failure,'' especially for North Atlantic right whales.
Considering, as you say in your testimony, that efforts at
disentanglement and the promise of research have been inadequate, and
that other newly proposed measures are of questionable promise, what
alternative measures can the Humane Society propose to reduce
incidental mortality of right whales?
First I wish to state that the HSUS is NOT critical of Atlantic
Large Whale Take Reduction Team; we are critical of the plan that the
NMFS has developed. The Team has worked in good faith to produce
recommendations and suggested modifications to the plan. It has also
provided suggestions for research and recommendations for enforcement.
The NMFS has ignored many of the team's recommendations. For example,
in 1999 the TRT recommended deleting the use of 7/16'' diameter line as
a risk reduction measure. Not until fall of 2001 did NMFS act on this
recommendation, and even then it does not propose that this be done
until 2003. It is this sort of action or inaction, of which we are
particularly critical.
In our testimony, the HSUS pointed out that disentanglement is an
important tool, but scientists involved in disentanglement repeatedly
caution the NMFS and the TRT, that it is sometimes unsuccessful when
attempted (as was true with ``Churchill'' this summer), and most
animals die unseen and without benefit of disentanglement effort (as
was the case with a right whale that was found dead this fall near
Magdalene Island). The HSUS has also been critical of the fact that the
NMFS has taken money from MMPA implementation funds to pay for base
operating expenses and, for some time, took the salary of its fishery
liaison person from the gear research money. As a result of this, money
available for gear research has been depleted. Only with intervention
from Congress, has there been an increase in gear research budgets in
the past two years.
Representative Underwood also asked what we believe can be done.
There is much that can be done. Many fishermen have innovative ideas
that they have used experimentally themselves and that require broader
field testing but have not received attention from granting bodies
(such as the NMFS or Northeast Consortium) because scientific format
and jargon were not used in the proposals. Instead, most of the funding
was given to academic institutions. The Eubalaena Award (judged by
scientists) provided private funding for an innovative buoy release
system that has been overlooked by the NMFS and other conventional
bodies. Encouraging this sort of research should be the job of the
NMFS. Another promising measure is the use of neutrally buoyant line
(first suggested by fishermen). It has been tested and shows great
promise in reducing the profile of the line floating in the water and
thereby reducing risk of a whale encountering the line. Many fishermen
are already using it voluntarily. The recent NMFS proposed rule states
only that it may be an option in 2003.
We believe that the NMFS must be much more aggressive in seeking
and funding innovative measures and in implementing promising
developments in a timely manner.
4. Is the lethal removal of a nuisance pinniped ever an acceptable
management alternative? Has the Humane Society sponsored or funded
research to develop new non-lethal deterrent technologies or methods?
The HSUS participated in the Gulf of Maine Pinniped Interaction
Task Force, which was mandated by Congress in the 1994 amendments. The
NMFS submitted a report to Congress of the Task Force's deliberation.
The Task Force, which included environmental groups, aquaculture
industry representatives, state and federal managers and scientists
found that three criteria needed to be met to consider lethal taking.
They are:
1) LThe consequences of the depredation must be severe and
demonstrable;
2) Llethal measures under consideration must be verified as an
effective means of solving the predation problem; and
3) Lno non-lethal alternatives are available.
These conditions are very similar to those stipulated by Congress
in the MMPA in Section 120. The HSUS has participated in task forces
convened under this section.
As stated above, in the answer to Chairman Gilchrest's first
question, The HSUS recognizes that the welfare and responsible
management of animals may, on occasion, necessitate the killing of
wildlife. When such killing is permitted, it must be used as a last
resort, be demonstrably necessary, be conducted by responsible
officials and the methods utilized must result in an instantaneous and
humane death.
However, in many cases, systematic research has found that the
level of predation by pinnipeds is often not as dire as first feared.
For example in the recent (November 2001) meeting of the Society for
Marine Mammalogy, a number of scientists on the West Coast reported
predation on wild salmon runs by seals and sea lions was occurring at
levels of less than 10%, and generally less than 5% of the run. These
levels are less than originally presumed. No intervention seems
necessary. In cases where predation levels appear to have a greater
impact, structural or other non-lethal mitigation often have not even
been attempted.
The HSUS has been a tireless advocate of non-lethal solutions. We
have provided documents and access to expert opinions for groups
discussing means of alleviating situations of perceived conflict with
non-lethal alternatives (e.g. re-situating lights, re-configuring fish
passage areas, using anti-predator netting and strategies in
aquaculture sites). While it has not been explored to any extent in the
US, research on immuno-contraception with pinnipeds has been conducted
in Canada. The HSUS is the largest non-governmental funder of immuno-
contraceptive work with wildlife.
We remain committed to finding humane resolution of situations of
perceived marine mammal-human conflict.
______
Responses from George Mannina, American Zoo and Aquarium Association
and the Alliance of Marine Mammal Parks and Aquariums
questions from chairman wayne t. gilchrest -
Question 1: In your opinion, do you think APHIS has the ability to
focus on captive marine mammals and oversee their care in public
display facilities?
Response: The American Zoo and Aquarium Association (AZA) and the
Alliance of Marine Mammal Parks and Aquariums (Alliance) have a solid
working relationship with the staff at APHIS/Animal Care regarding
their enforcement of the Animal Welfare Act (AWA) and Marine Mammal
Protection Act (MMPA). Our two organizations strongly support the
agency's continued, sole oversight of marine mammals in public display
facilities.
The philosophy of APHIS with regard to its mission is to correct
animal welfare inadequacies while trying to effectively maximize
severely limited resources. This philosophy has served the agency well
as there has been no formal complaint under the AWA for the past five
years as well as no formal AWA hearings, a sign of cooperation, trust
and a strong commitment to enforcement.
The agency holds regular public meetings with exhibitors and animal
rights/welfare organizations to update them on agency activities and
regulatory initiatives.
For many years, APHIS/Animal Care has been woefully under-funded by
Congress given the magnitude and scope of its mission. Between fiscal
year 1992 and fiscal year 1999, the appropriation for the Animal
Welfare program under Animal Care remained stagnant, which meant a
decrease in spending power.
In FYs 2000 and 2001, the budget for Animal Care (AC) rose by a
cumulative $3 million. This increase has allowed a strengthening in the
number of inspectors and an expansion in the number of annual
inspections. Animal Care initiated innovative programs during those
years of low funding. The agency focused a more vigorous enforcement
effort on facilities that are in chronic violation of the law, as well
as against those that are not licensed at all. The agency also
instituted a risk-based inspection program that emphasizes inspections
(in many cases, multiple inspections) of problem facilities.
A $2.4 million increase in fiscal year 2002 will enable AC to
maintain all current activities; strengthen its field staff by hiring,
training, and equipping an additional 14 inspectors; increase
inspections to approximately 11,600 and improve follow-up inspections
to verify correction of violations; increase searches for unlicensed
and unregistered operations and other illegal activities; handle animal
care complaints more quickly; expand outreach to regulated industries
and the public; develop industry-specific training courses and
implement internal audits and inspector quality reviews to ensure
consistent quality in inspections.
AZA's support for the integrity of the Animal Care program is
evident in that the Association is the only regulated entity on the
APHIS/Animal Care Coalition for increased appropriations. The Coalition
is primarily made up of animal protection groups (including ASPCA, HSUS
and the Animal Welfare Institute) who share this similar belief.
As for APHIS' ability to focus on marine mammals in public display
facilities, AZA and AMMPA believe that APHIS/Animal Care has done an
effective job of meeting its mandates under the 1994 MMPA amendments in
light of historic budget shortfalls. APHIS has provided marine mammal
training courses for its inspectors in 1988, 1993 and has another
course planned for 2002. These courses are held at marine mammal
facilities, which allows for hands-on tours and instruction, and
utilize a broad range of marine mammal veterinarians and other experts.
The agency has also done an effective job in working with the
diverse marine mammal community to build consensus for regulating
marine mammals in zoological parks and aquariums. On July 23, 1993,
APHIS published in the Federal Register (58 FR 39458, Docket No. 93-
076-1) an advance notice of proposed rulemaking that solicited comments
on appropriate revisions or additions to the standards for the humane
handling, care, treatment, and transportation of marine mammals used
for research or exhibition. The comments they received supported their
intent to revise the regulations and suggested it would be highly
desirable to involve all interested parties in developing appropriate
regulations. APHIS determined that some consensus among interested
parties was attainable and that they should proceed with a formal
Negotiated Rulemaking. On May 22, 1995, APHIS published in the Federal
Register (60 FR 27049-7051, Docket No. 93-076-3) a notice of intent to
establish an advisory committee to advise the agency on how to revise
the regulations.
The negotiated rulemaking process provided a forum for animal
rights/welfare organizations to meet with the zoo and aquarium
community to create the Marine Mammal Negotiated Rulemaking Advisory
Committee and devise appropriate regulations based on current general,
industry, and scientific knowledge and experience. The Committee
consisted of the following organizations:
American Zoo and Aquarium Association
Alliance of Marine Mammal Parks and Aquariums
International Association of Amusement Parks and Attractions
Marine Mammal Coalition
United States Navy
Center for Marine Conservation
Humane Society of the United States
Animal Welfare Institute, representing a broad coalition of animal
concern groups
American Association of Zoo Veterinarians
International Association for Aquatic Animal Medicine
International Marine Animal Trainers Association
Animal and Plant Health Inspection Service
Consensus language was reached on 13 of the 18 sections that
comprise the regulations and on one paragraph in a 14th section.
Sections 3.101, 3.104(a), 3.105, 3.107 through 3.110, and 3.112 through
3.118. Sections 3.101 and 3.104(a) contain facility and operating
standards. Section 3.101 contains general requirements for facilities
housing marine mammals, including construction, water and power supply,
drainage, storage, waste disposal, and washroom facilities. Section
3.104(a) contains general space requirements for primary enclosures.
Sections 3.105 and 3.107 through 3.110 concern animal health and
husbandry. Section 3.105 contains feeding requirements; Sec. 3.107
concerns sanitation and pest control; Sec. 3.108 sets standards for
employees and attendants; Sec. 3.109 concerns separation of marine
mammals; and Sec. 3.110 concerns veterinary care. Sections 3.112
through 3.118 concern transportation of marine mammals. Section 3.112
concerns consignment of marine mammals to carriers and intermediate
handlers; Sec. 3.113 contains standards for primary enclosures used to
transport marine mammals; Sec. 3.114 contains standards for primary
conveyances used to transport marine mammals; Sec. 3.115 contains
requirements for provision of food and water during transport; Sec.
3.116 concerns the care of marine mammals by employees or attendants
during transport; Sec. 3.117 concerns terminal facilities; and Sec.
3.118 contains requirements for handling marine mammals during
transport.
On February 23, 1999, APHIS published a proposed rule in the
Federal Register (64 FR 8735-8755, Docket No. 93-076-11) that contained
the consensus language developed by the Committee for these sections of
the regulations. On January 3, 2001, the final rule containing the
consensus language was published in the Federal Register and the rule
went into effect in April 2001. APHIS is currently working on a
proposed rule for the non-consensus items that were not agreed upon by
the Committee. That rule should be available for comment in 2002.
In sum, APHIS/Animal Care has earned the trust of AZA and the
Alliance through its fair and objective enforcement of the regulations
and its successful outreach efforts.
AZA and the Alliance do not support NMFS' attempt to share
authority for marine mammal care and treatment responsibilities, as
outlined in the agency's recent proposed rule. With passage of the 1994
MMPA Amendments, Congress decided it was wasteful, cumbersome and
redundant for two agencies to have identical responsibilities and that
the public display community should not be subjected to double jeopardy
by having two different agencies enforcing care and maintenance
standards.
Question #2. The NMFS has instituted the use of Comity agreements
whenever a marine mammal is exported to another country. Where in the
Act do they get this authority? How has it worked so far in your
opinion?
Response: There is no authority in the Marine Mammal Protection Act
requiring letters of comity. Nor, for that matter, do any other laws or
regulations for any other species of wildlife require letters of comity
even if the animals are endangered or threatened. Moreover, in 1994
Congress rejected a similar NMFS proposal requiring such letters and
limited the agency's authority over exports as well as the oversight of
facilities holding U.S. marine mammals in foreign nations.
In fact, the Act provides NMFS with no authority to apply the MMPA
in foreign nations. The agency and the courts understand this. NMFS
stated in the preamble to the 2001 proposed rule that ``NMFS has no
jurisdiction in foreign countries .'' Additionally, a December 10,
1996, opinion from the Office of General Counsel, NOAA, stated the MMPA
``does not confer U.S. jurisdiction over marine mammals in the
territory of other sovereign states.'' In United States v. Mitchell,
553 F.2d 996, 1003, 1005 (5th Cir. 1977), the Court held the MMPA does
not apply within the territory of a foreign sovereign.
Secondly, letters of comity do not work. The agency highlighted
this in its 2nd/3rd Quarter 2000 MMPA Bulletin. Foreign nations have
expressed their outrage over this requirement and the agency has often
abandoned its own policy in accepting ``letters of comity.'' The agency
has accepted a ``comity'' letter from a U.S. institution when a foreign
government has maintained that it ``does not have the authority to
subrogate its regulatory duties to any other Government.'' A letter of
comity has been accepted from a mayor. The Fish and Wildlife Service
recently sent a stranded, rehabilitated sea otter pup to an Alliance
member in Canada on an ``emergency interim basis,'' circumventing
comity requirements because Canada steadfastly claims that it will not
submit to U.S. comity requirements.
Comity requirements are an effort by NMFS to apply the MMPA
internationally, something neither Congress nor the courts allow. The
proposed regulations not only raise very serious international
relations issues, but they also raise serious questions about whether
NMFS should be using its limited resources to regulate non-U.S.
facilities. In addition to thwarting breeding exchanges, the hardest
hit by these requirements are low-profile pinnipeds stranded seals and
sea lions that have been nursed back to health. While U.S. facilities
have no space in their collections to continually include these
animals, foreign facilities have been able to find them homes. If homes
cannot be found for these animals, they will, most likely, be
euthanized.
Export to foreign nations is not without oversight. The 1994
amendments provided that any person properly holding marine mammals for
public display in the United States could export the animals ``without
obtaining any additional permit or authorization.'' However, the 1994
amendments did effectively address the export issue by stating that a
marine mammal could be exported for public display only if the
receiving facility met ``standards that are comparable to the
requirements that a person must meet to receive a permit'' under the
MMPA for public display. There are three such standards: the facility
must (1) offer a program for education or conservation based on
professionally recognized standards of the public display community;
(2) have an APHIS registration or license; and (3) be open to the
public on a regularly scheduled basis with access not limited except by
an admission fee.
It is important to understand that a foreign facility must go
through an extensive review by the Animal and Plant Health Inspection
Service before receiving the animals. APHIS ascertains that the
facility has the proper enclosure sizes, a program of veterinary care,
and appropriate staff for all animals in the facility's collection,
among other regulatory concerns. The agency even checks mortality rates
at the importing institution and requires that the foreign government
certify that the information provided to the agency is accurate. APHIS
standards are the most comprehensive and stringent in the world.
Significantly, Congress applied this comparability test only to the
facility that receives the animals from the United States and not to
subsequent transfers between foreign facilities.
Alarmingly, NMFS' 2001 proposed regulations replace the APHIS
comparability test with the requirement that the foreign facility must
meet not only the three statutory requirements but newly proposed rules
saying that NMFS must independently determine that the foreign facility
complies with APHIS' care and maintenance standards.
But the Proposed Regulations do not stop here. NMFS interprets the
MMPA provision requiring NMFS to maintain an inventory of marine
mammals held under MMPA permits to mean that NMFS must maintain an
inventory of those animals and their progeny in foreign facilities.
Since the MMPA does not apply outside the U.S., it is hard to see how
NMFS reaches the conclusion that NMFS is to apply the inventory
reporting requirements to foreign citizens. Nevertheless, NMFS combines
that interpretation with its new version of the comparability standard
to conclude that NMFS can prohibit the export of a marine mammal until
the government of the country in which the receiving facility is
located signs a letter of comity agreeing ``to enforce requirements
equivalent to the U.S. Marine Mammal Protection Act. . .'' The
regulatory preamble makes it quite clear that equivalency means all of
NMFS' regulatory requirements. Thus, the preamble states that NMFS'
regulatory requirements apply ``to all holders of animals exported from
the United States . . .''
