69 



B. Animal Welfare Act 



In contrast to the MMPA, the Animal Welfare Act of 1975 regulates animals that 

 have already been taken (i.e., are in captivity). The Animal Welfare Act, as amended 

 in 1979, contains provisions dealing exclusively with marine mammals in zoological 

 institutions, establishing strict, comprehensive standards for the size and nature of 

 enclosures, environmental quality, food handling, transport, and humane treatment 

 (hereinafter referred to collectively as "husbandry"). The marine mammal section of 

 the Animal Welfare Act is the strongest animal welfare legislation ever enacted by 

 Congress. 



The Animal Welfare Act is administered by the Animal and Plant Health Inspec- 

 tion Service (APHIS) in the Department of Agriculture. All facilities that display 

 marine mammals must be licensed — and thus certified — by APHIS. 



II. THE MMPA REAUTHORIZATION AND PUBUC DISPLAY AND SCIENTIFIC RESEARCH 



A. Proposed Regime to Govern Interaction Between Marine Mammals and Commer- 

 cial Fishing Operations 



NMFS has presented a proposal to Congress that could potentially eliminate the 

 special regime for public display and scientific research. NMFS, Proposed Regime 

 to Govern Interaction between Marine Mammals and Commercial Fishing Oper- 

 ations (Nov. 1992). If the Proposed Regime were to apply to public display and sci- 

 entific research, these beneficial activities would for the first time be lumped into 

 one regime with other activities, such as commercial fisheries. All would compete 

 for the allocation of a number of animals permitted under a complex and disad- 

 vantageous "Permissible Biological Removal" (PBR) calculation. And, as acknowl- 

 edged in the Draft Legislative Environmental Impact Statement (at p. 2-46), the al- 

 location of the marine mammals "will be a complicated and controversial process." 



Instead, obtaining msirine mammals for public display and scientific research in- 

 stitutions should continue to be governed pursuant to Section 1371(a)(1) and these 

 institutions should be granted permits for their beneficial purposes expeditiously 

 and with a minimum of burden. 



To do otherwise would be contrary to the simplified requirements that have been 

 called for by Congress for public display and scientific research, would strain public 

 display and scientific research institutions, and would potentially thrust them into 

 competition with other activities, such as commercial fishing. This would undermine 

 the important public purposes Congress intended public display and scientific re- 

 search institutions to serve. As stated by the Congressional Research Service, 



"This implicit policy difi'erence [between public display and scientific research, 

 on the one hand, and commercial fisheries, on the other] could be threatened 

 if public display and scientific research takings are drawn into the same regime 

 as conmiercial fisheries takings." s 



The Proposed Regime has been submitted in purported response to a 1988 amend- 

 ment calling for a new regime to govern the incidental take of marine mammals in 

 commercial fisheries after October 1993.6 This 1988 amendment does not affect pub- 

 lic display and scientific research.' Congress intended to have public display and sci- 

 entific research continue to be governed separately as provided in Section 1371(aXl). 



The Proposed Regime appears inconsistent with respect to its relationship to pub- 

 lic display and scientific research. In places it appears to say that public display and 

 scientific research are not part of the Proposed Regime: "[t]his proposal addresses 

 only those removals directly associated with commercial fishing activities" (Proposed 



this section are categories considered by Congress to be beneficial to marine mammals. Marine 

 Mammal Protection Act Amendments of 1988, §5(c), Pub. L. No. 100-711, 102 Stat. 4765 (1988). 



8 Congressional Research Service, The Marine Mammal Protection Act:Reautharization Issues 

 at CRS-9 (SepL 8, 1992). 



sMarine Mammal Protection Act Amendments of 1988, §2, P.L. 100-711, 102 SUt. 4755 

 (1988). 



'No mention is made in Section 2 of the 1988 Amendments to taking for public display and 

 scientific research. Section 2 is entitled "Interim Exemption for Commercial Fisheries." Public 

 display and scientific research are covered separately — in Section 5 of the 1988 Amendments, 

 which is entitled "Scientific Research and Public Display Permits." The Committee Reports on 

 the 1998 Amendments also make a clear separation of the provisions relating to commercial 

 fishing operations and those relating to public display and scientific research. See H. Rep. No. 

 100-970, 100th Cong. 2d Sess. 13, 14, 27, 33-34 (1988); S. Rep. No. 100-592, 100th Cong. 2d 

 Sees. 22, 28-30 (1988). The Reports also stress the importance of public display. See note 3, 

 supra. 



