[House Report 108-464]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-464
======================================================================
MARINE MAMMAL PROTECTION ACT AMENDMENTS OF 2004
_______
April 20, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
together with
SUPPLEMENTAL VIEWS
[To accompany H.R. 2693]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 2693) to reauthorize the Marine Mammal Protection Act of
1972, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Marine Mammal Protection Act
Amendments of 2004''.
SEC. 2. AMENDMENT REFERENCES.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to such section or other provision of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361 et seq.).
SEC. 3. TECHNICAL CORRECTIONS.
(a) Committee References.--The Marine Mammal Protection Act of 1972
(16 U.S.C. 1361 et seq.) is amended by striking ``Committee on Merchant
Marine and Fisheries'' each place it appears and inserting ``Committee
on Resources''.
(b) Obsolete Reference to Section.--Section 118(c)(3)(A)(i) (16
U.S.C. 1387(c)(3)(A)(i)) is amended by striking ``, except that'' and
all that follows through ``is valid''.
SEC. 4. LIMITED AUTHORITY TO EXPORT MARINE MAMMAL PRODUCTS.
(a) In General.--Section 101(a)(6) (16 U.S.C. 1371(a)(6)) is amended
by redesignating subparagraph (B) as subparagraph (C), and by inserting
after subparagraph (A) the following:
``(B) A marine mammal product may be exported from the United
States if the product--
``(i) is legally possessed, and exported by, a
citizen of the United States for noncommercial purposes
in conjunction with travel outside the United States
and the product is imported into the United States by
the same person upon the termination of travel;
``(ii) is legally possessed and exported as part of a
cultural exchange, by an Indian, Aleut, or Eskimo
residing in Alaska; or
``(iii) is owned by a Native inhabitant of Russia,
Canada, or Greenland and is exported for noncommercial
purposes--
``(I) in conjunction with, and upon the
completion of, travel within the United States;
or
``(II) as part of a cultural exchange with an
Indian, Aleut, or Eskimo residing in Alaska.''.
(b) Conforming Amendment.--Section 101(a)(6)(A)(i) (16 U.S.C.
1371(a)(6)(A)(i)) is amended by inserting ``for noncommercial
purposes'' after ``United States'' the first place it appears.
SEC. 5. MISCELLANEOUS AUTHORIZATIONS OF APPROPRIATIONS.
(a) Department of Commerce.--Section 116(a) (16 U.S.C. 1384(a)) is
amended to read as follows:
``(a) Department of Commerce.--(1) There are authorized to be
appropriated to the Department of Commerce, for purposes of carrying
out its functions and responsibilities under this title (other than
sections 117 and 118) and title IV--
``(A) $23,728,000 for 2004;
``(B) $24,378,000 for 2005;
``(C) $25,028,000 for 2006;
``(D) $25,678,000 for 2007; and
``(E) $26,328,000 for 2008.
``(2) There are authorized to be appropriated to the Department of
Commerce, for purposes of carrying out sections 117 and 118,
$20,000,000 for each of the fiscal years 2004 through 2008.''.
(b) Department of the Interior.--Section 116(b) (16 U.S.C. 1384(b))
is amended to read as follows:
``(b) Department of the Interior.--There are authorized to be
appropriated to the Department of the Interior, for purposes of
carrying out its functions and responsibilities under this title--
``(1) $11,800,000 for 2004;
``(2) $12,300,000 for 2005;
``(3) $12,800,000 for 2006;
``(4) $13,300,000 for 2007; and
``(5) $13,800,000 for 2008.''.
(c) Cooperative Agreements in Alaska.--Section 119(d) (16 U.S.C.
1388(d)) is amended by striking paragraphs (1) and (2) and inserting
the following:
``(1) $2,000,000 to the Secretary of Commerce for each of
fiscal years 2004 through 2008; and
``(2) $1,500,000 to the Secretary of the Interior for each of
fiscal years 2004 through 2008.''.
SEC. 6. TAKE REDUCTION PLANS.
(a) In General.--Section 118 (16 U.S.C. 1387) is amended as follows:
(1) In subsection (a) by striking ``commercial'' each place
it appears in paragraphs (1) and (5).
(2) In subsection (c)(1) by striking so much as precedes
subparagraph (B) and inserting the following:
``(c) Registration and Authorization.--(1) The Secretary shall,
within 90 days after the date of enactment of the Marine Mammal
Protection Act Amendments of 2004--
``(A) publish in the Federal Register for public comment, for
a period of not less than 90 days, any necessary changes to the
Secretary's list of fisheries published under section 114(b)(1)
in the Federal Register on August 24, 1994 (along with an
explanation of such changes and a statement describing the
marine mammal stocks interacting with, and the approximate
number of vessels or persons actively involved in, each such
fishery), with respect to--
``(i) commercial and recreational fisheries that have
frequent incidental mortality and serious injury of
marine mammals;
``(ii) commercial and recreational fisheries that
have occasional incidental mortality and serious injury
of marine mammals; or
``(iii) commercial fisheries that have a remote
likelihood of or no known incidental mortality or
serious injury of marine mammals;''.
(3) In subsection (c)(1) in subparagraphs (B) and (C) by
striking ``commercial''.
(4) In subsection (c)(2)(A) by striking ``commercial''.
(5) In subsection (c)(3)(A) in the matter preceding clause
(i) by striking ``a commercial fishery'' and inserting ``that
fishery''.
(6) In subsection (c)(3)(E) by inserting ``commercial'' after
``any''.
(7) In subsection (c)(5)(B) by striking ``commercial''.
(8) In subsection (d)(1) in the matter preceding subparagraph
(A) by striking ``commercial fishing operations'' and inserting
``fishing operations in a fishery listed under subsection
(c)(1)(A)(i) or (ii)''.
(9) In subsection (d)(3) in the matter preceding subparagraph
(A) by striking ``commercial fisheries'' and inserting
``fisheries listed under subsection (c)(1)(A)(i) or (ii)''.
(10) In subsection (d)(4) as follows:
(A) In the matter preceding subparagraph (A) by
striking ``commercial fisheries'' and inserting
``fisheries listed under subsection (c)(1)(A)(i) or
(ii)''.
(B) In subparagraph (A) by striking ``commercial
fisheries'' and inserting ``fisheries listed under
subsection (c)(1)(A)(i) or (ii)''.
(C) In subparagraph (B) by striking ``commercial
fisheries'' and inserting ``fisheries listed under
subsection (c)(1)(A)(i) or (ii)''.
(D) In subparagraph (C) by striking ``commercial
fisheries'' and inserting ``fisheries listed under
subsection (c)(1)(A)(i) or (ii)''.
(11) In subsection (d)(5) by striking ``commercial fishing
operations'' and inserting ``fishing operations in fisheries
listed under subsection (c)(1)(A)(i) or (ii)''.
(12) In subsection (e) in the matter preceding paragraph
(1)--
(A) by striking ``commercial'' each place it appears;
and
(B) by striking ``this Act'' and inserting ``this
section''.
(13) In subsection (f) by striking so much as precedes
paragraph (2) and inserting the following:
``(f) Take Reduction Plans.--(1) The Secretary shall develop and
implement a take reduction plan designed to assist in the recovery or
prevent the depletion of each strategic stock which interacts with a
fishery listed under subsection (c)(1)(A)(i) or (ii), unless the
Secretary determines, after notice and opportunity for public comment,
that the level of fishery related mortality and serious injury is
having a negligible impact on that stock. The Secretary may develop and
implement a take reduction plan for any other marine mammal stocks
which interact with a fishery listed under subsection (c)(1)(A)(i)
which the Secretary determines, after notice and opportunity for public
comment, has a high level of mortality and serious injury across a
number of such marine mammal stocks.''.
(14) In subsection (f)(2)--
(A) by striking ``6 months'' and inserting ``9
months''; and
(B) by striking ``commercial fishing operations''
each place it appears and inserting ``fishing
operations in fisheries listed under subsection
(c)(1)(A)(i) or (ii)''.
(15) In subsection (f)(3) by striking ``commercial''.
(16) In subsection (f)(4)(B) by striking ``commercial fishing
operations'' and inserting ``fishing operations in fisheries
listed under subsection (c)(1)(A)(i) or (ii)''.
(17) In subsection (f)(5)--
(A) in subparagraph (A) by striking ``6 months'' and
inserting ``9 months''; and
(B) in subparagraphs (A) and (B) by striking
``commercial'' each place it appears.
(18) In subsection (f)(6)(A)--
(A) by striking ``(not later than 30 days)''; and
(B) in clause (ii) by striking ``commercial
fisheries'' and inserting ``fisheries listed under
subsection (c)(1)(A)(i) or (ii)''.
(19) In subsection (f)(6)(C) in the second sentence, by
inserting before the period the following: ``, a representative
of the office of General Counsel of the National Oceanic and
Atmospheric Administration, a representative of the National
Marine Fisheries Service having responsibilities related to
fisheries science, a representative of the National Marine
Fisheries Service having responsibilities related to law
enforcement, and a representative of the appropriate National
Marine Fisheries Service Regional Administrator''.
(20) In subsection (f)(7)--
(A) in subparagraph (A)(i) by striking ``6 months''
and inserting ``9 months'';
(B) in subparagraph (B)(i)--
(i) by striking ``not later than 60 days''
and inserting ``not later than 120 days''; and
(ii) by adding at the end the following:
``Before publishing any plan that is different
than the draft plan proposed by a take
reduction team, the Secretary shall reconvene
the team and explain to the team the
differences between the published plan and the
draft plan proposed by the team.''; and
(C) in subparagraph (B)(ii)--
(i) by striking ``6 months'' and inserting
``9 months''; and
(ii) by striking ``not later than 8 months''
and inserting ``not later than 11 months''.
(21) In subsection (f)(7)(C) by striking ``Not later than 60
days'' and inserting ``Not later than 90 days''.
(22) In subsection (f)(7)(D) by striking ``commercial''.
(23) In subsection (f)(8)--
(A) in subparagraph (C) by striking ``Not later than
60 days'' and inserting ``Not later than 180 days'';
and
(B) by striking ``commercial'' each place it appears.
(24) In subsection (f)(9) as follows:
(A) In subparagraph (A) by striking ``commercial
fisheries or restrict commercial fisheries'' and
inserting ``fisheries listed under subsection
(c)(1)(A)(i) or (ii) or restrict such fisheries''.
(B) In subparagraphs (B) and (C) by striking
``commercial'' each place it appears.
(C) In subparagraph (D) by striking ``commercial
fishing operations'' and inserting ``participation in a
fishery listed under subsection (c)(1)(A)(i) or (ii)''.
(25) In subsection (g)(1) by striking ``commercial
fisheries'' and inserting ``fisheries listed under subsection
(c)(1)(A)(i) or (ii)''.
(26) In subsection (g)(3)(B) by striking ``commercial''.
(27) In subsection (g)(4) by striking ``commercial fishery''
and inserting ``fishery listed under subsection (c)(1)(A)(i) or
(ii)''.
(28) In subsection (j) by inserting ``including observer,
research, and education and outreach programs,'' after ``For
purposes of carrying out this section,''.
(29) By amending subsection (d)(1)(C) to read as follows:
``(C) identify current fishery regulations and changes in
fishing methods or technology that may increase or decrease
incidental mortality and serious injury.''.
(30) In subsection (f)(2) in the last sentence by inserting
``conservation benefits of'' before ``State or regional fishery
management plans.''.
(31) By amending subsection (f)(4)(A) to read as follows:
``(A) a review of the information in the final stock
assessment published under section 117(b), any substantial new
information, a review of the conservation benefits from current
State and regional fishery management regulations;''.
(b) Stock Assessments.--Section 117(a)(4) is amended--
(1) by striking ``and'' at the end of subparagraph (C);
(2) by inserting ``and'' at the end of subparagraph (D); and
(3) by adding at the end the following:
``(E) potential conservation benefits provided by
State and regional fishery management regulations;''.
(c) Conforming Amendment.--Section 101(a)(5)(E) (16 U.S.C.
1371(a)(5)(E)) is amended by inserting ``or recreational'' after
``commercial'' each place it appears.
SEC. 7. PINNIPED RESEARCH.
Section 120 (16 U.S.C. 1389) is amended by adding at the end the
following:
``(k) Research on Nonlethal Removal and Control.--(1) The Secretary
shall conduct research on the nonlethal removal and control of nuisance
pinnipeds. The research shall include a review of measures that have
been taken to effect such removal and control, the effectiveness of
these measures, and the development of new technologies to deter
nuisance pinnipeds.
``(2) The Secretary shall include, among the individuals that develop
the research program under this subsection, representatives of the
commercial and recreational fishing industries.
``(3) The Secretary is encouraged, where appropriate, to use
independent marine mammal research institutions in developing and in
conducting the research program.
``(4) The Secretary shall, by December 31 of each year, submit an
annual report on the results of research under this subsection to the
Committee on Resources of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the Senate.''.
SEC. 8. MARINE MAMMAL COMMISSION.
(a) Number of Employees.--Section 206(5) (16 U.S.C. 1406(5)) is
amended by striking ``; except that no fewer than 11 employees must be
employed under paragraph (1) at any time''.
(b) Administration.--Section 206(4) (16 U.S.C. 1406(4)) is amended by
striking ``(but at rates for individuals not to exceed $100 per
diem)''.
(c) Authorization of Appropriations.--Section 207 (16 U.S.C. 1407) is
amended to read as follows:
``SEC. 207. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated to the Marine Mammal
Commission for purposes of carrying out this title--
``(1) $2,000,000 for fiscal year 2004;
``(2) $2,050,000 for fiscal year 2005;
``(3) $2,100,000 for fiscal year 2006;
``(4) $2,150,000 for fiscal year 2007; and
``(5) $2,200,000 for fiscal year 2008.''.
SEC. 9. SCRIMSHAW EXEMPTION.
Any valid certificate of exemption referred to in section 18 of
Public Law 103-238 (16 U.S.C. 1539 note) that was valid under that
section on April 29, 1999, shall be valid during the 8-year period
beginning October 31, 1999.
SEC. 10. POLAR BEAR PERMITS.
Section 104 (16 U.S.C. 1374) is amended--
(1) in subsection (c)(5)(D)--
(A) by striking ``the date of enactment of the Marine
Mammal Protection Act Amendments of 1994'' and
inserting ``February 18, 1997''; and
(B) by striking ``, expeditiously after the
expiration of the applicable 30 day period under
subsection (d)(2),'';
(2) in subsection (d)(2) by inserting before the period at
the end of the first sentence the following: ``, except for an
application for a permit to import polar bear parts under
subsection (c)(5)'';
(3) in subsection (d)(5) by inserting before the period at
the end of the last sentence the following: ``if a notice of
application was required to be published pursuant to paragraph
(2) with respect to the permit''; and
(4) in subsection (c)(5) by adding at the end the following:
``(E) The Secretary shall make available to the public on a
semiannual basis information concerning the permits issued or denied
under this paragraph.''.
SEC. 11. CAPTIVE RELEASE PROHIBITION.
Section 102(a) (16 U.S.C. 1372(a)) is amended--
(1) in paragraph (4) by striking ``subsection 104(c); and''
and inserting ``section 104(c);'';
(2) in paragraph (5) by striking the period and inserting ``;
and''; and
(3) by adding at the end the following:
``(6) for any person that is subject to the jurisdiction of
the United States to release any captive marine mammal unless
specifically authorized to do so under section 104(c)(3)(A),
104(c)(4)(A), or 109(h).''.
