[Congressional Record Volume 140, Number 32 (Monday, March 21, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: March 21, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
MARINE MAMMAL PROTECTION ACT AMENDMENTS OF 1993
Mr. JOHNSTON. Madam President, I ask unanimous consent that the
Senate proceed to the immediate consideration of Calendar Order No.
348, S. 1636, the Marine Mammal Protection Act Amendments of 1993.
The ACTING PRESIDENT pro tempore. The bill will be stated by title.
The assistant legislative clerk read as follows:
A bill (S. 1636) to authorize appropriations for the Marine
Mammal Protection Act of 1972 and to improve the program to
reduce the incidental taking of marine mammals during the
course of commercial fishing operations, and for other
purposes.
The ACTING PRESIDENT pro tempore. Is there objection to the immediate
consideration of the bill?
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on Commerce, Science, and
Transportation with amendments, as follows:
(The parts of the bill intended to be stricken are shown in boldface
brackets and the parts of the bill intended to be inserted are shown in
italic.)
S. 1636
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Marine Mammal Protection Act
Amendments of 1993''.
SEC. 2. PURPOSES.
The purposes of this Act are to--
(1) authorize appropriations to carry out the Marine Mammal
Protection Act of 1972 for the fiscal years 1994 through
1998;
(2) ensure that the incidental take of marine mammals in
any fishery, by itself and in combination with other human
activities, does not cause any species or stock of marine
mammals to be reduced to or maintained at, for significant
periods of time, a level that is below the lower limit of its
optimum sustainable population range;
(3) avoid restrictions on fishing operations when such
restrictions are not necessary to meet the purpose described
in paragraph (2);
(4) prohibit international lethal taking during commercial
fishing, except as authorized through a waiver under section
101(a)(3) of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371(a)(3));
(5) focus efforts on identifying and addressing the most
significant problems involving fishery-marine mammal
interactions, considering both the status of the affected
marine mammal stocks and the numbers of marine mammals that
are taken incidentally in each fishery;
(6) streamline the procedure for authorizing the incidental
taking of marine mammals in commercial fisheries, consistent
with the long-term objective of identifying and taking such
steps as may be practicable to reduce mortality and serious
injury incidental to commercial fishing operations to
insignificant [levels] rates approaching zero; and
(7) develop a cost-effective program for reliably
monitoring (A) the levels of incidental take of marine
mammals in commercial fisheries and (B) the size and current
population trends of the affected marine mammals stocks.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
(a) Commerce Department.--Section 7(a) of the Act entitled
``An Act to improve the operation of the Marine Mammal
Protection Act of 1972, and for other purposes'', approved
October 9, 1981 (16 U.S.C. 1384(a)), is amended to read as
follows:
``(a) Department of Commerce.--There are authorized to be
appropriated to the Department of Commerce, for purposes of
carrying out such functions and responsibilities as it may
have been given under title I of the Marine Mammal Protection
Act of 1972, $21,636,000 for fiscal year 1994, $22,502,000
for fiscal year 1995, $23,402,000 for fiscal year 1996,
$24,338,000 for fiscal year 1997, and $25,311,000 for fiscal
year 1998.''.
(b) Interior Department.--Section 7(b) of the Act entitled
``An Act to improve the operation of the Marine Mammal
Protection Act of 1972, and for other purposes'', approved
October 9, 1981 (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 Interior, for purposes
of carrying out such functions and responsibilities as it may
have been given under title I of the Marine Mammal Protection
Act of 1972, $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, and $9,900,000 for fiscal year 1998.''.
(c) Marine Mammal Commission.--Section 7(c) of the Act
entitled ``An Act to improve the operation of the Marine
Mammal Protection Act of 1972, and for other purposes'',
approved October 9, 1981 (16 U.S.C. 1407), is amended to read
as follows:
``(c) Marine Mammal Commission.--There are authorized to be
appropriated to the Marine Mammal Commission, for purposes of
carrying out such functions and responsibilities as it may
have been given under title II of the Marine Mammal
Protection Act of 1972, $1,350,000 for fiscal year 1994,
$1,400,000 for fiscal year 1995, $1,450,000 for fiscal year
1996, $1,500,000 for fiscal year 1997, and $1,550,000 for
fiscal year 1998.''.
SEC. 4. INCIDENTAL TAKING OF ENDANGERED AND THREATENED
SPECIES.
(a) In General.--Section 101(a)(4) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1371(a)(4)) is amended to
read as follows:
``(4)(A) The Secretary may allow the incidental, but not
the intentional, taking, by citizens of the United States
while engaging in commercial fishing operations, of marine
mammals from a species or stock designated under [the] this
Act as depleted because of its listing as an endangered 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 such taking
is pursuant to a statement issued by the Secretary for such
taking under section 7 of such Act (16 U.S.C. 1536).
``(B) Sections 103 and 104 shall not apply to the taking of
marine mammals under the authority of this paragraph.''.
(b) Conforming Amendment.--Section 7(b)(4)(C) of the
Endangered Species Act of 1973 (16 U.S.C. 1536(b)(4)(C)) is
amended by inserting ``101(a)(4) or'' immediately before
``101 (a)(5)'' each place it appears.
SEC. 5. CONSERVATION PLANS.
Section 115(b) of the Marine Mammal Protection Act of 1972
(16 U.S.C. [13836(b))] 1383b(b)) is amended by adding at the
end the following new paragraph:
``(4) If the Secretary determines that an incidental taking
plan is necessary to reduce the incidental taking of marine
mammals in the course of commercial fishing operations from a
stock identified as a critical stock under section [118(c)],
117(c), any conservation plan required under this subsection
for such stock shall only address non-incidental takings.''.
SEC. 6. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL
FISHING OPERATIONS.
Title I of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371 et seq.) is amended by adding at the end the
following new section:
``SEC. [118.] 117. TAKING OF MARINE MAMMALS INCIDENTAL TO
COMMERCIAL FISHING OPERATIONS.
``(a) In General.--(1) Except as provided in section 114
and in paragraphs (2), (3), and (4) of this section, and
notwithstanding section 101, 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)). The Secretary shall
develop and implement incidental taking plans under this
section to reduce the incidental lethal taking of marine
mammals, from stocks listed as critical stocks under
subsection (c), to a level below the calculated acceptable
removal level.
``(2) Section 101(a)(4), and not this section, shall govern
the incidental taking of marine mammals from species or
stocks designated under this Act as depleted on the basis of
their listing as threatened or endangered species under the
Endangered Species Act of 1973.
``(3) Sections 104(h) and 306, and not this section, shall
govern the taking of marine mammals in the course of
commercial purse seine fishing for yellowfin tuna in the
eastern tropical Pacific Ocean.
``(4) This section shall not govern the taking of marine
mammals from an experimental population of California sea
otters to which the Act of November 7, 1986 (Public Law 99-
625; 100 Stat. 3500) applies.
``(5) Sections 103 and 104 shall not apply to the
incidental taking of marine mammals under the authority of
this section.
