Implementation of the 1994 Amendments to the Marine Mammal Protection Act

Marshall Jones


June 29, 1999

Mr. Chairman, I am grateful for the opportunity to provide testimony on the U.S. Fish and Wildlife Service's (Service) implementation of the 1994 amendments to the Marine Mammal Protection Act (MMPA) of 1972. The Marine Mammal Protection Act establishes a Federal responsibility for the management and conservation of marine mammals. Under this statute, both the Secretary of the Interior and Secretary of Commerce have management responsibility. Specifically, the Secretary of the Interior, through the U.S. Fish and Wildlife Service, protects and manages polar bears, sea and marine otters, walruses, three species of manatees, and dugong. The Marine Mammal Protection Act Amendments of 1994 (Public Law 103-238) directed the Service to complete stock assessments of marine mammals and negotiate cooperative agreements with Alaskan Native organizations, and addressed a number of outstanding issues, including the import/export of marine mammals and issuance of permits. The Service has vigorously implemented the MMPA and the 1994 amendments and we look forward to sharing our efforts with the Subcommittee as well as indicating some areas of the law which would benefit from clarification.

To begin with, I would like to emphasize that the implementation of two of the 1994 amendments, in particular, Sections 119 and 104, has benefited marine mammal conservation. Section 119 provided authority for co-management of certain species of marine mammals in Alaska with Alaska Natives, which has led to more effective conservation and management of these species. The formal recognition of co-management, along with dedicated funding, has dramatically improved the lines of communication among Native subsistence users, Alaska Native organizations, and the Service. Section 104 allows U.S. citizens who legally hunt polar bears in approved populations in Canada to import their trophies. Fees for import permits have been used to create the Polar Bear Conservation Fund which has provided the Service with a substantial funding reserve dedicated toward international conservation of polar bears in Alaska and Russia.

I will now briefly describe each of the 1994 amendments and the Service's history of implementation. In some cases, I will provide suggestions that we believe will improve our ability to implement the 1994 amendments. Due to competing budget needs and limited funding, the Service has been unable to fully implement provisions of certain amendments, but we have made significant progress in a number of areas.

Section 117 - Stock Assessments

This amendment requires the Service and the National Marine Fisheries Service (NMFS) to prepare and periodically update reports which assess the current status of all stocks of marine mammals occurring in U.S. waters. The reports provide information used to make management decisions on the incidental take of marine mammals in commercial fisheries. Stock assessment reports use the best available information on population size and productivity to calculate the potential biological removal level potential biological removal level
The maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. The potential biological removal level is the product of the following factors: (a) the minimum population estimate of the stock; (b) one-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; and (c) a recovery factor of between 0.1 and 1.0. [defined under MMPA Section 3(20)]

Learn more about potential biological removal level
(PBR) that the population can sustain. These reports also compare the PBR with estimates of annual human-caused mortality to assess the status of the stock. Stocks are either designated as strategic or non-strategic. A strategic stock strategic stock
A marine mammal stock (a) for which the level of direct human-caused mortality exceeds the potential biological removal level; (b) which is declining and is likely to be listed under the U.S. Endangered Species Act; or (c) which is listed under the U.S. Endangered Species Act, or is designated as depleted under the MMPA. [defined under MMPA Section 3(19)]

Learn more about strategic stock
is one that is listed as threatened or endangered under the Endangered Species Act (ESA), depleted under the MMPA, or has a level of human-caused mortality which exceeds its PBR.

In 1995, the Service released stock assessment reports for the Alaska stocks of northern sea otter, polar bear, Pacific walrus, southern sea otter in California, northern sea otter in Washington State, and West Indian manatees in the southeast. For Alaska species and the northern sea otter in Washington State, based upon the best available information on population size, productivity, and estimates of human caused mortality, all stocks were determined to be non-strategic. However, we determined that the threatened southern sea otter and both stocks of endangered West Indian manatees are strategic. The Service is currently in the process of developing revised stock assessments for west coast sea otters and West Indian manatees.