SEC. 12. STRANDING AND ENTANGLEMENT RESPONSE.
(a) Collection and Updating of Information.--Section 402(b)(1)(A) (16
U.S.C. 1421a(b)(1)(A)) is amended by inserting ``or entangled'' after
``stranded''.
(b) Entanglement Response Agreements.--
(1) In general.--Section 403 (16 U.S.C. 1421b) is amended--
(A) by amending the section heading to read as
follows:
``SEC. 403. STRANDING OR ENTANGLEMENT RESPONSE AGREEMENTS.''
; and
(B) in subsection (a) by inserting ``or
entanglement'' before the period.
(2) Clerical amendment.--The table of contents at the end of
the first section is amended by striking the item relating to
section 403 and inserting the following:
``Sec. 403. Stranding or entanglement response agreements.''.
(c) Liability.--Section 406(a) (16 U.S.C. 1421e(a)) is amended by
inserting ``or entanglement'' after ``stranding''.
(d) Entanglement Defined.--
(1) In general.--Section 410 (16 U.S.C. 1421h) is amended--
(A) by redesignating paragraphs (1) through (6) in
order as paragraphs (2) through (7); and
(B) by inserting before paragraph (2) (as so
redesignated) the following:
``(1) The term `entanglement' means an event in the wild in
which a living or dead marine mammal has gear, rope, line, net,
or other material wrapped around or attached to it and is--
``(A) on a beach or shore of the United States; or
``(B) in waters under the jurisdiction of the United
States.''.
(2) Conforming amendment.--Section 408(a)(2)(B)(i) (16 U.S.C.
1421f-1(a)(2)(B)(i)) is amended by striking ``section 410(6)''
and inserting ``section 410(7)''.
(e) Authorizations of Appropriations.--
(1) Grant program.--Section 408(h) (16 U.S.C. 1421f-1(h)) is
amended by striking ``fiscal years 2001 through 2003'' and
inserting ``fiscal years 2004 through 2008''.
(2) Fund.--Section 409(3) (16 U.S.C. 1421g(3)) is amended by
striking ``$500,000 for fiscal year 1993'' and inserting
``$125,000 for each of fiscal years 2004 through 2008''.
(f) Section 408 (16 U.S.C. 1421f-1), is amended--
(1) by adding at the end of subsection (a)(1) the following:
``All funds available to implement this section shall be
distributed to eligible stranding network participants for the
three purposes set forth in this paragraph, except as provided
in subsection (f).''; and
(2) by amending subsection (f) to read as follows:
``(f) Administrative Costs and Expenses.--Of the amounts available
each fiscal year to carry out this section, the Secretary shall not
expend more than 6 percent or $80,000, whichever is greater, to pay the
administrative costs and administrative expenses to implement the grant
program provided for in subsection (a)(1). Any funds retained by the
Secretary shall be used only for such administrative costs and expenses
and any such funds that are not expended by the Secretary at the end of
each fiscal year shall be expended as grants pursuant to the grant
program established by subsection (a)(1).''.
SEC. 13. DEFINITION OF HARASSMENT.
Section 3(18) is amended to read as follows:
``(18)(A) The term `harassment' means any act that--
``(i) injures or has the potential to injure a marine
mammal or marine mammal stock in the wild;
``(ii) disturbs or has the potential to disturb a
marine mammal or marine mammal stock in the wild by
causing disruption of biologically significant
behaviors, including, but not limited to, surfacing,
migration, breeding, care of young, predator avoidance,
defense, or feeding to a point where such behavioral
patterns are significantly altered; or
``(iii) is directed toward a specific individual,
group, or stock of marine mammals in the wild that is
likely to disturb the individual, group, or stock of
marine mammals by disrupting behavior, including, but
not limited to, surfacing, migration, breeding, care of
young, predator avoidance, defense, or feeding.
``(B) The term `Level A harassment' means harassment
described in subparagraph (A)(i).
``(C) The term `Level B harassment' means harassment
described in subparagraph (A) (ii) or (iii).''.
SEC. 14. INCIDENTAL TAKINGS OF MARINE MAMMALS.
Section 101(a)(5) (16 U.S.C. 1371(a)(5)) is amended--
(1) in subparagraph (A) by striking ``of small numbers'';
(2) in subparagraph (D)(i) by striking ``of small numbers'';
and
SEC. 15. TUNA-DOLPHIN PROVISIONS.
Subsection (c) of the Dolphin Protection Consumer Information Act (16
U.S.C. 1385) is amended in paragraph (2) by striking ``160 degrees west
longitude'' and inserting ``150 degrees west longitude''.
SEC. 16. PERMIT CLARIFICATIONS.
Section 104 (16 U.S.C. 1374) is amended as follows:
(1) Subsection (c)(7) is amended by inserting
``notwithstanding any other provision of law'' after
``requesting the permit''.
(2) Subsection (c)(9) is amended--
(A) by inserting ``the Secretary of Agriculture
determines, and then certifies to the Secretary, that''
after ``unless''; and
(B) by adding at the end the following: ``The
Secretary may not require or request, through comity or
any other means, that any marine mammal remain subject
to the jurisdiction of the United States when that
marine mammal or its progeny is located in waters or on
lands subject to the jurisdiction of another
country.''.
(3) Subsection (c)(10) is amended--
(A) in the first sentence by inserting ``held within
the lands and waters of the United States'' after
``marine mammals'' each place it appears;
(B) in the second sentence by inserting ``, which
shall be updated on an annual basis,'' after
``inventory''; and
(C) in subparagraph (D) by inserting ``ownership, or
other'' after ``date of''.
SEC. 17. FISHERIES GEAR DEVELOPMENT.
Section 111 (16 U.S.C. 1381) is amended as follows:
(1) Subsection (a) is amended to read as follows:
``(a) Research and Development Program.--
``(1) In general.--The Secretary of Commerce (in this section
referred to as the `Secretary') shall--
``(A) carry out a program of research and development
for the purpose of devising improved fishing methods
and gear so as to reduce to the maximum extent
practicable the incidental taking of marine mammals in
connection with fishing operations; and
``(B) make every practicable effort to develop,
evaluate, and make available to owners and operators of
fishing vessels such gear and fishing method
improvements as quickly as possible.
``(2) Coordination with other countries.--The Secretary may
coordinate with other countries to foster gear technology
transfer initiatives to reduce to the maximum extent
practicable the incidental mortality and serious injury of
marine mammals throughout the full extent of their range.''.
(2) By adding at the end the following:
``(e) Gear Research Mini-Grant Program.--
``(1) In general.--Subject to the availability of
appropriations, the Secretary may establish a grant program to
provide financial assistance for developing, manufacturing,
testing, or designing new types of fishing gear designed to
reduce to the maximum extent practicable the incidental taking
(including incidental mortality and serious injury) of marine
mammals.
``(2) Grant amount and purposes.--The amount of a grant under
this subsection may not exceed $20,000.
``(3) Grant applications.--To receive a grant under this
section, an applicant must submit an application in such form
and manner as the Secretary may prescribe.
``(4) Consultation regarding criteria.--The Secretary shall
consult with the Secretary of the Interior and the Marine
Mammal Commission regarding the development of criteria for the
awarding of grants under this subsection.
``(5) Administrative costs.--Of amounts available each fiscal
year to carry out this subsection, the Secretary may expend not
more than $40,000 to pay the administrative expenses necessary
to carry out this subsection.
``(6) Contributions.--For purposes of carrying out this
section, the Secretary may accept, solicit, receive, hold,
administer, and use gifts, devises, and bequests.''.
SEC. 18. MARINE MAMMAL RESEARCH GRANTS.
Section 110 (16 U.S.C. 1380) is amended--
(1) by amending subsection (a) to read as follows:
``(a) Authorization of Assistance; Annual Report.--
``(1) Authorization of Assistance.--The Secretary may make
grants, or provide financial assistance in such other form as
the Secretary considers appropriate, to any Federal or State
agency, public or private institution, or other person for the
purpose of assisting such agency, institution, or person to
undertake research in subjects that are relevant to the
protection and conservation of marine mammals, and the
ecosystems upon which they depend, including, but not limited
to, the Bering/Chukchi Sea ecosystem and the California coastal
marine ecosystem.
``(2) Inclusion of information in reports.--The Secretary
shall include a description of the annual results of research
carried out with assistance under this section in the report
required under section 103(f).
``(3) Contributions.--For purposes of carrying out this
section, the Secretary may accept, solicit, receive, hold,
administer, and use gifts, devises, and bequests.''; and
(2) by striking subsections (c) and (d).
SEC. 19. FINES AND PENALTIES.
(a) Fines and Penalties, Generally.--Section 105 (16 U.S.C. 1375) is
amended--
(1) in subsection (a)(1) by striking ``$10,000'' and
inserting ``$20,000''; and
(2) in subsection (b) by striking ``$20,000'' and inserting
``$30,000''.
(b) Vessel Penalty.--Section 106(b) (16 U.S.C. 1376(b)) is amended by
striking ``$25,000'' and inserting ``$35,000''.
Purpose of the Bill
The purpose of H.R. 2693 is to reauthorize the Marine
Mammal Protection Act of 1972, and for other purposes.
Background and Need for Legislation
In general
The Marine Mammal Protection Act (MMPA) was enacted in 1972
to ensure that marine mammals are maintained at, or in some
cases restored to, healthy population levels. The original Act
established a moratorium on the ``taking'' or importing of
marine mammals and marine mammal products except for certain
activities which are regulated and permitted. The MMPA defines
``take'' as ``to harass, hunt, capture, or kill or attempt to
harass, hunt, capture, or kill any marine mammal.''
Under the MMPA, jurisdiction over marine mammals in the
wild is split between two agencies, the U.S. Fish and Wildlife
Service (USFWS) (under the Department of the Interior) and the
National Marine Fisheries Service (NMFS) (under the National
Oceanic and Atmospheric Administration within the Department of
Commerce). USFWS has jurisdiction over sea otters, polar bears,
manatees, dugongs, and walrus, while NMFS has jurisdiction over
all other marine mammals. The Animal and Plant Health
Inspection Service (APHIS) (under the Department of
Agriculture) has jurisdiction over the care and maintenance of
captive animals under the Animal Welfare Act. The MMPA was
substantially amended in 1994, and those amendments transferred
authority for the care and management of captive marine mammals
from NMFS and USFWS to APHIS.
The 1994 amendments also established a new incidental take
regime for commercial fisheries and required NMFS to institute
marine mammal stock assessments and abundance estimates to
provide the necessary scientific basis for a new incidental
take regime. A captive marine mammal inventory was also
established and is maintained by NMFS. The permit process was
eased for scientific research and for educational and
commercial photography. The permit process was also eased for
the public display community, allowing them to notify the
agency 15 days prior to a transfer, export, or sale of a marine
mammal instead of applying for additional permits. Furthermore,
no additional permits were to be required for the progeny of
captive marine mammals. Permits for the importation of legally
harvested polar bear trophies from certain regions of Canada
were also authorized. A process authorizing cooperative
agreements between Alaska natives and the agency of
jurisdiction for the management and conservation of marine
mammals was also established. The Pinniped-Fishery Interaction
Task Forces were authorized to review the interactions of
marine mammals with fish populations on the west coast with
regard to listed salmon stocks, and for the Gulf of Maine with
respect to aquaculture facilities. A prohibition on human
activities within 100 yards of a humpback whale in waters
surrounding Hawaii was included in the amendments. Finally, an
authorization of appropriations was included for the
Departments of Commerce and the Interior and the Marine Mammal
Commission for fiscal years 1994-1999.
The definition of harassment under the MMPA
The 1994 amendments also included a definition of
``harassment.'' The 1994 two-part definition of ``harassment''
is any act of pursuit, torment, or annoyance of marine mammals
which: has the potential to injure a marine mammal or marine
mammal stock in the wild (this is termed level A harassment);
or has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering (this is termed Level
B harassment).
This definition was included in the MMPA to clarify what
activities constitute harassment and to assist the agencies in
enforcing actions that may adversely affect marine mammals.
However, the definition has not led to better enforcement of
the Act. The Secretaries have been unable to prosecute non-
permitted activities that have been directed at specific
animals due to the two-tiered requirement of the definition.
Under his approach, the Secretary concerned has been required
to determine first if an action is an act of pursuit, torment,
or annoyance. If so, then the relevant Secretary then makes a
determination if the action was level A or level B harassment.
President Clinton and then later under President Bush
proposed amending the definition of harassment, as proposed in
the Administration's draft MMPA reauthorization bill. The
Administration bill recommended removing the first tier of the
definition--``pursuit, torment, or annoyance''--and modifying
the definition to raise the threshold of what is considered
harassment away from those activities that cause minor changes
in behavior. In addition, a number of scientists recommended
changes to the definition of ``harassment.''
The National Research Council (NRC) has issued three
reports on the effects of sound as harassment of marine
mammals: Low Frequency Sound and Marine Mammals: Current
Knowledge and Research Needs, 1994; Marine Mammals and Low
Frequency Sound: Progress Since 1994, 2000; and Ocean Noise and
Marine Mammals, 2003. In its 2000 report, the NRC concluded
that regulating activities that cause minor changes in behavior
having no adverse impact did not make sense; instead, MMPA
regulations must focus on significant disruption of behaviors
critical to survival and reproduction. The 2000 report
recommended amending level B harassment to reflect these
conclusions. The 2003 NRC report expanded further on the
changes to level B harassment and recommended that level B
harassment should be modified to focus on biologically
significant disruption of behaviors critical to survival and
reproduction (i.e. adverse impacts), instead of any detectable
change in behavior.
The 2000 report also recommended the removal of ``small
numbers'' from the incidental take authorization in section 101
of the MMPA. Under current law, section 101 requires the
relevant Secretary to make three findings before issuing an
authorization: whether the activity will harass a small number
of marine mammals; the specified geographic area in which the
activity will occur; and whether the activity will have a
negligible impact on the species or stock. The panel stated
``if such a change is not made, it is conceivable under the
current MMPA language there would be two tests for determining
takes by harassment, small numbers first, and if that test were
met, negligible impact from that take of small numbers.'' The
panel went on tostate, ``the removal of `small numbers' would
prevent the denial of research permits that might insignificantly
harass large numbers of animals and would leave the `negligible impact'
test intact.''
The ``small numbers'' finding was included in section
101(a)(5) of the MMPA when it was amended in 1981. The
Committee report accompanying these changes to the MMPA stated
the intent of this requirement was to minimize the impact an
activity might have on marine mammals. The Committee recognized
``the imprecision of the term `small numbers,' but was unable
to offer a more precise formulation because the concept is not
capable of being expressed in absolute numerical limits.''
The imprecision of the term has led to problems with how
the MMPA has been implemented and has resulted in lawsuits
against NMFS which resulted in the courts interpreting the
language. In Natural Resources Defense Council, et al. v.