``(b) Scientific Consultation.--In implementing the
incidental taking program under this section, the Secretary
shall seek the advice of individuals with expertise in marine
mammal biology and ecology, population dynamics and modeling,
and commercial fishing technology and practices. Such advice
should be sought with respect to information available, and
actions proposed, for such implementation, including--
``(1) information provided in connection with stock
assessments under this section;
``(2) studies needed to resolve uncertainties regarding
stock separation, stock abundance, or trends and factors
affecting distribution, size, or productivity of stocks;
``(3) studies needed to resolve uncertainties in
determining marine mammal species, numbers, ages, and gender,
and the reproductive status of stocks; and
``(4) research to identify modifications in fishing gear
and fishing practices likely to reduce the mortality and
serious injury of marine mammals incidental to commercial
fishing operations.
``(c) Stock Assessments.--(1) Using the best scientific
information available and in accordance with this subsection,
the Secretary shall prepare and issue, and thereafter (as
appropriate) revise, a stock assessment for each marine
mammal stock which occurs in waters under the jurisdiction of
the United States. The stock assessment shall include--
``(A) a definition of the stock by species [of] or
subspecies and its spatial and temporal distribution;
``(B) the best available estimates of the stock's
population abundance, realistic minimum population size, and
current population trend;
``(C) estimates of the total lethal take from the stock by
source and, for a stock designated under this subsection as a
critical stock, other factors that may impede recovery of the
stock, including impacts on marine mammal habitat and prey;
and
``(D) a description of any commercial fishery that
interacts with the stock, including--
``(i) the approximate number of vessels participating in
the fishery;
``(ii) the approximate incidental lethal and serious injury
take from the stock by such fishery;
``(iii) seasonal or area differences in levels of such
incidental lethal or serious injury take; and
``(iv) the rate of incidental mortality in the stock caused
by such fishing, based on a unit of fishing effort;
``(E) a determination as to the status of the stock,
including whether the stock is determined to be within its
optimum sustainable population range, is designated as
depleted under this Act, is listed as threatened or
endangered under the Endangered Species Act of 1973, or is
proposed for listing as a critical stock under subparagraph
(G);
``(F) a determination of the calculated acceptable removal
level for the stock and the factors used to calculate it,
including a recovery factor if the stock is below its optimum
sustainable population; and
``(G) designation of the stock (based on a scientific
analysis of the stock's population trend and population size,
the level of total lethal take from the stock from all
sources, and the best available estimates of net productivity
at the maximum net productivity level) for listing in one of
the following categories:
``(i) Class 1, consisting of stocks whose population size
is declining, or whose population trend is unknown and whose
realistic minimum population is less than 10,000, and from
which the total annual lethal take exceeds the net
productivity of the population when it is at its maximum net
productivity level.
``(ii) Class 2, consisting of stocks--
``(I) whose population size is declining, or whose
population trend is unknown and whose realistic minimum
population is less than 10,000; and from which the total
annual lethal take is between 20 percent and 100 percent of
the net productivity of the stock's population when it is at
its maximum net productivity level; or
``(II) whose population size is stable, or whose population
trend is unknown and [the] whose realistic minimum population
is greater than 10,000 but less than 100,000; and from which
the total annual lethal take exceeds the net productivity of
the stock's population when it is at its maximum net
productivity level.
``(iii) Class 3, consisting of stocks--
``(I) whose population size is declining, or whose
population trend is unknown and whose realistic minimum
population is less than 10,000; and from which the total
annual lethal take is less than 20 percent of the net
productivity of the stock's population when it is at its
maximum net productivity level;
``(II) whose population size is stable, or whose population
trend is unknown and whose realistic minimum population is
greater than 10,000 but less than 100,000; and from which the
total annual lethal take is between 20 percent and 100
percent of the net productivity of the stock's population
when it is at its maximum net productivity level; or
``(III) whose population size is increasing, or whose
population trend is unknown and whose realistic minimum
population is greater than 100,000; and from which the total
annual lethal take exceeds the net productivity of the
stock's population when it is at its maximum net productivity
level.
``(iv) Class 4, consisting of stocks--
``(I) whose population size is stable, or whose population
trend is unknown and [the] whose realistic minimum population
is greater than 10,000 but less than 100,000; and from which
the total annual lethal take is [between] less than 20
percent [and 100 percent] of the net productivity of the
stock's population when it is at its maximum net productivity
level; or
``(II) whose population size is increasing, or whose
population trend is unknown and whose realistic minimum
population is greater than 100,000; and from which the total
annual lethal take is between 20 percent and 100 percent of
the net productivity of the stock's population when it is at
its maximum net productivity level.
``(v) Class 5, consisting of stocks whose population size
is increasing, or whose population trend is unknown and [the]
whose realistic minimum population is greater than 100,000;
and from which the total annual lethal take is less than 20
percent of the net productivity of the stock's population
when it is at its maximum net productivity level.
``(2) Not later than 240 days after the date of enactment
of this section, the Secretary shall issue a draft of each
stock assessment required by this subsection, after seeking
advice from the experts described in subsection (b). The
Secretary shall publish in the Federal Register a notice of
availability of the draft and provide an opportunity for
public review and comment during a period of not to exceed 60
days.
``(3) Not later than 90 days after the close of the public
comment period on such preliminary stock assessment, the
Secretary shall publish in the Federal Register a final stock
assessment, after consideration of advice, recommendations,
and comments of experts and the general public and the best
scientific information available.
``(4) The Secretary shall review stock assessments in
accordance with this subsection, and obtain advice and
recommendations from experts--
``(A) on an annual basis for stocks listed as critical
stocks or for which new information is available; and
``(B) at least once every 3 years for all other marine
mammal stocks.
The Secretary shall revise such assessments after notice and
opportunity for public comment, if the review indicates
revision is necessary.
``(d) Incidental Taking Plan.--(1) The Secretary shall
develop and implement an incidental taking plan designed to
assist in the recovery of each marine mammal stock that is
listed as a critical stock and interacts with commercial
fisheries. Such plan shall be developed in consultation with
the incidental take team established for the plan under this
subsection. If there is insufficient funding available to
develop and implement an incidental taking plan for all
critical stocks that interact with commercial fisheries, the
Secretary shall give highest priority to the development and
implementation of incidental taking plans for Class 1 stocks.
Within a particular class of critical stocks that interact
with commercial fisheries, the Secretary shall give highest
priority to the development and implementation of plans for
stocks that the Secretary considers the most critical within
the class.
``(2) Each incidental taking plan developed under this
subsection for a critical stock shall include the following:
``(A) A review and evaluation of the information contained
in the stock assessment published under subsection (c) and
any new information that may be available.
``(B) An evaluation and estimate of the total number and
percentage of animals from the stock that are being killed or
seriously injured each year as a result of commercial fishing
activities.
``(C) Proposed management measures or voluntary actions for
the reduction of incidental taking by commercial fisheries.