To understand the problem, a case example may be helpful. The
proposed regulations, including the letter of comity, have the effect
of providing that if an animal is exported from the United States to a
French facility in 2001, and the French facility decides in 2011 to
transfer the animal to a public display facility in Spain, then the
French government and the French facility must determine that the
Spanish facility meets the MMPA standards as interpreted by NMFS,
including the requirement that the facility meets APHIS requirements
and has an acceptable education or conservation program--- and NMFS
must receive a transport notification and inventory report from both
the Spanish and French facilities. If the animal at the Spanish
facility gives birth 5 years later, the Spanish facility must file an
inventory report with NMFS reporting the birth. If that progeny is
transferred to a public display facility in Germany 10 years later, the
Spanish government and the Spanish facility are to ensure that the
German facility meets the requirements of the U.S. MMPA as interpreted
by NMFS, including the requirement that the facility meets APHIS
standards and has an acceptable education or conservation program---
and NMFS is to receive a transport notification and inventory report
from both the Spanish and the German facilities. If 15 years later, now
40 years after the original 2001 export from the U.S., the marine
mammal originally transferred, now in a Spanish facility, dies, NMFS is
to receive an inventory notice of that event together with an
explanation of the cause of death. And if the progeny, now in Germany,
dies in 2061, 60 years after the parent left the United States, NMFS is
to receive an inventory notification including the cause of death.
Question #3. The public display community must breed its animals
wisely to ensure that its genetic pool remains viable. How have the
agencies worked with the community to facilitate the most optimum
breeding of the animals?
Response: The zoological community has worked diligently through
the commitment of substantial research dollars to develop successful
breeding programs. These programs include many that are facilitated by
AZA's taxonomic advisory groups (TAGs) that have oversight for cetacean
and pinniped breeding. In addition, the Alliance of Marine Mammal Parks
and Aquariums has established a Population Management Committee to
broaden the success to date of cetacean reproduction at public display
facilities by sharing information and providing technical assistance
important to reproduction management and, when requested to do so, by
facilitating the establishment of partnering agreements between
individual Alliance members to enhance breeding and genetic diversity.
Zoological institutions have seen tremendous advances in our
breeding programs. In recent years, animals born in zoological parks
and aquariums have represented between 43 and 70 percent of marine
mammals in these facilities, depending on the species. This compares to
3 to 6 percent in 1976. We are seeing second and third generation
births. These breeding programs have also provided the opportunity to
gather information on many aspects of marine mammal reproductive
biology difficult to obtain from wild populations.
And just this past year, we have seen an exciting development
through the hard work of two Alliance and AZA members (SeaWorld and
Ocean Park). Researchers have artificially inseminated a killer whale
and two dolphins. These three successful births have tremendous
implications for conservation efforts with these and other species.
These breeding programs are voluntary initiatives undertaken by the
zoological community. The government does not and should not play a
role in these animal management programs. Indirectly, the government
does play a role when the animals must be transported for breeding
purposes. There have been instances where transfers within the country
and abroad have been disrupted by governmental red tape. The zoological
community on several occasions has experienced unnecessary delays as a
result of the comity requirements established by NMFS. The community
has experienced similar delays when transporting animals between U.S.
facilities. (The comity issue is addressed in our written testimony and
in our response to Chairman Gilchrest's Question 2 above.)
Question #4. Can you inform the Committee on how the public display
community had to conduct its business prior to the 1994 amendments and
then after the passage of the amendments? Can you discuss a bit further
how the proposed rule developed by NMFS (July 2001) disregards the 1994
amendments and goes back to management prior to 1994?
Response: Prior to 1994, all transports and exports of marine
mammals had to go through a tedious, time-consuming and expensive NMFS
permitting process. Additionally, NMFS claimed dual authority with
APHIS for the care and maintenance of marine mammals, which caused much
confusion between the agencies and for the exhibitors.
Although NMFS' responsibilities under the MMPA are limited to
maintaining the marine mammal inventory and activities relating to the
collection of animals from the wild, the agency's pre-1994 regulation
of marine mammal transports and exports hampered the community's
efforts to transport animals for breeding in a timely manner. Lengthy
Federal Register comment periods and requests for information caused
facilities to miss windows of animal fertility, which resulted in
missing breeding opportunities for that year. In essence, this gave the
agency unneeded and unwanted control over regulated entities and
restricted facilities' ability to manage their collections wisely. At
the extreme, an organization could not even transport an animal to one
of its own facilities without government approval.
While permits are no longer required for export and transfer of
marine mammals under the 1994 amendments, the 2001 proposed rules
continue to require letters of comity from foreign nations before NMFS
provides its concurrence to the Fish and Wildlife Service to grant the
exporting facility a CITES permit. The problems with letters of comity
are addressed somewhat in the response to Mr. Gilchrest's second
question and addressed fully in the Alliance comments to the agency,
which are attached.
Additionally, the 2001 proposed regulations add another unnecessary
and purposeless hurdle for exporting marine mammals. Under present
regulations, APHIS requires that foreign facilities submit all relevant
data for review to assure that the foreign facility is meeting
standards comparable to those of the U.S. Under the new, proposed rule,
NMFS has added a section that requires that NMFS independently
determine that the facility complies with APHIS' care and maintenance
standards.
Similarly, while NMFS is not asking for a permitting process to
transport marine mammals in the 2001 proposed rules as it has in the
past, the agency is advocating a process that creates a huge paperwork
burden and unnecessarily duplicates information already available to
the agency. When the MMPA was amended in 1994, the public display
community agreed to send a 15-day notice of transport to NMFS so the
agency could meet its inventory requirements under the Act. This was
envisioned as a simple, one-page letter that identified the animal(s)
to be transported and gave the name of the receiving facility. The 2001
proposed regulations replace this one notification with six forms.
Three cover the exact same information already contained in the NMFS
marine mammal inventory. Additionally, the agency is demanding that the
sending facility certify, under force of criminal penalties, that the
receiving facility meets the three criteria in the MMPA for holding
marine mammals.
Prior to 1994, NMFS would annually send its marine mammal inventory
to each facility holding marine mammals for updating. The community
believed that this simple, once-a-year mailing would continue and that,
coupled with the 15-day notices, the year-end inventory update would
provide facilities with the opportunity to notify the agency whether
the animals had indeed been moved and of other required information
such as births and deaths. That has not been the case. Since 1994, NMFS
has required facilities to send a form for not only transports but for
all other inventory changes. This is not the simplified process the
community had sought nor the one Congress envisioned with the passage
of the 1994 amendments.
In addition, in 1994 Congress decided it was wasteful for two
agencies to have duplicative oversight responsibilities for the public
display of marine mammals. Congress rejected NMFS' attempt to claim
dual authority to establish and enforce marine mammal care and
maintenance standards and clarified that APHIS has sole responsibility.
Nevertheless, in its 2001 proposal, NMFS attempts to reassert joint
authority with APHIS to enforce APHIS' care and maintenance standards.
NMFS' proposal could create an awkward double-jeopardy scenario whereby
an APHIS inspector could find a facility in compliance with APHIS'
regulations but a NMFS inspector finds the APHIS inspector is wrong. If
NMFS finds the facility in violation of APHIS' regulations, NMFS can
revoke the facility's right to display marine mammals. This latest NMFS
proposal raises serious legal, budgetary, ethical, and good government
questions as to why two different agencies should be enforcing care and
maintenance standards for marine mammals.
NMFS then compounds the problem by proposing to deputize ``any
person'' to inspect a public display facility for compliance with APHIS
regulations and to then inspect and copy any and all facility records.
Allowing NMFS to designate any member of the public as an APHIS
inspector and requiring public display facilities to turn over all of
their records to that person raises very significant privacy issues.
questions from ranking member robert underwood -
Question 1: Could you please describe your working relationships
with both APHIS and NMFS?
Response: The American Zoo and Aquarium Association (AZA) and the
Alliance of Marine Mammal Parks and Aquariums (Alliance) have had a
wide range of experiences dealing with both APHIS and NMFS and their
enforcement of the Animal Welfare Act (AWA) and Marine Mammal
Protection Act (MMPA). We have generally found staff from APHIS and
NMFS to be fair, objective and professional in their dealings with our
accredited members.
Efforts to further expand regulatory oversight of marine mammals
often puts the community at odds with both agencies. AZA and the
Alliance have strongly objected to many regulatory efforts proposed by
NMFS and APHIS/Animal Care.
However, APHIS/Animal Care has done an effective job in working
with the diverse interests of the marine mammal community and the
animal rights organizations to build consensus for revising the care
and maintenance standards for marine mammals by supporting a negotiated
regulating panel to address the issues. Additionally, the agency holds
regular, public meetings for the community and activists on its
regulatory agenda, keeping a positive dialogue between the regulators
and the regulated exhibitors.
AZA's support for the integrity of the Animal Care program is
evident in that the Association is the only regulated entity on the
APHIS/Animal Care Coalition for increased appropriations. The Coalition
is primarily made up of animal protection groups (including ASPCA, HSUS
and the Animal Welfare Institute) who share this similar belief.
On the other hand, for seven years (since the reauthorization of
the MMPA in 1994), AZA and the Alliance have communicated to NMFS that
the agency's MMPA interim rules did not reflect the intent of Congress.
The recent proposed rule by the agency made it clear that the agency
does not agree.
Question 2: Has AZA or the Alliance commented on NMFS recently
published regulations that would implement the 1994 amendments to
section 104 of the Act? If so, are these changes viewed favorably by
the display community?
Response: AZA, the Alliance, and numbers of members of both
organizations have submitted lengthy comments to NMFS stating our
concerns about the proposed rule. Both organizations find NMFS' new,
proposed rule unacceptable as it overturns or repudiates the 1994
amendments to the MMPA agreed to by Congress. For a complete
understanding of our concerns, please see AZA and the Alliance comments
on the NMFS' proposal, which are attached.
Question 3: In regards to the recent controversy concerning captive
polar bears currently being displayed in Puerto Rico by the traveling
Suarez Circus, in your opinion does this operation or its facilities
comply with the industry standards voluntarily adopted by AZA and
Alliance members?
Response: The American Zoo and Aquarium Association (AZA) is an
accrediting body with accreditation standards and codes of ethics that
govern membership in the Association. The Alliance of Marine Mammal
Parks and Aquariums (Alliance) has initiated an accreditation process
based on its Alliance Standards and Guidelines.
Only institutions that meet the following definition of zoological
parks and aquariums can receive AZA accreditation: ``a permanent
cultural institution which owns and maintains wildlife that represent
more than a token collection and, under the direction of a professional
staff, provides its collection with appropriate care and exhibits them
in an aesthetic manner to the public on a regularly schedules,
predictable basis. They shall further be defined as having as their
primary business the exhibition, conservation and preservation of the
earth's fauna in an educational and scientific manner.'' Accreditation
involves a review and inspection process by which zoos and aquariums
are evaluated in order to become AZA members. Accreditation for both
organizations takes place every five years and examines all aspects of
an institution's operation, including the animal collection, veterinary
care, physical facilities, safety, security, finance, staff, governing
authority, support organization, education programs, conservation and
research and adherence to the organizations' policies and standards.
AZA's accreditation guidelines can be accessed at http://www.aza.org/
Accreditation/Documents/AccredGuide.pdf. The traveling polar bear
exhibit (as part of the Suarez Circus) does not meet the definition of
an AZA accredited member since the facility does not comply with AZA
standards. Similarly, the Alliance does not believe, based on available
information, that the traveling polar bear exhibit would meet Alliance
standards for accreditation.
Collectively, members of the AZA and the Alliance represent the
greatest body of professional expertise and knowledge about the care
and handling of marine mammals. Because of the concern about the care
provided to these animals, we recommend that APHIS name a blue-ribbon
panel of experts to conduct a thorough veterinary examination of these
polar bears. Such a panel might include a representative with
veterinary credentials from the AZA, the Alliance, the circus industry,
an animal rights organization and APHIS.
______
Responses from Rick Marks, Member of Take Reduction Teams, Garden State
Seafood Association
questions from chairman wayne t. gilchrest
In your testimony you discuss the precautionary measures the NMFS
has incorporated into their use of PBR. Can you go over this again for
Members so we can get a better understanding of just how precautionary
the agency is being and whether you think these measures are based on
sound scientific measures?
The problem with MMPA's risk-averse approach starts with the major
goals of the Act. They are not clearly defined:
Marine mammals `` should not be permitted to diminish beyond
the point at which they cease to be a significant functioning
element in the ecosystem of which they are a part, and,
consistent with this major objective, they should not be
permitted to diminish below their optimum sustainable
population.'' (Sec 2.2)
The Act offers no definition of what is a ``significant functioning
element in the ecosystem.'' The Act does define OSP as the ``maximum
net productivity of the species'' which is generally considered to be
50%-70% of a known historical abundance but OSP for most mammal stocks
is unknown as historic abundance and carrying capacity are rarely well-
understood.
The 1994 MMPA reauthorization added a new requirement that NMFS
develop estimates of Potential Biological Removal (``PBR''). PBR is the
maximum number of animals, not including natural mortalities, which may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population.
PBR is the product of three components: (1) the minimum population
estimate (Nmin); half the maximum net productivity rate (0.5 x Rmax);
and a recovery factor (Fr) and is expressed by the formula:
PBR = Nmin * 1/2 Rmax * Fr
The Minimum Population Estimate (Nmin) is defined as the number of
animals in a stock, which is supposed to be based on the best available
information and provides reasonable assurance that the stock size is
equal to or greater than the estimate. However, the Act contains no
specific reference to what is ``a reasonable assurance'' that the
population is equal to or greater than that estimate. This means that
NMFS scientists were free to develop rationale for Nmin values to be
less than the best estimate. Indeed, the best available population
survey numbers are adjusted downward as the NMFS deems fit to account
for undefined ``uncertainty.''
``Rmax'' is defined as one half of the maximum theoretical or
estimated net productivity rate of the stock at a small population
size. Net productivity rate is considered to be the annual per capita
rate of increase in a stock due to reproduction. In most instances
conservative default values are used, 0.04 (cetaceans) and 0.12
(pinnipeds), even if different but known scientific estimates are
actually published in the scientific literature. Hence, not only are
conservative values employed as a starting point, but the Rmax values
are reduced again by half to account for additional undefined
``uncertainty.''
Finally, a recovery factor termed ``Fr'' is applied to the PBR
calculation. The intent of the recovery factor is to compensate for
uncertainty and possible unknown estimation errors. Though the 1994
amendments provided no specific guidance for values of Fr, values of
0.1 to 1.0 are arbitrarily used to reduce the value of PBR. The value
of Fr used in a given PBR formula may vary, such that Fr = 0.1 for
endangered stocks; Fr = 0.50 for stocks of unknown status or listed as
depleted or threatened; and Fr = 1.0 for stocks thought to be at OSP.
Thus, a multi-tiered precautionary approach is incorporated into
each and every PBR calculation, all reportedly for the same reason to
account for ``uncertainty'' which remains undefined, to ensure that
marine mammal populations are at OSP levels at least 95 percent of the
time.
The impact of such conservative assumptions on the estimate of PBR
can be significant and is elucidated in the following harbor porpoise
example. The HPTRT had only three years of survey data (1991, 1992,
1995) available to calculate PBR in 1997. NMFS chose not to utilize the
most ``recent'' 1995 survey of 74,000 exclusively, nor did they use the
moving arithmetic average of the most recent three surveys which still
would have underestimated the true stock size. In fact, NMFS chose not
to drop the oldest and most dubious survey from 1991 which is
inconsistent with scientific advice that five-year old surveys (and
older) start to represent unreliable population estimates.
Instead, NMFS reduced the population estimate to 54,300, using the
inverse variance-weighted average of the three surveys. This
effectively reduced the stock of harbor porpoise by 26 percent from
current levels. The agency reduced the population estimate an
additional 8.7 percent (taking the 20th percentile of the log-normal
distribution) to arrive at 48,289, the final Nmin. Thus, the total
reduction in population size was equal to 34.7 percent (74,000 to
48,289) from the most recent survey count. This corresponds to a
reduction in the PBR estimate from 740 to 483.
Finally, the application of Rmax and Fr to the reduced value for
Nmin forces a further low-balling of harbor porpoise PBR estimates.
This is not a valid or necessary approach for a species such as harbor
porpoise. These small cetaceans are reported in the scientific
literature to have extremely short life spans, early maturity and very
high reproductive rates, comparing favorably with those of pinniped
species (See Read, A. & A. Hohn, 1995. Life in the Fast Lane: Life
History of Harbor Porpoise from the Gulf of Maine).
Arguably, applying one-half of a default Rmax value (i.e. Rmax =
0.02 ; noting that 0.04 it is the exact same value used for large,
slower growing whales) and the Fr default value (0.5) for a species
with such r-selected life history characteristics may be
philosophically justifiable, but not necessary from a scientific
standpoint.
Alternatively, calculating PBR using N = 59,667; Rmax = 0.04 and Fr
= 1.0, leads to an estimation of PBR for harbor porpoise equal to at
least 1,629 animals. This approach is valid when one considers that
prior to implementing harbor porpoise protective measures, the NMFS
1999 population estimate for harbor porpoise totaled 89,700 animals, up
from 74,000 reported in 1995 and 37,500 in 1991 (Table 1: See also
Palka, D., 2000. Abundance of the Gulf of Maine/Bay of Fundy Harbor
Porpoise Based on Shipboard and Aerial Surveys during 1999).
To your knowledge, how did NMFS come up with this method of
determining PBR?