Donald L. Evans, et al.,\1\ the court raised concerns with how
the Secretary of Commerce defined ``harassment'' and ``small
numbers'' in the final rule for the Surveillance Towed Array
Sensor System (SURTASS) Low Frequency Active (LFA) sonar permit
and the MMPA implementing regulations, respectively. The court
stated that the ``plantiffs argue that NMFS has re-written the
definition of `harassment' from an activity that has the
potential to disturb to an activity that actually causes such a
disturbance.'' The court agreed that the agency used an
erroneous definition of ``harassment'' in the final rule, but
stated that ``it does not appear that this erroneous definition
caused any harm.'' The court further stated that NMFS'
interpretation of the statutory language ``disruption of
behavior patterns'' as ``a significant behavioral change in a
biologically important behavior or activity'' was within the
agency's discretion and granted the NMFS summary judgment on
the issue of whether NMFS applied the wrong standard for level
B harassment in preparing the regulatory definition.
---------------------------------------------------------------------------
\1\ 279 F. Supp. 1129 (N.D. Cal. 2003). See also Natural Resources
Defense Council In. v. Donald Evans (N.D. Cal. October 21, 2002) (No.
C-02-3805) (order granting preliminary injunction).
---------------------------------------------------------------------------
Those regulations also defined ``small numbers'' as ``a
portion of a marine mammal species or stock whose taking would
have a negligible impact on that species or stock.'' The ruling
in the NRDC v. Evans case concluded that NMFS improperly
collapsed the two standards and eliminated the possibility that
the two standards will serve as separate safeguards restricting
the extent of the takes. The agency was directed to redefine
``small numbers'' as a separate standard.
MMPA section 101(a)(5) also requires the relevant Secretary
to make a finding on the ``specified geographic region'' in
which an activity is to occur. This requirement was included in
the 1981 amendments to the MMPA and also came under review in
NRDC v. Evans. When Congress included the ``specified
geographical region'' language in the MMPA in 1981, the
Committee report addressed the issue in this manner: ``the
specified geographical region should not be larger than is
necessary to accomplish the specified activity, and should be
drawn in such a way that the effects on marine mammals in the
region are substantially the same.''
The judge in NRDC v. Evans ruled against the way NMFS
applied the ``specified geographic region'' requirement in the
permit for the Navy's SURTASS LFA sonar. In this permit, NMFS
created 15 biomes, with 54 provinces within the biomes, using a
schematic developed for plankton by Longhurst (1998). The term
``biome'' is used by scientists to describe areas on earth with
similar climate, plants, and animals. The agency argued that
the Longhurst data was the best scientific application
available for designating these specified geographic regions.
However, the plaintiffs in the case argued that the agency did
not include all of the relevant Offshore Biologically Important
Areas (OBIAs) within these biomes in the final rule. The public
comments to the proposed rule raised the issue of the list of
OBIAs being inadequate. The NMFS response to these comments was
that ``it is unnecessary to expand the list of OBIAs prior to
making the required determinations under section
101(a)(5)(A).'' In addition, NMFS stated ``a delay in the
rulemaking process to implement new OBIAs is unwarranted.''
However, NMFS would accept petitions for additional OBIAs. The
permit at issue in the case required the Navy to inform NMFS as
to which biomes would be in use in any one year. The permit
also included mitigation measures that were a condition of
receiving the permit. The court in NRDC v. Evans struck down
this approach. The negotiated settlement of the case ultimately
restricted the Navy to one large area of the Pacific ocean in
which it could test its SURTASS LFA sonar.
The National Defense Authorization Act for Fiscal Year 2004
(NDAA) included language that created a new definition of
harassment for military readiness activities and for research
performed by a federal agency or by independent government
researchers which benefits military operations. The NDAA struck
the ``specified geographical region'' and ``small number''
requirements for military readiness activities in section
101(a)(5) of the MMPA. This action maintained the requirement
that the relevant Secretary find that the action would have a
``negligible impact'' on any marine mammals that might be
affected by the action. The NDAA also created a national
defense exemption under which the Secretary of Defense may
exempt certain activities from the MMPA, in consultation with
the Secretaries of Commerce and the Interior, for national
defense reasons for periods no longer than two years.
MMPA and fisheries interactions
The 1994 amendments also included a new fisheries regime in
section 118 of the MMPA. While this new regime reiterated the
Act's goal of reducing the incidental lethal take or serious
injury of marine mammals, it also authorized interactions
between commercial fisheries and marine mammals. The regime
created three categories which list fisheries with frequent
interactions (category I), occasional interactions (category
II), and remote interactions (category III) with marine
mammals. It also required commercial fishermen to register and
adhere to specific requirements prior to fishing, including:
holding a valid permit and authorization; adhering to emergency
regulations or take reduction plans; reporting requirements;
and carrying observers if requested by the relevant Secretary.
The new regime also authorized the creation of take reduction
teams, which include representatives from commercial fishing,
environmental groups, academics and agency officials, to
develop measures to reduce the incidental take of marine
mammals in those fisheries that interact with strategic or
depleted stocks.
The 1994 amendments created new stock assessment
requirements for NMFS to assist in the development of the new
fishery regime. NMFS was required to develop stock assessments
for each marine mammal in waters under the jurisdiction of the
United States. This was recognized by Congress as a substantial
task, which is why the Committee report directed the Secretary
of Commerce to give a lower priority to those stocks taken only
by harassment. The House Committee on Merchant Marine and
Fisheries (the predecessor in jurisdiction to the Committee on
Resources) understood that the stock assessments were the
underpinnings of successful management.
However, due to an increase in litigation burdens, many
legislative burdens, and other factors, the Secretary of
Commerce has had a difficult time maintaining up-to-date stock
assessments for stocks under his jurisdiction. The commercial
fishing industry testified that the lack of accurate or up-to-
date stock assessments presents potential litigation concerns
since fishery restrictions are made based on the available
stock assessment data.
When developing the stock assessment, NMFS determines the
geographic range, a minimum population estimate, an estimate of
the human-caused mortality and serious injury, and a
description of the fisheries that interact with the stock. For
strategic stocks, the information is supposed to be updated
annually; other stocks are updated every three years. Regional
scientific review groups were also created in 1994 to advise
the Secretary on population estimates, research needs, and
potential modifications to fishing gear and practices to reduce
interactions.
One of the main goals of the MMPA is to maintain marine
mammal populations at their optimum sustainable population
(OSP). The potential biological removal level (PBR) for a
stock, which is determined in the stock assessment process,
meets this goal. PBR is defined in the MMPA as ``the maximum
number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock
to reach or maintain its optimum sustainable population.'' PBR
is calculated by taking a marine mammal population's minimum
population count and multiplying it by 50 percent of the annual
net reproduction rate. The resulting number is then reduced by
multiplying it by a recovery factor of 0.1 for endangered
species, 0.5 for threatened or status uncertain species, and
1.0 for others. This complicated calculation of PBR includes
three levels of precaution, which many have argued is overly
precautionary.
While PBR takes into account all human-caused mortalities,
this mortality limit is used only to restrict commercial
fisheries. No matter how many marine mammals are taken from a
population by other sources of mortality, the commercial
fishing industry faces the restrictions to keep mortality at or
below PBR.
In addition to adhering to PBR, the MMPA established a goal
for commercial fisheries ``to further reduce the incidental
mortality and serious injury of marine mammals to an
insignificant level approaching a zero mortality and serious
injury rate'' (ZMRG). During recent hearings on the
reauthorization of the MMPA, the Committee heard testimony from
the commercial fishing industry that achieving ZMRG is overly
burdensome when fishing mortalities at or below PBR already
meet the goal of maintaining marine mammal populations at OSP.
Congress enacted the MMPA in 1972, in part, to address the
high mortality rate of marine mammals occurring in the
yellowfin tuna purse seine fishery in the eastern tropical
Pacific Ocean. In response to these high mortality levels,
Congress created ZMRG for this fishery. At the time, Congress
was very specific in how ZMRG should be applied to the fishery.
The goal was not to shut down fisheries, but reduce the
incidental mortality and serious injury rate of marine mammals.
In this case, once the Secretary of Commerce was satisfied that
the tuna fishermen were using the best available technology to
assure minimal hazards to marine mammal populations, the goal
of ZMRG was met. This standard also allowed the Secretary to
take into account the economic and technological practicability
of the best available technology.
In the 1980s, Congress reaffirmed the intent of ZMRG.
Congress recognized the progress made by the purse seine
fishery to reduce its mortality rates and maintained the
technology standard for this fishery. The House of
Representatives report accompanying the 1982 amendments to the
MMPA stated ZMRG ``is satisfied . . . by a continuation of the
application of the best marine mammal safety techniques and
equipment that are economically and technologically
practicable.''
It was not until the 1990s that Congress applied dolphin
mortality limits to the yellowfin tuna purse seine fishery.
These limits were based on the International Dolphin
Conservation Act of 1992 and the International Dolphin
Conservation Program Act of 1997. It is important to note that
the mortality limits established in the 1992 Act were based on
reductions that could be achieved by the gear currently being
used in the fishery.
For other fisheries, Congress maintained the zero mortality
rate goal as a means to promote new technology to reduce the
incidental taking of marine mammals. In the 1994 amendments to
the MMPA, Congress created a new fishery regime which
authorized limited incidental takes of marine mammals in
commercial fisheries and retained the economic and
technological practicability finding. In MMPA section
118(f)(2), which guides the take reduction plan process, it
specifically states, ``the long-term goal of the plan shall be
to reduce, within 5 years of its implementation, the incidental
mortality or serious injury of marine mammals incidentally
taken in the course of commercial fishing operations to
insignificant levels approaching a zero mortality and serious
injury rate, taking into account the economics of the fishery,
the availability of existing technology and existing State or
regional fishery management plans.''
To implement the 1994 amendments, NMFS published a proposed
rule on June 16, 1995, to implement section 118 and included a
definition of ZMRG. However, when the final rule was published
in August 30, 1995, the provisions relating to the zero
mortality rate goal were not included. The agency stated in the
rule that it needed more time to determine the appropriate goal
for zero mortality rate.
In 2002, NMFS was sued by a number of environmental groups
for not complying with the requirements of section 118, and as
part of the settlement NMFS was required to define the zero
mortality rate goal. On July 9, 2003, NMFS published an advance
notice of proposed rulemaking on this issue.
Committee Action
H.R. 2693 was introduced on July 10, 2003, by Congressman
Wayne T. Gilchrest (R-MD). The bill was referred to the
Committee on Resources, and within the Committee to the
Subcommittee on Fisheries Conservation, Wildlife and Oceans. On
July 24, 2003, the Subcommittee held a hearing on the bill. On
September 25, 2003, the Subcommittee met to mark up the bill.
Mr. Gilchrest offered an amendment in the nature of a
substitute which modified the definition of harassment, struck
``small numbers'' and ``specified geographic region'' from MMPA
section 101(a)(5) and created a general authorization for
activities that incidentally take marine mammals, clarified the
take reduction plan process in MMPA section 118, clarified the
export provisions in MMPA section 101, made technical changes
to the polar bear trophy permit process in MMPA section 104,
and added a new section which clarifies the tuna-dolphin
provisions in the MMPA and the Dolphin Protection Consumer
Information Act. Congressman Frank Pallone (D-NJ) offered and
withdrew an amendment to the amendment in the nature of a
substitute to change the definition of harassment. Mr. Pallone
also offered an amendment to the amendment in the nature of a
substitute to strike section 14 of the bill. This amendment was
withdrawn. Congresswoman Madeleine Bordallo (D-GU) offered and
withdrew an amendment to the amendment in the nature of a
substitute to strike the time extensions made to the take
reduction team process. Mr. Pallone offered and withdrew an
amendment to the amendment in the nature of a substitute to
increase the fines and penalties assessed in the MMPA. The
amendment in the nature of a substitute was adopted by voice
vote. The bill was then ordered favorably reported to the Full
Committee by voice vote.
On November 5, 2003, the Full Resources Committee met to
consider the bill. Mr. Gilchrest offered an amendment in the
nature of a substitute which increased the authorized
appropriations for the Department of Commerce to the
Administration's request, reduced the take reduction team time-
line extensions from 11 months to 6 months, barred the
Secretary of Commerce from retaining funds beyond those
necessary for administrating the Prescott Grant Program,
amended MMPA section 104 to clarify certain public display
permits, and added two new sections authorizing a research
program to improve fishing gear and marine mammal research
grants. Congressman Jay Inslee (D-WA) offered an amendment to
the amendment in the nature of a substitute which would have
made research on sound the priority for marine mammal research
grants. The amendment was withdrawn. Congressman Don Young (R-
AK) offered and withdrew an amendment to allow the Secretaries
and Native Alaskan Corporations to develop harvest management
plans as part the their cooperative management agreements to
conserve marine mammals and provide co-management of
subsistence use by Alaska Natives. Mr. Young also offered an
amendment to strike any reference to zero mortality rate goal
in the MMPA, leaving potential biological removal as the
mechanism to restore marine mammal stocks to their optimum
sustainable population--the goal of the MMPA. Mr. Young
withdrew the amendment. The amendment in the nature of a
substitute was adopted by voice vote. The bill as amended was
then ordered favorably reported to the House of Representatives
by voice vote.
Section-by-Section Analysis
Section 1. Short title
This section cites the bill as the ``Marine Mammal
Protection Act Amendments of 2004.''
Section 2. Amendment references
This section states that any amendment or repeal of a
section shall be made to such section of the Marine Mammal
Protection Act of 1972.
Section 3. Technical corrections
This section replaces ``Committee on Merchant Marine and
Fisheries'' with ``Committee on Resources'' and deletes an
obsolete reference in MMPA section 118.
Section 4. Limited authority to export marine mammal products
This section clarifies that any U.S. citizen who legally
possesses a marine mammal product may export it in conjunction
with travel outside the U.S. These exports shall be for non-
commercial purposes and the product has to be imported back
into the U.S. at the termination of travel. It also allows
Native handicrafts to be exported for noncommercial purposes if
owned by a Native of Canada, Greenland or Russia or if
possessed by an Alaska Native and exported as a part of a
cultural exchange. The import language in section
101(a)(6)(A)(i) of the MMPA is amended to state that imports
shall be for non-commercial purposes. The intent of the
Committee is to make it explicitly clear that Alaska Natives,
Natives from Canada, Greenland and Russia, as well as U.S.
citizens that legally possess a marine mammal product can
import and export, for noncommercial purposes, legally
possessed marine mammal products as part of cultural exchanges
or in conjunction with travel outside the U.S.
Section 5. Miscellaneous authorizations of appropriations
This section authorizes appropriations for the Departments
of Commerce and the Interior and for cooperative agreements in
Alaska. The Department of Commerce authorization of
appropriations are at levels recommended by the Administration.
Appropriations for section 119 of the MMPA are also authorized.
Section 6. Take reduction plans
This section amends MMPA section 118 to include
recreational fisheries in the list of fisheries that could have
interactions with marine mammals that are frequent or
occasional and result in the incidental mortality and serious
injury of marine mammals. NMFS would berequired to include both
commercial and recreational fishermen's interactions with marine
mammals in assessing whether a particular fishery should be placed in
either category I (frequent incidental mortality or serious injury) or
category II (occasional incidental mortality and serious injury). All
recreational fishermen who participate in a category I or II fishery
would be required to obtain the same annual authorizations and file the
same reports regarding marine mammal interactions as are now required
of commercial fishermen. In such cases, a recreational fishing
representative will also be included in the take reduction plan
process.