Such proposed measures and actions shall be developed in
light of the plan's immediate objective of reducing
incidental lethal and serious injury take by commercial
fisheries by the same proportion as their proportion of the
total lethal and serious injury take from all sources.
``(D) A long-term strategy to reduce, to insignificant
rates approaching zero within 10 years, the incidental
mortality and serious injury within the stock that results
from commercial fishing operations.
``(3) Each incidental taking plan shall include projected
dates for achieving the objectives of the plan. If the total
lethal take exceeds the calculated acceptable removal level,
the plan shall include measures the Secretary expects will
reduce, within 6 months after commencement of fishing, the
share of the lethal take that exceeds the calculated
acceptable removal level and is attributable to commercial
fisheries.
``(4)(A) At the earliest possible time (not later than 120
days) after the Secretary issues a final stock assessment
listing a stock as a critical stock, the Secretary shall--
``(i) establish an incidental take team for such critical
stock and appoint the members of such team in accordance with
subparagraph (C); and
``(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 critical stock,
and all the commercial fisheries that have lethal incidental
takings from such stock.
``(B) The Secretary may charge an incidental take team to
deal with a stock that extends over one or more regions, or
multiple stocks within a region, if the Secretary determines
that doing so would facilitate the development and
implementation of plans required under this subsection.
``(C) Members of incidental take teams shall be individuals
knowledgeable and experienced regarding the measures to
conserve such stocks and to reduce any takings from such
stock incidental to commercial fishing operations. Members
may include representatives of Federal and State agencies,
regional fishery management councils and commissions,
academic and scientific organizations, environmental and
fishery groups, and others as the Secretary considers
appropriate. Incidental take teams shall, to the maximum
extent practicable, consist of an equitable balance among
representatives of government, resource user interests, and
non-user interests. Incidental take teams shall not be
subject to the Federal Advisory Committee Act (5 App. U.S.C.)
but their meetings shall be open to the public, after timely
publicity on the time and place of such meetings.
``(D) Members of incidental take teams shall serve without
compensation, but shall be reimbursed by the Secretary for
reasonable travel costs and expenses incurred in performing
their duties as members of the team.
``(E) Nothing in this section shall be construed to
constrain the Secretary from establishing priority among
classes of critical stocks covered by this subsection and
exercising discretion (in consultation with scientific
experts) to address such stocks in any fiscal year according
to that priority.
``(5) Where the total lethal take from such a critical
stock is estimated to be greater than the calculated
acceptable removal level established in the stock assessment,
the following procedures shall apply in the development of
the incidental taking plan for the stock:
``(A) Not later than 6 months after the date of
establishment of an incidental take team for the stock, the
team shall submit a draft incidental taking plan for the
critical stock to the Secretary, consistent with the other
provisions of this section.
``(B)(i) The Secretary shall take the draft incidental
taking plan into consideration and, not later than 60 days
after the submission of the draft plan by the team, the
Secretary shall publish in the Federal Register a proposed
incidental taking plan and proposed regulations to implement
such plan, for public review and comment.
``(ii) In the event that the incidental take team does not
submit a draft plan to the Secretary within 6 months, the
Secretary shall, not later than 8 months after the
establishment of the team, publish in the Federal Register a
proposed incidental taking plan and implementing regulations,
for public review and comment.
``(C) Not later than 60 days after the close of the comment
period required under subparagraph (B), the Secretary shall
issue a final incidental taking plan and implementing
regulations, consistent with the other provisions of this
section.
``(D) The Secretary and the incidental take team shall meet
every 6 months to monitor the implementation of the final
incidental taking plan until such time that the Secretary
determines that meetings are no longer necessary.
``(E) The Secretary may, in consultation with the
incidental take team, amend the incidental taking plan and
implementing regulations as necessary, consistent with the
procedures in this section for the issuance of such plans and
regulations.
``(6) Where the total lethal take from a critical stock to
which this subsection applies is estimated to be less than
the calculated acceptable removal level established in the
stock assessment, the following procedures shall apply in the
development of the incidental taking plan for the stock:
``(A) Not later than 11 months after the date of
establishment of an incidental take team for the stock, the
team shall submit a draft incidental taking plan for the
stock to the Secretary, consistent with the other provisions
of this section.
``(B)(i) The Secretary shall take the draft incidental
taking plan into consideration and, not later than 60 days
following the submission of the draft plan by the team, the
Secretary shall publish in the Federal Register a proposed
incidental taking plan and implementing regulations, for
public review and comment.
``(ii) In the event that the incidental take team does not
submit a draft plan to the Secretary within 11 months, the
Secretary shall, not later than 13 months after the
establishment of the team, publish in the Federal Register a
proposed incidental taking plan and implementing regulations,
for public review and comment.
``(C) Not later than 60 days after the close of the comment
period required under subparagraph (B), the Secretary shall
issue a final incidental taking plan and implementing
regulations, consistent with the other provisions of this
section.
``(D) The Secretary and the incidental take team shall meet
on an annual basis to monitor the implementation of the final
incidental taking plan until such time that the Secretary
determines that [formal] meetings are no longer necessary.
``(E) The Secretary may, in consultation with the
incidental take team, amend the incidental taking plan and
implementing regulations as necessary, consistent with the
procedures in this section for the issuance of such plans and
regulations.
``(7) If the Secretary finds, prior to the issuance of a
final incidental taking plan, that the incidental taking of
marine mammals in a commercial fishery is having an immediate
and significant adverse impact on the stock to which the plan
would apply, the Secretary may, after consultation with
appropriate Regional Fishery Management Councils and State
fishery managers, prescribe emergency regulations to reduce,
to the maximum extent practicable, such incidental taking. In
prescribing such emergency regulations, the Secretary shall
take into account the economics of the fishery concerned and
the availability of existing technology to prevent or
minimize incidental taking of marine mammals, and shall
conform such regulations, to the maximum extent practicable,
with existing State or regional fishery management plans.
Such regulations--
``(A) shall be published in the Federal Register together
with the reasons therefor;
``(B) shall remain in effect for not more than 180 days,
until such time as a final incidental taking plan for the
stock is issued, or until the end of the applicable fishing
season, whichever is earlier; and
``(C) may be terminated by the Secretary at an earlier date
by publication in the Federal Register of a notice of
termination if the Secretary determines the reasons for the
emergency regulations no longer exist.
``(e) Regulatory Measures.--(1)(A) The Secretary shall,
after notice and opportunity for public comment, promulgate
regulations to implement an incidental taking plan necessary
to accomplish the objectives set forth in [subsection (i).]
subsections (d) and (i).
``(B) Nothing in this paragraph shall be construed to limit
the authority of the Secretary to modify the incidental
taking plan at the request of the appropriate Regional
Fishery Management Council or State or tribal management
authority.