The 1994 MMPA reauthorization added a new requirement that NMFS
develop estimates of Potential Biological Removal (``PBR''). PBR is not
based on or derived from any specific wildlife management population
model. It was apparently developed by NMFS solely for implementing the
1994 MMPA amendments. NMFS scientists (not managers) have incorporated
several layers of precautionary assumptions into the only formula that
serves as the nationwide standard for calculating PBR.
The MMC has suggested a two-tiered approach that equates ZMRG with
reducing mortalities and serious injuries to biologically insignificant
levels, for example 10% for most stocks, but then establish a numerical
cap for abundant stocks to ensure that large numbers of animals are not
taken from the stock. Does this seem arbitrary to you? Do you think
this is better than the current process? How would you pick such a cap?
Is it really necessary to pick a numerical cap for abundant stocks?
Reducing the entanglement of marine mammals in fishing gear is a
rational and socially laudable objective. This should be a natural and
continuing objective under the MMPA using gear mitigation research,
changes in fishing behavior, education, and cooperative disentanglement
programs. However, ZMRG as a legal requirement that is both time-
certain and point estimated is not necessary and will result in
litigation.
Stocks that are neither endangered nor threatened or stocks that
are increasing should not be subject to a ZMRG. The ZMRG rule will
result in artificially low thresholds, especially if based on
negatively-biased survey estimates and PBR values. In addition, a one-
size-fits-all definition of ``10% of X'' is completely arbitrary and
will result in needless socieo-economic costs.
A more useful approach would be to apply ZMRG as a concept and an
objective not a date-certain legal requirement, and only on a case by
case basis for stocks in poor condition. In those instances, a soft
target ZMRG could be defined as a valid percentage of current
population size (based on high quality survey methodology) or
quantifiable Rmax value, rather than on a precautionary PBR estimate.
The practical implications of ZMRG would then have to be evaluated
concurrently with social and economic concerns.
In the case of robust stocks, setting a cap on the number of
animals that can safely be removed is a reasonable approach to wildlife
management. All stocks, be they minke whales, whitetail deer or fox
squirrels, can safely sustain some specified level of removal. These
caps could be dynamic, reflecting changes in carrying capacity and
impact on the region ecology, and the population's ability to maintain
some threshold population size, rather than requiring a 95% probability
of maintaining OSP.
That being said, the NMFS is not able to satisfactorily handle the
current data demands for all species. NMFS is developing management
plans with a paucity of information and constituents are suffering with
the precautionary results. A more reasonable approach would be to
prioritize stocks based on concern for long term health of the
population and focus the management efforts accordingly. In this
regard, a ``cap'' or threshold population level could be used as a
``trigger'' for re-prioritizing management and data collection efforts
to address potential problem situations.
question from ranking member robert underwood
You say that the Harbor Porpoise PBR is set under too much of an
influence of the precautionary principle, and that the TRT demonstrates
how NMFS has little regard for the social and economic impacts of the
plan on fishermen. Could you please give us some examples of the
effects of the TRT has on the fishermen. How specifically do they have
to change their fishing behavior and what effects does this have on
their livelihood?
Unlike the Magnuson-Stevens Fishery Conservation and Management Act
(MSA), the MMPA Section 118(f) has no formal requirements for the
Secretary to balance conservation benefits with socieo-economic
impacts. Therefore, severe management restrictions can, and are,
instituted absent analyses of the impacts on a given community or group
of constituents. Increasingly, we are seeing the agency and the
conservation industry use MMPA-generated TRP's as a means to reduce
fishing effort outside of the MSA process. MMPA TRP's contain elements
designed to reduce fishing effort/catch (and revenues) through time/
area closures and gear limitations. These costs are never estimated in
TRP's nor are they formally mitigated.
In some cases, the mammal measures are additive to fishery
restrictions resulting in a ``double dipping'' of restrictions. Often,
fishermen are not provided ``PBR credit'' for fishing restrictions. For
example, monkfish gillnetters were subject to a seasonal closure under
the MSA FMP and were also subjected to additional closures pursuant to
the HPTRP without receiving credit for the fishery closure.
In the case of the spiny dogfish, the NMFS closed the entire east
coast directed dogfish fishery but was not willing to estimate the
savings in the form of reduced marine mammal interactions resulting
from the fishing closure. This will result in needless and excessive
restrictions on other fisheries.
In addition to a layering of both MSA and MMPA regulations,
productive fishing grounds are often closed via the TRT process. Thus,
fishermen must find new areas to fish which may be further away and
yield lower catch rates. If fishermen are under effort/gear limitations
in the fishery already, they may not be able to recoup the lost income
from being forced off the primary fishing grounds by the additional
marine mammal conservation measures.
Fishermen may also be required, or even agree, to alter their gear
which could lead to increased cost. Acoustic devices such as
``pingers'' are sometimes used as a means of marine mammal deterrence.
Popular and effective as these alternatives may sometimes be, they
always come at increased costs borne solely by the fishermen.
______
Responses from Joe Scordino, Deputy Regional Administrator, Northwest
Region, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
questions from chairman wayne t. gilchrest
1. The NMFS has released its report Impacts of California Sea Lions
and Pacific Harbor Seals on Salmonids and West Coast Ecosystems. Does
the Agency recommend implementing the recommendations of the report?
Will these recommendations be included in an Administration bill? Has
the Agency made any further progress in developing new, non-lethal
means of chasing off California sea lions and Pacific Harbor Seals
during testing? Your testimony mentions that ``new information'' has
become available since the 1999 report to Congress. Other than new
populations assessments, what new information were you referring to?
NMFS continues to support three of the recommendations.
The first recommendation is to ``Implement site-specific management
authority that would allow state and federal officials to lethally
remove pinnipeds where necessary to protect ESA-listed salmon and other
marine resources.'' Although NMFS continues to support the concepts
related to site specific management measures, we do not expect to
include these measures in the upcoming Administration bill. Existing
provisions of the MMPA allow NMFS to address the known applications
where lethal take authority has been needed, such as to protect Lake
Washington steelhead as they migrate through Ballard Locks. Other
instances of predation, where the scientific record is not as full as
the one at Ballard Locks, have not been identified at this time. The
provisions in section 101(c) that allow people to take marine mammals
if ``imminently necessary'' would apply to human safety concerns. It
may also be possible to apply the authorities within section 109(h) to
protect human health and welfare; however, application outside the
stranding response program has not been attempted or tested.
The second recommendation to `` Develop safe and effective non-
lethal deterrent technologies'' has been pursued by NMFS. But, we have
found through studies that acoustic technology, which initially
appeared promising, may not provide a safe, effective approach to long-
term deterrence of sea lions in open water applications due to affects
on other marine species. However, in limited, restricted areas, such as
at the Ballard Locks in Seattle, WA, non-lethal acoustic deterrence
measures appear effective in addressing California sea lion predation
on steelhead. NMFS is currently supporting a new line of studies by
Moss Landing Marine Laboratory to conduct basic behavioral studies on
sea lions to determine what ``cues'' they use to find hooked fish.
These studies would describe the ``cues'' involved in interactions with
fishing operations and ways to possibly ``mask'' or eliminate those
cues to avoid interactions.
The third recommendation to ``Reconsider the prior MMPA
authorization that allowed commercial fishers to lethally take
pinnipeds as a last resort to protect their catch and gear in specific
fishery areas where economic impacts are occurring'' is no longer
supported by NMFS and will not be included in the Administration bill.
As described in my testimony, this recommendation was the subject of
most negative comments from the public, but it remained in the Report
so that Congress would have background information if it chose to
reconsider the 1994 amendments that eliminated the prior authorization
that allowed commercial fishers to kill marine mammals as a last
resort. Following the submission of the Report, NMFS learned that many
participants in current commercial and recreational fisheries do not
necessarily desire to have this authority. Rather, these parties have
expressed the need to have safe, effective non-lethal deterrents
available to them, and authority for state and federal managers to
remove problem animals where necessary when non-lethal measures are not
effective.
The fourth recommendation to ``Implement the studies necessary to
obtain additional information on the expanding pinniped populations and
their impacts on other resources, especially ESA listed salmonids'' has
been underway by NMFS and the States since fiscal year 1998 with
Congressional action to increase NMFS' funding for studies on pinniped
impacts on salmonids and West Coast ecosystems. These studies have
resulted in new information, since the 1999 Report to Congress, on 1)
pinniped predation on salmonids in several river systems on the West
Coast; 2) updated population status of harbor seals and sea lions which
are noted for showing that harbor seals in Washington and Oregon are at
their optimum sustainable population level (OSP); 3) updated
information on sea lion interactions with the salmon troll fishery and
the southern California partyboat fishery; and, 4) information on the
effectiveness and utility of acoustic devices as non-lethal deterrents.
2. Your testimony indicates that seal and/or seal lion predation
can have a negative impact on the recovery of depressed or declining
salmonids. Can you quantify what percent of the mortality of the listed
salmon is due to pinniped predation? How do these figures compare to
direct human causes of mortality?
Predation on ESA listed salmonids varies from site to site. In some
river systems, such as the Umpqua River in Oregon, studies indicate
that seal predation is unlikely to impact recovery of ESA listed
salmonids. In other systems, such as Hood Canal, WA, where studies are
still underway, preliminary information indicates harbor seal predation
may be impairing recovery of summer chum salmon. Final analyses, which
will quantify the percent of the listed chum salmon population taken by
harbor seals through the three-year study period, should be available
in the next year. Human causes of mortality on Hood Canal chum salmon
are described below under Question 3. Through over 10 years of study at
the Ballard Locks, NMFS determined in the mid-1990s that California sea
lion predation on Lake Washington steelhead, which exceeded 60% of the
returning adults in some years, did have a negative impact on the
population. Direct human causes of mortality in the Lake Washington
system included tribal fishing, which ceased in the 1980s, and
improvements were made to fish passage at the Ballard Locks facility,
thus sea lion predation was a principal factor in the decline of the
steelhead population.
3. Your testimony states that ``pinniped predation rates exceeding
25 percent of spawning summer chum salmon in Hood Canal.'' What are the
other impediments to this populations recovery and what percent of the
mortality of these salmon is due to other factors?
Hood Canal summer chum salmon mortality is attributable to
fisheries, shifting environmental conditions, and the cumulative
effects of habitat degradation. Total fishery exploitation rates on
summer chum, which were listed as threatened under the ESA in 1999,
averaged 44.5% from 1974-1994 (range = 12.2%-81.2%). Since that time
exploitation rates decreased substantially as a result of fishery
actions taken to protect summer chum and other salmonid species. Hood
Canal fisheries are now managed to minimize incidental take of summer
chum, which is now on average kept below 11%. Although in any one year
fisheries may be managed for exploitation rates lower than this, the
upper end of the exploitation rate may not be exceeded. Supplementation
programs were instituted in 1992 for the Big/Little Quilcene, the Hamma
Hamma and Lilliwaup stocks due to the assessment of high risk of
extinction for these stocks without intervention. The Quilcene program
has been quite successful at increasing the number of returning adults.
The Hamma Hamma and Lilliwaup programs have been hampered by an
inability to collect sufficient broodstock. Although there are
recognized risks associated with hatchery programs, in this case these
risks are offset by the potential benefits in facilitating recovery. A
habitat assessment, conducted as part of the Summer Chum Salmon
Conservation Initiative for Hood Canal and Strait of Juan de Fuca
summer chum stocks, concluded that channel, riparian forest and sub-
estuarine conditions were moderately to severely degraded in all the
watersheds due to a history of logging, road building, rural
development, agriculture, water withdrawal, and channel manipulations.
The data is not available to determine what proportion of total
mortality on summer chum populations is directly attributable to
habitat degradation and environmental factors.
4. The NMFS has been looking for new technology to deter marine
mammals such as California sea lions from fishing activities, yet they
rejected permit applications to test pulse technology because of the
threat of a lawsuit by certain environmental organizations. In fact,
your testimony states that, ``only one avenue of deterrence
technologies appeared to be promising...this avenue was acoustic
devices.'' Why did the agency deny the permit based solely on a threat
of litigation when the agency has cited a need for new technology and
pledged to work with industry to find and test new technologies? Will
this be the case for the future permit applications?
High powered acoustic devices, such as the pulsed power device, may
be effective non-lethal deterrents, but they also may affect other
species or cause injury to the target animals (i.e., sea lions). NMFS
was aware of these concerns in the development of the pulsed power
device and they were also raised by environmental organizations that
threatened lawsuits. The California Coastal Commission (CCC) rejected
our coastal zone consistency determination for ocean testing of the
pulsed power device because they viewed it as inconsistent with
protective criteria that are used for other sources of sound, such as
marine geophysical exploration, and because of concerns about impacts
on other marine species. NMFS postponed the field testing of the pulsed
power device to address CCC concerns, and required captive studies to
determine what power levels would deter sea lions without causing
injury or deafness to the sea lions. NMFS' interest was and is for
development of deterrence technologies that can be applied on a broad
basis (multiple fishing boats) in open waters with little or no adverse
impacts on the environment, and without serious injury to the sea
lions--these criteria will apply to any future permits for testing
deterrence devices. The recent laboratory studies indicate that the
pulsed power device may not be as effective in deterring California sea
lions as initially hoped and may cause temporary effects on hearing;
thus we need to seek new technologies and methods, beyond acoustic
deterrence, to address fishery interactions with California sea lions.
5. What does the MMPA direct marine mammal management agencies to
do once a population reaches OSP? Will a population that has reached
OSP continue to grow, although possibly at a slower rate of growth? Is
OSP the same thing as the carrying capacity? How do we deal with a
situation where a population has reached carrying capacity or OSP yet
is significantly below the estimated historical population level?
The MMPA states that marine mammal populations ``should not be
permitted to diminish beyond the point at which they cease to be a
significant functioning element in the ecosystem of which they are a
part, and, consistent with this major objective, they should not be
permitted to diminish below their optimum sustainable population''
(MMPA Section 2(2), 16 U.S.C. 1361(2)). Thus, we must monitor the
status of marine mammal populations relative to their optimum
sustainable population (OSP) level and assure that are not reduced
below OSP. Once a population reaches OSP, there are no actions required
of NMFS or the States, but management alternatives, such as waiving the
moratorium or transferring management authority to the States, can be
considered. OSP and carrying capacity are not the same but they are
related. The MMPA does not provide a complete definition of OSP, so it
was necessary for NMFS to clarify in regulations an operational
definition for OSP. OSP is defined within the context of a hypothetical
construct that represents the growth of a population that is
constrained by density-dependent phenomenon (e.g., food or space
limitation). The generalized logistic growth curve (see Figure 1 below)
is used to describe population growth of marine mammal populations and
OSP has been defined relative to generalized logistic growth. NMFS
adopted the definition for OSP as a range of population sizes between
carrying capacity and a smaller population size that provides maximum
net productivity (MNPL) (41 FR 55536, December 21, 1976; codified at 50
CFR 216.3). A population that has reached OSP may continue to grow;
however, OSP is a range of population sizes, and as the population
approaches carrying capacity, the growth will slow to zero. It is
important to recognize that these definitions are based on a reasonable
but theoretical model. The realized growth in a marine mammal
population is governed by much more complex mechanisms than are
considered in the generalized logistic growth curve. Carrying capacity
is a hypothetical construct that is assumed to be constant in this
model. We know this is unrealistic, and fully expect that carrying
capacity can and will vary. Some of the variation will be short-term
(e.g., El Nino) and other changes may be more long-term. It is
reasonable to expect that populations at OSP will fluctuate and will
not grow at some diminishing rate. Pacific harbor seals in Washington
and Oregon have been determined to have reached OSP. However, we do not
have reliable historical population estimates for west coast pinniped
populations, so we cannot compare them to OSP or current carrying
capacity.
questions from ranking member robert a. underwood
1. Going back to the recommendations made by the 1999 Report, the
first recommendation would allow the lethal take of California Sea
Lions and Pacific Harbor Seals, if preying on salmonids that are listed
or are candidates for listing under ESA. Who would make the final
decision that the lethal take would be allowed? How long could the
lethal taking go on before it would affect the stocks of the Sea Lions
and Harbor Seals? You say this would not be used as a culling method,
but would there be a review of all lethal takes to ensure that this
allowance is not co-opted?
The recommendation is for a framework that uses a precautionary
approach that would favor the protection of ESA-listed species (e.g.,
salmon) over absolute protection of healthy, robust and expanding
pinniped populations. The recommendation includes a number of
safeguards to prevent unwarranted lethal takes of pinnipeds. Takes that
occur under this framework would be added to takes from all other
sources of human caused mortality (including fishing), and thus would
be limited to the ``potential biological removal'' (PBR) level
established for the pinniped population. Annual reporting would be
required to monitor that this and all other takes are kept below the
PBR level, in order to ensure healthy populations of pinnipeds, while
allowing removals in acute situations. Only in situations where
pinnipeds are preying on ESA-listed salmonids would lethal removal be
authorized without considering non-lethal means first, and only in
cases where such removal is within the context of salmon recovery
actions. In all cases, lethal removal of pinnipeds would be an action
of last resort, and only by state or federal resource managers. This
framework does not apply to fishers or the public.
