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TESTIMONY OF MARSHALL JONES, DEPUTY DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE SENATE COMMERCE SUBCOMMITTEE ON OCEANS, FISHERIES AND COAST GUARD REGARDING THE IMPLEMENTATION AND REAUTHORIZATION OF THE MARINE MAMMAL PROTECTION ACT

July 16, 2003

Madam Chair and Members of the Subcommittee, thank you for the opportunity to provide the testimony of the Department of the Interior and the U.S. Fish and Wildlife Service on the Administration’s proposal to reauthorize the Marine Mammal Protection Act (MMPA or Act) of 1972. I am Marshall Jones, Deputy Director of the U.S. Fish and Wildlife Service.

The MMPA was the first of the landmark conservation laws enacted in the 1970s; it turned thirty years old in 2002. The Act established an ongoing 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 Fish and Wildlife Service (Service), protects and manages polar bears, sea and marine otters, walruses, three species of manatees, and the dugong.

The Administration strongly supports reauthorizing the MMPA. Thirty years of implementation have demonstrated the Act’s effectiveness in conserving and replenishing marine mammal populations. In addition to its support of reauthorization, the Administration and its partners have identified several areas of the Act that will benefit from well-considered changes. To this end, we have crafted a comprehensive set of amendments that represents a real step forward for marine mammal conservation, as well as makes corrections and adjustments to the legislation based on our experience in implementing the Act since the last reauthorization in 1994. These amendments are contained in a legislative proposal to reauthorize the MMPA, which was transmitted by the Administration to Congress in February of this year. The proposal reflects the diligent and coordinated work of the Service, NOAA Fisheries, the Marine Mammal Commission (Commission), our Alaska Native partners, and other Federal and non-governmental partners.

We look forward to working with the Subcommittee in a dedicated effort to reauthorize the MMPA and enact these proposed amendments during this session of Congress. My testimony will discuss some of the key amendments proposed by the Administration.

Proposed Amendments

Harvest Management Agreements

An important component of the Administration’s reauthorization proposal is an amendment to expand the authority of section 119 of the MMPA, which relates to cooperative agreements with Alaska Natives, to authorize harvest management agreements between the Secretary and Alaska Native Tribes or Tribally Authorized Organizations. These agreements would be designed to prevent the depletion of marine mammal stocks in Alaska and would demonstrate the commitment of the Federal government to continuing to develop our partnership with these organizations.

The MMPA prohibits take (e.g., harass, hunt, capture or kill) of all marine mammals. However, the Act provides exceptions to the prohibition. One of these exceptions allows take of marine mammals by Alaska Natives for subsistence purposes. Subsistence harvest is not subject to regulation, unless the harvested animals are from a population that is depleted, or if the harvest is wasteful. This exception presents the possibility that Native harvest of non-depleted stocks could reduce some of those stocks to depleted status.

In fact, this situation has already occurred. Beluga whales in Cook Inlet declined dramatically in the mid-1990s due to over-harvest. The stock became depleted. Representatives of the Native community expressed their desire to develop a local management structure with federal support for regulating harvest of marine mammal stocks. The intent would be to prevent such a situation – where stocks become depleted by harvest – from reoccurring.

In response to the interest of the Native community in developing a harvest management structure, the responsible federal agencies, including the Service, NOAA Fisheries, and the Commission, cooperatively developed a proposed amendment with the Alaska Native community. The amendment would allow regulation of subsistence take of non-depleted marine mammal stocks, and would thus provide substantial conservation benefits to marine mammals.

Under the proposal, harvest management regimes would be initiated and developed using existing authorities. If the responsible federal agency agrees to, and adopts, a harvest management regime, the agency would be authorized to make assistance available to implement and enforce the management provisions. The proposal provides new responsibilities and a meaningful role for the Native community in resource management.

The proposed amendment requires that harvest management plans be designed to maintain a sustainable harvest. Each plan must describe the following: the entities involved in developing the plan; the geographic scope of the plan; enforcement authorities; the biological and management basis for harvest restrictions; the duration of the agreement; and the agreement’s review provisions. Entities eligible to enter into such agreements are specifically defined as “Alaska Native Tribes or Tribally Authorized Organizations.” The intent of this definition is to specifically identify the types of organizations that are qualified, because implementation will rely on existing tribal authorities, rather than creating new Federal regulations.

A harvest management agreement would initially be negotiated between the appropriate federal agency and the eligible entity. Public involvement would then be solicited through a notice and review process. The proposed amendment specifically identifies the existing authorities for these provisions and makes clear that this approach creates no new sovereign, tribal authorities.

We believe that this amendment will create a strong conservation tool to ensure the long-term conservation of marine mammal populations in Alaska. The amendment’s cooperative approach will facilitate partnerships to avert management crises that can arise under the current system. Without the proposed amendment, additional species may become depleted through excessive subsistence harvest. Activities by some individual hunters could continue to create conflict that the community would like to address but cannot under current law. We have worked closely with Alaska Native representatives on this proposal and strongly endorse its enactment.