``(2) In implementing an incidental taking plan issued
pursuant to this section, the Secretary may promulgate
regulations which include, but are not limited to, measures
to--
``(A) establish fishery-specific incidental lethal taking
limits or restrict commercial fisheries by time or area;
``(B) register commercial fishing vessels as set forth in
subsection (f);
``(C) require the use of alternative gear techniques and
new technologies, encourage the development of such gear or
technology, or convene expert skippers' panels;
``(D) educate commercial fishermen and other individuals,
through workshops and other means, on the importance of
reducing the incidental lethal taking of marine mammals from
critical stocks; and
``(E) monitor the level of the incidental lethal taking of
marine mammals in the course of commercial fishing
operations, as set forth in subsection (h).
``(f) Registration of Vessels.--(1) Subject to the
provisions of this subsection, the Secretary may develop a
system to register commercial fishing vessels and to assess
fishery effort, where such system is necessary, to understand
the interaction between commercial fisheries and marine
mammal stocks in a region.
``(2) In developing a registration system to understand
such interactions, the Secretary shall rely upon existing
Federal, State, or tribal data bases which provide the
following information about an affected commercial fishery:
``(A) The approximate number of vessels participating in
the fishery.
``(B) The identity of specific vessels to be registered.
``(C) The owner [of] or operator, or both, of such vessels.
``(D) The time period in which the fishery occurs.
``(E) The approximate geographic location, or its official
reporting area where the fishery occurs.
``(F) The description of fishing gear, including the
appropriate unit of fishery effort.
``(3) The incidental take teams shall advise the Secretary
as to whether existing Federal, State, or tribal data bases
are capable of being utilized to understand the interaction
between commercial fisheries and critical stocks in a region.
If the Secretary determines, after consultation with such a
team, that data bases for specific fisheries which provide
the information required under paragraph (2) are not
available to the Secretary or the team, the Secretary may
require through regulation separate registration to obtain
the information set forth in paragraph (2).
``(4)(A) The Secretary may, as a condition of accepting a
Federal, State, or tribal registration as adequate for the
purposes of this section, require such registration to be
supplemented by the requirement that the vessels so
registered display a decal or other evidence, issued by the
registering authority, that indicates the registration is
current.
``(B) To the extent the Secretary determines that separate
registration is required for a specific fishery pursuant to
paragraph (3), the Secretary is authorized to charge a fee
for the issuance of a decal or other evidence indicating the
registration is current. The fee charged under this
subparagraph shall not exceed the administrative costs
incurred in issuing the decal or other evidence. Fees
collected under this subparagraph shall be available to the
Under Secretary of Commerce for Oceans and Atmosphere for
expenses incurred in the [issuances] issuance of such decal
or other evidence.
``(5) The costs of maintaining a separate registry system
for a specific fishery pursuant to paragraph (3) shall be
covered through Federal appropriations.
``(6) The Secretary may include within a registration
system under this subsection only those vessels that fish in
a fishery that has frequent or occasional incidental taking
of marine mammals.
``(g) Reporting Requirement.--The owner or operator of a
commercial fishing vessel subject to this Act shall report
all incidental lethal and serious injury takings of marine
mammals in the course of commercial fishing operations to the
Secretary at the end of each fishing trip on a standard form
to be developed by the Secretary under this section. Such
form shall be readable by computer or other machine and shall
require the vessel owner or operator to provide the
following:
``(1) The vessel name, and Federal, [State] State, or
tribal registration numbers of the registered vessel.
``(2) The name and address of the vessel owner or operator.
``(3) The name and description of the fishery.
``(4) The species of marine mammal incidentally killed or
seriously injured, and the date and time of such incidental
taking.
``(5) The time and period in which the fishery occurred.
``(6) The approximate geographic location of the incidental
taking.
``(h) Monitoring.--(1) The Secretary may establish a vessel
observer program to monitor incidental lethal and serious
injury takings of marine mammals during the course of
commercial fishing operations. The purpose of the monitoring
program shall be to develop independent information on
interactions between commercial fisheries and marine mammals
and to verify reporting of incidental lethal and serious
injury takings under subsection (g). Observers may perform
other tasks including, but not limited to--
``(A) recording other sources of mortality;
``(B) recording the number of marine mammals sighted during
the observation period; and
``(C) other scientific investigations, including collection
of marine mammal tissues.
``(2) Commercial fishing vessels shall carry observers on
board, when requested by the Secretary, to the extent that
the vessel can safely accommodate the observer. The owner or
operator of a vessel who refuses to carry an observer shall
be subject to a civil penalty, pursuant to subsection (j).
``(3)(A) The Secretary may establish an incidental take
monitoring program to achieve the objectives of this
[paragraph] subsection, which may include, but not be limited
to, direct observation of fishing activities from vessels,
airplanes, video observation, or points on shore.
``(B) Individuals engaged in such monitoring program shall
collect scientific information on [fisheries] marine mammal
interactions consistent with the requirements of this
[paragraph] subsection.
``(4) The cost of the monitoring program shall be funded by
Federal appropriations, and the Secretary shall allocate
available observers among fisheries consistent with the
following priority:
``(A) The highest priority shall be given to fisheries that
incidentally lethally take or seriously injure animals from
(i) stocks designated as depleted on the basis of their
listing as endangered or threatened species under the
Endangered Species Act of [1993,] 1973, or (ii) critical
stocks.
``(B) The second highest priority shall be given to
fisheries other than those described in subparagraph (A) in
which the greatest incidental lethal take and serious injury
of marine mammals occurs.
When the Secretary determines [the] that sufficient
observation of a specific fishery has occurred, the Secretary
may discontinue such observation and direct available
observer resources to the next fishery in priority. Nothing
in this subsection precludes the Secretary from resuming
observation of a fishery when necessary to achieve additional
verification of the nature of interactions with marine mammal
stocks.
``(5) Notwithstanding paragraph (4), the Secretary may
initiate, where necessary, additional monitoring programs to
gather information on the interaction between commercial
fisheries and marine mammal stocks not identified as critical
stocks. Such information may be used to verify--
``(A) the numbers of incidental lethal and serious injury
takings of marine mammals in a commercial fishery, and the
rate of such takings;
``(B) impacts on marine mammals of changes in fishing
patterns or technologies; and
``(C) the accuracy of reporting, by vessel owners and
operators, of the lethal and serious injury takings of
commercial fishing vessels.
``(i) Zero Mortality Rate Goal.--(1) Commercial fisheries
shall reduce their rates of incidental lethal or serious
injury taking, to insignificant rates approaching zero within
10 years after the date of enactment of this section.
``(2) Fisheries which maintain insignificant serious injury
and mortality rate levels approaching zero shall not be
required to further reduce their mortality rates.
``(3) Three years after such date of enactment, the
Secretary shall review the [progress,] progress of commercial
fisheries, by fishery, toward reducing mortality and serious
injury rates to insignificant rates approaching zero. The
Secretary shall submit to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee on
Merchant Marine and Fisheries 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 no information exists
on its incidental serious injury or mortality rate of marine
mammals.