[GRAPHIC] [TIFF OMITTED] 75640.037
______
Responses from Steve Thompson, Acting Manager, California-Nevada
Operations, U.S. Fish and Wildlife Service
questions from chairman wayne t. gilchrest
Question 1: In 1987, the USFWS began to translocate an experimental
population of southern sea otters as a recovery action in response to
population declines and to avoid potential risks associated with
possible oil spills. A provision within the authorizing legislation
required USFWS to limit potential impacts to existing commercial
fisheries. Animals from the experimental population are now leaving the
translocation zone and are possibly affecting commercial fisheries. How
has FWS managed this experimental population and what future plans does
USFWS have for the experimental population and the affected commercial
fisheries?
Answer: The transplanted population at San Nicolas Island has
remained small since 1990 and currently numbers about 28 individuals
total in the translocation and management zones. While there is no
evidence that sea otters are now leaving the translocation zone at San
Nicolas Island, beginning in 1998 the Service observed up to 150 sea
otters entering the designated sea otter management zone from the
parent population. These animals appear to be males that move into the
management zone in winter and return to the range of the parent
population in late summer or early fall, a pattern consistent with
natural range expansion.
Nonetheless, Public Law 99-625 states that any sea otter found in
the management zone, regardless of its origin, is to be considered a
member of the experimental population. The Service was required to use
all feasible non-lethal means to capture sea otters in the management
zone and return them to the translocation zone or to the range of the
parent population. However, the Service has determined that, at
present, this is not consistent with the requirement under the ESA to
avoid jeopardy to the species. This decision was based in part on
evidence that there would probably be substantial adverse impacts to
the parent population from translocating large numbers of otters from
the management zone to within the range of the parent population. The
Service has suspended further containment efforts while it reevaluates
the program, and expects to complete a supplemental EIS and finalize
our evaluation of the program sometime next year.
Question 2: USFWS has not attempted to remove otters from the
management zone since approximately 1993. One of the reasons for this
was an acknowledged lack of funds. Did USFWS ever request funding for
this program after 1993? Some have argued that USFWS ignored their
obligations under the law to continue these removal efforts. Is this
accurate?
Answer: The Service did not request funding for the translocation
program after 1993. When the Service stopped removing otters from the
management zone in 1993, there were few otters remaining in the
translocation zone and few otters in the management zone. In the
management zone, conflict between commercial fishing operations and sea
otters was minimal or non-existent. If it is found that continuing to
maintain a management zone is feasible and consistent with recovery
goals for sea otters and Public Law 99-625, the Service will likely
request funding from Congress to implement the program.
Question 3: Testimony was heard at the hearing that one of the
impediments to sea otter recovery is parasites, including those
transmitted by cat feces. Can you explain this problem and also comment
on how parasites transported by cat feces are affecting marine mammals
in the marine environment?
Answer: Our National Wildlife Health Center determined that
approximately 8 percent of stranded sea otters examined between 1992
and 1995 died as the result of protozoal encephalitis, a condition
caused by microscopic parasites in the brain. A parasite commonly found
in domestic cats was identified in these otters. This parasite,
Toxmoplasma gondi, can cause health problems in many species, including
humans. How the parasites are transmitted to sea otters is unclear, but
it is suspected that cat feces carrying the eggs of the parasites may
be washed into the marine environment through street sewers or sewage
treatment systems. The eggs may then be concentrated in filter feeders
like mussels and clams that the sea otters consume. Research is
currently being conducted to develop a better understanding of this
potential source of contamination in the marine environment.
Question 4: Is it true that the parasite problem is responsible for
more Southern sea otter mortality than direct human causes such as
commercial fishing? Can you rank the causes of mortality and give an
estimate of the number of animals killed by each category per year?
Answer: Our National Wildlife Health Center determined causes of
death for a sample of fresh dead sea otters stranded between 1992 and
1995. They found that approximately 38 percent of the otters died from
infectious diseases including parasite infestations. Approximately 20
percent died as the result of trauma that included shark bite, boat
strikes, and gunshot wounds. Emaciation accounted for 10 percent of the
mortalities, while 31 percent were placed in undetermined or
miscellaneous categories. In many cases, mortalities that result from
commercial fishing activities are difficult to detect because they
often involve drowning of animals. For example, animals drowned in
fishing gear may sink and often are not recovered.
Question 5: One of the original factors for the listing of the
southern sea otter was the concern that the entire population could be
killed by an oil spill. Is this still a reasonable concern? Has the FWS
taken a look at the original factors for the listing and reevaluated
the potential risk for those factors?
Answer: The possibility of an oil spill continues to be a
significant threat to sea otters. The 1989 Exxon Valdez spill in Alaska
demonstrated that large numbers of sea otters could be killed in one
event, and that rehabilitation of oiled sea otters is of questionable
benefit to the population. The Service recognizes that significant
progress has been made to reduce the risk of oil spills. However, oil
production and transportation continue off the California coast. The
southern sea otter was listed because of its small population size and
vulnerability to oil spills. A report on the potential impacts of oil
spills on the southern sea otter population (Ford and Bonnell, 1995) is
included in the draft recovery plan (January 2000).
Question 6: P.L. 99-625 requires the FWS to remove all sea otters
from the management zone. The FWS has now determined that removal of
any otters from the zone constitutes jeopardy to the continued
existence of the southern sea otter. Does that imply that the loss of
any of the otters currently in the management zone constitutes a threat
to the entire population's recovery? How many otters are currently
estimated to be in the management zone? How does the FWS justify this
position when P.L. 99-625 specifically states that the experimental
population will not constitute jeopardy?
Answer: The Service s recent biological opinion was based on
effects on the parent population of returning sea otters from the
management zone back to the range of the parent population. Our
analysis focused on the effects these returned otters would have on
other otters found in the parent population. Specifically, there is a
concern that returning large numbers of male otters to areas occupied
by females and pups will lead to widespread disruption of the
population. Our original biological opinion for the program did not
consider these effects.
As of May 2002, the Service believes there are fewer than 5 sea
otters in the management zone. However, since 1998 we have observed
seasonal movement of otters into the management zone. We expect larger
numbers of sea otters to continue to enter the north end of the
management zone in winter, and depart the following spring. Given the
uncertain stability of parent population counts, the Service believes
it would not be prudent to move otters at this time.
Question 7: In 1993, FWS made the unilateral decision that they
could no longer reasonably remove otters from the management zone. This
constitutes a violation of the spirit and the letter of the law. At no
time has FWS returned to Congress to ask that the law be amended
because it was unenforceable. In fact, on a number of occasions, this
Committee has asked for more information on this issue with little if
any response. Does the FWS make it a habit to knowingly violate their
responsibilities under the law without notifying Congress that it
believes the provisions of the law are unenforceable?
Answer: No. The Service is first attempting to ensure that it
identifies and addresses conflicts between the Endangered Species Act
and Public Law 99-625. The sea otter translocation program was intended
to be a primary recovery action for southern sea otters. By 1993, fewer
than 15 otters remained in the translocation zone, a few otters were
known to be in the management zone, and there was concern that several
otters died as a result of being moved. At that time, the Service met
with the California Department of Fish and Game to discuss management
options as indicated by Public Law 99-625. The Service subsequently
stopped moving otters to the translocation zone and removing sea otters
from the management zone. When large numbers of sea otters began to
seasonally move into the management zone in 1998, the Service conferred
with the State and the Marine Mammal Commission, held public workshops,
and initiated formal reviews of the translocation program. On January
22, 2001, a notice of policy regarding capture and removal of southern
sea otters in the designated management zone was published in the
Federal Register (66 FR 6649). This notice identified conflicts between
our mandates under the Endangered Species Act and Public Law 99-625,
and our intent to fully reevaluate the translocation program through
the National Environmental Policy Act process. If, after reevaluating
the program, it becomes evident that Public Law 99-625 needs to be
amended, the Service will certainly return to Congress with
recommendations for such amendments.
Question 8: This experimental population experience may be viewed
by some as a precedent that should concern the FWS. The commercial
fishing industry entered into negotiations which led to P.L. 99-625
with the understanding that steps would be taken by FWS to minimize the
impact of the experimental population on the commercial industry. It
appears to some that FWS has ``walked away'' from those commitments and
the law. If that is so, why will other industry groups, such as
farmers, enter into agreements for experimental populations or
reintroduction efforts by FWS if there is a potential that FWS will at
some point ``walk away'' from commitments to protect those industries?
How does FWS intend to deal with the cumulative impacts on the
commercial fishing industry of the decision to stop enforcing
provisions of the law requiring removal of sea otters from the
management zone?
Answer: The Service does not believe that it walked away from its
commitments to the southern sea otter translocation plan. Instead, it
is the Service's view that the plan must be reviewed in light of new
information gained since the translocation began. As noted above, the
plan was intended to be a primary recovery action for the southern sea
otter and a strategy to minimize, to the maximum extent feasible,
conflicts between the experimental population and fisheries in the
management zone. The Service is committed to reevaluating the program
under the NEPA process with ample opportunity for public input and
participation. This ongoing decision-making process will fully involve
all affected stakeholders, and will help frame the debate so that this
matter can be resolved in a manner that is based on sound science.
Question 9: What is the carrying capacity of the current range of
the southern sea otter (since the regulations define the carrying
capacity for the translocation zone, FWS should be able to calculate it
for the current range)? Has FWS calculated the carrying capacity for
the current range? If not, why not? Has the parent population exhibited
the characteristics of a stable population?
Answer: An estimate of carrying capacity for the California coast
was recently calculated to be 15,941 sea otters (Laidre et. al. 2001).
This estimate was based on the assumption that several sections of the
current range of the sea otter are at carrying capacity.
The parent population counts declined between 1995 and 1999, but
appear to have stabilized somewhat in 2000 and 2001.
Question 10: At what point will the population trends flatten out
or begin to decline because of lack of food?
Answer: Without restraints, it is expected that the population
would continue to grow and expand its range until it reached the
carrying capacity for the environment. As noted above, for California
this is estimated to be approximately 16,000 animals. Laidre et. al.
(2001) determined carrying capacity by reviewing recent counts of
southern sea otters in their current range, identifying portions of the
range that were believed to be at carrying capacity, and characterizing
the available sea otter habitat throughout California. Their estimate
is consistent with estimates based on scant historic records that
indicate the historic population was between 16,000 and 20,000 animals.
Question 11: Do sea otters feed on any endangered, threatened or
candidate species of shellfish? Is there any evidence that this species
is adversely affecting commercial fisheries?
Answer: Sea otters are known to prey on abalone. The white abalone
is currently listed as endangered and the black abalone is now
considered a candidate species. The white abalone is found in deeper
waters of southern California and was listed as the result of
commercial over-harvesting. Black abalone numbers in southern
California are severely depressed as the result of a disease called
withering foot syndrome. The white abalone's deep water habitat may
effectively protect it from significant predation by sea otters. Sea
otters do prey on black abalone when available, but it is important to
note that sea otters and abalone evolved together over thousands of
years.
Sea otters can have a profound effect on commercial shellfisheries.
In areas where sea otters become established, commercial shellfisheries
that target shallow water species are not likely to be successful. It
appears that many of today's successful shellfisheries are the direct
result of extirpation of sea otters from large portions of their range.
Question 12: If the experimental population is declared a failure,
the USFWS is then required to remove all sea otters from the management
zone and the translocation zone. What plans does USFWS have to
implement this relocation effort?
Answer: The Service is currently re-evaluating this program through
a supplemental EIS. When this process is complete, a determination will
be made as to whether or not the experimental population has been a
failure, and appropriate decisions will be made regarding the fate of
the colony.
Question 13: Mr. Rebuck testified that FWS is allowing the
threatened southern sea otter's range to overlap with the habitat for
the now endangered white abalone. If this is so, are the animals moving
into the abalone habitat from the parent population or are they animals
from the translocated population? How does the agency plan to deal with
this situation? Will the agency begin removing sea otters from the
habitat range of the abalone? If so, won't this be as difficult as the
removal of the sea otters from the management zone which FWS determined
it was unable to do? Won't this effort to remove animals from the
habitat of the abalone jeopardize the continued existence of the
southern sea otter? How does MMPA and/or the ESA deal with such a
situation?
Answer: The Service does not believe that there will be a conflict
between recovery of the white abalone and the recovery of the southern
sea otter. The white abalone is found in deeper waters of southern
California and was listed as the result of commercial over-harvesting.
The white abalone's deep water habitat may effectively protect it from
significant predation by sea otters. Sea otters and abalone evolved
together over thousands of years, thus it is unlikely that sea otter
predation alone could lead to the extinction of abalone species.
The National Marine Fisheries Service cited human harvest as the
primary cause of decline of white abalone populations when they listed
the species. White abalone generally inhabit deep rocky habitat from 60
to 200 feet deep (California Department of Fish and Game, 2001) whereas
southern sea otters usually forage at depths less than 75 feet (Wild
and Ames 1974; California Department of Fish and Game, 1976; Estes,
1980). Although there is some overlap between the foraging range of the
sea otter and the habitat of the white abalone there is no evidence to
suggest that sea otter predation would drive the white abalone to
extinction. In a study of abalone species commonly found at sea otter
foraging depths, Hines and Pearse (1982) presented evidence showing
that the abundance, size, and species composition remained stable in an
area occupied by sea otters for nearly 20 years, although density and
average size of abalones were substantially reduced when compared to
areas not occupied by otters. This indicates that sea otters may
preclude commercial harvest of abalone without adversely affecting the
viability of the abalone population.
Question 14: Is there an estimate for the population at which the
sea otters will be considered recovered?
Answer: The current draft revised recovery plan estimates that a
minimum population of 2,650 southern sea otters would be required to
consider delisting under the Endangered Species Act. (Of course,
evidence of attaining a minimum population size by itself is not
ordinarily sufficient to justify a delisting action. All threats posed
to the subspecies that cause it to be likely to become endangered in
the foreseeable future throughout all or a significant portion of its
range must be resolved before delisting occurs.) The Service continues,
however, to consider public comments received on the draft plan.
Question 15: How long will the evaluation take for the Service to
make a determination on what to do with the translocated sea otter
population?
Answer: The Service expects to complete a draft supplemental
environmental impact statement this year. Following public hearings, a
written comment period, and revision as necessary, a final document is
expected sometime next year. A decision on the future of the
translocation program will be made upon completion of a final
supplemental environmental impact statement.
questions from ranking member robert a. underwood
Question 1: You say that there is an on-going decision-making
process on the issue of Public Law 99-625 to attempt to rectify the
problems translocation has created. Could you please explain what this
process is and if there is an associated timeline?
Answer: The Service is currently preparing a supplement to its
original environmental impact statement on translocation of southern
sea otters, published in 1987. The supplement will update information,
reevaluate the existing translocation program, and analyze our options
for the program. We expect to complete that draft supplement this year.
Following public hearings, a written comment period, and revision as
necessary, a final document is expected sometime next year. A decision
on the future of the translocation program will be made upon completion
of that final document.
Question 2: Environmental organizations have expressed the
necessity for finalized plan for Southern Sea Otters to help facilitate
cooperation been these groups and fishermen. Is there any current
schedule for a finalized plan to be reviewed and released?
Answer: The existing recovery plan for southern sea otters was
published in 1982. The Service has already circulated several draft
revised recovery plans for review and expects to publish a final
revised plan sometime next year.
______
Responses from Kaitilin Gaffney, California Central Coast Program
Manager, The Ocean Conservancy
questions from chairman wayne t. gilchrest
1. P.L. 99-625 was created to deal with the conflict between
fishermen and the translocated population. You now advocate canceling
this agreement. How do you propose commercial fishermen be compensated
for the cancellation of the agreement? Since you advocate allowing the
sea otters to reclaim this territory that P.L. 99-625 designated as an
``otter-free zone'' what would your organization be willing to bring to
the table to accomplish this?
Answer: P.L. 99.625 was enacted, first and foremost, as a means to
promote the recovery of the southern sea otter, Within that context, it
sought to address the interests and concerns of numerous interest
groups, including environmental groups and fishing interests, among
others. P.L. 99-625 envisioned a fundamental balancing act - successful
establishment of a large and thriving population of sea otters at San
Nicolas Island in exchange for a management zone. The San Nicolas
Island population has not succeeded; indeed, it has unfortunately been
a dismal failure. In addition, it is now recognized that enforcing the
management zone will not only impede recovery, the very purpose of P.L.
99-625, but also jeopardize the species with extinction. Under these
circumstances, this does not amount to ``cancellation of the
agreement.'' Bringing an end to zonal management under P.L. 99-625 is
not, as the question implies, a decision by the environmental community
to ``cancel'' a viable and continuing program established by agreement
with the fishing industry. It is the result compelled by law due to the
failure of the program itself and the devastating effects enforcement
of the management zone would have on sea otters. To leave the program
in place would give the fishing interests the benefit of P.L. 99-625
and the artificial limitation on range expansion it established without
any commensurate benefits bestowed on the species and environmental
interests. We support enforcement of the law and termination of zonal
management, as requited by the ESA and P.L. 99-625 and its implementing
regulations.