In 1998, stock assessment reports for Alaska species were updated to include new information on fisheries and harvest related mortality. Once again, all stocks were determined to be non-strategic and incidental take by commercial fisheries was determined as minimal. However, the Alaska Sea Otter Commission (ASOC; now the Alaska Sea Otter and Steller Sea Lion Commission [TASSC]) objected to the identification of three stocks of sea otters as non-strategic. On August 31, 1998, the ASOC requested a proceeding in accordance with section 117(b)(2) of the MMPA. Over the next several months, we engaged the ASOC/TASSC in a dialogue to arrive at a mutually acceptable solution to our disagreement regarding the status of sea otter stocks in Alaska. The Service and TASSC have agreed to work cooperatively to gather additional scientific information regarding stock identification. A memorandum of agreement was recently signed by both parties. As part of this agreement, the TASSC will withdraw their request for a formal proceeding.

Finalizing the stock assessment(s) for sea otter represents one of the Service's current priorities relating to Section 117. A second priority includes fulfilling the requirement to update the stock assessments for all Alaska species under our jurisdiction no later than 2001. However, the 1998 revisions highlighted a critical deficiency in our knowledge about the population sizes of sea otters, polar bears, and Pacific walrus. The "best available scientific information" is either out-dated or of low precision. This limitation has not gone unnoticed; during the public comment period for the 1998 revisions, the Service was criticized for having added no new population information to the 1995 reports. For updated stock assessments to be meaningful, this absence of sound scientific data needs to be addressed by providing for enhanced capability to conduct high priority population surveys, and studies for development of alternative population indices. The President's FY 2000 budget, which includes a $300K increase for high priority marine mammal surveys and studies in Alaska, will assist in this regard.

Section 118 - Taking of Marine Mammals Incidental to Commercial Fishing Operations

This section governs the incidental taking of marine mammals in the course of commercial fishing operations by persons using vessels of the United States or vessels which have valid fishing permits issued by the Secretary of Commerce. The immediate goal of this section is to reduce the incidental mortality or serious injury of marine mammals occurring in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate by 2001.

Section 118 established a new regime for governing the taking of marine mammals incidental to commercial fishing operations. NMFS, as authorized by this section, is funding numerous observer programs of fishing activities throughout the nation. One such program monitors fishing activities that pose threats to both harbor porpoises and sea otters. However, monitoring impacts on sea otters is especially challenging because the vessels used in these fisheries are often too small to carry observers. Because sea otters are a listed species under the ESA, the Service has used ESA recovery dollars to fund a program to examine potential take of southern sea otters by trap fisheries. Information provided by this program should be useful to evaluate how trap design affects entrapment of sea otters and help identify means to minimize conflicts. However, without the evidence that significant mortality is resulting from a particular fishing activity, funds provided to NMFS under the MMPA are not available to identify and monitor potential sources of mortality, a particular concern for strategic stocks such as the southern sea otter. For strategic stocks, it is essential that potential problems be identified early before they become significant.

Section 119 - Marine Mammal Cooperative Agreements in Alaska

Section 119 authorizes $1 million to support cooperative agreements between the Secretary and Alaska Native organizations for the conservation of marine mammals and co-management of subsistence activities by Alaska Natives. The amendment was not intended to change the existing jurisdiction of Federal, State, or Tribal governments over fish and wildlife resources.

In each of FY 1997-1999, the Service received $250,000 for Section 119 activities. At the direction of Congress, using the available funds, the Service entered into cooperative agreements with the Alaska Sea Otter and Sea Lion Commission (TASSC), the Alaska Nanuuq Commission (ANC), and the Eskimo Walrus Commission (EWC). On February 18-19, 1997, members of the Service, the organizations listed above, the Indigenous People's Council on Marine Mammals (IPCoMM) and the Association of Village Council Presidents (AVCP) held a workshop on marine mammal co-management and developed mutual principles and a shared vision statement for conservation and continued subsistence harvesting.

Also in FY97, the Department of the Interior (specifically the Service and U.S. Geological Survey Biological Resources Division), Department of Commerce (NMFS), and IPCoMM signed a "Memorandum of Agreement for Negotiation of Marine Mammal Protection Act Section 110 Agreements." This agreement provides a foundation and direction for developing agreements under Section 119 of the MMPA.

Co-management agreements under Section 119 have yielded several success stories. More effective management and conservation of our trust resource species occur through these co-management arrangements. Intangible benefits are gained through these active partnership approaches, such as development of enhanced mutual cooperation, trust, and respect between the Service and Native Commissions. Specific successes include:

  • initiation of community-based population trend surveys and a hunter-directed biosampling program which provides important information on sea otter population status, feeding habits, and contaminant loads;
  • advancement of polar bear co-management has occurred through the development of a draft agreement between the Alaska Nanuuq Commission and the Union of Marine Mammal Hunters of Chukotka to assist in implementing the U.S.-Russia bilateral conservation agreement, and the collection of traditional knowledge of polar habitat use in Chukotka, Russia; and
  • participation of hunters and villages in a cooperative spring harvest monitoring program in the Native villages of Gambell, Savoonga, Little Diomede, and Wales has benefited efforts to better understand walrus habits and population status.