``(4) If the Secretary determines after review under
paragraph (3) that the rate of incidental lethal and serious
injury taking in a commercial fishery is not consistent with
paragraph (1), then the Secretary shall make recommendations
to the Committee on Commerce, Science, and Transportation of
the Senate and the Committee on Merchant Marine and Fisheries
of the House of Representatives on further actions to achieve
the goal specified in paragraph (1).
``(j) Penalties.--(1) Except as provided in paragraph (2),
a person who violates this section, or any regulations
thereunder, may be assessed a civil penalty of not more than
$5,000 for each violation, and shall not be subject to
penalty under any other provision of this Act. The penalty
shall reflect the severity of the violation in relation to
preventing the reduction of incidental lethal taking of
marine mammals, or the accomplishment of other express
objectives of this section.
``(2) Intentional killing of marine mammals, or failure to
report incidental lethal takings of marine mammals as
required by this section, shall be subject to the penalties
in section 105.
``(3) Each owner or operator of a vessel engaged in a
fishery that has a remote likelihood of or no known
incidental taking of marine mammals, and the master and crew
members of such vessel, shall not be subject to penalties
under this section or any other provision of this Act for the
incidental taking of marine mammals if such owner or operator
reports to the Secretary in accordance with subsection
[(f)(4)] (g)(4).
``(k) Voluntary Measures.--Nothing in this section shall be
construed to limit the Secretary's authority to permit
voluntary measures to be utilized in reducing the incidental
taking of marine mammals in commercial fisheries.
``(l) Definitions.--For purposes of this section--
``(1) the term `calculated acceptable removal level' means
the realistic minimum population of a stock, multiplied by
the net productivity rate of the stock, multiplied (if
applicable) by a recovery factor;
``(2) the term `critical stock' means a marine mammal stock
that is listed as a Class 1 or 2 stock pursuant to subsection
(c)(1)G);
``(3) the term `incidental take team' means an incidental
take team established under subsection (d)(4);
``(4) the term `incidental taking plan' means an incidental
taking plan developed under subsection (d);
``(5) the term `maximum net productivity level' means the
population size of a stock which results in the greatest net
productivity;
``(6) the term `net productivity' means the estimated or
theoretical annual increase in population numbers resulting
from additions to the population due to reproduction, less
the losses due to mortality;
``(7) the term `net productivity rate' means the net annual
per capita rate of increase of a stock at [is] its maximum
net productivity level;
``(8) the term `non-critical stock' means a marine mammal
stock that is listed as a Class 3, 4, or 5 stock pursuant to
subsection (c)(1)(G);
``(9) the term `realistic minimum population' means an
estimate of the number of animals in a stock that provides
reasonable assurance that the population size is equal to or
greater than the estimate; and
``(10) the term `recovery factor' means the number that is
applied to the calculation of a calculated acceptable removal
level to provide reasonable assurance that a stock will
recover to its optimum sustainable population.''.
SEC. 7. PENALTIES; PROHIBITIONS.
(a) Civil Penalties.--Section 105(a)(1) of the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1375(a)(1)) is
amended by inserting ``, except as provided in section
[118(j),''] 117(j),'' immediately after ``thereunder''.
(b) Criminal Penalties.--Section 105(b) of the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1375(b)) is amended
by inserting ``(except as provided in section [118(j))'']
117(j))'' immediately after ``thereunder''.
(c) Prohibitions.--Section 102(a) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1372(a)) is amended by
striking ``and 114'' 114 of this title or title III'' and
inserting in lieu thereof ``114, and [118''.] 117 of this
title and title IV''.
SEC. 8. ALASKA HARBOR SEALS AND GULF OF MAINE HARBOR
PORPOISES.
Notwithstanding any other provision of this Act, including
section [118] 117 of the Marine Mammal Protection Act of 1972
(as added by this Act), the Secretary of Commerce shall
establish an incidental take team for the harbor seal stock
in Alaska and for the harbor porpoise stock in the Gulf of
Maine, within 60 days after the date of enactment of this
Act. The incidental take teams shall begin work immediately
on a draft incidental taking plan in accordance with such
section [118,] 117, and shall use the best scientific
information available. The draft incidental taking plan shall
be reviewed by the Secretary, after consultation with
scientific experts as described in subsection (b) of such
section [118] 117 and after notice and opportunity for public
comment, and shall be approved and implemented as quickly as
practicable.
SEC. 9. AUTHORIZATION TO DETER MARINE MAMMALS.
Section 101 of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371) is amended by adding at the end the following
new subsection:
``(d)(1) Except as provided in paragraph (2), the
provisions of this Act shall not apply to the use by any
person of measures to deter marine mammals from--
``(A) damaging the gear or catch of commercial or
recreational fishermen;
``(B) damaging private or public property; or
``(C) endangering personal safety,
so long as such measures do not result in marine mammal death
or serious injury.
``(2) If the Secretary determines, using the best
scientific information available, that certain forms of
deterrence have a significant adverse effect on marine
mammals, the Secretary may prohibit such deterrent methods
through regulation under this Act.
``(3) The authority to deter marine mammals pursuant to
paragraph (1) applies to all marine mammals, including all
stocks designated as depleted under this Act.''.
SEC. 10. TREATY RIGHTS.
Nothing in this Act, including any amendments made by this
Act, is intended to abrogate or diminish existing Indian
treaty fishing or hunting rights, and regulation of Native
American fishing and hunting activities shall be limited to
measures consistent with existing treaty rights.
SEC. 11. TRANSITION RULE.
Section 114(a)(1) of the Marine Mammal Protection Act of
1972 (16 U.S.C. 1383a(a)(1)) is amended by striking ``ending
April 1, 1994,'' and inserting in lieu thereof ``until
superseded by regulations prescribed under section [118,''.]
117,''.
SEC. 12. TECHNICAL AMENDMENTS.
(a) Definitions.--Section 3 of the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1362) is amended by redesignating the
last three paragraphs as paragraphs (16), (17), and (18),
respectively.
(b) Marine Mammal Health and Stranding Response.--The
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.)
is amended--
(1) by redesignating title III, as added by Public Law 102-
587 (106 Stat. 5060), as title IV; and
(2) by redesignating the sections of that title (16 U.S.C.
1421 through 1421h) as sections 401 through 409,
respectively.
SEC. 13. HUMAN ACTIVITIES WITHIN PROXIMITY OF WHALES.
(a) Lawful [Approaches.--It] Approachers.--In waters of the
United States surrounding the State of Hawaii, it is lawful
for a person subject to the jurisdiction of the United States
to approach, by any means other than an aircraft, no closer
than 100 yards to a humpback whale or any other whale,
regardless of whether the approach is made in waters
designated under section 222.31 of title 50, Code of Federal
Regulations, as cow/calf waters.
(b) Termination of Legal Effect of Certain Regulations.--
Subsection (b) of section 222.31 of title 50, Code of Federal
Regulations, shall cease to be in force and effect.
SEC. 14. PINNIPED-FISHERY INTERACTION TASK FORCE.
Title I of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371 et seq.), as amended by this Act, is further
amended by adding at the end the following new section:
``SEC. 118. PINNIPED-FISHERY INTERACTION TASK FORCE.