The Ocean Conservancy believes that it is premature to discuss
compensation for fishermen for the revocation of P.L. 99-625. As noted
above, P.L. 99-625 is not being ``cancelled.'' The program it
establishes must be terminated as a matter of law. Certainly, the
fishing groups are not entitled to any compensation, as they have no
property rights at interest or that are affected. Should the Congress
be interested in considering a compensation package, we would address
such a possibility at that time, recognizing again there is no
entitlement to such payment.
With regard to negotiations with the fishing industry, The Ocean
Conservancy's goal is to devise strategies that will meet the objective
mutually agreed upon during talks with the fishing community:
``maintain well-managed and abundant fisheries, healthy marine
ecosystems, and recover the southern sea otter population.'' We are
currently in discussions with representatives from the environmental
and fishing community and Sea Grant about potentially resuming our
earlier talks in the hope that we may refine and further develop the
strategies outlined in our testimony. These talks had been proceeding
productively until a segment of the fishing industry filed a lawsuit to
enforce the management zone, despite the fact that such action would
violate P.L. 99-625 and the ESA. Those groups have now withdrawn the
case, and we are willing to engage in discussions again. Of particular
importance is research to develop and test devices to enhance protected
habitat for commercial shellfish-specifically pilot projects to create
artificial shellfish refugia and cryptic habitat that is accessible to
divers but inaccessible to sea otters. Projects such as this will allow
fishermen and otters to coexist and avoid the need for compensation.
2. Your organization advocates non-lethal technology for deterring
California sea lions and harbor seals, yet you are opposed to the use
of any technology that could ``harm'' other marine life, Has your
organization suggested any potential technology to accomplish these two
goals? Would your organization be willing to contribute to the
development and testing of any new promising technologies?
Answer: There has been an overall lack of dedicated research into
non-lethal deterrents; as a result there is no single deterrent that
will safely and consistently deter marine mammals from gear, catch, and
predation on threatened and endangered salmon runs. While this is a
shortcoming of both the MMPA and its implementation, The Ocean
Conservancy continues to believe that the best hope to address pinniped
interactions with salmonid stock and fishermen is to develop safe, non-
lethal deterrents. To further this goal, we recommended in our written
testimony an amendment to the MMPA to provide for an aggressive and
dedicated research program to develop and test safe, non-lethal
deterrents. The amendment calls for the development of a research plan
through the collaborative efforts of federal agencies,
environmentalists, fishermen, pinniped biologists, and scientists with
specialized technical backgrounds. The amendment would also require
that National Marine Fisheries Service implement the research plan and
provide a report to Congress. Finally, in addition to congressional
appropriations, the amendment provides for private contributions. The
Ocean Conservancy would be willing to contribute financially toward the
testing of potential deterrents identified through this process.
3. How do you develop a ``range'' of deterrents, as suggested at
the hearing, when environmental groups threaten to sue the agency if it
even issues permits to test certain technologies that have been shown
to be effective in other countries?
Answer: Since 1994 both marine mammal researchers and environmental
groups have expressed concerns about the research protocols, plans, and
testing of certain technologies to deter marine mammals pulse power and
some acoustic deterrents). Therefore it is vital to devise a research
plan that has been developed collaboratively among a broad array of
user groups and that has their support. Formulating plans in this way
will reduce the odds that there will be litigation to prevent the
undertaking of agreed-upon research and may even result in broad
support for the research plan's goals and objectives.
questions from ranking member robert a. underwood
1. The Ocean Conservancy has worked extensively with fishermen on,
the issue of sea otters and their recovery and continued survival. What
sorts of issues have the two groups agreed on and what actions do both
agree need to be taken by FWS?
Answer: The Ocean Conservancy and Friends of the Sea Otter
participated in two meetings with the fishing industry. At the first
meeting the group established as an objective: Maintain well-managed
and abundant fisheries, healthy marine ecosystems, and recover the
southern: sea otter population. At its second meeting the group began
to outline tasks within an overall action plan to achieve the
objective. The group has yet to determine the details associated with
each task, but the general outline is as follows:
<bullet> LSupport State funding for ecosystem health monitoring to
identify trends and events affecting otter and shellfish populations;
<bullet> LModify fishing gear to avoid sea otter entrapment;
<bullet> LDevelop and implement a sea otter health assessment to
obtain valuable information on the health status of wild southern sea
otters;
<bullet> LSecure Federal, State, and private funding to implement
the Southern Sea Otter Recovery Plan;
<bullet> LEnhance shellfish recruitment and harvest within and
beyond the sea otter range through the development of pilot projects
for creation of artificial shellfish refugia and cryptic habitat;
<bullet> LMap fisheries and key facilities within current and
potential otter range to effectively and cooperatively develop adaptive
conservation and management strategies allowing for the co-existence of
fisheries and sea otters;
<bullet> LUndertake research to develop predictive models to assess
the impact of sea otter movements on fisheries and the ecosystem to
devise adaptive management strategies to address otter range expansion;
and
<bullet> LIdentify mitigation measures targeted at fisheries that
could be adversely affected by sea otter range expansion to reduce
potential adverse impacts on certain fisheries and mariculture
projects.
Both the fishing industry and the conservation community have
expressed an interest in resuming these discussions that were stalled
due to the litigation. The Ocean Conservancy believes that these action
items provide a possible basis to continue these discussions. Should
these talks resume, participants will likely involve the U.S. Fish and
Wildlife Service as well as State management agencies in our efforts to
reach consensus on an action plan that will benefit both sea otters and
fisheries.
2. The Ocean Conservancy is strongly opposed to site-specific
management of pinnipeds. However, you support Section 120 and how it
was used at Ballard Locks. Does this mean that The Ocean Conservancy
does support lethal removal where necessary and proven?
Answer: The Ocean Conservancy asserts that NMFS' proposal for site-
specific management is unnecessary and unjustified. NMFS's proposal
would short-circuit the MMPA's existing provisions and significantly
lower the burden of proof to justify lethal removal of pinnipeds. The
Ocean Conservancy believes that a blanket authorization to States for
the immediate use of lethal removal is contrary to the precautionary
protection goals and objectives of the MMPA, will not guarantee that
these pinnipeds receive the protections afforded by the MMPA, and fails
to recognize that lethal removal is a flawed management tool. Section
120 of the MMPA already establishes the appropriate procedures for
lethal removal of California sea lions or Pacific harbor seals where
specific animals are preying upon ESA-listed species The Ocean
Conservancy firmly believes that Section 120 provides the flexibility
to conserve salmonid stocks and establishes the appropriate burden of
proof to demonstrate both that pinnipeds are having a significant
negative impact on the decline or recovery of salmonid fishery stocks
and that all reasonable and prudent non-lethal measures have failed.
The Ocean Conservancy would only support the lethal removal of
pinnipeds provided it is a consensus decision arrived at through the
implementation of the provisions of Section 120.
3. Has The Ocean Conservancy been involved in developing non-lethal
deterrence measures for marine mammals, and if so, what sort of
technologies have been studied?
Answer: The Ocean Conservancy has not been directly involved in the
development of non-lethal deterrence measures for marine mammals.
However, we have participated in meetings with the fishing industry
where we have reviewed the efficacy of existing measures. We believe
that to invent a effective non-lethal deterrent, interest groups must
develop and undertake a dedicated and aggressive research plan. In
doing so, interest groups must engage scientists from other fields of
study, such as acoustical and electrical engineering, to explore new
technologies to achieve this goal.
______
Responses from Dr. Hal Whitehead, Killam Professor of Biology,
Dalhousie University, Halifax, Nova Scotia, Canada
questions from chairman wayne t. gilchrist
1. How does the cumulative effect of all the noise in the ocean
affect the environment? How loud is the ocean without human-caused
noise?
This depends on the frequency of the noise. At frequencies between
about 20-300Hz human-caused noise dominates ocean noise. At lower, and
higher, frequencies, human-caused noise sometimes dominates. As far as
the loudness of the ocean without human-caused noise, I refer you to
the work of Wenz (1962; ``Acoustic ambient noise in the ocean: spectra
and sources'' JASA 34:1936-1956).
2. Has there been a pattern of increasing noise in the world's
oceans over the past few decades? What are the sources with the
greatest contribution to this increase?
Yes there has been an increase. Shipping and seismic activity are
important sources.
How does this increase affect marine mammal populations, and how
widespread are these effects?
We have almost no idea how this increase affects marine mammal
populations, nor how widespread such affects, should they be occurring,
might be. We have too little ability to monitor most marine mammal
populations. There are a few populations which we know have been
increasing over the last few decades (e.g., northern elephant seal,
North Atlantic humpback whale). For these populations we can say that
increased noise has not been a debilitating threat. Other populations
are less healthy. For instance the northern right whale, living in a
noisy environment, is in severe difficulty, whereas the southern right
whale, living in quieter oceans, is recovering well. This difference
might be due to noise or it might not, or noise may be just one of
several contributory factors.
3. The MMPA defines harassment very broadly, including minor
behavioral modifications. Should the definition be changed to include
only those activities that may present long-term impacts to individuals
or populations?
The problem is that apparently ``minor behavioral modifications''
may have long-term impacts, and, conversely, what appear to be major
short-term reactions may have no long-term effect. An example of the
former is the mild-startle reaction of caribou to low-altitude jets
which was found to cause important long-term effects (F.H. Harrington
and A.M. Veitch. 1991, 1992. Arctic 44: 318-327, 45: 213-218). My
feeling is that the MMPA currently does a reasonable job of minimizing
impacts on marine mammals, but clearly it needs to be used sensibly so
that important human activities are not senselessly restricted because
of what are obviously trivial impacts on marine mammals.
4. How do we evaluate long-term effects versus short-time effects?
Long-term effects are much harder to determine as they need long-
term data sets, which are rare.
5. Can ship noise be worse for the animal than an interaction with
a sonar test?
We do not know. I suspect that it depends on the species, the
location, and what the animal is doing. For instance ship noise might
interfere with the breeding signals of a blue whale, whereas we know
that sonars are particularly dangerous for beaked whales. The evidence
is more conclusive for sonars, but that does not mean that ship noise
is not dangerous.
6. How are [the beaked whale stranding data] statistically relevant
if they are over such long time periods?
The length of the time period has no impact on the statistical
relevance of the data. It might have an impact on the biological
relevance. One could argue that, even if, as seems clear, military
activities harm beaked whales, such numbers (49 beaked whale strandings
and 6 mixed-species beaked whale strandings) over such a long time
period would not have much affect on the populations of the species.
However, if only a small proportion of the animals affected by military
activity are reported as stranding, as seems highly likely, then these
data represent the statistically significant tip of a lethal iceberg.
questions from ranking member robert a. underwood
1. As a scientist, how long would you need to collect data on a
species before long-term effects of SURTASS LFA on a population would
be able to be quantified?
This depends on how strong the effect is and how well we are able
to measure it. For instance, if we do annual surveys with a precision
of CV=0.2 (this means we are roughly 95% certain that the estimate is
within 40% of the true value; this is pretty good for a survey of
whales or dolphins), then to detect population changes of a few percent
per year (which are what we would normally expect for such a
population) then we would need about ten years of surveys (T.
Gerodette. 1987. Ecology 68:1364-1372).
2. Working under a precautionary theory, how much could be done to
various species of whales before an impact such as naval sonar would be
too much for them to recover from, in terms of population size?
This depends on how the sonar affects the whales. If it causes
sudden mass mortality of localized populations, as suggested by the
incident in the Bahamas, and other data on beaked whales, then one
application of the sonar could be enough to destroy a population. With
more dispersed populations (such as those of sperm whales), and/or less
dramatic impacts (for instance if use of sonar increased miscarriage
rates), then it might take many, and/or widespread, applications of the
sonar to produce a non-reversible effect on the population.
3. If you have followed the scientific evidence presented on navy
sonar systems and SURTASS LFA, how much more research do you feel
should be done before any conclusive decisions on future use are made?
I think there is enough evidence available to strongly suggest that
future use of SURTASS LFA is unwise. Because we cannot get at the main
areas of concern with current scientific methodology, more research is
unlikely to clarify things much.
______
Responses from Dr. Naomi Rose, Marine Mammal Scientist, The Humane
Society of the United States
questions from chairman wayne t. gilchrest
1. How does the cumulative effect of all of the noise in the ocean
affect the environment? How loud is the ocean without human-caused
noise?
In 1996, the Marine Mammal Commission (MMC) summarized the
potential range of impacts that the Navy's SURTASS LFA sonar could have
on marine mammals. The MMC's summary is also useful in describing the
general impacts that ocean noise might have on the marine environment:
[A]ll species and populations of marine mammals could possibly
be affected. The possible effects could include: death from
lung hemorrhage and other tissue trauma; temporary or permanent
hearing loss or impairment; disruption of feeding, breeding,
nursing, acoustic communication and sensing, or other vital
behavior ; annoyance and subsequent abandonment or avoidance of
traditional feeding, breeding, or other biologically important
habitats ; psychological and physiological stress, making
animals more vulnerable to disease, parasites, and predation;
and changes in the distribution, abundance, or productivity of
marine mammal prey species and subsequent decreases in both
individual marine mammal survival and productivity and in
population size and productivity.
There are relatively few places left in the ocean where
environments are acoustically pristine. Researchers, in their search
for such places, usually travel to the southern hemisphere, where
commercial, military, and industrial noise is less prominent and
widespread. The ambient noise spectrum that Wenz (1962) constructed,
based on years' worth of data from the mid-20th century, suggests that
low frequency noise drops below 40 dB re 1 mu Pa2, at least in calm
seas. By comparison, in well-trafficked areas in the ocean, the average
level of ambient noise in these low frequencies can easily exceed 90
dB. At a recent conference on marine mammal biology, Dr. Peter Tyack
suggested that on average world wide, human-caused noise has added 20-
30 dB to the ambient noise level of the ocean in the last century or
so.
2. Has there been a pattern of increasing noise in the world's
ocean over the past few decades? What are the sources with the greatest
contribution to this increase? How does this increase affect marine
mammal populations, and how widespread are these effects?
See above (1). There has definitely been a pattern of increasing
noise in the world's oceans over the last century, with a substantial
part of that increase occurring since World War II. Ross (1993)
compiled data from a number of deep-ocean receivers in the US Navy's
SOSUS system (a passive listening network that the Navy relied on to
detect foreign submarines throughout the Cold War) and found that, on
average, ambient noise in the low frequencies increased by 10 dB, or
one full order of magnitude, between the years 1950 and 1975 alone. The
data examined by Andrew et al. (2001), all taken from a single receiver
located off Point Sur, California, indicate that an 8-dB rise occurred
over the same frequencies between the years 1965 and 2000. It has been
suggested that the average rise in ambient noise attributable to
shipping alone may be as high as 16 dB, which represents a 40-times
increase in magnitude (Clark et al. 1998).
Shipping is believed to be the major contributor to this overall
increase in ambient noise. It might be noted for context that the
number of ships in the world's merchant fleet nearly tripled in the
years since 1952; during the same period, the gross tonnage carried by
these ships increased by a factor of five, indicating a trend toward
the use of larger vessels (Cuyvers 1984), which would tend to have
greater noise output.
There are other sources of noise pollution that, while not as
ubiquitous as shipping, tend to dominate the regions in which they are
found. Oil, gas, and mineral exploration and production are
concentrated in areas such as the Gulf of Mexico and the North Sea.
Noise pollution created by this industry may increase in the next few
years as new technology in seismic exploration, which allows industry
to explore deeper fields on the outer continental shelf, comes on-line.
There is also concern regarding the expanding use of high-intensity
active sonar by the military, of course. This trend is characterized by
the introduction of new active sonar systems (SURTASS LFA is only one
of these), the proliferation of low frequency systems in NATO
countries, and the expansion of active sonar into littoral (near-shore)
waters, which are also principal habitat for many marine mammals.
Dr. Peter Tyack, as noted above, gave a plenary address at the
recent marine mammal biology conference (sponsored biennially by the
Society for Marine Mammalogy) on ocean noise and its impact on marine
mammal habitat. I would recommend contacting him for his notes on that
address, as they gave an excellent overview of the current status of
the marine environment vis-a-vis human-caused noise.
Most of the research conducted thus far on the environmental
impacts of human-caused noise has focused on short-term effects
(usually measured as observable behavioral responses or temporary
threshold shifts in hearing) in individual animals. Of course, short-
term effects are more easily observed than long-term effects and
individual responses more measurable than those at the population
level. Some data on population impacts have begun to emerge, however. A
15-year study undertaken by Morton and Symonds (2001) found that, with
the advent of acoustic harassment devices (AHDs) loud sound sources
designed specifically to drive predators, in this case seals and sea
lions, away from fish farm pens and other such sites a vulnerable
population of orcas (killer whales) completely abandoned a primary
feeding segment of its habitat. In addition, harbor porpoise also left
the area. Neither of these species were the targets of the harassment
they do not prey on farmed fish. Once the devices were turned off
(after five years of use), some orcas began to return, but others have
not.
