MARINE MAMMAL COMMISSION — Annual Report for 1992 
The Commission further recommended that the 
Service advise those conducting or contemplating 
programs in which wild marine mammals are fed that 
such programs constitute an unauthorized take under 
the Marine Mammal Protection Act. Tours that 
provide opportunities for observing dolphins, but 
which do not involve feeding, may, however, be 
conducted legally in ways that do not harass or 
otherwise take the animals. The Commission noted 
that guidance on such activities should be provided in 
whale-watching regulations currently being considered 
by the Service. 
On 15 June 1990 the National Marine Fisheries 
Service denied the request for the dolphin feeding/ 
public display permit, citing its determination that 
these programs are not consistent with the purposes 
and policies of the Marine Mammal Protection Act. 
In addition, on 29 August 1990 the Service published 
a policy statement in the Federal Register advising 
that it would no longer accept or review public 
display permit applications seeking authorization to 
feed marine mammals in the wild. 
In light of its published policy statement, on 20 
September 1990 the Service, returned an application 
from another tour operator who was seeking authority 
to conduct a dolphin-feeding program under a joint 
public display/scientific research permit. The Service 
advised the applicant that the joint permit request 
could not be processed and suggested that a revised 
application for the scientific research aspects might be 
submitted. A scientific research permit application 
was subsequently filed with the Service on 22 October 
1990, but was found to be deficient. The applicant 
was advised that it had not provided sufficient infor- 
mation to demonstrate that the proposed taking would 
be necessary to further a bona fide scientific purpose 
and would not unnecessarily duplicate other research. 
To avoid any possible misunderstanding as to 
whether feeding wild marine mammals constitutes a 
take and is therefore a violation of the Marine Mam- 
mal Protection Act, the Service, by Federal Register 
notice of 29 August 1990, proposed to revise its 
regulatory definition of the term “take.” The pro- 
posed revision would clarify that taking includes 
“feeding or attempting to feed a marine mammal in 
the wild in any manner.” 
190 
By letter of 11 December 1990 the Commission 
supported adoption of the rule as proposed. The 
Commission’s letter noted that feeding wild marine 
mammals could be harmful to the animals and that the 
proposed regulatory definition was consistent with the 
underlying statutory definition of the term “take.” 
The Service issued a final rule on 20 March 1991 
amending the definition of the term “take” to include 
feeding or attempting to feed marine mammals in the 
wild. As promulgated, the rule applies to feeding all 
wild marine mammals under the jurisdiction of the 
National Marine Fisheries Service, not just dolphins. 
The rule also defined “feeding” to mean “offering, 
giving or attempting to give food or non-food items to 
marine mammals in the wild...including operating a 
vessel or providing other platforms from which 
feeding is conducted or supported.” Feeding does 
not include the routine discard of bycatch during 
fishing operations or the otherwise legal, routine 
discharge of waste or fish by-products from fish 
processing plants. The Fish and Wildlife Service has 
not adopted comparable feeding regulations for species 
under its jurisdiction. 
On 19 April 1991 the effective date of the new 
regulatory definitions, the tour operator who had 
requested authority to conduct a dolphin-feeding 
program under a scientific research permit filed suit 
in the U.S. District Court for the Southern District of 
Texas (Strong v. United States) seeking either to 
invalidate the new regulations or to compel issuance 
of a permit. Plaintiffs argued that broadening the 
regulatory definition of “take” to include feeding 
marine mammals was inconsistent with the statutory 
definition of the term, that the rule was arbitrary and 
capricious because there is no scientific evidence that 
feeding dolphins actually harms the animals, and that 
the Service abused its discretion by categorically 
refusing to consider public display requests for 
feeding operations. 
The court issued a temporary restraining order on 
19 April 1991. The action enjoined enforcement of 
the ban on feeding wild marine mammals, but only as 
it pertained to the plaintiffs. In issuing the order, the 
court expressed doubt that the Marine Mammal 
Protection Act’s prohibition on taking can be read to 
ban dolphin feeding and noted that the plaintiff's 