``(a) Pinniped Removal Authority.--Notwithstanding any
other provision of this title, the Secretary may permit the
lethal removal of pinnipeds in accordance with this section.
``(b) Application.--Any person may apply to the Secretary
to authorize the lethal removal of pinnipeds identified as
habitually exhibiting dangerous or damaging behavior that
cannot otherwise be deterred. Any such application shall
include a means of identifying the individual pinniped or
pinnipeds, and shall include a detailed description of the
problem interaction and expected benefits of the removal.
``(c) Actions in Response to Application.--(1) Within 15
days of receiving an application, the Secretary shall
determine whether the application has produced sufficient
evidence to warrant establishing a Pinniped-Fishery
Interaction Task Force to address the situation described in
the application. If the Secretary determines that such
sufficient evidence has been provided, the Secretary shall
establish a Pinniped-Fishery Interaction Task Force and
publish a notice in the Federal Register requesting public
comment on the application.
``(2) A Pinniped-Fishery Interaction Task Force established
under paragraph (1) shall consist of designated employees of
the Department of Commerce, scientists who are knowledgeable
about the pinniped interaction that the application
addresses, representatives of affected conservation and
fishing community organizations, Indian Treaty tribes, the
States, and such other organizations as the Secretary deems
appropriate.
``(3) Within 60 days after establishment, and after
reviewing public comments in response to the Federal Register
notice, the Pinniped-Fishery Interaction Task Force shall--
``(A) recommend to the Secretary whether to approve or deny
the proposed lethal removal of the pinniped or pinnipeds,
including along with the recommendation a description of the
specific pinniped individual or individuals, the proposed
location, time, and method of removal, criteria for
evaluating the success of the action, and the duration of the
authority; and
``(B) suggest nonlethal alternatives, if available and
practicable, including a recommended course of action.
``(4) Within 30 days after receipt of recommendations from
the Pinniped-Fishery Interaction Task Force, the Secretary
shall either approve or deny the application. If such
application is approved, the Secretary shall immediately take
steps to implement the lethal removal, which shall be
performed by Federal or State agencies, or qualified
individuals under contract to such agencies.
``(5) After implementation of an approved application, the
Pinniped-Fishery Interaction Task Force shall evaluate the
effectiveness of the permitted lethal removal or alternative
actions implemented. If implementation was ineffective in
eliminating the problem interaction, the Task Force shall
recommend additional actions. If the implementation was
effective, the Task Force shall so advise the Secretary and
the Secretary shall disband the Task Force.
``(d) Considerations.--In considering whether an
application should be approved or denied, the Task Force and
the Secretary shall consider--
``(1) population trends, feeding habits, the location of
the pinniped interaction, how and when the interaction
occurs, and how many individual pinnipeds are involved;
``(2) past efforts to nonlethally deter such pinnipeds, and
whether the applicant has demonstrated that no feasible and
prudent alternatives exist and that the applicant has taken
all reasonable nonlethal steps without success;
``(3) the extent to which such pinnipeds are causing undue
harm, impact, or imbalance with other species in the
ecosystem, including fish populations; and
``(4) the extent to which such pinnipeds are exhibiting
behavior that presents an ongoing threat to public safety.
``(e) Limitation.--The Secretary shall not approve lethal
removal for any pinniped from a species or stock that is
listed as threatened or endangered under the Endangered
Species Act of 1973, designated as depleted under this Act,
or identified by the Secretary as a critical stock under
section 117 of this Act.''.
Amendment No. 1550
(Purpose: To make an amendment in the nature of a substitute)
Mr. JOHNSTON. Madam President, I send a substitute amendment to the
desk on behalf of Senators Kerry and Stevens and ask for its immediate
consideration.
The ACTING PRESIDENT pro tempore. The clerk will report the
amendment.
The legislative clerk read as follows:
The Senator from Louisiana [Mr. Johnston], for Mr. Kerry
for himself and Mr. Stevens proposes an amendment numbered
1550.
Mr. JOHNSTON. Madam President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. KERRY. Madam President, today I am joined by my good friend and
colleague, Senator Ted Stevens in offering legislation to reauthorize
the Marine Mammal Protection Act. I am pleased to bring this
legislation to the Senate floor and I hope my colleagues will join us
in supporting the important initiative to establish a new regime to
protect marine mammal stocks during their interactions with commercial
fishing operations.
The bill before us today is a bipartisan effort that is the product
of many months of hard work. This substitute amendment to S. 1636 is
the result of extensive discussions with and comments from the National
Marine Fisheries Service, the Marine Mammal Commission, conservation
and animal protection groups and the fishing industry. All have worked
tirelessly to meet the April 1, 1994 statutory deadline and I believe
we will achieve that goal.
The bill before us has the backing of the vast majority of those
groups involved in its development. The Department of Commerce's lead
agency, the National Marine Fisheries Service [NMFS] supports this
proposal. We have worked closely with the Marine Mammal Commission.
Additionally, the fishing industry and a large number of environmental
organizations including the Center for Marine Conservation, the World
Wildlife Fund, the Audubon Society, and the Marine Mammal Center, among
others, endorse this effort as well.
Our legislation addresses a number of issues surrounding the
interaction between marine mammal stocks and commercial fishing
operations. The legislation includes: First, a prohibition of
intentional killing of marine mammals; second, mandatory vessel
registration; third, mandatory observer coverage; fourth, general
emergency authority for the Secretary of Commerce; fifth, a requirement
that stock assessments be made of all stocks and incidental take
reduction plans be prepared for those stocks in need; sixth, provisions
for the permitting of endangered marine mammals; and seventh,
imposition of liability for noncompliance with incidental take
reduction plans.
Overall, we have made some significant additions to strengthen the
original Marine Mammal Protection Act [MMPA] and I am attaching a
detailed summary of the major provisions in this legislation at the end
of this statement. For the first time, the MMPA will now explicitly
outlaw the intentional killing of marine mammals by commercial
fishermen, which is allowed in the current act. Also included is
language that mandates commercial fishing interests to achieve, within
10 years, a zero mortality rate goal.
Additional provisions that do not appear in the original act give the
Secretary of Commerce emergency authority to protect any marine mammal
stock he concludes may be in danger and to create a scientific advisory
group.
I would like to address two issues that I believe have produced a
great deal of misinformation about the development of this legislation:
The first is the treatment of endangered species. The second is the so-
called burden of proof issue.
Regarding endangered marine mammals, some have claimed that this bill
would weaken the Existing Marine Mannal Act by allowing the killing of
endangered species. In fact, both the current Marine Mammal Protection
Act and the Endangered Species Act contain provisions under which
permits may be issued to incidentally take an endangered marine mammal.
While our bill also provides for such permits, the criteria for issuing
such a permit under our substitute amendment are actually tougher than
those contained in the existing Endangered Species Act.