This section does not alter existing law for category III
fisheries where there is only a remote likelihood of or no
known incidental mortality or serious injury of marine mammals.
By not expanding category III to include the millions of
recreational fishermen who only fish with rods and reels, the
regulatory burden on both the agency and the public is kept to
a minimum. However, the Committee strongly supports the
inclusion of those recreational fisheries using commercial-type
fishing gear, if they are contributing to the mortality or
serious injury to marine mammals in a category I or II fishery.
These recreational fishermen should be subject to the same
regulatory requirements as commercial fishermen when using the
same gear and having the same affect on marine mammals.
The timelines in this section are modified to allow the
relevant Secretary additional time to meet the requirements of
this section. The Secretary will be given six extra months to
complete the take reduction plans. The Committee was concerned
with groups using missed timelines as the basis for litigation
against the Secretary. The Committee believes the extension to
the timelines in this section will not reduce protections for
marine mammals, but will provide litigation relief for the
Secretary allowing staff and funding to be used for
conservation and management activities rather than preparing
documents for litigation.
This section requires certain Administration personnel to
be in attendance at take reduction team (TRT) meetings. They
include representatives from the National Oceanic and
Atmospheric Administration General Counsel office and the
appropriate Regional Administrator's office, a NMFS fisheries
scientist, and a NMFS law enforcement officer.
This section also requires the relevant Secretary to
reconvene a take reduction team and explain any differences the
Secretary makes between the draft plan, which was drafted by
the TRT, and the published plan. It is not the intent of the
Committee for a TRT to be reconvened for minor changes to a
plan, which might include technical or unsubstantial changes
like typographical errors. Instead, the Secretary is required
to reconvene a TRT when changes are made to the reduction
measures required in the plan which were recommended by the
TRT. It is the understanding of the Committee that the
involvement of additional agency personnel, as mentioned above,
early in the process will help reduce the likelihood that
inappropriate measures are included in the TRT's
recommendations. In addition, the Secretary could schedule the
last TRT meeting during the drafting of regulations and the
public comment process.
Language is added to this section to clarify that
contributions from private sources can be used for observers,
research, education and outreach programs.
This section gives the Secretary some flexibility whether
to convene a TRT. After notice and public comment, the
Secretary may decide not to convene TRTs for those fisheries
that are having a negligible impact on the marine mammal stock
and are not the major cause in the decline of a marine mammal
population. It is the Committee's intent that this flexibility
will allow the Secretary to focus staff time and resources on
those fisheries that have high interactions with marine
mammals.
This section also clarifies that MMPA section 118(c)(3)(E),
which applies to category III fisheries, is a requirement for
commercial vessels only. Owners of a vessel are not subject to
penalties under the MMPA if they report any incidental
mortality or injury of marine mammals in the course of the
fishery.
A conforming amendment to MMPA section 101(a)(5)(E) has
been included to clarify that both commercial and recreational
fisheries can incidentally take endangered marine mammals, as
long as the taking would have a negligible effect and is in
accordance with a take reduction plan.
MMPA section 117(a)(4) is also amended to require that
conservation benefits provided by State and regional fishery
management regulations be included in the scientific review of
marine mammal stocks. Similar changes are made in the take
reduction plan process in MMPA section 118 to allow the take
reduction teams to review the conservation benefits of State
and regional fishery management regulations.
The Committee is concerned that benefits of State and
regional management actions may have been overlooked by TRTs in
the past and the measures and the benefits these regulations
may have had on marine mammal populations have been ignored.
The Committee intends that State and regional management
measures should be factored into the TRT process. The Committee
does not want this process to become burdensome on the TRT;
however, every effort should be made to understand what actions
have been taken and how commercial fisheries may have changed
due to State or regional management measures and if those
changes have had a benefit on marine mammal populations. The
TRT should work to ensure that measures are developed to
protect marine mammals, but it should include an analysis of
restrictions already in place from State and regional
management actions. In addition, if State and regional
management actions have had an adverse impact on marine
mammals, NMFS should work with the State or regional body to
reduce the impacts on marine mammals of activities governed by
those bodies.
The Committee is concerned that NMFS in many cases is using
stock assessment data which is older than five years old. The
Committee understands that the agency has internal guidance,
based on a 1996 GAMMS report,\2\ which recommends using data
which is no older than five years, and that anything beyond
that time frame should be considered outdated and unreliable.
The Committee encourages NMFS to use current data when
convening a TRT, even if it means conducting a stock assessment
in coordination with the development of a take reduction plan
to ensure the take reduction plan is based on the most recent
and accurate stock assessment data.
---------------------------------------------------------------------------
\2\ Guidelines for Assessing Marine Mammal Stocks: The GAMMS
Workshop April 3-5, 1996, Seattle, Washington.
---------------------------------------------------------------------------
Section 7. Pinniped research
MMPA section 120 is amended to require the relevant
Secretary to conduct research on the nonlethal removal and
control of nuisance pinnipeds. The Secretary shall include
representatives from commercial and recreational fishing
industries and where appropriate use independent marine mammal
research institutions. The Secretary shall report annually to
the House Committee on Resources and the Senate Committee on
Commerce, Science and Transportation.
Section 8. Marine Mammal Commission
This section authorizes appropriations for the Commission.
It also deletes the $100 per diem rate cap and clarifies the
staffing authorization for the Commission.
Section 9. Scrimshaw exemption
This section continues the permits for those individuals
with pre-Endangered Species Act ivory to continue to possess,
carve, and sell the ivory until October 31, 2007.
Section 10. Polar bear permits
This section changes the date for eligibility to receive a
permit under MMPA section 104 from April 30, 1994, to February
18, 1997. This section also allows the Secretary of the
Interior to publish on a semiannual basis information
concerning permits authorizing the importation of a polar bear
trophy or the denial of the permit.
Section 11. Captive release prohibition
This section amends section 102 of the MMPA to make it
illegal to release a captive marine mammal without prior
approval from the relevant Secretary. The intent of the
Committee is to prohibit the release of captive marine mammals
if the release has not been permitted by the Secretary. It is
the understanding of the Committee that those activities that
are permitted by the Secretary, such as military activities
which conduct temporary releases, will still be authorized
under the permits authorizing those activities under sections
104 and 109 of the MMPA.
Section 12. Stranding and entanglement response
This section amends Title IV of the MMPA to authorize the
relevant Secretary to enter into response agreements for marine
mammal entanglements in addition to strandings. The term
entanglement is also defined in this section. This section also
authorizes appropriations for the grant program and the Unusual
Mortality Rate Fund which is authorized in MMPA section
409.Language is added to prohibit the relevant Secretary from retaining
funds under section 408, the Prescott Grant Program, except for
administration costs. Any remaining funds are required to be issued in
the form of grants to stranding facilities.
Section 13. Definition of harassment
This section amends the definition of harassment in the
MMPA. These changes are based on recommendations by several
reports issued by the National Research Council.
The Committee has removed the ``pursuit, torment, or
annoy'' clause to clarify the definition to allow for better
enforcement and implementation of those activities which may
harass a marine mammal. The new definition modifies level A
harassment to read: ``injures or has the potential to injure a
marine mammal or marine mammal stock in the wild.'' The
definition of level B is modified to pertain to as any act that
``disturbs or has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of
biologically significant behaviors including, but not limited
to, surfacing, migration, breeding, care of young, predator
avoidance, defense, or feeding to a point where such behavioral
patterns are significantly altered.''
The word ``potential'' has created ambiguities in the
application of the ``harassment'' definition by the
Secretaries. While the Committee maintained ``potential,''
clarification of the term is warranted. All sea-faring
activities have the ``potential'' to harass marine mammals. The
question is whether the activity has caused a significant
behavioral change or response in a biologically important
behavior or activity. The Committee has modified the definition
to allow the Secretaries to move away from managing for minor
changes in marine mammal behavior to focus more on activities
that cause a marine mammal to have a significant behavioral
response in a biologically important activity. The Committee
intends for the regulations to focus on significant disruptions
of behavior critical to survival and reproduction. For
instance, it would not be considered ``harassment'' if a boat
passing by a buoy caused a sea lion to leave the buoy. However,
it would be ``harassment'' if an activity caused a marine
mammal to vacate its breeding area. This response would rise to
the level of a significant alteration of a biologically
important behavior. The Committee believes that the modified
definition will allow the respective Secretaries to manage and
permit activities that take or incidentally take or harass
marine mammals to occur, while incorporating appropriate
protections for marine mammals.
The definition of level B harassment also includes language
regarding activities ``directed toward a specific individual,
group, or stock of marine mammals in the wild that is likely to
disturb the individual, group, or stock of marine mammals by
disrupting behavior, including, but not limited to, surfacing,
migration, breeding, care of young, predator avoidance, defense
or feeding.'' The Committee heard testimony from environmental
groups and scientists raising concerns with the ``directed
toward'' language--specifically that it may adversely impact
scientific research activities. This language was recommended
by the Administration in their draft MMPA bill to improve the
enforcement of the MMPA, specifically for those non-permitted
activities that harass marine mammals. The Committee agreed
with the merit of this language and intends for paragraph (iii)
to be applied only to those non-permitted activities.
Activities like marine mammal research, which receive permits
under section 104, or activities that are eligible for
incidental take and harassment authorizations under section
101(a)(5), should not be further restricted by this ``directed
toward'' level B harassment language in paragraph (iii). It is
the intent of the Committee that permitted activities, like
those permitted under sections 101 or 104, fall under paragraph
(ii) of the level B harassment definition.
Section 14. Incidental takings of marine mammals
This section amends MMPA section 101(a)(5) by deleting
references to ``small numbers.'' The Committee believes the
removal of the ``small numbers'' finding is necessary to
prevent the denial of research permits that might
insignificantly take more than a small number of marine
mammals, but would have no long term adverse impact to the
population. The Committee intends the ``negligible impact''
finding to remain the guiding principle for the agencies when
issuing permits for activities that incidentally, but not
intentionally, take marine mammals. This change does not reduce
the applicant's requirement to show that his activities will
have a negligible impact on the marine mammal species and
populations. Additionally, he will have to demonstrate that his
activities will not have an unmitigable adverse impact on the
availability of such species or stocks for subsistence uses
pursuant to the MMPA. These analyses are the key elements to
maintaining the health of marine mammal species and are the
premise for take authorizations under the MMPA.
In addition, the Committee believes the change in law will
require the Secretary of Commerce to amend the current
regulatory definition of ``specified activity,'' set forth in
50 Code of Federal Regulations 216.103, to ensure consistency
with these amendments. ``Specific activity'' should be
redefined to preclude mention of ``small numbers.''
H.R. 2693 does not remove the ``specified geographic
region'' finding; however, the Committee believes clarification
of this language is necessary to reduce litigation regarding
this provision. The 1981 Committee report stated ``the
specified geographical region should not be larger than is
necessary to accomplish the specified activity, and should be
drawn in such a way that the effects on marine mammals in the
region are substantially the same.'' The Resources Committee
notes that the language does not state that the area has to be
small, but should be as large as necessary to accomplish the
activity. This Committee is not advocating world-wide permits
for any one activity. However, there are certain activities,
like sonar, which can traverse large expanses of the ocean and
are not readily contained in a single ``specified geographic
region.'' The Committee understands the complications these
types of activities present, but supports continued permitting
of these activities in regions which are as large as necessary
to accomplish the activity. In these instances, it is
imperative that the permit include mitigation measures to
ensure protections for marine mammals throughout the area in
which the activity occurs. The Committee supports the
development of programmatic Environmental Impact Statements by
NMFS to facilitate the permitting of activities authorized in
MMPA section 101(a)(5)(A)&(D).
Section 15. Tuna-dolphin provisions
This section makes a technical and clarifying change to the
Dolphin Protection Consumer Information Act. The reference to
``160 degrees west longitude'' is changed to ``150 degrees west
longitude''. This change is necessary for the U.S. regulations
to remain consistent with changes in the international
agreement.
Section 16. Permit clarifications
This section amends MMPA section 104(c)(7) to make it clear
that the relevant Secretary is required to issue a public
display permit to a facility holding a stranded animal that has
been determined under the guidelines developed under MMPA
section 402(a) to not meet the standards for release. The
Committee does not intend that permits be given to those marine
mammals that can be legitimately rehabilitated for release in
the wild; however, the Committee is very concerned that the
Secretary has not been issuing public display permits to
facilities caring for stranded animals that are not viable
release candidates. The Committee's intent is that facilities
shall receive public display permits for animals that do not
meet the release requirements. The Committee does not intend
for the issuance of these permits to diminish research
activities involving these animals and encourages the
facilities to continue to work with the Secretaries to allow
important research activities to continue on these animals.
The Committee commends the public display community for its
role in the conservation and management of marine mammals.
Activities sponsored by public display facilities--research,
educational programs and presentations, animal husbandry,
breeding, and rescue and rehabilitation--are important aspects
to the conservation of marine mammals. The rescue and
rehabilitation programs run by these facilities are critical to
the survival of stranded animals and for many years
participating institutions ran these programs using their own
funds. In addition, these facilities play an invaluable role
for the general public. These public display facilities are the
only place for many Americans to view marine mammals and learn
about the conservation needs of these animals. The Committee
believes the interactions provided at these facilities generate
the general public's good will toward marine mammals and
develops their support for conservation and management measures
for these and many other ocean creatures.
This section amends the export provisions of MMPA section
104 to clarify that the Secretary of Agriculture is the
appropriate entity for determining the adequacy of facilities
holding captive marine mammals. When the Secretary of
Agriculture determines the foreign facility meets the
requirements of the Animal Welfare Act and the MMPA, a U.S.-
based facility is authorized to export the animal. The
Secretary of Agriculture may consult with the Secretaries of
Commerce and the Interior when making the MMPA finding for a
foreign facility. This section also clarifies that letters of
comity are not necessary and that once an animal is transferred
to a foreign facility, the animal and its progeny are no longer
under the jurisdiction of the United States.
The Committee does not agree with the Administration's
interpretation that the MMPA requires comity letters from
foreign governments or other foreign entities to NMFS or the
FWS prior to marine mammals being exported to foreign
facilities. The MMPA applies only in areas under the
jurisdiction of the United States unless the Act specifically
states otherwise. The Committee believes the Department of
Agriculture's process is the only factor to determine whether
or not a marine mammal can be exported to a foreign facility.
If the facility meets the requirements of the Animal Welfare
Act and the MMPA, the marine mammal should be exported.
The inventory provision in subsection (c)(10) is amended to
clarify that the inventory is only for marine mammals in
facilities under the jurisdiction of the United States. The
MMPA still requires the documentation of the initial transfer
of an animal to a foreign facility in the inventory. This
information will remain in the inventory. However, the foreign
facility that receives the marine mammal is not required to
report to the U.S. on the location of the animal at its
facility or if it transfers the marine mammal to another
facility in that country or if the marine mammal is transferred
to a facility in another country. The only time the animal will
come back into the U.S. inventory is if the marine mammal is
imported back into the U.S. In addition, the amendments clarify
that the inventory should be updated annually. It is further
amended to specify that facilities have ownership of the marine
mammals in their care.
