70 



Regime 67).8 Elsewhere, however, it indicates that public display and scientific re- 

 search are part of the Proposed Regime, namely, part of the allocation of the num- 

 ber of animals that the agency calculates pursuant to the PBR. (See Proposed Re- 

 gime 62-63.) In addition, the related Final Legislative Environmental Impact State- 

 ment states that public display and scientific research will be subject to the PBR 

 allocation process.* It bears note that the Conservation and Fishing Community Ne- 

 ^tiated Proposal for a Marine Mammal Research and Conservation Program (at 3) 

 indicates that the Negotiated Proposal will not involve public display and scientific 

 research.io 



F*ublic display and scientific research should not be subjected to the Proposed Re- 

 gime, including the allocation process relating to commercial fisheries. If public dis- 

 play and scientific research institutions were subjected to the Proposed Regime, thev 

 would — out of necessity — have to become involved in every step, from the proceed!- 

 ings on calculation of the PBR to allocation of the animals. This would embroil them 

 in an onerous, divisive and paralyzing procedure at odds with the simplified regime 

 intended for them under the MMPA. The impact upon the public display and sci- 

 entific research communities would be enormous — and indeed could be prohibitive — 

 despite the fact that reduction or elimination of the live takes for purposes of public 

 display and scientific research would have no significant positive mipact on the 

 stock(s) in question.^ Indeed, reduction or elimination of the take for these bene- 

 ficial purposes would work against the interests of marine mammals. TTiat public 

 display and scientific research should not be subjected to the PBR regime has al- 

 ready been acknowledged by a variety of commenters.12 



"See also id. at 20: "While NOAA believes that removals of marine mammals from all sources 

 are controllable to some extent (i.e. removals resulting from subsistence users, tribal rights, rec- 

 reational fishing, tanker traffic, public display, scientific research pollution, commercial fishing 

 and other causes of marine mammal takes), NOAA addresses only those removals that are di- 

 rectly associated with commercial fishing activities in this proposal. Removals that are a result 

 of activities other than commercial fishing will be addressed when NOAA implements the new 

 amendments to the MMPA." 



» "Because the scope of the proposal reflects NOAA's belief that sound principles of wildlife 

 management require that all human interactions be considered to ensure that marine mammals 

 are not being disadvantaged, the total PBR of a stock would then be allocated among user 

 groups (e.g., subsistence, public display, scientific research, and fishing)." FLEIS at 7. See also 

 id. at 20 CThis alternative also establishes an allocation scheme for distributing a PBR among 

 fishery and non-fishery user groups."). 



10 "Although there are instances where mortality fix)m other sources is considered or account 

 for, the negotiators did not intend with the proposal, to replace existing MMPA (or other statu- 

 tory) regimes for regulating, prohibiting or permitting non-fishing takes of marine mammals. 

 The process is aimed at reducing incidental lethal take rates of marine mammals in commercial 

 fishing operations." 



"The federal quotas have been extraordinarily conservative. For example, the National Ma- 

 rine Fisheries Service population studies show a healthy population of 35,000 to 45,000 

 bottlenose dolphins in the Gulf of Mexico. See Scott, G.P., D.M. Bum, L.J. Hansen, R.E. Owen, 

 Estimates of Bottlenose Dolphin Abundance in the Gulf of Mexico from Regional Aerial Surveys, 

 CRD-88/89-07, NMFS, Southeast Region. In contrast, there have been only 438 bottlenose dol- 

 phins taken for public display since the MMPA was enacted in 1972. 



i^The Marine Mammal Commission, for example, in its comments to NMFS acknowledges the 

 inappropriateness of using ABR (now termed PBR) as the basis for making allocations among 

 various user groups and acknowledges the need for special criteria for takes by the special user 

 groups covered by 16 U.S.C. § 1371(aXl). The Commission stated that it 



"believes that it is ill-advised to try to use ABR determinations as the basis for allocating 

 'takes' among various user groups. It is inappropriate, for example, to use ABR determinations 

 as the basis for determining the number ol^ animals that might fruitfully be taken to enhance 

 the recovery of a depleted species or stock. Likewise, it makes little sense to use the same cri- 

 teria to weigh the relative cost and benefits of taking for purposes of scientific research versus 

 taking incidental to commercial fishing operations." (Comments at 53.) 



The Commission concludes that "these proposals could unnecessarily impair scientific research 

 and enhancement efforts." (Id.) 



The Marine Mammal Center in its comments criticized the agency's original proposal: 



"All that is left [under the ABR (now PBR) proposal] is fisheries, versus public display, sci- 

 entific research and enhancement activities. There need be no controversy. To our knowledge 

 there is no population with such a small take [sic] the commercial fishery cannot accommodate 

 scientific research and public display. Commercial fishermen do not need to be in an annual bat- 

 tle with aquarium directors or university professors. There is no problem here. Just subtract this 

 insignificant use from the ABR available to the fisheries. We are sure they would rather live with 

 that than the annual battle this proposal envisions." (Emphasis added.) 



Peter Tyack, Associate Scientist of the Woods Hole oceanographic Institution, states: 



1 am also concerned that the proposed allocation among user groups is not consonant with 

 the MMPA's recognition that human activities which benefit marine mammals ought to have 

 special treatment compared to activities that only harm marine mammals. That was the pur- 