With regard to the second issue, we believe that the term ``burden of
proof'' has been misrepresented. Our revised bill would maintain the
same moratorium on interactions with marine mammals that has been in
place under the interim exemption but it replaces the fishery exception
with a detailed, scientifically based process for monitoring and
protecting marine mammals that interact with fisheries, placing
emphasis on those stocks that come in most frequent contact with
fishermen.
In addition, this bill provides numerous safeguards that are not
currently provided under the interim exemption. These include:
suspension or revocation of an individual fishermen's authorization to
take marine mammals if that fisherman is found to have seriously
violated the incidental take provisions; authority to the Secretary of
Commerce to promulgate regulations to address urgent problems with any
stock; conservative procedures for estimating calculated removal
levels; mandatory compliance with the incidental take reduction plans;
and measures to ensure that marine mammal populations will recover to
or remain above the optimum sustainable population level.
To provide some context for the legislation before us, let me
summarize the significant relevant events of the 22 years since the
original Marine Mammal Protection Act was passed in 1972.
The original MMPA has far exceeded expectations in its protection of
dolphins, whales, seals, and sea lions among other marine mammal
stocks. Prior to 1972, when the original MMPA was enacted, hundreds of
thousands of marine mammals were killed each year, intentionally from
hunting and accidentally due to their interactions with commercial
fishermen.
Over the years, the act has been reviewed and reauthorized a number
of times, most recently in 1988. The 1988 amendments were the direct
result of a court ruling, called the Kokechik decision, which blocked
the issuance of any new permits to fishermen who interact in any way
with marine mammals. If the Congress hadn't responded, this decision
would have shut down the commercial fishing industry in the United
States.
Therefore, in 1988, Congress passed a 5-year moratorium, called the
interim exemption, which established a moratorium on interactions with
marine mammals, but provided an exception to the moratorium for
commercial fishing operations unless the marine mammals involved were
from a depleted stock. In addition, NMFS was required to collect data
on unknown marine mammal stocks and develop a new management regime
that is legal and workable. To assist NMFS in its information
collection the fishermen were required to keep logbooks and carry
observers on board their vessels.
NMFS developed a regime and released it for comments in November,
1992. It was resoundingly rejected by the environmental community and
the fishing industry and called cumbersome and unworkable. Both the
environmentalists and the fishermen decided to begin negotiations to
develop their own compromise alternative. This effort began over 1 year
ago with participation from over 50 groups representing
conservationists, animal protection activities, and fishing interests.
In addition, NMFS and the Marine Mammal Commission sent
representatives. Meetings were held in Washington, DC, and Washington
State over the course of many months.
In June, 1993, on the final day of the mediated session where all the
groups were gathered to sign what was termed the ``negotiated
agreement,'' many of the animal protection representatives withdrew
support while the conservation groups and the fishing industry signed
the agreement.
At that point, I requested a hearing by the Senate's National Ocean
Policy Study. I chaired a hearing in July 1993, to review several
viewpoints--the NMFS proposal, the negotiated agreement signed by the
fishing industry and the conservation groups, and the concerns of the
animal rights contingent of the environmental community that had not
signed on to the agreement.
At that time, Senator Stevens and I asked all parties to go back and
meet again and try to reach consensus on outstanding issues. The
parties met for 3 days in August of last year for this purpose.
Unfortunately, no agreement was reached.
Congress still faced--and faces--an April 1, 1994, statutory deadline
to enact new legislation to replace the 5-year interim exemption. In
November, the Senate Commerce Committee considered legislation, S.
1636, based upon the concepts in the negotiated agreement. However, at
that time, I stated publicly that this bill before the committee was a
work in progress and that many outstanding issues would be addressed
over the coming months. We called upon all parties to come in and
discuss their concerns and propose specific legislative language
changes to our committee proposal.
For the next several months, we collected comments from and met with
representatives of all interested parties and prepared a draft
substitute that has been circulating and changing for the past several
weeks. Either I or my staff have met with everyone who has called us.
The agency and the Marine Mammal Commission have now indicated their
approval. The fishing industry and many of the conservation groups are
satisfied with our compromise product. In addition, I met last week
with a number of concerned animal rights groups and I believe that we
have addressed 90 percent of their concerns in this final draft. While
a compromise, by definition, cannot give all interested parties
everything they want, I believe we have developed a strong and fair
bill that will protect and conserve marine mammal stocks and bring back
those stocks that are depleted, without shutting down our commercial
U.S. fisheries.
In conclusion, I would like to take a moment to acknowledge all those
who assisted in forging this compromise legislation before us. I thank
my staff and the staff of the Commerce Committee who have worked so
long and hard to get this bill to the floor. In particular, this bill
would not be before us without the efforts of our Lila Helms, Penny
Dalton, Earl Comstock, and Trevor McCabe who spent literally hundreds
of hours over the past year crafting this legislation. Finally, I want
to thank Kate English and Sarah Woodhouse of my office who have been
deeply involved in moving this legislation forward.
This bill is an excellent example of bipartisan cooperation in
policymaking. If we continue our efforts I know we can achieve our
goals of enacting strong, environmentally sound legislation to revise
the Marine Mammal Protection Act by the deadline of April 1, 1994. I
hope my colleagues will support this important initiative which we are
introducing today.
I ask unanimous consent that a section-by-section analysis be printed
at this point in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Section-by-Section Summary of the Committee Amendment in the Nature of
a Substitute to S. 1636
Section 1. Short Title
This section lists the title of the bill, which is the
Marine Mammal Protection Act Amendments of 1994.
Section 2. Purposes
This section sets forth six purposes for the
reauthorization of the MMPA: (1) authorizing of
approprations; (2) ensuring that the incidental mortality and
serious injury in commercial fisheries does not reduce marine
mammal populations below sustainable levels; (3) prohibiting
the killing of marine mammals in the course of commercial
fishing operations; (4) improving efforts for identifying and
addressing the most significant problems involving incidental
mortality and serious injury of marine mammals in commercial
fishing operations; (5) ensuring that the procedures for
authorizing the incidental taking of marine mammals in
commercial fisheries is consistent with the long term
objective of reducing incidental mortality and serious injury
from commercial fishing operations to insignificant rates
approaching zero; and (6) continuing cost-effective
monitoring programs.
section 3. authorization of appropriations
This section would extend the authorization of
appropriations through FY 1999 for the Department of Commerce
(DOC), the Department of the Interior (DOI), and the Marine
Mammal Commission (Commission) for their responsibilities
under the Marine Mammal Protection Act of 1972 (MMPA). There
is additional funding to provide observer coverage on
commercial fishing vessels which are required to carry
observers under new section 118 of MMPA.
section 4. moratorium and exceptions
Section 4(a) would amend section 101 of the MMPA by
inserting ``harassment'' as a distinct classification of
action covered by the moratorium imposed by the MMPA.
Previously, harassment was included under the definition of
``taking.''
Section 4(b) would amend section 101(a)(1) of the MMPA to
make minor changes in the process for issuing permits for the
import of marine mammals for research and public display.