The Committee wants to clarify the intent of the 15-day
notice reporting requirement established in the 1994 amendments
for transfers between facilities. The MMPA currently authorizes
the relevant Secretary to issue a permit to a person who meets
the requirements of the MMPA for public display. The 15-day
notice requirement applies to marine mammals transferred to
another facility where care and ownership of the animal
changes. The 15-day notice requirement does not apply if the
care and ownership of the marine mammal does not change and the
animal is moved between facilities owned by the permit holder.
Section 17. Fisheries gear development
This section amends section 111 of the MMPA to authorize
the relevant Secretary to carry out a program of research and
development for the purpose of devising improved fishing
methods and gear to reduce to the maximum extent practicable
the incidental taking of marine mammals in connection with
fishing operations. It authorizes a mini-grant program, subject
to the availability of appropriations, and allows the Secretary
to receive donations to carry out the grant program.
Section 18. Marine mammal research grants
MMPA section 110 is amended to delete expired provisions
and authorize the relevant Secretary to make grants or other
financial assistance to federal or State agencies, public
orprivate institutions, or other persons to undertake research in
subjects relevant to the protection and conservation of marine mammals,
and the ecosystem upon which they depend. The Secretary is authorized
to receive gifts to carry out this section.
Section 19. Fines and penalties
This section increases the fines in MMPA section 105 from
$10,000 to $20,000 for civil penalties and from $20,000 to
$30,000 for criminal penalties. It also increases the penalty
in MMPA section 106 from $25,000 to $35,000.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Federal Advisory Committee Statement
The functions of the advisory committee reauthorized in the
bill are not currently being nor could they be performed by one
or more agencies or by enlarging the mandate of a different,
existing advisory committee.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, credit
authority, or an increase or decrease in tax expenditures. H.R.
2693 would provide new authority to the Secretaries of Commerce
and the Interior to collect and spend donations to support
research programs on fishing methods and other activities
related to the conservation of marine mammals. However, the
Congressional Budget Office estimates that these donations and
subsequent direct spending ``would not exceed $500,000 in any
year''. In addition, revenues to the federal government could
be increased by the larger civil and criminal penalties
authorized in section 19 of the bill. Again, the Congressional
Budget Office estimates that any additional revenues would
total less than $500,000 annually and this increase in revenue
would be fully offset by direct spending from the Crime Victims
Fund (where criminal penalties are deposited) or the resource
management account of the USFWS (where civil fines are
deposited and used for rewards to informers and program costs).
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to reauthorize the Marine Mammal
Protection Act of 1972.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, January 7, 2004.
Hon. Richard W. Pombo,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2693, the Marine
Mammal Protection Act Amendments of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
H.R. 2693--Marine Mammal Protection Act Amendments of 2003
Summary: H.R. 2693 would authorize the appropriation of
$345 million over the 2004-2008 period for programs to protect
and conserve marine mammals. Assuming appropriation of the
specified amounts, CBO estimates that implementing this bill
would cost $9 million in 2004 and $254 million over the next
five years. The bill could increase direct spending and
revenues, but we estimate that any such changes would be
minimal and largely offsetting. H.R. 2693 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2693 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2004 2005 2006 2007 2008
------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending under current law for
Marine Mammal Protection Act
activities:
Budget Authority \1\........ 5 0 0 0 0
Estimated outlays........... 5 2 0 0 0
Proposed changes:
Authorization level......... 62 68 69 70 71
Estimated outlays........... 9 32 63 77 73
Spending under H.R. 3693 Marine
Mammal Protection Act
activities:
Authorization level \1\..... 67 68 69 70 71
Estimated outlays........... 14 34 63 77 73
------------------------------------------------------------------------
\1\ The 2004 level is the amount appropriated for that year to the
Department of the Interior for activities under the Marine Mammal
Protection Act.
Basis of estimate: Assuming appropriation of the necessary
amounts, CBO estimates that H.R. 2693 would cost $9 million in
2004 and $254 million over the next five years. The bill also
would increase direct spending and revenues, but we estimate
that any such effects would be small and largely offsetting.
Spending subject to appropriations
H.R. 2693 would reauthorize programs administered by the
Department of Commerce (DOC) and the Department of the Interior
(DOI) under the Marine Mammals Protection Act. The bill would
authorize the appropriation of $335 million over the 2004-2008
period for those agencies to support various activities,
including the preparation and execution of plans to manage
marine mammals, research and monitoring efforts, and grant
programs to support the rescue of marine mammals from life-
threatening situations. Based on historical spending patterns
for these activities, CBO estimates that appropriation of the
specified amounts would result in additional outlays of $7
million in 2004 and $244 million over the next five years. H.R.
2693 also would authorize the appropriation of $2 million a
year over the 2004-2008 period for the Marine Mammal
Commission, which performs research and advises DOC and DOI on
efforts to conserve marine mammals. Assuming appropriation of
the specified amounts, CBO estimates that funding that
commission would cost $2 million a year for the next five
years.
Direct spending and revenues
H.R. 2693 would provide new authority for the Secretaries
of Commerce and the Interior to collect and spend donations
(which are recorded in the budget as revenues) to support
programs to research fishing methods and other activities
related to the conservation of marine mammals. Based on
information from DOC and DOI, CBO estimates that any such
donations and any subsequent direct spending would not exceed
$500,000 in any year.
By increasing the level of civil and criminal fines for
violations of the Marine Mammals Protection Act, H.R. 2693
could increase revenues from such fines. Based on information
from DOI about the relatively small number of cases likely to
occur, however, CBO estimates that any such increase would
total less than $500,000 annually. Moreover, such changes would
be fully, offset by increases in direct spending from the Crime
Victims Fund (where criminal fines are deposited) or the
resource management account of the U.S. Fish and Wildlife
Service (where civil fines are deposited and used for rewards
to informers and other program costs.)
Intergovernmental and private-sector impact: H.R. 2693
contains no intergovernmental or private-sector mandates as
defined in UMRA and would imposed no costs on state, local, or
tribal government.
Estimate prepared by: Federal Costs: Megan Carroll. Impact
on State, Local, and Tribal Governments: Marjorie Miller.
Impact on the Private Sector: Selena Caldera.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
MARINE MAMMAL PROTECTION ACT OF 1972
AN ACT To protect marine mammals; to establish a Marine Mammal
Commission; for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act, with the following table of contents, may be cited as the
``Marine Mammal Protection Act of 1972''.
TABLE OF CONTENTS
Sec. 2. Findings and declaration of policy.
* * * * * * *
Title IV--Marine Mammal Health and Stranding Response
Sec. 401. Establishment of program.
* * * * * * *
[Sec. 403. Stranding response agreements.]
Sec. 403. Stranding or entanglement response agreements.
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) * * *
* * * * * * *
[(18)(A) The term ``harassment'' means any act of
pursuit, torment, or annoyance which--
[(i) has the potential to injure a marine
mammal or marine mammal stock in the wild; or
[(ii) has the potential to disturb a marine
mammal or marine mammal stock in the wild by
causing disruption of behavioral patterns,
including, but not limited to, migration,
breathing, nursing, breeding, feeding, or
sheltering.
[(B) In the case of a military readiness activity (as
defined in section 315(f) of Public Law 107-314; 16
U.S.C. 703 note) or a scientific research activity
conducted by or on behalf of the Federal Government
consistent with section 104(c)(3), the term
``harassment'' means--
[(i) any act that injures or has the
significant potential to injure a marine mammal
or marine mammal stock in the wild; or
[(ii) any act that disturbs or is likely to
disturb a marine mammal or marine mammal stock
in the wild by causing disruption of natural
behavioral patterns, including, but not limited
to, migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where such
behavioral patterns are abandoned or
significantly altered.
[(C) The term ``Level A harassment'' means harassment
described in subparagraph (A)(i) or, in the case of a
military readiness activity or scientific research
activity described in subparagraph (B), harassment
described in subparagraph (B)(i).
[(D) The term ``Level B harassment'' means harassment
described in subparagraph (A)(ii) or, in the case of a
military readiness activity or scientific research
activity described in subparagraph (B), harassment
described in subparagraph (B)(ii).]
(18)(A) The term ``harassment'' means any act that--
(i) injures or has the potential to injure a
marine mammal or marine mammal stock in the
wild;
(ii) disturbs or has the potential to disturb
a marine mammal or marine mammal stock in the
wild by causing disruption of biologically
significant behaviors, including, but not
limited to, surfacing, migration, breeding,
care of young, predator avoidance, defense, or
feeding to a point where such behavioral
patterns are significantly altered; or
(iii) is directed toward a specific
individual, group, or stock of marine mammals
in the wild that is likely to disturb the
individual, group, or stock of marine mammals
by disrupting behavior, including, but not
limited to, surfacing, migration, breeding,
care of young, predator avoidance, defense, or
feeding.
(B) The term ``Level A harassment'' means harassment
described in subparagraph (A)(i).
(C) The term ``Level B harassment'' means harassment
described in subparagraph (A) (ii) or (iii).
* * * * * * *
TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS
MORATORIUM AND EXCEPTIONS
Sec. 101. (a) There shall be a moratorium on the taking and
importation of marine mammals and marine mammal products,
commencing on the effective date of this Act, during which time
no permit may be issued for the taking of any marine mammal and
no marine mammal or marine mammal product may be imported into
the United States except in the following cases:
(1) * * *
* * * * * * *
(5)(A)(i) Upon request therefor by citizens of the
United States who engage in a specified activity (other
than commercial fishing) within a specified
geographical region, the Secretary shall allow, during
periods of not more than five consecutive years each,
the incidental, but not intentional, taking by citizens
while engaging in that activity within that region [of
small numbers] of marine mammals of a species or
population stock if the Secretary, after notice (in the
Federal Register and in newspapers of general
circulation, and through appropriate electronic media,
in the coastal areas that may be affected by such
activity) and opportunity for public comment--
(I) * * *
* * * * * * *
(D)(i) Upon request therefor by citizens of the
United States who engage in a specified activity (other
than commercial fishing) within a specific geographic
region, the Secretary shall authorize, for periods of
not more than 1 year, subject to such conditions as the
Secretary may specify, the incidental, but not
intentional, taking by harassment [of small numbers] of
marine mammals of a species or population stock by such
citizens while engaging in that activity within that
region if the Secretary finds that such harassment
during each period concerned--
(I) * * *
* * * * * * *
(E)(i) During any period of up to 3 consecutive
years, the Secretary shall allow the incidental, but
not the intentional, taking by persons using vessels of
the United States or vessels which have valid fishing
permits issued by the Secretary in accordance with
section 204(b) of the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1824(b)), while engaging in
commercial or recreational fishing operations, of
marine mammals from a species or stock designated as
depleted because of its listing as an endangered
species or threatened species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) if the
Secretary, after notice and opportunity for public
comment, determines that--
(I) the incidental mortality and serious
injury from commercial or recreational
fisheries will have a negligible impact on such
species or stock;
* * * * * * *
(iii) If, during the course of the commercial or
recreational fishing season, the Secretary determines
that the level of incidental mortality or serious
injury from commercial or recreational fisheries for
which a determination was made under clause (i) has
resulted or is likely to result in an impact that is
more than negligible on the endangered or threatened
species or stock, the Secretary shall use the emergency
authority granted under section 118 to protect such
species or stock, and may modify any permit granted
under this paragraph as necessary.
* * * * * * *
(6)(A) A marine mammal product may be imported into
the United States if the product--
(i) was legally possessed and exported by any
citizen of the United States for noncommercial
purposes in conjunction with travel outside the
United States, provided that the product is
imported into the United States by the same
person upon the termination of travel;
* * * * * * *
(B) A marine mammal product may be exported from the
United States if the product--
(i) is legally possessed, and exported by, a
citizen of the United States for noncommercial
purposes in conjunction with travel outside the
United States and the product is imported into
the United States by the same person upon the
termination of travel;
(ii) is legally possessed and exported as
part of a cultural exchange, by an Indian,
Aleut, or Eskimo residing in Alaska; or
(iii) is owned by a Native inhabitant of
Russia, Canada, or Greenland and is exported
for noncommercial purposes--
(I) in conjunction with, and upon the
completion of, travel within the United
States; or
(II) as part of a cultural exchange
with an Indian, Aleut, or Eskimo
residing in Alaska.
[(B)] (C) For the purposes of this paragraph, the
term--
(i) * * *
* * * * * * *
PROHIBITIONS
Sec. 102. (a) Except as provided in sections 101, 103, 104,
109, 111, 113, 114, and 118 of this title and title IV, it is
unlawful--
(1) * * *
* * * * * * *
(4) for any person to transport, purchase, sell,
export, or offer to purchase, sell, or export any
marine mammal or marine mammal product--
(A) that is taken in violation of this Act;
or
(B) for any purpose other than public
display, scientific research, or enhancing the
survival of a species or stock as provided for
under [subsection 104(c); and] section 104(c);
(5) for any person to use, in a commercial fishery,
any means or methods of fishing in contravention of any
regulations or limitations, issued by the Secretary for
that fishery to achieve the purposes of this Act[.];
and
(6) for any person that is subject to the
jurisdiction of the United States to release any
captive marine mammal unless specifically authorized to
do so under section 104(c)(3)(A), 104(c)(4)(A), or
109(h).
* * * * * * *
PERMITS
Sec. 104. (a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(5)(A) * * *
* * * * * * *
(D) The Secretary of the Interior shall[, expeditiously after
the expiration of the applicable 30 day period under subsection
(d)(2),] issue a permit for the importation of polar bear parts
(other than internal organs) from polar bears taken in sport
hunts in Canada before [the date of enactment of the Marine
Mammal Protection Act Amendments of 1994] February 18, 1997, to
each applicant who submits, with the permit application, proof
that the polar bear was legally harvested in Canada by the
applicant. The Secretary shall issue such permits without
regard to the provisions of subparagraphs (A) and (C)(ii) of
this paragraph, subsection (d)(3) of this section, and sections
101 and 102. This subparagraph shall not apply to polar bear
parts that were imported before the effective date of this
subparagraph.
(E) The Secretary shall make available to the public on a
semiannual basis information concerning the permits issued or
denied under this paragraph.
* * * * * * *
(7) Upon request by a person for a permit under
paragraph (2), (3), or (4) for a marine mammal which is
in the possession of any person authorized to possess
it under this Act and which is determined under
guidance under section 402(a) not to be releasable to
the wild, the Secretary shall issue the permit to the
person requesting the permit notwithstanding any other
provision of law if that person--
(A) * * *
* * * * * * *
(9) No marine mammal may be exported for the purpose
of public display, scientific research, or enhancing
the survival or recovery of a species or stock unless
the Secretary of Agriculture determines, and then
certifies to the Secretary, that the receiving facility
meets standards that are comparable to the requirements
that a person must meet to receive a permit under this
subsection for that purpose. The Secretary may not
require or request, through comity or any other means,
that any marine mammal remain subject to the
jurisdiction of the United States when that marine
mammal or its progeny is located in waters or on lands
subject to the jurisdiction of another country.
(10) The Secretary shall establish and maintain an
inventory of all marine mammals held within the lands
and waters of the United States possessed pursuant to
permits issued under paragraph (2)(A), by persons
exercising rights under paragraph (2)(C), and all
progeny of such marine mammals held within the lands
and waters of the United States. The inventory, which
shall be updated on an annual basis, shall contain, for
each marine mammal, only the following information
which shall be provided by a person holding a marine
mammal under this Act:
(A) * * *
* * * * * * *
(D) The date of ownership, or other
acquisition or disposition of the marine mammal
by the permit holder.