Habitat abandonment has also been observed in gray whales,
attributable both to industrial noises simulated by researchers in Baja
California (Jones et al. 1994) and, in a separate study, to the use of
airguns for oil exploration in the Sea of Okhotsk (Brownell et al.
2001). As Dr. Darlene Ketten noted in her testimony before the
Subcommittee, preliminary data obtained from stranded animals in the
North Sea suggests that man-made noise, including the industrial noise
from oil and gas exploration and production, may be causing injuries
and strandings across a number of species there.
It is not necessary for noise pollution to endure for long periods
in order for it to have adverse population-level impacts. Some marine
mammal populations may be very seriously affected by intense transient
sources. The best-known case of this is the March 2000 mass stranding
of beaked and baleen whales I mentioned in my testimony. This mass
stranding, as I noted, has been strongly linked to the use of mid-
frequency active sonar use by transiting Navy vessels (the final report
on this incident is due on December 14). An entire resident population
of Cuvier's beaked whale that had been photo-identified and followed
for some years by researchers has since disappeared from the area
(Balcomb and Claridge 2001).
In summary, human-caused ocean noise appears already to have
affected populations of marine mammals, whether through habitat
abandonment, auditory injury, behavioral disruption, stress, or other
causes.
3. The MMPA defines harassment very broadly, including minor
behavioral modifications. Should the definition be changed to include
only those activities that may present long-term impacts to individuals
or to populations?
Amending the definition of harassment to include only long-term
impacts would fundamentally alter the conservative and protective bias
of the MMPA. When the MMPA was passed in 1972, Congressional intent was
reflected in the statement in the Congressional Record that ``no steps
should be taken regarding these animals that might prove to be adverse
or even irreversible in their effects until more is known.'' Changing
the harassment definition to require long-term observation before
impacts (adverse or otherwise) could even be noted clearly conflicts
with this intent, as well as with the Precautionary Principle. While
the harassment definition is indeed broad, it also addresses the
dilemma facing regulators when information is lacking. Rather than
require scientific certainty before regulatory action can be taken, the
current definition allows the agencies to act when there is the
potential to injure or disturb; furthermore, it defines injury and
disturbance in terms that are empirical, objective, and relatively
ascertainable through existing methods of research. In other words, the
current definition allows the agencies to regulate based on the type of
activity that is proposed rather than on an activity's specific
effects.
Proposed amendments to the harassment definition (from the US Navy,
NMFS and the National Research Council) all require some consensus
understanding or definition of biologically ``significant'' or
``meaningful'' disruption, disturbance, or change in behavior. Given
how little is known about marine mammal biology and ecology, what
constitutes ``significant'' or ``meaningful'' is a matter of lively
debate and disagreement; there is no consensus on these issues within
the scientific community, as the number of expert comments submitted to
NMFS and the Navy on SURTASS LFA indicate. ,The result of these changes
would be to introduce ambiguity into the statute, a situation that
would undoubtedly makemaking the standard more difficult to enforce
than it currently isregulatory agencies' job far and making it vague
and uncertain more difficult than it currently isfor users and the
public. The result is likely to be a reduction in regulatory oversight
for protected species. The current definition is precautionary and
requires only that the potential to injure or disturb exists. While
this regulatory trigger may seem burdensome to members of the regulated
community, it is also maximally protective of species about which
little is known and whose responses to human activities in their
environment is also largely unknown.
4. How do we evaluate long-term effects versus short-term effects?
Can ship noise be worse for the animal than an interaction with a sonar
test?
Long-term effects require long periods of time to evaluate this is
a truism that is impossible to avoid. This is precisely why the
Precautionary Principle was devised and embedded in many environmental
laws, including the MMPA. Whatever process of evaluation researchers
and regulators undertake, it must be granted sufficient time to provide
answers that are adequate for regulatory purposes. At the least, long-
term effects will require longitudinal studies of specific populations
and individuals, where researchers return to a group of animals
(hopefully with many individually identified) season after season. Even
then, it will undoubtedly be difficult to identify causes of any
observed changes, at the level of the individual or population. A good
example of this is the current situation with the Aleutian population
of sea otters, whose numbers are crashing. The downward trend has been
fairly clearly identified and verified, through long-term observation;
however, the cause of the trend is still a matter of debate. Even if a
proximate cause can be isolated, there may be ultimate causes that are
far more difficult to identify. Unfortunately, science cannot always
provide answers that will assist regulators, but this is not
justification for regulators to fail to act.
Regarding ship noise and sonar, any exposure to human-caused noise
has the potential to harm marine mammals. Under certain circumstances,
shipping noise may prove more harmful than sonar sounds, but the
reverse could be true under differing circumstances, depending on the
species present, the character of the habitat, the acoustic properties
of the locale, and the acoustic characteristics of the sound source. I
do not offer this response to be obstructive it is simply a fact.
Clearly regulation is uneven at present the solution is not to ease
regulation of one noise user because another is under-regulated but to
pursue adequate and effective regulation of all noise users.
5. Have the marine mammal stranding events that maybe have been the
result of Navy sonar operations hand any long-term impacts to marine
mammal populations?
At this point, it is impossible to say if strandings associated
with naval maneuvers have had long-term impacts on marine mammal
populations. Far too little is known about the populations potentially
impacted. Beaked whales are the least studied and most poorly
understood of all cetaceans. Baseline population data are largely (and
in some situations, wholly) lacking. However, in the Bahamas incident,
a ``long term'' has not passed yet, and even so there is strong
evidence that the impact was massive (see 2 above). The regional
population of Cuvier's beaked whales had been relatively well studied
and after the stranding, all known individuals disappeared from the
area (and, a full 21 months later, have yet to be re-sighted). Killing
or displacing an entire population segment can be considered a long-
term and very negative impact.
6. You cite in your testimony that 8 out of 49 beaked whale
strandings over a 161-year period (1838-1999) and 7 out of 7 strandings
over a 25-year period (1974-1999) have been related to sonar activities
and show that it has an adverse affect [sic] on marine mammals and
beaked whales specifically. How are these events statistically relevant
if they are over such long time periods?
I refer you to Dr. Hal Whitehead's response to this question. I
would mention that time (that is, the time period examined) in this
case is not relevant to the data's statistical significance it is not a
variable when calculating the statistical likelihood of these co-
occurrences. I would also clarify that my testimony did not state that
these co-occurrences ``show'' that active sonar has an adverse effect
on marine mammals or beaked whales. I indicated that they provide
compelling evidence of an adverse impact. As noted above and below (see
4 and 7), science (and statistics) cannot always provide answers
science does not, nor can it prove hypotheses. However, the remarkable
co-occurrence of beaked whale strandings with naval maneuvers only the
number of observed occurrences is relevant, not the time frame over
which they occurred , while not proof of cause-and-effect, is extremely
compelling evidence for it.
question from ranking member robert a. underwood
1. Dr. Rose, do you feel enough research could ever be done to
successfully prove or disprove that LFA sonar has an adverse short and
long-term impact on marine mammals?
As noted in my testimony and above (6), science does not prove
hypotheses. It provides support for or disproves them, but it cannot
prove them. In order to collect sufficient data to qualify as adequate
evidence for regulatory purposes, I believe 3-10 years of longitudinal
observations, following the effects of LFA transmissions on specific
populations, would be a minimum requirement for any study hoping to
provide defensible support for the premise that LFA sonar has no
adverse impact on marine mammals. I have consistently maintained this
position throughout the regulatory process surrounding LFA sonar.
However, no study, however long it took, could ever prove LFA sonar had
no adverse impacts (proving a negative is especially problematic).
Long-term studies could, however, provide (or fail to provide)
compelling evidence of such impacts.
Again, science and technology cannot always (and should not always
be asked to) provide answers for policy questions. It is becoming
increasingly clear, from work already done, that human-caused noise in
general, individually and cumulatively is having adverse impacts on the
marine environment. Indeed, continuing to research the issue may be
counter-productive. It may delay precautionary management decisions
and, in some cases, the research itself may have adverse impacts. At
some point, policy-makers may simply have to say that one more loud,
pervasive sound source is too much. There are already too many loud,
pervasive sound sources in the ocean. Not every impact can be
adequately mitigated: some activities should simply not be authorized.
LFA sonar may be one such activity it is not the only one, but it is
the one currently in question.
references:
Andrew, R.K., B.M. Howe, J.A. Mercer, M.A. Dziechiuch, J.A. Colosi,
B.D. Cornuelle, B.D. Dushaw, R.C. Spindel, and P.F. Worcester.
2001. Ocean ambient sound: Comparing the 1960s with the 1990s
for a receiver off California. Paper and abstract presented at
the 141st meeting of the Acoustical Society of America, June.
Balcomb, K.C., and D.E. Claridge. 2001. A mass stranding of cetaceans
caused by Naval sonar in the Bahamas. Bahamas Journal of
Science 8(2): 2-17.
Brownell, R.L., Jr., A.M. Burdin, D.W. Weller, and G.A. Tsidulko.
Sakhalin gray whales: Concerns regarding the 2001 Exxon
Neftegas seismic surveys. Report to the Russian Ministry of
Natural Resources, September 1.
Clark, C.W., P.L. Tyack, and W. Ellison. 1998. QUICKLOOK: Low frequency
sound scientific research program, Phase I: Responses of blue
and fin whales to SURTASS LFA, Southern California Bight, 5
September 21 October 1997. Unpublished, February 27.
Cuyvers, L. 1984. Ocean uses and their regulation. John Wiley & Sons,
New York, NY.
Jones, M.L., S.L. Swartz, and M.E. Dahlheim. 1994. Census of gray whale
abundance in San Ignacio Lagoon: A follow-up study in response
to low whale counts recorded during an acoustical playback
study of noise-effects on gray whales. Marine Mammal
Commission, Report MM2911023-0.
Marine Mammal Commission. 1996. Comments. Submitted to the Office of
the Chief of Naval Operations, U.S. Navy, September 4.
Morton, A.B., and H.K. Symonds. 2001. Displacement of Orcinus orca (L.)
by high amplitude sound in British Columbia, Canada. ICES
Journal of Marine Science, November.
Ross, D. 1993. On ocean underwater ambient noise. Institute of
Acoustics Bulletin (UK) 18.
Wenz, G.M. 1962. Ambient noise in the ocean: Spectra and sources.
Journal of the Acoustical Society of America 37(5): 1936-56.
______
Responses from Kurt Fristrup, Ph. D., Bioacoustics Research Program,
Cornell Laboratory of Ornithology
questions from chairman wayne t. gilchrest
1. The military activities that occurred in Providence Channel near
the Bahamas created a sound pressure level that didn't dissipate over
time and may have trapped various marine mammals causing some to
strand. Could this type of sound pressure vortex happen in the open
ocean or was this specific to this type of channel?
1. The Providence Channel, Bahamas stranding event of 15-16 March,
2000 occurred under oceanographic conditions that promoted long-range
sound propagation near the surface (a ``surface duct''). The ocean's
surface is always a good reflector of sound (though the reflected
signal is exactly out of phase with the incoming signal). In a surface
duct, the reflective properties of the surface are combined with an
upward refracting characteristic at shallow depths (when the speed of
sound increases with depth near the surface). Thus, sound energy is
``trapped'' in this surface layer, and the energy does not spread
equally across all depths. These conditions are relatively common in
open ocean waters during winter or spring, when strong winds and storms
thoroughly mix the near-surface waters and solar warming is less
intense (a thick layer of constant temperature).
The phrasing of your questions urges a brief digression, for
clarity. The key feature is that loud sounds do not dissipate with
distance as they would when no duct is present. In the Providence
Channel, and in virtually all marine environments of interest, loud
sounds dissipate very rapidly--with time--when the source is turned
off.
In this important respect, sound pollution differs from chemical
pollution, waste disposal, and global warming. There is no physical
residue; turn off the source, and the potential for direct impacts
disappears almost immediately. Extended biological effects can only
arise from the internal dynamics of behavioral or physiological
response. No one should dismiss the potential for a delayed response,
and we have measured one in our humpback research. However, one
advantageous aspect of regulating ocean noise pollution is that changes
in policy can translate very quickly into changed environmental
conditions. There is no physical residue to clean up.
2. Dr. Ketten mentioned the difference between short-term harm and
long-term harm to marine mammals caused by sonar. Can you elaborate on
how the behavior of animals may be affected on the short-term versus
the long-term? How do we evaluate long-term effects versus short-term
effects? Can ship noise be worse for the animal than an interaction
with a sonar test?
2. Harmful behavioral responses are those that reduce survivorship
or reproduction. Short-term examples might include flight reactions
that cause animals to strand, that make animals especially vulnerable
to predators, or that disrupt mating and nursery areas. Long-term
examples might include abandonment of special foraging or breeding
areas, shifts of diving patterns that reduce foraging success or
migratory efficiency, or chronic stress reactions.
Some of these examples are hypothetical; and the evidence for
others is incomplete. However, abandonment has been documented.
Stranding has occurred, though the mechanism is unclear. Stranding may
be the behavioral consequence of injury or sensory dysfunction, or it
could be a direct behavioral response to the acoustic stimulus. We have
measured many short-term responses to sound broadcasts (brief changes
in song structure, small changes in migratory paths), but none of these
would plausibly cause a measurable decline in survivorship or
reproduction.
There should be no regulatory distinction between short- and long-
term behavioral impacts, if both are measured in terms of projected
reductions in survivorship or reproduction.
In the proposed use of LFA, the potential for long-term responses
is diminished by the infrequent exposure regime. Chronic noise sources,
like seismic profiling and shipping noise, raise my concerns regarding
long-term effects. Long-term effects have been more difficult to
measure, but new biological and engineering technologies are expanding
opportunities for extended observations.
I am more concerned about shipping noise than sonar tests because
it is extremely difficult to find places and times where shipping noise
is not a dominant feature of the underwater acoustic environment. Sonar
tests are restricted in time and space; significant environmental
degradation due to masking and chronic exposure is much less likely,
and the number of animals that can be exposed is more limited.
3. Dr. Ketten testified that marine mammals cannot be harmed by
sounds that they cannot hear. Other witnesses did not seem to agree
with that statement. Can you elaborate? Admiral McGinn testified that
things like lightening and underwater earthquakes could harm the
hearing of marine mammals. Does this imply that they can ``hear'' that
sound so it can harm them or is there something other than the
``sound'' of these natural events which causes the harm?
3. Organs of hearing are designed to resonate at the frequencies
the animals perceive, and these tissues are among the most delicate in
the body. Anatomically, it is logical that these organs would be most
susceptible to damage. This logic is supported by an evolutionary
argument. How could an animal evolve an ear that could withstand sounds
that cause fatal damage to other tissues? If all animals exposed to
these levels died, how could those with more robust ears be favored by
natural selection?
However, it is likely that very intense sounds outside an animal's
range of hearing can injure or kill. In my opinion, this possibility
does not rank high as a priority for scientific conservation of marine
mammals, because it will happen at sound levels above those that
concern us because of hearing loss effects. In addition, we can
anticipate that evolutionary and physical factors place limits on the
potential for unanticipated harm. For frequencies below a species'
range of hearing, marine animals have constantly been exposed to loud
transient sounds from natural sources, and must have evolved some
tolerance for them. For frequencies above the range of hearing, loud
sounds cannot propagate very far because seawater absorbs their energy.
4. How does the cumulative effect of all of the noise in the ocean
affect the environment? How loud is the ocean without human-caused
noise?
4. In the Northern Hemisphere, the ocean can often be 10 to 100
times noisier today than it would have been before power-driven ships
were in use. The Northern Hemisphere oceans are 10 to 100 times noisier
than their counterparts in the Southern Hemisphere (where shipping
traffic is much less dense). It is difficult to ascertain the
cumulative effects of noise from human activities, because most of our
behavioral observations have been made in the presence of these sounds.
Baseline data from ``quiet'' oceans are lacking. Studies contrasting
marine mammal behavior between the Northern and Southern Hemispheres
offer a promising opportunities to quantify this problem.
5. Has there been a pattern of increasing noise in the world's
ocean over the past few decades? What are the sources with the greatest
contribution to this increase? How does this increase affect marine
mammal populations, and how widespread are these affects?
5. Most of the increase in ocean noise levels has occurred in the
latter half of this century. Shipping is the dominant contributor, and
the impulsive sounds from geophysical exploration are audible in a wide
range of ocean areas. Any effects on marine mammals will be very
widespread, but the nature and magnitude of these effects have not been
clearly documented. Abandonment of coastal habitats has been
documented, but effects in open ocean areas have not been measured.
Scientific observations in open ocean areas are limited, and there are
virtually no opportunities for citizen observations to contribute to
this scientific enterprise.
6. The MMPA defines harassment very broadly, including minor
behavioral modifications. Should the definition be changed to include
only those activities that may present long-term impacts to individuals
or to populations?
