137 



- 7 - 



was granted, the permit holder would be subject to further 

 authorizations and notifications before it could exercise the 

 permit. It would become bogged down in onerous permit 

 conditions. It would have to file numerous, duplicative 

 reports. Burdensome new fees would be imposed for a number 

 of activities; this would violate the requirement of the MMPA 

 that fees be charged only for issuance of permits and that 

 the fees be reasonable. 16 U.S.C. S 1374(g). And there would 

 be charges for surety bonds, which are not authorized under 

 the MMPA. 



A study by Arthur D. Little, Inc. demonstrates that the 

 proposal, if adopted, would impose approximately $32.2 

 million of costs on public display institutions in the first 

 five years. This figure does not take into account the cost 

 to scientific research institutions (other than scientific 

 research carried out by public display entities) and to the 

 government. This figure also does not take into account 

 other burdens such as the litigation that would inevitably 

 flow from the proposal, the diversion of institutions' 

 energies to dealing with administrative burdens, and the loss 

 of flexibility. 



The bulk of the new burdens flows directly from the 

 proposal's violation of the MMPA with respect to the scope of 

 NMFS authority. Based on a bizarre and novel interpretation 

 of the term "take" that is contrary to its own longstanding 

 interpretation, NMFS now claims jurisdiction over marine 

 mammals in captivity and uses its new interpretation to 

 justify a mountain of proposed regulations of marine mammals 

 in captivity. For example, standards for captive care and 

 maintenance, qualifications of staff, design of facilities, 

 groupings of marine mammals in institutional settings, space 

 requirements, etc. 



This interpretation directly violates the MMPA. As held 

 recently by the Court in Mirage Resorts. Inc. v. Franklin . 

 CV-S-92-759-PMP (D. Nev. , Nov. 24, 1993), the term "take" in 

 the MMPA is confined to activities in the wild and does not 

 cover activities concerning marine mammals in captivity. The 

 Court went on to hold that activities relating to marine 

 mammals in captivity fall within the purview of the APHIS 

 under the Animal Welfare Act. Given the declared 

 unlawfulness of the purported underpinning of so much of the 

 NMFS proposal, the proposal must be rejected. 



The proposal directly contradicts a holding of the Court 

 in the Animal Protection Institute decision, namely that 

 Congress did not intend that public display and scientific 

 research be subject to a "consistency" requirement concerning 

 the marine mammal programs of countries from which marine 

 mammals are imported. Ironically, this NMFS proposal would 