* * * * * * *
(d)(1) * * *
(2) The Secretary shall publish notice in the Federal
Register of each application made for a permit under this
section, except for an application for a permit to import polar
bear parts under subsection (c)(5). Such notice shall invite
the submission from interested parties, within thirty days
after the date of the notice, of written data or views, with
respect to the taking or importation proposed in such
application.
* * * * * * *
(5) As soon as practicable (but not later than thirty days)
after the close of the hearing or, if no hearing is held, after
the last day on which data, or views, may be submitted pursuant
to paragraph (2) of this subsection, the Secretary shall (A)
issue a permit containing such terms and conditions as he deems
appropriate, or (B) shall deny issuance of a permit. Notice of
the decision of the Secretary to issue or to deny any permit
under this paragraph must be published in the Federal Register
within ten days after the date of issuance or denial if a
notice of application was required to be published pursuant to
paragraph (2) with respect to the permit.
* * * * * * *
PENALTIES
Sec. 105. (a)(1) Any person who violates any provision of
this title or of any permit or regulation issued thereunder,
except as provided in section 118, may be assessed a civil
penalty by the Secretary of not more than [$10,000] $20,000 for
each such violation. No penalty shall be assessed unless such
person is given notice and opportunity for a hearing with
respect to such violation. Each unlawful taking or importation
shall be a separate offense. Any such civil penalty may be
remitted or mitigated by the Secretary for good cause shown.
Upon any failure to pay a penalty assessed under this
subsection, the Secretary may request the Attorney General to
institute a civil action in a district court of the United
States for any district in which such person is found, resides,
or transacts business to collect the penalty and such court
shall have jurisdiction to hear and decide any such action.
* * * * * * *
(b) Any person who knowingly violates any provision of this
title or of any permit or regulation issued thereunder (except
as provided in section 118) shall, upon conviction, be fined
not more than [$20,000] $30,000 for each such violation, or
imprisoned for not more than one year, or both.
VESSEL FINE, CARGO FORFEITURE, AND REWARDS
Sec. 106. (a) * * *
(b) Any vessel subject to the jurisdiction of the United
States that is employed in any manner in the unlawful taking of
any marine mammal shall be liable for a civil penalty of not
more than [$25,000] $35,000. Such penalty shall be assessed by
the district court of the United States having jurisdiction
over the vessel. Clearance of a vessel against which a penalty
has been assessed, from a port of the United States, may be
withheld until such penalty is paid, or until a bond or
otherwise satisfactory surety is posted. Such penalty shall
constitute a maritime lien on such vessel which may be
recovered by action in rem in the district court of the United
States having jurisdiction over the vessel.
* * * * * * *
MARINE MAMMAL RESEARCH GRANTS
Sec. 110. [(a) The Secretary is authorized to make grants, or
to provide financial assistance in such other form as he deems
appropriate, to any Federal or State agency, public or private
institution, or other person for the purpose of assisting such
agency, institution, or person to undertake research in
subjects which are relevant to the protection and conservation
of marine mammals. In carrying out this subsection, the
Secretary shall undertake a program of, and shall provide
financial assistance for, research into new methods of locating
and catching yellowfin tuna without the incidental taking of
marine mammals. The Secretary shall include a description of
the annual results of research carried out under this section
in the report required under section 103(f).]
(a) Authorization of Assistance; Annual Report.--
(1) Authorization of Assistance.--The Secretary may
make grants, or provide financial assistance in such
other form as the Secretary considers appropriate, to
any Federal or State agency, public or private
institution, or other person for the purpose of
assisting such agency, institution, or person to
undertake research in subjects that are relevant to the
protection and conservation of marine mammals, and the
ecosystems upon which they depend, including, but not
limited to, the Bering/Chukchi Sea ecosystem and the
California coastal marine ecosystem.
(2) Inclusion of information in reports.--The
Secretary shall include a description of the annual
results of research carried out with assistance under
this section in the report required under section
103(f).
(3) Contributions.--For purposes of carrying out this
section, the Secretary may accept, solicit, receive,
hold, administer, and use gifts, devises, and bequests.
* * * * * * *
[(c)(1) No later than 1 year after the date of enactment of
the Marine Mammal Protection Act Amendments of 1994, the
Secretary of Commerce shall convene a regional workshop for the
Gulf of Maine to assess human-caused factors affecting the
health and stability of that marine ecosystem, of which marine
mammals are a part. The workshop shall be conducted in
consultation with the Marine Mammal Commission, the adjacent
coastal States, individuals with expertise in marine mammal
biology and ecology, representatives from environmental
organizations, the fishing industry, and other appropriate
persons. The goal of the workshop shall be to identify such
factors, and to recommend a program of research and management
to restore or maintain that marine ecosystem and its key
components that--
[(A) protects and encourages marine mammals to
develop to the greatest extent feasible commensurate
with sound policies of resource management;
[(B) has as the primary management objective the
maintenance of the health and stability of the marine
ecosystems;
[(C) ensures the fullest possible range of management
options for future generations; and
[(D) permits nonwasteful, environmentally sound
development of renewable and nonrenewable resources.
[(2) On or before December 31, 1995, the Secretary of
Commerce shall submit to the Committee on Merchant Marine and
Fisheries of the House of Representatives and the Committee on
Commerce, Science and Transportation of the Senate a report
containing the results of the workshop under this subsection,
proposed regulatory or research actions, and recommended
legislative action.
[(d)(1) The Secretary of Commerce, in consultation with the
Secretary of the Interior, the Marine Mammal Commission, the
State of Alaska, and Alaska Native organizations, shall, not
later than 180 days after the date of enactment of the Marine
Mammal Protection Act Amendments of 1994, undertake a
scientific research program to monitor the health and stability
of the Bering Sea marine ecosystem and to resolve uncertainties
concerning the causes of population declines of marine mammals,
sea birds, and other living resources of that marine ecosystem.
The program shall address the research recommendations
developed by previous workshops on Bering Sea living marine
resources, and shall include research on subsistence uses of
such resources and ways to provide for the continued
opportunity for such uses.
[(2) To the maximum extent practicable, the research program
undertaken pursuant to paragraph (1) shall be conducted in
Alaska. The Secretary of Commerce shall utilize, where
appropriate, traditional local knowledge and may contract with
a qualified Alaska Native organization to conduct such
research.
[(3) The Secretary of Commerce, the Secretary of the
Interior, and the Commission shall address the status and
findings of the research program in their annual reports to
Congress required by sections 103(f) and 204 of this Act.]
COMMERCIAL FISHERIES GEAR DEVELOPMENT
Sec. 111. [(a) The Secretary of the department in which the
National Oceanic and Atmospheric Administration is operating
(hereafter referred to in this section as the ``Secretary'') is
hereby authorized and directed to immediately undertake a
program of research and development for the purpose of devising
improved fishing methods and gear so as to reduce to the
maximum extent practicable the incidental taking of marine
mammals in connection with commercial fishing. At the end of
the full twenty-four calendar month period following the date
of the enactment of this Act, the Secretary shall deliver his
report in writing to the Congress with respect to the results
of such research and development. For the purposes of this
section, there is hereby authorized to be appropriated the sum
of $1,000,000 for the fiscal year ending June 30, 1973, and the
same amount for the next fiscal year. Funds appropriated for
this section shall remain available until expended.]
(a) Research and Development Program.--
(1) In general.--The Secretary of Commerce (in this
section referred to as the ``Secretary'') shall--
(A) carry out a program of research and
development for the purpose of devising
improved fishing methods and gear so as to
reduce to the maximum extent practicable the
incidental taking of marine mammals in
connection with fishing operations; and
(B) make every practicable effort to develop,
evaluate, and make available to owners and
operators of fishing vessels such gear and
fishing method improvements as quickly as
possible.
(2) Coordination with other countries.--The Secretary
may coordinate with other countries to foster gear
technology transfer initiatives to reduce to the
maximum extent practicable the incidental mortality and
serious injury of marine mammals throughout the full
extent of their range.
* * * * * * *
(e) Gear Research Mini-Grant Program.--
(1) In general.--Subject to the availability of
appropriations, the Secretary may establish a grant
program to provide financial assistance for developing,
manufacturing, testing, or designing new types of
fishing gear designed to reduce to the maximum extent
practicable the incidental taking (including incidental
mortality and serious injury) of marine mammals.
(2) Grant amount and purposes.--The amount of a grant
under this subsection may not exceed $20,000.
(3) Grant applications.--To receive a grant under
this section, an applicant must submit an application
in such form and manner as the Secretary may prescribe.
(4) Consultation regarding criteria.--The Secretary
shall consult with the Secretary of the Interior and
the Marine Mammal Commission regarding the development
of criteria for the awarding of grants under this
subsection.
(5) Administrative costs.--Of amounts available each
fiscal year to carry out this subsection, the Secretary
may expend not more than $40,000 to pay the
administrative expenses necessary to carry out this
subsection.
(6) Contributions.--For purposes of carrying out this
section, the Secretary may accept, solicit, receive,
hold, administer, and use gifts, devises, and bequests.
* * * * * * *
APPLICATION TO OTHER TREATIES AND CONVENTIONS
Sec. 113. (a) * * *
* * * * * * *
(c) The Secretary of the Interior, in consultation with the
Secretary of State and the Marine Mammal Commission, shall
review the effectiveness of United States implementation of the
Agreement on the Conservation of Polar Bears, particularly with
respect to the habitat protection mandates contained in Article
II. The Secretary shall report the results of this review to
the Committee on [Merchant Marine and Fisheries] Resources of
the House of Representatives and the Committee on Commerce,
Science, and Transportation of the Senate not later than April
1, 1995.
(d) Not later than 6 months after the date of enactment of
the Marine Mammal Protection Act Amendments of 1994, the
Secretary of the Interior, acting through the Secretary of
State and in consultation with the Marine Mammal Commission and
the State of Alaska, shall consult with the appropriate
officials of the Russian Federation on the development and
implementation of enhanced cooperative research and management
programs for the conservation of polar bears in Alaska and
Russia. The Secretary shall report the results of this
consultation and provide periodic progress reports on the
research and management programs to the Committee on [Merchant
Marine and Fisheries] Resources of the House of Representatives
and the Committee on Commerce, Science and Transportation of
the Senate.
INTERIM EXEMPTION FOR COMMERCIAL FISHERIES
Sec. 114. (a) * * *
* * * * * * *
(l)(1) * * *
* * * * * * *
(4) On or before January 1, 1992, the Secretary, after
consultation with the Marine Mammal Commission, and
consideration of public comment, shall transmit to the
Committee on Commerce, Science, and Transportation of the
Senate and the Committee on [Merchant Marine and Fisheries]
Resources of the House of Representatives recommendations
pertaining to the incidental taking of marine mammals, other
than those subject to section 104(h)(2), after October 1, 1993.
The recommendations shall include--
(A) * * *
* * * * * * *
SEC. 116. AUTHORIZATION OF APPROPRIATIONS.
[(a) Department of Commerce.--(1) There are authorized to be
appropriated to the Department of Commerce, for purposes of
carrying out its functions and responsibilities under this
title (other than sections 117 and 118) and title IV,
$12,138,000 for fiscal year 1994, $12,623,000 for fiscal year
1995, $13,128,000 for fiscal year 1996, $13,653,000 for fiscal
year 1997, $14,200,000 for fiscal year 1998, and $14,768,000
for fiscal year 1999.
[(2) There are authorized to be appropriated to the
Department of Commerce, for purposes of carrying out sections
117 and 118, $20,000,000 for each of the fiscal years 1994
through 1999.
[(b) Department of the Interior.--There are authorized to be
appropriated to the Department of the Interior, for purposes of
carrying out its functions and responsibilities under this
title, $8,000,000 for fiscal year 1994, $8,600,000 for fiscal
year 1995, $9,000,000 for fiscal year 1996, $9,400,000 for
fiscal year 1997, $9,900,000 for fiscal year 1998, and
$10,296,000 for fiscal year 1999.]
(a) Department of Commerce.--(1) There are authorized to be
appropriated to the Department of Commerce, for purposes of
carrying out its functions and responsibilities under this
title (other than sections 117 and 118) and title IV--
(A) $23,728,000 for 2004;
(B) $24,378,000 for 2005;
(C) $25,028,000 for 2006;
(D) $25,678,000 for 2007; and
(E) $26,328,000 for 2008.
(2) There are authorized to be appropriated to the Department
of Commerce, for purposes of carrying out sections 117 and 118,
$20,000,000 for each of the fiscal years 2004 through 2008.
(b) Department of the Interior.--There are authorized to be
appropriated to the Department of the Interior, for purposes of
carrying out its functions and responsibilities under this
title--
(1) $11,800,000 for 2004;
(2) $12,300,000 for 2005;
(3) $12,800,000 for 2006;
(4) $13,300,000 for 2007; and
(5) $13,800,000 for 2008.
SEC. 117. STOCK ASSESSMENTS.
(a) In General.--Not later than August 1, 1994, the Secretary
shall, in consultation with the appropriate regional scientific
review group established under subsection (d), prepare a draft
stock assessment for each marine mammal stock which occurs in
waters under the jurisdiction of the United States. Each draft
stock assessment, based on the best scientific information
available, shall--
(1) * * *
* * * * * * *
(4) describe commercial fisheries that interact with
the stock, including--
(A) * * *
* * * * * * *
(C) seasonal or area differences in such
incidental mortality or serious injury; [and]
(D) the rate, based on the appropriate
standard unit of fishing effort, of such
incidental mortality and serious injury, and an
analysis stating whether such level is
insignificant and is approaching a zero
mortality and serious injury rate; and
(E) potential conservation benefits provided
by State and regional fishery management
regulations;
* * * * * * *
SEC. 118. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING
OPERATIONS.
(a) In General.--(1) Effective on the date of enactment of
this section, and except as provided in section 114 and in
paragraphs (2), (3), and (4) of this subsection, the provisions
of this section shall govern the incidental taking of marine
mammals in the course of [commercial] fishing operations by
persons using vessels of the United States or vessels which
have valid fishing permits issued by the Secretary in
accordance with section 204(b) of the Magnuson Fishery
Conservation and Management Act (16 U.S.C. 1824(b)). In any
event it shall be the immediate goal that the incidental
mortality or serious injury of marine mammals occurring in the
course of [commercial] fishing operations be reduced to
insignificant levels approaching a zero mortality and serious
injury rate within 7 years after the date of enactment of this
section.
* * * * * * *
(5) Except as provided in section 101(c), the intentional
lethal take of any marine mammal in the course of [commercial]
fishing operations is prohibited.
* * * * * * *
(b) Zero Mortality Rate Goal.--(1) * * *
* * * * * * *
(3) Three years after such date of enactment, the Secretary
shall review the progress of all commercial fisheries, by
fishery, toward reducing incidental mortality and serious
injury to insignificant levels approaching a zero rate. The
Secretary shall submit to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee on [Merchant
Marine and Fisheries] Resources of the House of Representatives
a report setting forth the results of such review within 1 year
after commencement of the review. The Secretary shall note any
commercial fishery for which additional information is required
to accurately assess the level of incidental mortality and
serious injury of marine mammals in the fishery.