6. The prior definition of ``any change in behavior'' was a
biologically unreasonable measure for Level B harassment. Such changes
can be prompted by any stimulus that occurs above the threshold of
perception, and many can have no plausible impact on the animals'
welfare. The most biologically defensible standard for measuring impact
would be reductions in survivorship or reproduction (as they relate to
a demographic measure of fitness). However, this will be very
challenging to measure or estimate. A biologically reasonable proxy
would be based on energetics: estimating time or energy lost because of
exposure, in relation to overall time and energy budgets. Risks must be
evaluated in a comprehensive analysis, considering all human factors
that degrade these energetic budgets.
7. Is every avoidance action taken by the animal a bad thing?
Animals move up and down the water column and do any number of things,
how do we know that their actions are based on the ill-effects of sonar
or other naval activities?
7. Avoidance behaviors may mitigate the impact of human activities,
by reducing the animal's exposure to the stimuli. However, avoidance
behavior may also displace animals from critical resources or
activities, and this ``opportunity cost'' may represent a serious
threat to the viability of the species.
It is challenging to determine all of the factors responsible for
changes in an animal's behavior. However, there are many good examples
of studies that have examined animal responses to sound broadcasts in
the broadest possible context. These have clearly demonstrated that
predictable changes in behavioral patterns can be measured, even for
animals whose behavioral repertoire is quite diverse.
8. Have the marine mammal stranding events that may have been the
result of Navy sonar operations had any long-term impacts to marine
mammal populations? Dr. Whitehead stated at the hearing that the local
population of beaked whales was destroyed as a result of the Naval
activities in Providence Channel. Do you have any knowledge of this
population?
8. The Bahamian stranding of beaked whales was unquestionably a
major blow to the resident population, though reports of its total
destruction exaggerate what we can confidently infer from the evidence.
It is not difficult to believe that sighting rates in the area have
reduced significantly. However, I have no direct experience with this
habitat or its resident marine mammals.
It is important to distinguish between the informal reference to a
local group of animals (a ``population''), and important use of
``population'' in the contexts of conservation and evolution. The
latter usage refers to a sustainable group of interbreeding
individuals. No one can argue that 20 or 30 individuals in a local
habitat are a closed breeding population. Except for extremely
endangered species (like the Northern Right Whale), no one can argue
that infrequent loss of this many animals would have major consequences
for the genetic diversity and survival of a species.
As an isolated incident, the Bahamas stranding represents
environmental damage that should be avoided. It does not represent an
irreversible loss of evolutionarily significant biodiversity. However,
if this kind of event were regularly repeated, then the cause would
raise serious concerns for the scientific conservation of marine
mammals.
question from ranking member robert a. underwood
1. According to your testimony, you are unsympathetic to claims
that more time and research is needed before deployment of LFA, but no
long term data has been gathered. If more research was just going to be
done following the same procedures you used, studying the same time
frame LFA was used, I might not be sympathetic either, but there still
seems to be a huge data gap in what happens to marine mammals after
exposure to LFA over the long-term. This could be coupled with your
statement on how often a marine mammal might actually be in
the vicinity of LFA sonar use. But in terms of usage and practice,
the Navy frequently uses the same areas over again because they chose
those areas initially for specific regions. Who is to say that some
groups of whales will not be affected by LFA usage and practice over
and over again? Why do you feel long-term data on the affects of LFA on
marine mammals should be done only with the official usage of LFA, and
not done beforehand?
Thank you for the opportunity to comment further on the potential
effects of anthropogenic sounds on marine mammals. As a scientist whose
research introduces new questions even as it answers old ones, I am
always enthusiastic about more research. It is my avocation as well as
my job. My lack of sympathy towards the demands by some environmental
advocates for more research arises from skepticism that any new results
would be sufficient to cause these speakers to change their views. The
essential attribute of science is that ideas and theories can be
falsified, and are abandoned in favor of new theories that more
consistently apply to the broadest possible range of observations. I
can specify results that would cause me to recommend restrictions on
LFA usage. I have never heard these environmental advocates specify
results that would cause them to drop their objections. I strongly
recommend a skeptical attitude towards any call for research (from
scientists or environmental advocates) that is not accompanied by clear
statements of how the outcomes could change our understanding of the
world.
I agree that we do not know what happens to a marine mammal months
after exposure to LFA. However, all of the objective evidence suggests
that there will be no measurable effect. The immediate responses we
have observed were subtle. None of them were immediately salient to any
member of our large teams of experienced field observers. Although we
now have clear evidence of responses from detailed analyses of our
data, many of these responses are near the fringe of what we can
identify as statistically significant. None of the observed responses
lasted more than a couple of hours (after a one hour schedule of
transmissions). No cumulative effects have emerged from detailed
studies of the numbers, distributions, and behaviors of animals during
the several weeks we spent at each field site. Our findings are
consistent with the extensive peer-reviewed research conducted on the
effects of the ATOC sound sources.
I am more concerned about the potential for long-term effects for
chronic acoustical stimuli, like shipping and seismic profiling, than I
am about LFA. In the first place, the LFA stimulus is intermittent even
when the system is in use. Many minutes elapse between transmissions,
and the sounds are intense in a very limited depth range. Except in a
few cases, animals would be diving in and out of this range of depths,
and thus would ``miss'' many of the transmissions. In the second place,
the LFA system will not be in constant use. Historically, that program
has been fortunate to mount two or three missions each year, with about
20 days of broadcasts per mission. In view of the projected usage and
our scientific findings, I believe that delayed or long-term effects
are not the most important outstanding questions regarding the
environmental impacts of SURTASS LFA training missions. (I believe the
long-term research effort proposed by the Navy should focus on
exposures at received levels from 150-180 dB, where we must presently
assume there is risk of significant behavioral disruption, and on deep-
diving animals).
I should digress briefly to communicate why it is more challenging
to document a long-term than a short-term response. Many more factors
must be measured in a long-term study. For example, the idiosyncrasies
of each year's climatic patterns, fluctuations in food resources, and
changes in patterns of ocean circulations will pose serious obstacles
to making general inferences. ``Cultural evolution'' may be a
significant confounding factor. For example, the songs of a breeding
population of humpback whales incorporate new features and phase out
old ones in the course of a season. Changes accumulate across years.
Similar trends may be observed in other aspects of baleen whale social
behavior. In addition to a longer temporal scale, such research would
have to cover vastly greater spatial scales than the LFA Scientific
Research Program. I do not argue that this research should be dismissed
because it is so difficult; difficulty can actually increase the appeal
of a project. However, I think the expenditure of limited scientific
resources should be allocated based on a comprehensive review of the
outstanding questions, and it should take advantage of the broadest
possible base of scientific expertise.
I do not know if the Navy has a compelling need to repeat training
exercises at particular locations in the open ocean. I believe it would
be appropriate for the National Marine Fisheries Service's Office of
Protected Resources should stipulate certain restrictions on repeated
use of an area within short spans of time, as a condition of the
operating permit they issue.
I do not see any reason why the research into long-term effects
should not be coordinated with an operationally useful schedule of
training operations. The same sound broadcasts are necessary for both
activities. Our experience has shown that the Navy can adapt their
procedures to meet the needs of research. I am sure that the NMFS
operating permit will stipulate that operational usage must be
suspended if credible evidence of biologically significant impact,
including stranding events, emerges.
I will close by restating a point I made at the top. It is crucial
that you distinguish between those who advocate research as an
expedient delaying tactic, and those who believe we can answer some
questions and move on to others.
______
Responses from Darlene R. Ketten, Ph.D., Associate Scientist, Woods
Hole Oceanographic Institution
questions from chairman wayne t. gilchrest
1. At the hearing you discussed how the beaked whales that beached
themselves in the Bahamas had trauma to their ears that included
bleeding from associated tissues (fats in their jaw and tissue
surrounding the ears). To get a better understanding of what physically
occurs when a whale experiences sonar at its hearing frequency, is it
correct to say that a whale's ear can be ruptured by the sonar?
It would be inaccurate to say at this point that a whale's ear can
be ruptured by sonar for several reasons. First, without dicing it too
finely, ``ear'' is a non-specific term. If we break it into relevant
parts, the question becomes simpler to address. The bony parts of the
ear are not capable of direct disruption by conventional operating
parameter sonar, even at the maximum receivable levels that have been
published. That leaves the softer tissues of the ear, and particularly
the eardrum and the inner ear elements. The eardrum of whales is
structured differently from that of land mammals and is highly
resistant to rupture. In the case of the animals examined, the eardrums
were poorly preserved and we cannot say if any were damaged, but it is
unlikely. Intense impulsive sounds can rupture eardrums, but generally
it requires a sound pressure level that is significantly greater than
has been estimated for the Bahamian exposures. As for the inner ears,
no ruptures were found of the soft tissues in any of the ears examined
from the Bahamian animals. Rather, the membranous divisions of the
inner ear remained intact. What was found were hemorrhages within the
inner ear and some associated tissues. These hemorrhages are indeed the
result of blood vessel ruptures, but at this time it is still unclear
what is the direct cause of these bleeds. Intense impulses can cause
hemorrhages but there are also alternative causes possible for
hemorrhages of this type in strandings. Unfortunately, the jury is
still out on the precise causes in this case.
2. You testified that marine mammals cannot be harmed by sounds or
frequencies outside of its hearing range. Other witnesses did not seem
to agree with that statement. Can you elaborate? Admiral McGinn
testified that things like lightening and underwater earthquakes could
harm the hearing of marine mammals. Does this imply that they can
``hear'' those sounds so it can harm them or is there something other
than the ``sound'' of these natural events which causes the harm? Can a
frequency outside of its hearing range cause adverse effects to other
parts of a whale's body?
Taking each question separately:
re: harmed by sound outside hearing ranges.
My statement referred to sounds at intensities in the realm of
sonar emissions. The ear in each species responds to sounds it can
encode. The ear cannot hear sounds outside that range because the
tissues are not structured to respond at those frequencies no matter
what the intensity unless the sound is so intense that it is beyond
acoustic and in the realm of shock level. To the best of my knowledge,
there is no evidence of any sound outside the hearing range of animal
that is damaging to the hearing of that animal, given that the sound is
not so intense as to be beyond categorization as ``sound. It is
possible to harm body tissues using sounds at extraordinary frequencies
and intensities; e.g, in lithotripsy in which an electromagntic impulse
of exceptional intensity produces a shock wave capable of disrupting
kidney stones. While there is an acoustic component to this, the shock
wave is the damaging element and the intensities are far beyond
anything conceivable from a sonar or conventional acoustic source.
re: can they ``hear'' those sounds so it can harm them or is there
something other than the ``sound'' of these natural events which causes
the harm?
Certainly the frequencies of lightning cracks is well within the
range of hearing of virtually all marine mammals. It is not clear how
much of that sound in air would propogate underwater. As for
earthquakes underwater, some of the sounds of quakes are likely to be
perceptible to all species and others that are seismic would be audible
to very few species. If the animal were in close proximity to such an
event, there is the possibility of its hearing being damaged because it
can hear the sound, but as with any sound, the overriding issue is what
are the received sound characteristics at the animal's head, not what
is the intensity of the source.
re: Can a frequency outside of its hearing range cause adverse
effects to other parts of a whale's body?
Yes, as noted above, exceptionally intense impulses can traumatize
other tissues, particularly those areas associated with air cavities.
3. The military activities that occurred in Providence Channel near
the Bahamas created a sound pressure level that didn't dissipate over
time and may have trapped various marine mammals causing some to
strand. Could this type of sound pressure vortex happen in the open
ocean or was this specific to this type of channel?
I am not qualified to answer this question and urge you to redirect
the question to an acoustical or physical oceanographic expert. From
what I have read of the hydrographic profiling done in the Bahamian
case, it is possible for this lamination to occur elsewhere, but I have
no means of estimating where nor how common or rare such an event may
be.
4. Dr. Whitehead testified that none of the beaked whales from the
population potentially affected by the Bahamas exercise have returned
to the area. Do you have any knowledge on the status of this
population?
To the best of my knowledge, there has been no official published
report on the rate of resightings or lack of resighting of individuals
in this population by any of the Bahamian research groups that monitor
this area. There are several issues to consider in assessing Dr.
Whitehead's comment. First , we would need to know how many animals
were regularly sighted in this area, how many were long vs. short-term
residents that year, and how that compared with previous years. Next,
we would need to know the typical or at least average resighting rate
over several previous years. In essence, we need to understand how
common or how unusual it is to have a lack of resighting of some
percentage of the population in order to determine the significance in
this case, given that the animals indeed have not reappeared.
5. You mentioned the difference between short-term harm and long-
term harm to marine mammals caused by sonar. Can you elaborate on this?
I believe this is a reference to my comment that we should view any
impact in terms of its biological significance. While it is regrettable
for any animal to be harmed, for conservation, our primary concern must
be the health and well-being of the population. An incident such as the
Bahamas case clearly had serious consequences in that 7 animals died,
but in terms of populations and time, this was a limited event. At this
point, I cannot say whether it represents a significant population
level impact. Certainly, in terms of mortalities, it is far fewer
impacts than we see from fisheries by-catch. An example of a longer-
term and more biologically significant impact would be a sound source,
such as a repeated ship routing through a breeding ground, which would
induce more subtle but broader ranging and ultimately more harmful
impacts to more animals through crucial habitat disruption.
6. How do we evaluate long-term effects versus short-term effects?
Can ship noise be worse for the animal than an interaction with a sonar
test?
Evaluating long and short term effects is a complex question that
can only be addressed on multiple fronts. Careful observation and
censusing of wild populations is of course fundamental to understanding
any changes or disruptions. In tandem with these studies, it is
important that stranded animals be examined thoroughly and that the
results be compared longitudinally to detect trends for correlates of
stress, hearing loss, or other degenerative conditions that may be
induced by human related sources.
In my opinion, shipping is certainly an area of concern for
acoustic impacts on marine environments. It is continuous and pervasive
in some ocean areas and may be reasonably considered to be analogous to
industrial noise in the workplace.
7. Have the marine mammal stranding events that may have been the
result of Navy sonar operations had any long-term impacts to marine
mammal populations?
I am unaware of any evidence to that effect.
8. Can one look at the ear of a marine mammal and see the damage to
the cochlear and relate it back to specific events, like sonar
activity, or does the ear tell a much broader story on the life of the
animal?
The answer is a firm perhaps for both cases. The quality of
preservation of the inner ear tissues is the crucial unknown. If well-
preserved, the inner ear or cochlea does indeed carry an imprint of the
animal's acoustic history. It is theoretically possible to ``read'' the
inner ear and observe the number of infectious bouts, distribution of
cellular losses and sites of traumas, neural loss patterns, etc. to
piece together some understanding of the broader story both of impacts
to the ear and disease states of the animal. If an acoustic impact is
very recent and very intense that also should leave tell-tales in the
inner ear. However, it is never guaranteed that the evidence will
remain in any ear by the time it is obtained for study.
9. Does a deaf whale equal a dead whale? How would a marine mammal
survive without the ability to hear?
I can clearly say that a deaf whale is not necessarily a dead
whale. It is fairly common to find some hearing impairment in marine
mammals, particularly in older toothed whales. There are multiple
documented cases of animals with profound bilateral hearing loss that
survived many years in the wild. It is not clear precisely how these
animals survived but it is reasonable to speculate that they were in
part successful by relying more heavily on social interactions and
utilizing vision more than unimpaired individuals.
10. Is every avoidance action taken by the animal a bad thing?
Animals move up and down the water column and do any number of things,
how do we know that their actions are based on the ill-effects of sonar
or other naval activities?
I would urge you to submit this question to a behaviourist for an
authoritative reply. My reply must be limited to my area of expertise
which is sensory physiology. From that perspective, an avoidance action
is a natural, protective activity and in that sense a good preservation
strategy. Concerning the second issue, whether we can target the cause
of movements, to do that would require rather extensive and explicit
monitoring of animals. There are playback and tagging studies underway
that are beginning to address animal reactions underwater in response
to sound but the results are preliminary. To the best of my knowledge,
the presumption of a link to sonar in the Bahamian case is based on the
temporal coincidence of the strandings and sonar use coupled with the
rarity of beaked whale strandings in the area and the lack of any other
likely cause.
question from ranking member robert a. underwood
1. You agree that there is insufficient data to ``predict any but
the grossest acoustic impacts on marine mammals.'' As your testimony
relates, there are any number of ways marine mammals can be impacted by
sound. Will there ever be, in your mind, any way to truly understand
how much marine mammals hear and how they are affected by all sorts of
sounds over the short and long term?