Southern Sea Otter - Fishery Interaction Data

Southern sea otters are incidentally taken in fishing operations, but the extent of this take is not known. Pursuant to Section 118 of the Act, which addresses the take of marine mammals incidental to commercial fishing operations, the Department would like to gather information on fishery interactions with southern sea otters in California. MMPA reauthorization provides an opportunity to address this need by providing for enhanced efforts to assess the impact of commercial fisheries on this threatened sea otter population.

The Administration’s MMPA reauthorization proposal includes an amendment to section 118(a) (4) of the Act that would require the Secretary of Commerce to include information concerning California sea otters in the list of fisheries published under section 118. In addition, California sea otters would be included in determinations pursuant to section 118(d) of the Act regarding establishment of monitoring programs and placement of on-board observers on fishing vessels to monitor interactions and assess the levels of mortality and serious injuries in the population.

Presently, section 118 specifically excludes California sea otters from the incidental taking exception, and nothing in this amendment is intended to change that. The proposed language is solely intended to enhance efforts to assess impacts that commercial fisheries may be having on this threatened sea otter population in order to provide a more informed basis for recovery efforts.

Polar Bear Permits

In 1994, Congress added a provision to the Act to allow for the issuance of permits authorizing the importation of polar bear trophies taken in sport-hunts in Canada if certain findings are made. The 1994 amendments specified that applications for such permits did not require review by the Marine Mammal Commission, but retained the requirements for public notice prior to and after issuance or denial. The Service has processed on average 90 applications for polar bear permits annually for the past six years. Although notice of each application has been published in the Federal Register, no comments have been received.

The proposed amendment to section 104(d) would streamline the permitting process and reduce the administrative expense associated with publishing two notices for each application to import a trophy of a polar bear taken before the enactment of the 1994 amendments or from an approved population. Since findings that allow for multiple imports were made after public comment, the approval of individual permits is largely a pro forma administrative process – an import is allowed if the particular bear was taken legally from an approved population. To ensure that the public continues to have current information on these types of permits, the proposed amendment requires the Service to make available, on a semiannual basis, a summary of all such permits issued or denied.

Research Grants

The Administration also continues to be interested in the potential for research grants as described in Section 110(a) of the MMPA. A proposed amendment to this section would reauthorize research grants, and would make clear that grants under this provision may be targeted at plant or animal community-level problems (i.e., ecosystem problems).

The Secretaries would be given flexibility to determine which research projects to fund. However, the proposed amendment highlights the following ecosystems as high priorities for research grants.

Bering Sea – Chukchi Sea Ecosystem – The Bering and Chukchi Seas have extensive, shallow shelves and, as a result, are some of the most productive areas in the world’s oceans. These regions offshore of Alaska are undergoing significant environmental changes, including rapid and extensive sea ice retreat, extreme weather events, and diminished benthic productivity. Such dynamics are likely having ecosystem-wide effects. As such, there is a pressing need to monitor the health and stability of these marine ecosystems and to resolve uncertainties concerning the causes of population declines of marine mammals, sea birds, and other species. As residents of the region largely depend upon marine resources for their livelihood, research on subsistence uses of such resources and ways to provide for the continued opportunity for such uses must be an integral part of this effort.

California Coastal Marine Ecosystem – The southern sea otter, listed as threatened under the Endangered Species Act, has been experiencing an apparent population decline since the mid-1990s. The reasons for the decline, however, remain uncertain. Possible reasons include: introduction of new or unusual diseases; exposure to new or higher levels of chemical pollutants; incidental take in new or relocated fisheries; and decreases in key prey species due to temporary El Niño effects, long-term climate fluctuation, or otter densities exceeding carrying capacity levels within their current range.

These ecosystems are of great importance to marine mammal populations and would benefit from system-wide studies.

Definition of Harassment

The Administration has proposed a revised definition of the term “harassment,” found in Section 3(18) (A) of the Act. This amendment would make the definition more enforceable by making it apply to “any act,” as opposed to the current statutory definition, which is limited to acts involving “pursuit, torment, or annoyance.” The Administration’s proposed definition would provide greater notice and predictability to the regulated community by providing a clear threshold for what activities do or do not constitute harassment. The new language would define “Level A harassment” as “any act” (as opposed to acts of “pursuit, torment, or annoyance”) that injures or has the significant potential to injure a marine mammal. “Level B harassment” would be defined to include “any act” that either disturbs or is likely to disturb a marine mammal’s natural behavioral patterns to a point where the patterns are abandoned or significantly altered or is directed towards a specific individual or group and is likely to cause disturbance by disrupting natural behavior. We believe that these changes to the definition will not compromise conservation of marine mammals.

Conclusion

Madam Chair, in closing, I would like to thank you once more for the opportunity to discuss the Administration’s proposal to reauthorize the MMPA. We are committed to conserving and managing marine mammals by working with our partners in a cooperative fashion. In particular, I want to emphasize our commitment to continued collaboration with our partners in Alaska to further enhance their role in the conservation and management of marine mammals. We believe that the changes we have proposed will allow us to be more effective in addressing our responsibilities in marine mammal management. We look forward to working with you and members of the Committee to enact meaningful improvements to the MMPA during this Congress and to demonstrate to the Nation our shared commitment to conserving marine mammals.

Madam Chair, this concludes my remarks. I am happy to answer any questions that you or members of the Committee might have.