* * * * * * *
[(c) Registration and Authorization.--(1) The Secretary
shall, within 90 days after the date of enactment of this
section--
[(A) publish in the Federal Register for public
comment, for a period of not less than 90 days, any
necessary changes to the Secretary's list of commercial
fisheries published under section 114(b)(1) and which
is in existence on March 31, 1994 (along with an
explanation of such changes and a statement describing
the marine mammal stocks interacting with, and the
approximate number of vessels or persons actively
involved in, each such fishery), with respect to
commercial fisheries that have--
[(i) frequent incidental mortality and
serious injury of marine mammals;
[(ii) occasional incidental mortality and
serious injury of marine mammals; or
[(iii) a remote likelihood of or no known
incidental mortality or serious injury of
marine mammals;]
(c) Registration and Authorization.--(1) The Secretary shall,
within 90 days after the date of enactment of the Marine Mammal
Protection Act Amendments of 2004--
(A) publish in the Federal Register for public
comment, for a period of not less than 90 days, any
necessary changes to the Secretary's list of fisheries
published under section 114(b)(1) in the Federal
Register on August 24, 1994 (along with an explanation
of such changes and a statement describing the marine
mammal stocks interacting with, and the approximate
number of vessels or persons actively involved in, each
such fishery), with respect to--
(i) commercial and recreational fisheries
that have frequent incidental mortality and
serious injury of marine mammals;
(ii) commercial and recreational fisheries
that have occasional incidental mortality and
serious injury of marine mammals; or
(iii) commercial fisheries that have a remote
likelihood of or no known incidental mortality
or serious injury of marine mammals;
(B) after the close of the period for such public
comment, publish in the Federal Register a revised list
of [commercial] fisheries and an update of information
required by subparagraph (A), together with a summary
of the provisions of this section and information
sufficient to advise vessel owners on how to obtain an
authorization and otherwise comply with the
requirements of this section; and
(C) at least once each year thereafter, and at such
other times as the Secretary considers appropriate,
reexamine, based on information gathered under this Act
and other relevant sources and after notice and
opportunity for public comment, the classification of
[commercial] fisheries and other determinations
required under subparagraph (A) and publish in the
Federal Register any necessary changes.
(2)(A) An authorization shall be granted by the Secretary in
accordance with this section for a vessel engaged in a
[commercial] fishery listed under paragraph (1)(A) (i) or (ii),
upon receipt by the Secretary of a completed registration form
providing the name of the vessel owner and operator, the name
and description of the vessel, the fisheries in which it will
be engaged, the approximate time, duration, and location of
such fishery operations, and the general type and nature of use
of the fishing gear and techniques used. Such information shall
be in a readily usable format that can be efficiently entered
into and utilized by an automated or computerized data
processing system. A decal or other physical evidence that the
authorization is current and valid shall be issued by the
Secretary at the time an authorization is granted, and so long
as the authorization remains current and valid, shall be
reissued annually thereafter.
* * * * * * *
(3)(A) An owner of a vessel engaged in any fishery listed
under paragraph (1)(A) (i) or (ii) shall, in order to engage in
the lawful incidental taking of marine mammals in [a commercial
fishery] that fishery--
(i) have registered as required under paragraph (2)
with the Secretary in order to obtain for each such
vessel owned and used in the fishery an authorization
for the purpose of incidentally taking marine mammals
in accordance with this section[, except that owners of
vessels holding valid certificates of exemption under
section 114 are deemed to have registered for purposes
of this subsection for the period during which such
exemption is valid];
* * * * * * *
(E) Each owner of a vessel engaged in any commercial fishery
not listed under paragraph (1)(A) (i) or (ii), and the master
and crew members of such a vessel, shall not be subject to the
penalties set forth in this title for the incidental taking of
marine mammals if such owner reports to the Secretary, in the
form and manner required under subsection (e), instances of
incidental mortality or injury of marine mammals in the course
of that fishery.
* * * * * * *
(5)(A) * * *
(B) The Secretary shall utilize newspapers of general
circulation, fishery trade associations, electronic media, and
other means of advising [commercial] fishermen of the
provisions of this section and the means by which they can
comply with its requirements.
* * * * * * *
(d) Monitoring of Incidental Takes.--(1) The Secretary shall
establish a program to monitor incidental mortality and serious
injury of marine mammals during the course of [commercial
fishing operations] fishing operations in a fishery listed
under subsection (c)(1)(A)(i) or (ii). The purposes of the
monitoring program shall be to--
(A) * * *
* * * * * * *
[(C) identify changes in fishing methods or
technology that may increase or decrease incidental
mortality and serious injury.]
(C) identify current fishery regulations and changes
in fishing methods or technology that may increase or
decrease incidental mortality and serious injury.
* * * * * * *
(3) In determining the distribution of observers among
[commercial fisheries] fisheries listed under subsection
(c)(1)(A)(i) or (ii) and vessels within a fishery, the
Secretary shall be guided by the following standards:
(A) * * *
* * * * * * *
(4) To the extent practicable, the Secretary shall allocate
observers among [commercial fisheries] fisheries listed under
subsection (c)(1)(A)(i) or (ii) in accordance with the
following priority:
(A) The highest priority for allocation shall be for
[commercial fisheries] fisheries listed under
subsection (c)(1)(A)(i) or (ii) that have incidental
mortality or serious injury of marine mammals from
stocks listed as endangered species or threatened
species under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
(B) The second highest priority for allocation shall
be for [commercial fisheries] fisheries listed under
subsection (c)(1)(A)(i) or (ii) that have incidental
mortality and serious injury of marine mammals from
strategic stocks.
(C) The third highest priority for allocation shall
be for [commercial fisheries] fisheries listed under
subsection (c)(1)(A)(i) or (ii) that have incidental
mortality or serious injury of marine mammals from
stocks for which the level of incidental mortality and
serious injury is uncertain.
(5) The Secretary may establish an alternative observer
program to provide statistically reliable information on the
species and number of marine mammals incidentally taken in the
course of [commercial fishing operations] fishing operations in
fisheries listed under subsection (c)(1)(A)(i) or (ii). The
alternative observer program may include direct observation of
fishing activities from vessels, airplanes, or points on shore.
* * * * * * *
(e) Reporting Requirement.--The owner or operator of a
[commercial] fishing vessel subject to this [Act] section shall
report all incidental mortality and injury of marine mammals in
the course of [commercial] fishing operations to the Secretary
by mail or other means acceptable to the Secretary within 48
hours after the end of each fishing trip on a standard postage-
paid form to be developed by the Secretary under this section.
Such form shall be capable of being readily entered into and
usable by an automated sor computerized data processing system
and shall require the vessel owner or operator to provide the
following:
(1) * * *
* * * * * * *
[(f) Take Reduction Plans.--(1) The Secretary shall develop
and implement a take reduction plan designed to assist in the
recovery or prevent the depletion of each strategic stock which
interacts with a commercial fishery listed under subsection
(c)(1)(A) (i) or (ii), and may develop and implement such a
plan for any other marine mammal stocks which interact with a
commercial fishery listed under subsection (c)(1)(A)(i) which
the Secretary determines, after notice and opportunity for
public comment, has a high level of mortality and serious
injury across a number of such marine mammal stocks.]
(f) Take Reduction Plans.--(1) The Secretary shall develop
and implement a take reduction plan designed to assist in the
recovery or prevent the depletion of each strategic stock which
interacts with a fishery listed under subsection (c)(1)(A)(i)
or (ii), unless the Secretary determines, after notice and
opportunity for public comment, that the level of fishery
related mortality and serious injury is having a negligible
impact on that stock. The Secretary may develop and implement a
take reduction plan for any other marine mammal stocks which
interact with a fishery listed under subsection (c)(1)(A)(i)
which the Secretary determines, after notice and opportunity
for public comment, has a high level of mortality and serious
injury across a number of such marine mammal stocks.
(2) The immediate goal of a take reduction plan for a
strategic stock shall be to reduce, within [6] 9 months of its
implementation, the incidental mortality or serious injury of
marine mammals incidentally taken in the course of [commercial
fishing operations] fishing operations in fisheries listed
under subsection (c)(1)(A)(i) or (ii) to levels less than the
potential biological removal level established for that stock
under section 117. The long-term goal of the plan shall be to
reduce, within 5 years of its implementation, the incidental
mortality or serious injury of marine mammals incidentally
taken in the course of [commercial fishing operations] fishing
operations in fisheries listed under subsection (c)(1)(A)(i) or
(ii) to insignificant levels approaching a zero mortality and
serious injury rate, taking into account the economics of the
fishery, the availability of existing technology, and existing
conservation benefits of State or regional fishery management
plans.
(3) If there is insufficient funding available to develop and
implement a take reduction plan for all such stocks that
interact with [commercial] fisheries listed under subsection
(c)(1)(A) (i) or (ii), the Secretary shall give highest
priority to the development and implementation of take
reduction plans for species or stocks whose level of incidental
mortality and serious injury exceeds the potential biological
removal level, those that have a small population size, and
those which are declining most rapidly.
(4) Each take reduction plan shall include--
[(A) a review of the information in the final stock
assessment published under section 117(b) and any
substantial new information;]
(A) a review of the information in the final stock
assessment published under section 117(b), any
substantial new information, a review of the
conservation benefits from current State and regional
fishery management regulations;
(B) an estimate of the total number and, if possible,
age and gender, of animals from the stock that are
being incidentally lethally taken or seriously injured
each year during the course of [commercial fishing
operations] fishing operations in fisheries listed
under subsection (c)(1)(A)(i) or (ii), by fishery;
* * * * * * *
(5)(A) For any stock in which incidental mortality and
serious injury from [commercial] fisheries exceeds the
potential biological removal level established under section
117, the plan shall include measures the Secretary expects will
reduce, within [6] 9 months of the plan's implementation, such
mortality and serious injury to a level below the potential
biological removal level.
(B) For any stock in which human-caused mortality and serious
injury exceeds the potential biological removal level, other
than a stock to which subparagraph (A) applies, the plan shall
include measures the Secretary expects will reduce, to the
maximum extent practicable within 6 months of the plan's
implementation, the incidental mortality and serious injury by
such [commercial] fisheries from that stock. For purposes of
this subparagraph, the term ``maximum extent practicable''
means to the lowest level that is feasible for such fisheries
within the 6-month period.
(6)(A) At the earliest possible time [(not later than 30
days)] after the Secretary issues a final stock assessment
under section 117(b) for a strategic stock, the Secretary
shall, and for stocks that interact with a fishery listed under
subsection (c)(1)(A)(i) for which the Secretary has made a
determination under paragraph (1), the Secretary may--
(i) * * *
(ii) publish in the Federal Register a notice of the
team's establishment, the names of the team's appointed
members, the full geographic range of such stock, and a
list of all [commercial fisheries] fisheries listed
under subsection (c)(1)(A)(i) or (ii) that cause
incidental mortality and serious injury of marine
mammals from such stock.
* * * * * * *
(C) Members of take reduction teams shall have expertise
regarding the conservation or biology of the marine mammal
species which the take reduction plan will address, or the
fishing practices which result in the incidental mortality and
serious injury of such species. Members shall include
representatives of Federal agencies, each coastal State which
has fisheries which interact with the species or stock,
appropriate Regional Fishery Management Councils, interstate
fisheries commissions, academic and scientific organizations,
environmental groups, all commercial and recreational fisheries
groups and gear types which incidentally take the species or
stock, Alaska Native organizations or Indian tribal
organizations, and others as the Secretary deems appropriate, a
representative of the office of General Counsel of the National
Oceanic and Atmospheric Administration, a representative of the
National Marine Fisheries Service having responsibilities
related to fisheries science, a representative of the National
Marine Fisheries Service having responsibilities related to law
enforcement, and a representative of the appropriate National
Marine Fisheries Service Regional Administrator. Take reduction
teams shall, to the maximum extent practicable, consist of an
equitable balance among representatives of resource user
interests and nonuser interests.
* * * * * * *
(7) Where the human-caused mortality and serious injury from
a strategic stock is estimated to be equal to or greater than
the potential biological removal level established under
section 117 for such stock and such stock interacts with a
fishery listed under subsection (c)(1)(A) (i) or (ii), the
following procedures shall apply in the development of the take
reduction plan for the stock:
(A)(i) Not later than [6] 9 months after the date of
establishment of a take reduction team for the stock,
the team shall submit a draft take reduction plan for
such stock to the Secretary, consistent with the other
provisions of this section.
* * * * * * *
(B)(i) The Secretary shall take the draft take
reduction plan into consideration and, [not later than
60 days] not later than 120 days after the submission
of the draft plan by the team, the Secretary shall
publish in the Federal Register the plan proposed by
the team, any changes proposed by the Secretary with an
explanation of the reasons therefor, and proposed
regulations to implement such plan, for public review
and comment during a period of not to exceed 90 days.
Before publishing any plan that is different than the
draft plan proposed by a take reduction team, the
Secretary shall reconvene the team and explain to the
team the differences between the published plan and the
draft plan proposed by the team.
(ii) In the event that the take reduction team does
not submit a draft plan to the Secretary within [6] 9
months, the Secretary shall, [not later than 8 months]
not later than 11 months after the establishment of the
team, publish in the Federal Register a proposed take
reduction plan and implementing regulations, for public
review and comment during a period of not to exceed 90
days.
(C) [Not later than 60 days] Not later than 90 days
after the close of the comment period required under
subparagraph (B), the Secretary shall issue a final
take reduction plan and implementing regulations,
consistent with the other provisions of this section.
(D) The Secretary shall, during a period of 30 days
after publication of a final take reduction plan,
utilize newspapers of general circulation, fishery
trade associations, electronic media, and other means
of advising [commercial] fishermen of the requirements
of the plan and how to comply with them.
* * * * * * *
(8) Where the human-caused mortality and serious injury from
a strategic stock is estimated to be less than the potential
biological removal level established under section 117 for such
stock and such stock interacts with a fishery listed under
subsection (c)(1)(A) (i) or (ii), or for any marine mammal
stocks which interact with a [commercial] fishery listed under
subsection (c)(1)(A)(i) for which the Secretary has made a
determination under paragraph (1), the following procedures
shall apply in the development of the take reduction plan for
such stock:
(A) * * *
* * * * * * *
(C) [Not later than 60 days] Not later than 180 days
after the close of the comment period required under
subparagraph (B), the Secretary shall issue a final
take reduction plan and implementing regulations,
consistent with the other provisions of this section.
(D) The Secretary shall, during a period of 30 days
after publication of a final take reduction plan,
utilize newspapers of general circulation, fishery
trade associations, electronic media, and other means
of advising [commercial] fishermen of the requirements
of the plan and how to comply with them.
* * * * * * *
(9) In implementing a take reduction plan developed pursuant
to this subsection, the Secretary may, where necessary to
implement a take reduction plan to protect or restore a marine
mammal stock or species covered by such plan, promulgate
regulations which include, but are not limited to, measures
to--
(A) establish fishery-specific limits on incidental
mortality and serious injury of marine mammals in
[commercial fisheries or restrict commercial fisheries]
fisheries listed under subsection (c)(1)(A)(i) or (ii)
or restrict such fisheries by time or area;
(B) require the use of alternative [commercial]
fishing gear or techniques and new technologies,
encourage the development of such gear or technology,
or convene expert skippers' panels;
(C) educate [commercial] fishermen, through workshops
and other means, on the importance of reducing the
incidental mortality and serious injury of marine
mammals in affected [commercial] fisheries; and
(D) monitor, in accordance with subsection (d), the
effectiveness of measures taken to reduce the level of
incidental mortality and serious injury of marine
mammals in the course of [commercial fishing
operations] participation in a fishery listed under
subsection (c)(1)(A)(i) or (ii).