Quite firmly, my answer is yes. Once we have a better understanding
of both the range of hearing for the majority of marine mammals and the
mechanisms they use for transducing underwater sound, we can certainly
begin to predict reliably the physiologic effects at the ear. We have
made exceptional strides both through captive and modeling studies in
the last five years. Recently, new technologies have appeared for non-
invasive measurement of hearing in human babies and incapacitated
adults that are ripe for application to marine animals. It will not be
trivial to modify these methods to work successfully on leviathans but
it is clearly and unquestionably possible. There are also developments
in the area of virtual reality visualizations and computerized modeling
of tissue responses that are applicable to these issues. Interestingly,
success in both these areas carries the potential for not only
enlarging our understanding of whale hearing but also of opening a
whole new approach to underwater sensing technology and environmental
monitoring.
______
Responses from Chester Gipson, Acting Deputy Administrator for Animal
Care, Animal and Plant Health Inspection Service (APHIS), U.S.
Department of Agriculture
questions from chairman wayne gilchrest
1. How many inspectors does the Agency have to monitor captive
display facilities? Out of the total number of inspectors, how many are
marine mammal specialists?
APHIS' Animal Care field inspection force of veterinary medical
officers and animal health technicians is comprised of 81 inspectors,
reflecting an increase of 17 inspectors in the past 2 years.
Approximately 60 inspectors have received marine mammal training. The
training includes information on basic husbandry, anatomy, and
physiology of all marine mammals, as well as food and food handling,
water quality, veterinary care, and training issues. Animal Care is
providing a marine mammal training course for new inspectors in
February 2002. In addition, Animal Care holds a national work
conference every 2 years for all inspectors and supervisors. During
these work conferences, marine mammal issues are presented and
discussed.
2. The Suarez Brothers Circus, which is currently in Puerto Rico,
came up during the hearing and Members were concerned primarily about
the welfare of the polar bears, but also on the authority of APHIS to
inspect and enforce the Animal Welfare Act (AWA) and the Marine Mammal
Protection Act (MMPA). Are changes needed to either Act to give your
Agency better tools to do its job in protecting captive marine mammals?
As we indicated in our report, based on direct observation by our
trained inspectors, there is no veterinary or behavioral indication
that the animals are currently in a state of unrelieved suffering or
danger to their health. At this time, based on the information provided
by our inspectors, these animals are not being mistreated or abused.
We would like to clarify that APHIS' authority to inspect comes
from the Animal Welfare Act (AWA), not the Marine Mammal Protection Act
(MMPA). Administration and enforcement of the MMPA is the
responsibility of the Department of the Commerce's National Marine
Fisheries Service (NMFS) and the Department of the Interior's U.S. Fish
and Wildlife Service (FWS). FWS has responsibility for the polar bears
under the MMPA.
We believe the AWA has sufficient provisions to protect marine
mammals. APHIS has promulgated marine mammal regulations to provide
minimum standards (as specified in the AWA) for their humane care and
treatment. The current regulations were developed by a committee that
included representatives from animal protection groups, industry
groups, professional groups, and Federal agencies and oversight groups.
These regulations were promulgated under the Federal rulemaking process
and reflect the current state of knowledge and experience relating to
these animals.
3. APHIS is now being asked to confiscate the polar bears from the
Suarez Brothers Circus. Does APHIS have this authority? When and under
what circumstances would APHIS make a determination that these animals
need to be confiscated?
The authority to confiscate animals under the AWA is focused on a
limited set of circumstances.
Section 16. (a) The Secretary shall make such investigations or
inspections as he deems necessary to determine whether any
dealer, exhibitor, intermediate handler, carrier, research
facility, or operator of an auction sale subject to section 12
of this Act, has violated or is violating any provision of this
Act or any regulation or standard issued thereunder, and for
such purposes, the Secretary shall, at all reasonable times,
have access to the places of business and the facilities,
animals, and those records required to be kept pursuant to
section 10 of any such dealer, exhibitor, intermediate handler,
carrier, research facility, or operator of an auction sale. The
Secretary shall promulgate such rules and regulations as he
deems necessary to permit inspectors to confiscate or destroy
in a humane manner any animal found to be suffering as a result
of a failure to comply with any provision of this Act or any
regulation or standard issued thereunder if (1) such animal is
held by a dealer, (2) such animal is held by an exhibitor, (3)
such animal is held by a research facility and is no longer
required by such research facility to carry out the research,
test, or experiment for which such animal has been utilized,
(4) such animal is held by an operator of an auction sale, or
(5) such animal is held by an intermediate handler or a
carrier.
The regulations promulgated to enact this provision are in 9 CFR
2.129:
Sec. 2.129 Confiscation and destruction of animals.
(a) If an animal being held by a dealer, exhibitor,
intermediate handler, or by a carrier is found by an APHIS
official to be suffering as a result of the failure of the
dealer, exhibitor, intermediate handler, or carrier to comply
with any provision of the regulations or the standards set
forth in this subchapter, the APHIS official shall make a
reasonable effort to notify the dealer, exhibitor, intermediate
handler, or carrier of the condition of the animal(s) and
request that the condition be corrected and that adequate care
be given to alleviate the animal's suffering or distress, or
that the animal(s) be destroyed by euthanasia. In the event
that the dealer, exhibitor, intermediate handler, or carrier
refuses to comply with this request, the APHIS official may
confiscate the animal(s) for care, treatment, or disposal as
indicated in paragraph (b) of this section, if, in the opinion
of the Administrator, the circumstances indicate the animal's
health is in danger.
(b) In the event that the APHIS official is unable to locate or
notify the dealer, exhibitor, intermediate handler, or carrier
as required in this section, the APHIS official shall contact a
local police or other law officer to accompany him to the
premises and shall provide for adequate care when necessary to
alleviate the animal's suffering. If in the opinion of the
Administrator, the condition of the animal(s) cannot be
corrected by this temporary care, the APHIS official shall
confiscate the animals.
(c) Confiscated animals may be placed, by sale or donation,
with other licensees or registrants which comply with the
standards and regulations and can provide proper care, or they
may be euthanized. The dealer, exhibitor, intermediate handler,
or carrier from whom the animals were confiscated shall bear
all costs incurred in performing the placement or euthanasia
activities authorized by this section.
APHIS is responsible for making the determination of suffering or
immediate threat to the health of the animal. In the case of the polar
bears in question, there has been no indication of unrelieved suffering
or threat to the immediate health of the animals.
The narrow focus of the circumstances allowing confiscation of the
animals appears to be designed to prevent indiscriminate use of the
provisions to remove animals based on other than an immediate risk to
the animals' health.
It is our understanding that, under the MMPA, the animals could be
confiscated by FWS if APHIS found that the licensee was not licensed,
was going to lose his license, or was willingly and willfully going to
continue to violate the AWA. APHIS, however, has not made such a
finding in this case. The licensee has continued to work with the APHIS
inspector to comply with the AWA regulations and standards.
question from congressman walter b. jones
There are a number of compelling questions, related to the case of
the polar bears owned by Suarez Brothers Circus, that I believe need to
be answered. Regardless of the fact that polar bears probably do not
belong in a traveling, tropical menagerie, I am alarmed by the threat
to human safety revealed in APHIS' report dated June 7. The report
describes that the polar bears were confined in a facility that had a
wall flimsy enough for the inspector to push over with one hand. Upon
APHIS' return for a second inspection on June 21, the flimsy wall had
not been fixed. There was apparently no follow-up inspection by APHIS
in July, until the Puerto Rican Department of Natural Resources filed
cruelty charges against the Circus. I would like to hear APHIS'
explanation on all of this.
The opportunity for correction of cited noncompliant items is
afforded to all Animal Welfare Act (AWA) licensees and registrants.
When issues of structural strength are cited, such as the Suarez
Brothers Circus' ``flimsy wall,'' APHIS generally works with the
facility to make sure the corrections are made within the shortest
possible timeframe. After the first citation on June 7, the licensee
ordered the materials and equipment needed to comply with the
recommendations of the APHIS inspector. As noted on the June 21
inspection report, the materials to strengthen the fencing were on site
and due to be installed on June 22. The inspection reports for June 22,
23, 25, and 28, all indicate that the enclosures for the polar bears
were structurally sound. The facility was in compliance with the AWA as
of the June 28 report.
APHIS returned to inspect the facility in July when we were
notified that the licensee was planning to move the animals to a
different location. At that time, the facility was compliant with all
AWA requirements for polar bears. As you indicate, the Puerto Rican
authorities were at the facility the day before. Local animal cruelty
laws can be more rigid and restrictive than the AWA. We cannot comment
on the validity of the cruelty charges as the case has not yet been
adjudicated.
I have a letter from Dr. Terry Maple of Zoo Atlanta written to
APHIS, in which Dr. Maple describes his surprise that APHIS would grant
the Suarez operation a permit for exhibition. Dr. Maple points out that
the Suarez Brothers Circus uses doctored records to identify their
animals and the Suarez Brothers claimed that one of their bears came
from Zoo Atlanta, when in fact, that bear had died in a German Zoo in
1994. The use of falsified records is grounds for denying the owners a
permit for exhibition. So why was one granted?
Under the AWA, we require that acquisition and disposition records
for regulated animals identify where the owner acquired the animals and
where the animals were placed if they left the facility. While we
require accuracy and truth in the documents, in cases such as the
importation of these polar bears, we rely on the Department of the
Interior's U.S. Fish and Wildlife Service (FWS) to determine the
accuracy of the importation documents.
FWS reviewed the importation documents for these imported polar
bears and issued a Marine Mammal Protection Act (MMPA) import permit.
We are aware that FWS has taken the information supplied by Zoo Atlanta
and investigated the allegations. Any results of determinations made
subsequent to their investigation must be obtained from FWS.
Section 2.11(a)(5) of the AWA states that an initial license may be
denied if the applicant ``has made any false or fraudulent statements,
or provided any false or fraudulent records to the Department.''
Although the application for licensure under the AWA does not require
submission of the acquisition and disposition records, a subsequent
recordkeeping violation, if substantiated, may be grounds for AWA
enforcement action.
APHIS, while invited to testify, declined the Committee on
Resources' request, so I pose this question to my friends with the
United States Fish and Wildlife Service. I understand that accurate
records describing the history of the bears is required for import and
export permits (as well as permits for exhibition). Why was this
deceptive organization complete with falsified records given an import
permit for these animals?
It is true that, because of prior commitments by Department and
Agency officials, APHIS declined to provide scheduled oral testimony.
However, APHIS provided written testimony for the 2001 reauthorization
hearing before this Committee. In addition, Dr. Barbara Kohn, from our
Animal Care program, was present at the hearing to answer any
questions.
As previously indicated, we respectfully defer to FWS regarding all
questions on the import documentation for these animals, as FWS is the
Federal agency that has authority for the importation of polar bears
under the MMPA.
And what is the status of the export permit?
FWS is also the Federal agency that is responsible for the
exportation of the polar bears under the MMPA. Accordingly, all
questions regarding import and export activities of these polar bears
would be more appropriately answered by FWS.
question from congressman frank pallone
1. Under the Animal Welfare Act (AWA) regulations, variances for
specific standards may be issued by APHIS. Under the newest marine
mammal regulations, polar bear primary enclosures must allow the
animals access to water. During their summer performances in Puerto
Rico, the polar bears in the Mexican circus were being maintained for
most of the day in their secondary enclosures their transport cages,
without access to water. The regional inspector apparently issued a
variance on this point, because the trainer insisted the bears were
acclimated to tropical heat. However, the granting of this variance at
the regional level violated APHIS procedure. How was this allowed to
happen and what is being done about this procedural violation now? What
will APHIS do in the future to prevent such a violation from happening
again?
We wish to clarify that no variances have been applied for or given
with respect to Circo Suarez. When the inspector reported the protocol
the facility planned to use for the polar bears during part of the day
and most of the night (the use of the secondary or transport cages),
APHIS consulted with several polar bear husbandry experts and discussed
the issues of housing and access to water. These experts recommended
that the bears would require adequate ventilation, access to fresh
drinking water, and should be separated during feeding for their own
safety. Based on these recommendations, APHIS determined that the
secondary arrangements for these polar bears were not inconsistent with
permanent facilities that house polar bears in terms of confinement at
night, separation at feeding, and access to enclosure pools during the
daytime.
2. Under the Marine Mammal Protection Act (MMPA), a facility/entity
seeking to import or export marine mammals for public display must
either have an AWA exhibitor's license or meet APHIS regulatory
standards (that is, if a facility is foreign, it must meet the
standards that licensees in the U.S. must meet). Comments submitted to
the U.S. Fish and Wildlife Service (FWS) during the MMPA import permit
public comment period for the Mexican circus questioned the issuance of
an AWA license by APHIS and urged FWS to request APHIS to reconsider
the license or at least reconsider the material upon which the license
was based. Apparently, FWS made no such request, yet nevertheless
issued the import permit. Subsequent to the entry of the Circus into
Puerto Rico and onsite inspections by APHIS, a number of serious
violations were cited--some were addressed and corrected while at least
one--the one regarding the bears' access to water--never was. In short,
the concerns of the commentors were confirmed--the license was issued
to an entity that was ultimately incapable of complying with APHIS
regulations.
How does APHIS determine that a facility qualifies for a license or
meets licensing standards? If in-person inspections are not part of the
process, how can APHIS be certain a facility does and will continue to
comply with APHIS regulations? Upon what kind of documentation and
materials does APHIS rely? And how often does a facility that requires
APHIS approval under the MMPA public display requirements receive such
approval when in fact it is subsequently determined that the facility
is in violation--worse, *routine* violation--of these regulations?
The licensing procedure under the AWA requires submission of an
application and ``in-person'' physical inspection of the facilities.
Any noncompliant items found must be corrected and the facility
reinspected before a license can be issued. Once regional office
personnel determine that the applicant meets AWA requirements, they
will issue a license.
The facilities used by Circo Suarez for the polar bears while in
the United States were subject to the licensing provisions of the AWA,
which require onsite inspection of the facilities. The Circus' truck
unit was brought to Animal Care's regional office in Raleigh, North
Carolina, for inspection, and the primary enclosure facilities were
inspected onsite in Puerto Rico. These inspections were performed prior
to Animal Care's issuance of Circo Suarez' license for exhibition.
These procedures are the same for all license applicants.
Following the MMPA public comment period on the application to FWS
for the import permit, APHIS and FWS discussed issues raised as they
related to the license by USDA/APHIS. These issues included comments
forwarded by FWS from the MMC. APHIS also reviewed written materials
supplied to FWS by the owner of the polar bears; however, provisions of
the MMPA require only verification of licensure under the AWA.
If animals are not present during the inspection, all procedures
and protocols for the animals are discussed and the requirements of the
AWA are reconfirmed. APHIS has no jurisdiction over prior care in other
countries, but care and handling requirements while in the United
States are reaffirmed. Once a facility is licensed under the AWA, it is
afforded the same due process protections as any other licensee or
registrant. APHIS determines which violations are considered severe or
critical and addresses each citation on an inspection report on the
basis of the alleged violation and the effect on the health of the
animal.
Based on the multiple instances of noncompliant items cited at
Circo Suarez interspersed with inspections without any noncompliant
items cited, APHIS initiated an investigation in August 2001. Because
this investigation is ongoing, we cannot discuss the case in further
detail at this time.
3. The MMPA allows import permits to be issued for polar bears for
the purpose of public display as long as the exhibitor holds a license
under 7 U.S.C. 2131 et. seq. of the AWA. Furthermore, the AWA has
specific standards for polar bears stating that air and water
temperatures in indoor facilities shall be sufficiently regulated by
heating or cooling to protect the marine mammals from extremes of
temperature, to provide for their good health and well-being, and to
prevent discomfort. And the AWA requires primary enclosures housing
polar bears to consist of a pool of water, a dry resting and social
activity area, and a den. USDA has given Suarez Bros. Circus permission
to keep its seven polar bears in conditions well below the minimum
standards of the AWA by allowing the polar bears to be kept in small,
barren transport cages for up to 65 percent of the time--without access
to a pool or air conditioning--while in the hot and humid climate of
Puerto Rico. The circus was charged with cruelty by local authorities
on August 15, 2001, when the polar bears were found suffering in 113-
degree heat without access to the required pool and air conditioning.
Congress expects Federal agencies, in this case the USDA, to enforce
all Federal laws designed specifically to ensure the humane treatment
of marine mammals. Would the USDA immediately reverse this AWA
variance, notify the circus that these polar bears may be seized in the
case of unrelieved suffering, and prepare for confiscation?
As stated previously, APHIS has not issued a variance for the
housing conditions of the polar bears at Circo Suarez. In addition,
APHIS inspectors have found through multiple onsite inspections that
the facility is in compliance with all appropriate AWA requirements.
The current charges in Puerto Rico apply to one alleged incident and
not to a state of unrelieved suffering. If APHIS found the animals to
be in a state of unrelieved suffering and the owner was unwilling or
unable to remedy the situation, APHIS would, of course, take all
appropriate legal action, including confiscation. Nevertheless, given
the history of the bears having lived and traveled extensively in
Central and South America for 10 years in apparent good health, it may
be difficult to determine that climatic conditions in Puerto Rico
represent circumstances to which the bears are not acclimated. In
addition, both the primary and secondary arrangements for these polar
bears are consistent with permanent facilities that house polar bears.
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