Whalewatcher 1994 - vol 28 no 1

It is hard to believe what has happened to the MMPA since the article on it, and other issues, appeared in the last issue of Whalewatcher26-Aug-2006 15:15s large amounts of language from H.R. 2760 and was passed in the House on April 26 and in the Senate on the 28th, both by voice vote; it was signed by President Clinton on April 30th.

The original deadline for passage of the MMPA was September 30, 1993. Long before then it was obvious that little progress had been made in reconciling the House bill with the grossly inadequate Senate bill. At the eleventh hour, on September 30, the President signed an emergency six-month extension, until March 30, 1994. Even those six months weren't enough, so once again a last-minute 30-day extension, until April 30th, was hastily passed and signed just before Congress recessed for the two-week Easter break.

For over a year and a half, the most contentious element of the bill seemed to be the section dealing with the interaction between commercial fisheries operations and marine mammals - the so-called "fish fix." It is ironic, then, that in the last two months, new and extremely controversial amendments covering other parts of the Act were introduced, sometimes without any advance knowledge of their language. The following is a brief description of some of the salient features of this newly reauthorized law.

Public Display

The indefatigable efforts of some well-funded lobbyists for the aquarium, zoo and marine theme park alliance succeeded in changing this section of the MMPA so much that it is virtually rewritten. In the opinion of many, including sources at the National Marine Fisheries Service (NMFS), this part of the law is now tailor-made for the public display industry. It is anathema to many environmental and animal welfare organizations.

For many years there has been a formal cooperative agreement between NMFS and the Animal and Plant Health Inspection Service (APHIS), which is part of the Department of Agriculture. The role of APHIS, under this agreement, has been to set the standards for water quality control, transport of animals (i.e., cage sizes), tank sizes, etc., under the Animal Welfare Act as it relates to the mammals protected under the MMPA. Under this act, NMFS has been responsible for all cetaceans, pinnipeds and manatees. The Fish and Wildlife Service (F&WS) at the Interior Department has had responsibility for polar bears, walruses and sea otters. In the majority of cases, NMFS has been responsible for almost all the public display permit applications, since the majority involve either pinnipeds, dolphins or other comparatively small cetaceans. In the last several years, with a number of staff changes together with increased pubic interest, NMFS has also promulgated important regulations governing such activities as dolphin feeding and swim-with programs. Needless to say, this increased agency attention and public interest has been considered irksome by some segments of the public display industry.

Sen. James Exon (D-NE) and Rep. Don Young (R-AK) introduced the amended version of the Senate and House bills that brought about the drastic changes in the public display section of the bill that is now law. The major upheaval took away NMFS' regulatory and oversight functions over marine mammals, after their capture. NMFS will retain its capture permitting role and will continue to maintain the marine mammal inventory, which keeps track of births and deaths of captive animals. However, necropsy records will be kept by APHIS; contrary to NMFS' practice, these will no longer be available to the public. Members of Congress, including the members and chair of the House Merchant Marine and Fisheries Committee, Rep. Gerry Studds (D-MA), were persuaded to believe that by combining the above-mentioned functions in APHIS, there would be less bureaucratic overlap and the regulatory process would be streamlined.

Unfortunately, APHIS is notoriously underfunded and understaffed, with virtually no marine mammal scientists or technicians on its staff. Most of its veterinarians are specialists in terrestrial animal medicine; they undergo only a short exposure to veterinary problems unique to marine mammals and lack specialized training in their ethology. Furthermore, APHIS' licensing standards are less stringent than NMFS' public display permit requirements.

The future role of the Marine Mammal Commission (MMC) may also be affected by this new part of the MMPA. The Commission was created in the original 1972 law to be a watchdog over the implementation of the MMPA. While the Commission's seemingly super-precautionary suggestions may have been considered unnecessary by NMFS some years ago, the MMC is considered very effective by many who have worked with it over the years. The kind of working relationship that will develop between the MMC and APHIS remains to be seen, as does the future course of the pubic display industry in the U.S.

Marine Mammal-Fisheries Interactions

There have been many radical changes in this important segment of the MMPA since the four days of intense negotiations in Seattle in April 1993 between major commercial fishing industry groups and representatives from the environmental Community (including ACS). The general agreement we thought we had reached has been changed beyond recognition. The process has not been helped by the many closed-door, behind-the-scenes discussions between some fishing-interest advocacy groups, parts of the environmental community and the staffs of the relevant Senate and House committees.

The final version is not as bad as it seemed likely to be through last fall and winter. As the six-month extension came close to expiring in March, and then again in April, bitter controversies erupted with the introduction of new amendments. These necessitated hours and hours of bargaining and trade offs by House and Senate staff to work out compromises between the two bills. They sought to avoid, if possible, having to appoint a conference committee.

A couple of concessions were won by the environmentalists at the last minute. The language agreed to at Seattle to prohibit the intentional killing of marine mammals, which previously had been removed, was restored. Additionally, NMFS was directed to assess the health of all marine mammal populations in U.S. waters rather than just those deemed to be in trouble.

Incidental takes of marine mammals are still allowed. Despite the efforts of the coalition of groups pressing for a strengthened MMPA, we lost on the issue of "burden of proof." It is now up to NMFS to document that a given marine mammal population is declining or otherwise in trouble instead of requiring the industry to furnish proof that their activities have no negative effects on these populations. Any control measure to stop a decline can only be set in motion if an individual population is in trouble. If NMFS determines that serious losses are occurring, the agency must develop plans to reduce mortality with the advice of take-reduction teams. These advisory bodies will be made up of industry, environmental and government representatives. The goal is to reduce marine mammal deaths to "levels approaching zero" within five years of their plan's implementation.

The incidental take of animals listed as threatened or endangered under the Endangered Species Act is allowable, but only insofar as these takings have a "negligible impact" on those populations. Vessel registration by NMFS is required and all incidental mortalities must be reported. Independent observers can be placed on fishing boats for monitoring purposes.

"Nuisance" Animals

Among the major controversies that arose at the last minute was the thorny issue of "nuisance" animal problems. These including harbor porpoise predation on salmon aquaculture pens in New England and allegations of pinniped responsibility for declining populations of steelhead trout and some salmon in the Pacific Northwest and Gulf of Maine. An amendment that could have resulted in "culling" up to 15,000 sea lions in California alone met fierce opposition from Sen. Barbara Boxer (D-CA) and others. A compromise provides for a study of the impact of these "nuisance" animals on fishing operations or fish stocks. "Lethal removal" will be allowed only if all other deterrent measures fail, and must be carried out by accredited state or federal officials, on a case-by-case basis.

Polar Bear Trophy Hunting

The influential Safari Club International found broad Congressional support for an amendment permitting U.S. sports hunters to travel to Canada, bag a bear and, for the first time, return legally to the U.S. with this trophy.

This issue caused a huge public outcry, especially from the animal welfare organizations' lobbying groups and members. Many more groups were dismayed that this amendment was supported by the MMPA reauthorization bill's chief House sponsor, Rep. Studds. A valiant effort was made to block this amendment by a few House members on the only occasion this issue was aired for the public to be present.

Canada is the only International Polar Bear Treaty signatory country to allow trophy hunting. Some of Canada's 500 "aboriginal" permits will be sold by individual Inuits to U.S. hunters if this proposal is found to be in compliance with the treaty. Once a hunter gets a permit, he or she must then hire a professional guide - all this costing $20,000 or more for each trophy. After two years of permitted hunting, a F&WS scientific panel must review the bears' population status.