* * * * * * *
(g) Emergency Regulations.--(1) If the Secretary finds that
the incidental mortality and serious injury of marine mammals
from [commercial fisheries] fisheries listed under subsection
(c)(1)(A)(i) or (ii) is having, or is likely to have, an
immediate and significant adverse impact on a stock or species,
the Secretary shall take actions as follows:
(A) * * *
* * * * * * *
(3) Emergency regulations prescribed under this subsection--
(A) * * *
(B) shall remain in effect for not more than 180 days
or until the end of the applicable [commercial] fishing
season, whichever is earlier; and
* * * * * * *
(4) If the Secretary finds that incidental mortality and
serious injury of marine mammals in a [commercial fishery]
fishery listed under subsection (c)(1)(A)(i) or (ii) is
continuing to have an immediate and significant adverse impact
on a stock or species, the Secretary may extend the emergency
regulations for an additional period of not more than 90 days
or until reasons for the emergency no longer exist, whichever
is earlier.
* * * * * * *
(j) Contributions.--For purposes of carrying out this
section, including observer, research, and education and
outreach programs, the Secretary may accept, solicit, receive,
hold, administer, and use gifts, devises, and bequests.
* * * * * * *
SEC. 119. MARINE MAMMAL COOPERATIVE AGREEMENTS IN ALASKA.
(a) * * *
* * * * * * *
(d) Authorization of Appropriations.--There are authorized to
be appropriated for the purposes of carrying out this section--
[(1) $1,500,000 to the Secretary of Commerce for each
of the fiscal years 1994, 1995, 1996, 1997, 1998, and
1999; and
[(2) $1,000,000 to the Secretary of the Interior for
each of the fiscal years 1994, 1995, 1996, 1997, 1998,
and 1999.]
(1) $2,000,000 to the Secretary of Commerce for each
of fiscal years 2004 through 2008; and
(2) $1,500,000 to the Secretary of the Interior for
each of fiscal years 2004 through 2008.
The amounts authorized to be appropriated under this subsection
are in addition to the amounts authorized to be appropriated
under section 116.
SEC. 120. PACIFIC COAST TASK FORCE; GULF OF MAINE.
(a) * * *
* * * * * * *
(f) California Sea Lions and Pacific Harbor Seals;
Investigation and Report.--
(1) * * *
(2) Upon completion of the scientific investigation
required under paragraph (1), the Secretary shall enter
into discussions with the Pacific States Marine
Fisheries Commission, on behalf of the States of
Washington, Oregon, and California, for the purpose of
addressing any issues or problems identified as a
result of the scientific investigation, and to develop
recommendations to address such issues or problems. Any
recommendations resulting from such discussions shall
be submitted, along with the report, to the Committee
on [Merchant Marine and Fisheries] Resources of the
House of Representatives and the Committee on Commerce,
Science, and Transportation of the Senate.
* * * * * * *
(g) Regionwide Pinniped-Fishery Interaction Study.--
(1) * * *
(2) Subject to the availability of appropriations,
the Secretary may, not later than 18 months after the
commencement of the study under this subsection,
transmit a report on the results of the study to the
Committee on Commerce, Science, and Transportation of
the Senate and the Committee on [Merchant Marine and
Fisheries] Resources of the House of Representatives.
* * * * * * *
(h) Gulf of Maine Task Force.--The Secretary shall establish
a Pinniped-Fishery Interaction Task Force to advise the
Secretary on issues or problems regarding pinnipeds interacting
in a dangerous or damaging manner with aquaculture resources in
the Gulf of Maine. No later than 2 years from the date of
enactment of this section, the Secretary shall after notice and
opportunity for public comment submit to the Committee on
[Merchant Marine and Fisheries] Resources of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate a report containing recommended
available alternatives to mitigate such interactions.
* * * * * * *
(k) Research on Nonlethal Removal and Control.--(1) The
Secretary shall conduct research on the nonlethal removal and
control of nuisance pinnipeds. The research shall include a
review of measures that have been taken to effect such removal
and control, the effectiveness of these measures, and the
development of new technologies to deter nuisance pinnipeds.
(2) The Secretary shall include, among the individuals that
develop the research program under this subsection,
representatives of the commercial and recreational fishing
industries.
(3) The Secretary is encouraged, where appropriate, to use
independent marine mammal research institutions in developing
and in conducting the research program.
(4) The Secretary shall, by December 31 of each year, submit
an annual report on the results of research under this
subsection to the Committee on Resources of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate.
TITLE II--MARINE MAMMAL COMMISSION
* * * * * * *
ADMINISTRATION OF COMMISSION
Sec. 206. The Commission, in carrying out its
responsibilities under this title, may--
(1) * * *
* * * * * * *
(4) procure the services of such experts or
consultants or an organization thereof as is authorized
under section 3109 of Title 5, United States Code [(but
at rates for individuals not to exceed $100 per diem)];
and
(5) incur such necessary expenses and exercise such
other powers, as are consistent with and reasonably
required to perform its functions under this title[;
except that no fewer than 11 employees must be employed
under paragraph (1) at any time]. Financial and
administrative services (including those related to
budgeting, accounting, financial reporting, personnel,
and procurement) shall be provided the Commission by
the General Services Administration, for which payment
shall be made in advance, or by reimbursement from
funds of the Commission in such amounts as may be
agreed upon by the Chairman and the Administrator of
General Services.
[SEC. 207. AUTHORIZATION OF APPROPRIATIONS.
[There are authorized to be appropriated to the Marine Mammal
Commission, for purposes of carrying out this title, $1,500,000
for fiscal year 1994, $1,550,000 for fiscal year 1995,
$1,600,000 for fiscal year 1996, $1,650,000 for fiscal year
1997, $1,700,000 for fiscal year 1998, and $1,750,000 for
fiscal year 1999.]
SEC. 207. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Marine Mammal
Commission for purposes of carrying out this title--
(1) $2,000,000 for fiscal year 2004;
(2) $2,050,000 for fiscal year 2005;
(3) $2,100,000 for fiscal year 2006;
(4) $2,150,000 for fiscal year 2007; and
(5) $2,200,000 for fiscal year 2008.
* * * * * * *
TITLE IV--MARINE MAMMAL HEALTH AND STRANDING RESPONSE
* * * * * * *
SEC. 402. DETERMINATION; DATA COLLECTION AND DISSEMINATION.
(a) * * *
(b) Collection.--The Secretary shall, in consultation with
the Secretary of the Interior, collect and update,
periodically, existing information on--
(1) procedures and practices for--
(A) rescuing and rehabilitating stranded or
entangled marine mammals, including criteria
used by stranding network participants, on a
species-by-species basis, for determining at
what point a marine mammal undergoing rescue
and rehabilitation is returnable to the wild;
and
* * * * * * *
[SEC. 403. STRANDING RESPONSE AGREEMENTS.]
SEC. 403. STRANDING OR ENTANGLEMENT RESPONSE AGREEMENTS.
(a) In General.--The Secretary may enter into an agreement
under section 112(c) with any person to take marine mammals
under section 109(h)(1) in response to a stranding or
entanglement.
* * * * * * *
SEC. 406. LIABILITY.
(a) In General.--A person who is authorized to respond to a
stranding or entanglement pursuant to an agreement entered into
under section 112(c) is deemed to be an employee of the
government for purposes of chapter 171 of title 28, United
States Code, with respect to actions of the person that are--
(1) * * *
* * * * * * *
SEC. 408. JOHN H. PRESCOTT MARINE MAMMAL RESCUE ASSISTANCE GRANT
PROGRAM.
(a) In General.--(1) Subject to the availability of
appropriations, the Secretary shall conduct a grant program to
be known as the John H. Prescott Marine Mammal Rescue
Assistance Grant Program, to provide grants to eligible
stranding network participants for the recovery or treatment of
marine mammals, the collection of data from living or dead
stranded marine mammals for scientific research regarding
marine mammal health, and facility operation costs that are
directly related to those purposes. All funds available to
implement this section shall be distributed to eligible
stranding network participants for the three purposes set forth
in this paragraph, except as provided in subsection (f).
(2)(A) * * *
(B) In determining priorities among such regions, the
Secretary may consider--
(i) any episodic stranding or any mortality event
other than an event described in [section 410(6)]
section 410(7), that occurred in any region in the
preceding year;
* * * * * * *
[(f ) Administrative Expenses.--Of amounts available each
fiscal year to carry out this section, the Secretary may expend
not more than 6 percent or $80,000, whichever is greater, to
pay the administrative expenses necessary to carry out this
section.]
(f) Administrative Costs and Expenses.--Of the amounts
available each fiscal year to carry out this section, the
Secretary shall not expend more than 6 percent or $80,000,
whichever is greater, to pay the administrative costs and
administrative expenses to implement the grant program provided
for in subsection (a)(1). Any funds retained by the Secretary
shall be used only for such administrative costs and expenses
and any such funds that are not expended by the Secretary at
the end of each fiscal year shall be expended as grants
pursuant to the grant program established by subsection (a)(1).
* * * * * * *
(h) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section $5,000,000 for each
of fiscal years [2001 through 2003] 2004 through 2008, to
remain available until expended, of which--
(1) * * *
* * * * * * *
SEC. 409. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated--
(1) * * *
* * * * * * *
(3) to the Fund, [$500,000 for fiscal year 1993]
$125,000 for each of fiscal years 2004 through 2008.
SEC. 410. DEFINITIONS.
In this title, the following definitions apply:
(1) The term ``entanglement'' means an event in the
wild in which a living or dead marine mammal has gear,
rope, line, net, or other material wrapped around or
attached to it and is--
(A) on a beach or shore of the United States;
or
(B) in waters under the jurisdiction of the
United States.
[(1)] (2) The term ``Fund'' means the Marine Mammal
Unusual Mortality Event Fund established by section
405(a).
[(2)] (3) The term ``Office'' means the Office of
Protected Resources, in the National Marine Fisheries
Service.
[(3)] (4) The term ``stranding'' means an event in
the wild in which--
(A) * * *
* * * * * * *
[(4)] (5) The term ``stranding network participant''
means a person who is authorized by an agreement under
section 112(c) to take marine mammals as described in
section 109(h)(1) in response to a stranding.
[(5)] (6) The term ``Tissue Bank'' means the National
Marine Tissue Bank provided for under section 407(a).
[(6)] (7) The term ``unusual mortality event'' means
a stranding that--
(A) * * *
* * * * * * *
----------
DOLPHIN PROTECTION CONSUMER INFORMATION ACT
(Section 901 of Pub. L. 101-627)
DOLPHIN PROTECTION
Sec. 901. (a) Short Title.--This section may be cited as the
``Dolphin Protection Consumer Information Act''.
* * * * * * *
(c) Definitions.--For purposes of this section--
(1) * * *
(2) the term ``eastern tropical Pacific Ocean'' means
the area of the Pacific Ocean bounded by 40 degrees
north latitude, 40 degrees south latitude, [160 degrees
west longitude] 150 degrees west longitude, and the
western coastlines of North, Central, and South
America;
* * * * * * *
SUPPLEMENTAL VIEWS
While this legislation is the product of negotiation and
compromise between the Chairman of the full committee and
myself, as well as the chairman of the Subcommittee on
Fisheries, Conservation, Wildlife and Oceans and that panel's
ranking Democratic Member, and was reported in a bipartisan
manner, certain provisions of the bill are described in the
Committee Report in a way which in my view distorts their
intent and purpose. For this reason, I am filing these
Supplemental Views. Chiefly among these provisions are:
15 Day Advance Notice/Captive Marine Mammals: The
report states that the 15-day advance notice requirement for
transfer of captive marine mammals should not apply to
transport between facilities owned and operated by the same
permit holder. This statement is without statutory basis and
contrary to existing law and policy. Current law prohibits the
sale, purchase, export or transport of marine mammals held for
the purpose of public display unless the Secretary is notified
of such action no later than 15 days before such action. This
language clearly includes the transport of marine mammals
between facilities, even where the owner of the facilities is
the same, because of the explicit prohibition of both ``sale''
and ``transport.'' Simply because a permit holder may own and
operate multiple facilities is no assurance that all of these
facilities meet all requirements for the care and maintenance
of marine mammals. Furthermore, transfer and shipping of marine
mammals is stressful to the animals and should be monitored to
avoid abuse.
Zero Mortality Rate Goal: The report's discussion
concerning the Zero Mortality Rate Goal (ZMRG) reflects views
which I do not share. In two instance, the report states that
ZMRG is unnecessary once incidental mortality reaches the
Potential Biological Removal (PBR) level. The basis for this
assertion is that PBR alone is sufficient to attain the Act's
goal of maintaining populations at optimal sustainable
populations. However, I do not agree with the premise of
equating ZMRG with PBR. Such an interpretation would be
contrary to the long-term goal of the take reduction team
process which is to reduce incidental mortality to levels below
PBR. ZMRG therefore functions as a precautionary downward
pressure to continue to reduce incidental mortality with
consideration of economic and technological factors of the
fishery.
Dolphin Safe: The Majority's dicta equating ZMRG
and PBR may have implications concerning ongoing litigation
concerning dolphin bycatch in the yellowfin tuna fishery in the
Eastern Tropical Pacific Ocean and the ``Dolphin Safe''
consumer label. When Congress amended the International Dolphin
Conservation Act in 1997, it amended the yellowfin tuna
provisions of the MMPA to provide an annual mortality cap of
5,000 dolphins and population-specific dolphin mortality limits
in the ETP purse seine fishery. However, Congress also renewed
a commitment and objective to progressively reduce dolphin
mortality to a level approaching zero. Language in the
Majority's report should not be read to imply that the Congress
considers the practice of setting on dolphins or encirclement
by purse seine nets to satisfy a ``best available technology''
standard, particularly at a time when the matter is in
litigation.
Small Numbers/Negligible Impact: The report's
rationale for striking references to ``small numbers'' as it
applies to determinations of ``no negligible impact'' should be
clarified. Fundamental to striking ``small numbers'' as a test
for permit approval is the understanding that any determination
of negligible impact must account for the population dynamics
of the species. Accordingly, it is my view that it remains the
Secretary's responsibility to consider the special circumstance
of small sub-populations (i.e., Puget Sound orca or Cook Inlet
beluga whale) or listed species (i.e., North Atlantic right
whale).
Specific Geographic Region: The committee report
states that in regard to ``specified geographic region'' an
area should be as large as necessary to accomplish the
activity. I disagree. Since 1981, it is well established law
that the specified geographical region MAY be smaller than the
activity's range. The primary purpose of this provision of the
Act is to protect marine mammals, not to design a permitting
system catering to variously-sized areas of activities. The
Majority's unilateral interpretation would be a significant
change in current law which holds that regions should be
narrowly identified so that anticipated effects will be
substantially the same.
Nick Rahall.