While significant progress has been achieved, much more can be done by fully exercising the authority under Section 119. As the Service and Native Commissions have intensified joint management efforts, it has become apparent that additional capabilities under the MMPA may be needed to avoid crisis management inherent to listing species as depleted, threatened, or endangered. One example is the sharp decline that NMFS has faced with the Cook Inlet beluga whale population. Providing a greater formalized role to Native cooperators in conjunction with increased capability to the Service to manage species prior to population depletion may be a realistic solution. In addition, accurate and timely biological information regarding the status and trends of our trust resource species is critical to the effectiveness of co-management arrangements. The Service would like to provide the Committee with a specific proposal in this regard in the future when a collective position by Alaska Native constituents is achieved.

In addition to creating the new sections addressed above, the 1994 Amendments also made changes to existing sections of the MMPA. The following comments relate to the Service's implementation of these amendments.

Section 101, Moratorium and Exceptions

Section 101(a)(6) -- Import Provisions for Alaska Native's Personal Effects -- was intended to ease restrictions on the import of marine mammal products associated with cultural exchanges between Alaska Natives, and Native inhabitants of Russia, Canada, or Greenland, a change which we support. However, this section now conflicts with the Section 102(a)(4) prohibition on export, which makes it unlawful to export any marine mammal product for purposes other than public display, scientific research, or enhancement of the survival of the species. These new restrictions on export inadvertently contradicted the goal of facilitating cultural exchanges. Technically, the law now states that Alaska Natives may not export marine mammal products for use in cultural exchanges, even though marine mammal products may be legally imported. Conversely, Natives from Russia, Canada and Greenland may import marine mammal products for purpose of cultural exchange, but may not export similar items acquired during these exchanges. The Service believes that Congress, when enacting the prohibitions against export, did not intend to restrict the export of marine mammal products associated with cultural exchanges between Native groups. Accordingly, it is Service policy not to take enforcement action concerning the export of such items, provided there is no commercial intent involved in the exchange. Congressional clarification of this issue would be beneficial for the Service and for Natives involved in such cultural exchanges.

Section 101(c) -- Take in Self-Defense or to Save Another's Life -- made the use of lethal force to take polar bears in defense of human life clearly legal. Since this amendment took effect, one polar bear has been taken.

Section 102, Prohibitions

Section 102(a)(4) -- Prohibition on Export -- was intended to make the unauthorized export or attempted export of a marine mammal or marine mammal product a violation of the MMPA. However, this provision also applied to items of authentic Native handicraft and clothing purchased by foreign tourists for personal, noncommercial use. Similar to the issue noted above in Section 101(a)(6), Service policy is not to take enforcement action concerning the export of such items provided they are exported as personal baggage or accompanied by a CITES export permit, as appropriate. The Service has begun drafting regulations to attempt to codify the policy. However, Congressional clarification of this issue would be beneficial.

Section 104, Permits

This amendment clarified the role of the Secretary under the MMPA, and the role of the Animal and Plant Health Inspection Service (APHIS) under the Animal Welfare Act. The Service may impose permit conditions pertaining to methods of capture, transport, and supervision of care as they apply to the authorized taking or import, but may not impose conditions once import has been completed. Care and maintenance conditions are the purview of APHIS. The Service may condition the import permits of animals for these facilities and APHIS may describe conditions once the animals are in the facility. To provide a framework for effective coordination, in July, 1998, the Service, National Marine Fisheries Service, and APHIS signed a Memorandum of Agreement (MOA). The MOA helps to ensure the humane treatment and care of marine mammals held in captivity in this country and those to be exported abroad.

The amendments also allow for permits to be issued for the permanent placement of stranded marine mammals that are designated as non-releasable. The Service finds this provision useful in the management of marine mammals undergoing rehabilitation, but seeks Congressional clarification concerning the issuance of permits for public display of non-releasable, depleted species, such as the southern sea otter. Section 101(a)(3)(B) does not allow the issuance of permits for the take of a depleted species for public display. We believe non-releasable animals should be available for bona fide conservation education programs at public display facilities meeting certain criteria. We suggest that these criteria should include: 1) requiring the display to be part of the Service's recovery program for the species; 2) ascertaining there is no other feasible alternative use for the animal; 3) requiring a bona fide conservation education program to be in place at the facility that applies for the permit; and 4) ensuring that the rehabilitation facility that retrieves the animals from the wild is not doing so to supply animals for public display.

