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discuss ethics surrounding captive breeding, display design, surplus animals, behavioral 

 enrichment and other relevant topics. Much progress was made and the conference results will 

 be published by the American Association for the Advancement of Science. 



V. NMFS Prop osed Regulations. 



The National Marine Fisheries Service ("NMFS") recently issued proposed regulations on 

 public display of marine mammals. The NMFS proposed regulations represent a major public 

 policy shift from the current scheme for regulating activities that affect marine mammals and, if 

 finalized, would create significant new regulatory requirements and a new federal bureaucracy. 

 The proposal is extraordinarily far reaching and would certainly require a considerable increase 

 in NMFS' resources. 



The NMFS proposal amends the definition of "take" to include holding a marine mammal 

 captive. The proposed definition would require a facility to apply for a permit and/or 

 authorization every time they transfer, purchase, hold, or sell a captive marine mammal. The 

 redefinition of "take" ignores Congressional intent of the MMPA. The Act, its legislative 

 history, NMFS' own precedents and Court decisions agree "take" means activities in the wild. 

 The 1972 Committee Report refers to "take" as activities in the wild. In 1974 when NMFS 

 issued its first regulations, the Office of the General Counsel issued an opinion stating that "take" 

 did not apply to animals already in a zoological environment. This position was reaffirmed in a 

 1975 General Counsel's Opinion. NMFS' Annual Reports to Congress repeatedly state that the 

 term "take" did not apply to animals already removed from the wild. The only court which has 

 considered the meaning of the term "take" held that it only applies to activities in the wild. 



NMFS is now also arguing it has authority to establish care and maintenance standards 

 for captive marine mammals. These standards would include standards for the animals and for 

 facility and equipment design as well as for hiring personnel. The Animal and Plant Health 

 Inspection Service ("APHIS") already has established care and maintenance standards under the 

 Animal Welfare Act. There is no need for another care and maintenance standards. If there are 

 problems with APHIS' administration of the regulations, then APHIS should be given more 

 resources to carry out their duties. Moreover, APHIS is in the process of reviewing their care 

 and maintenance standards by using the formal negotiated rulemaking process. 



The NMFS proposed regulations also contain excessive and probably unconstitutional 

 regulation over educational programs. According to the MMPA, NMFS does not have authority 

 to regulate the content of educational programs. Nonetheless, under the proposed regulations, 



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