Section 104(c)(5)(A) -- Polar Bear Importation -- allows U.S. hunters to import polar bear trophies taken from approved populations in Canada. A total of seven populations have been approved to date. A clarifying amendment provided authority for import of trophies taken by U.S. hunters prior to the 1994 provision. Since the regulations authorizing this action went into effect in April, 1997, approximately 260 bears have been imported. Considerable time was spent by Service staff in acquiring scientific information, analyzing data, and working with the Canadian Wildlife Service and the Marine Mammal Commission. The Service had to resolve a number of complex technical issues concerning the amendments, other sections of the MMPA, and the Agreement on the Conservation of Polar Bears. Based on congressional and public interest, the Service decided that our highest priority was to use available resources to develop the polar bear regulations. As a result, the Service has yet to undertake the development of other sections of the amendments, but expects to pursue this effort in the coming year.

Funds from a $1,000 permit issuance fee are dedicated to support conservation of polar bear stocks shared between the U.S. and Russia. These funds provide significant support for U.S.-Russia polar bear conservation initiatives, such as: 1) negotiating a bilateral conservation agreement; 2) conducting population surveys; 3) collecting traditional ecological knowledge of polar bear habitat use in Chukotka, Russia; 4) developing a standard protocol to survey polar bear dens on Wrangel and Herald Islands; and 5) developing outreach materials to explain the provisions of the bilateral conservation agreement between the U.S. and Russia as well as a poster explaining how to avoid adverse human/polar bear encounters in coastal communities. We will use funds from this account to support a unique opportunity to survey polar bears along the ice-edge in the Chukchi Sea as part of a broader scientific effort on board a Coast Guard ice-breaker. Administration of the fund by the National Fish and Wildlife Foundation through a Memorandum of Understanding with the Service provides the opportunity for significant matching contributions by private entities to generate additional funds for polar bear conservation.

The amendments also direct the Service to undertake a scientific review of the impact issuing import permits may be having on the polar bear populations in Canada. The Service is drafting the report based on an analysis of current information, including data provided by the Canadian Wildlife Service, and anticipates soliciting comments on the draft report later this year.

Section 113, Application to Other Treaties and Conventions

Section 113(b) -- Review of the 1973 Polar Bear Agreement -- mandates two reviews, domestic and international, of the effectiveness of the 1973 Agreement. The Service's draft domestic implementation report is currently under review. For the international review, the Service has consulted with the contracting parties to the 1973 Agreement and received formal responses from Canada, Greenland, and Norway. These parties believe that the 1973 Agreement has functioned effectively and has largely been responsible for recovery of polar bear populations which were imperiled in the 1960s. These contracting parties recognize that a number of actions would improve the effectiveness of implementing the 1973 Agreement and each country will continue to strive toward this goal. The responding countries have suggested that periodic review of the effectiveness of the 1973 Agreement is currently served through the advisory nature of the World Conservation Union Polar Bear Specialist Group and this role should continue in the future. Russia, also party to the 1973 Agreement, has provided a provisional draft response recommending that a consultative meeting of the contracting parties be conducted with the intention of improving certain aspects of the Agreement; the Service is awaiting formal confirmation of Russia's views.

Section 113(d) -- Conservation of Polar Bears in Russia and Alaska -- authorized the United States to enter into negotiations with Russia to enhance the conservation and management of polar bear stocks. Since 1990 the Service has worked to improve cooperative research and management programs with Russia for the conservation of polar bears with significant progress already achieved. In February 1998, U.S. and Russian representatives negotiated the U.S.-Russia bilateral agreement on the conservation and management of the Chukchi/Bering Seas polar bear population. Transmittal of approval of the text of this agreement from the Russian government to the U.S. government is pending.

Mr. Chairman and members of the subcommittee, thank you for the opportunity to testify on the 1994 amendments to the Marine Mammal Protection Act. I appreciate your continuing interest and attention to the nation's marine mammal resources. I will be happy to answer any questions you may have.

Disclaimer: All statements are not the opinions or position of those testifying, rather they are the official positions taken by the Administration.