Section 4(c) would amend section 101(a)(2) of the MMPA to
reflect the addition of new section 118, which provides the
regime for the incidental taking of marine mammals in
commercial fisheries.
Section 4(d) amends section 101(a)(5) of the MMPA to add a
new paragraph (D) to provide for the annual authorization of
activities, other than commercial fisheries, by citizens of
the United States, that cause the incidental, but not
intentional, harassment of marine mammals. An authorization
may only be granted if the Secretary (which is defined in the
existing MMPA to mean either the Secretary of Commerce or the
Secretary of the Interior, depending on the marine mammal
stock in question) finds that the harassment will have no
more than a negligible impact on the marine mammal stock,
and that the activity will not cause an unmitigable
adverse impact on the availability of animals in such
stock for taking for subsistence purposes. The paragraph
also provides that the Secretary must impose appropriate
conditions on the issuance of an authorization to ensure
the least practicable impact on the stock and that there
is no unmitigable impact on subsistence, and to require an
appropriate monitoring and reporting program. In cases
where subsistence stocks are impacted, the Secretary must
require independent peer review of the monitoring and
research proposals related to such authorization. The
sponsors intend that the Secretary will encourage
extensive consultation between affected parties on
appropriate monitoring, reporting and mitigation measures
in granting authorizations under this paragraph.
Section 4(f) would further amend section 101(a)(5) by
adding a new paragraph (E) in order to allow the Secretary to
permit for periods of three years the incidental, but not the
intentional, taking in the course of commercial fishing
operations of marine mammals stocks designated as depleted
because of their listing as endangered or threatened under
the Endangered Species Act. A permit would only be granted if
the Secretary determines: 1) the incidental mortality and
serious injury from commercial fisheries will have a
negligible impact on the species or stock; 2) a recovery plan
has been developed or is being developed for the stock under
the Endangered Species Act; and 3) where required for such
stock under new section 118, a monitoring program is
established, vessels are registered, and an incidental take
reduction plan has been developed or is being developed for
such marine mammal species or stock. Upon a determination
that these requirements have been met, the Secretary will
issue a permit for a three-year period for those vessels
required to register under section 118. Those vessels not
required to register under section 118 (Category (iii)
vessels) would be allowed to conduct operations under a
general authorization, but would be subject to penalties if
they fail to report any incidental mortality or injury to
marine mammals as required under new section 118. If the
Secretary determines during a fishing season that incidental
mortality or serious injury in a commercial fishery is having
more than a negligible impact on a threatened or endangered
species or stock, then the Secretary must use the emergency
authority granted under section 118 to protect such marine
mammal stock or species, and may modify any permit granted as
necessary to reduce the impact. The Secretary may suspend or
revoke a permit if the conditions and limitations set forth
in the permit are not being complied with. It is intended
that the Secretary will work to ensure that the requirements
imposed on fishermen seeking a permit under this subsection
be fully integrated into the incidental take reduction plan
process under new section 118, so that the two procedures are
as consistent and streamlined as possible. In using a
negligible impact standard under this subsection, the bill
continues the higher standard of protection found in the
existing MMPA, rather than using the lesser ``no
jeopardy'' standard promulgated under the Endangered
Species Act at 50 CFR 402.02.
Section 4(g) amends section 101(a) to add a new subsection
(6) at the end. New subsection (6) has been added to address
a consistent problem with the import ban in the existing MMPA
that arises when Alaska Natives engage in cultural exchanges
with other Native peoples, and when travelers who have bought
authentic Native handicrafts made of marine mammal parts in
Alaska attempt to reenter the United States after driving
south from Alaska through Canada. Under the existing MMPA,
Alaska Natives and other persons who are legitimately in
possession of authentic Native handicrafts made of marine
mammal parts have those items confiscated when they attempt
to enter the United States with those items. New subsection
101(a)(6) of the MMPA would address this problem by allowing
persons who have bought authentic Native handicrafts made
from marine mammal parts to take those items out of the
United States in their personal possession and then reenter
the United States with those same items. It would also allow
persons who are given gifts or otherwise acquire Native
handicrafts made of marine mammal parts as part of a cultural
exchange to bring those items back into the United States,
and would also allow the Native peoples of other Arctic
nations to enter the United States wearing their traditional
clothing made of marine mammal parts, as well as bring in raw
marine mammal parts for the purpose of sharing their native
skills with Alaska Natives and others in the United States.
This new provision would not allow the importation of Native
handicrafts for commercial purposes, though this restriction
is not intended to prohibit the sale of an item that was
created as part of a demonstration of handicraft skills in
the course of a cultural exchange.
Section 4(h) would amend section 101(b) of the MMPA to add
a new paragraph which is intended to ensure that the
Secretary bears the burden of proof in any hearing under
section 101(b), a proceeding under section 117(b)(2), or any
determination or finding made by the Secretary under the Act
which affects Alaska Native subsistence users or marine
mammal stocks taken for subsistence use. The standard of
review set forth in the new paragraph is that of substantial
evidence on the basis of the record as a whole. Inclusion of
this standard is not intended to create an independent
requirement that all actions affecting Alaska Native
subsistence users or subsistence stocks be subject to a
hearing on the record, rather it is intended that the
standard of review for such a hearing be used, with the
burden of proof placed upon the Secretary to demonstrate in
each case that such standard has been met. A hearing is
required whenever specifically provided for in the MMPA, as
is the case under the existing provisions of section 101(b)
and under new section 117(b)(2). The last sentence of the new
paragraph specifically limits the standing to use this
provision to Alaska Native organizations representing
persons to which subsection 101(b) applies. The term
Alaska Native organizations is intended to include any
legitimate representative of Alaska Native subsistence
users, including local and state governmental entities.
Section 4(i) would amend section 101(c) of the MMPA by
deleting the existing language found there, which is no
longer applicable, and inserting in its place a new provision
which would allow a person to kill a marine mammal in self
defense or in defense of another person without violating the
MMPA. Under the existing MMPA no such exemption exists, with
the result that persons who have found themselves forced to
kill a marine mammal in self-defense have then been exposed
to penalties. This amendment would make it legal to kill or
wound a marine mammal in self defense, so long as the person
reports the incident to the Secretary within 48 hours. It is
intended that notification of an incident to either Secretary
would suffice.
section 5. permits
Section 5 would amend section 104 of the MMPA with respect
to the issuance of permits for scientific research. The
amendment would allow the issuance of permits for legitimate
scientific research involving the lethal taking of a marine
mammal if the Secretary determines, after notice and public
comment, that non-lethal methods are not feasible. In
addition, the amendment would allow the Secretary to grant a
general authorization for research that is not likely to
involve the taking or harassment of marine mammals. In order
to operate under the general authorization, applicants must
notify the Secretary by letter and comply with the
requirements.
section 6. conservation plans
Section 6 would amend section 115(b) of the MMPA by adding
a new paragraph to clarify that conservation plans issued
under that section should incorporate incidental take
reduction plans implemented under new section 118.
section 7. stock assessment
This section would amend title I of the MMPA by adding a
new section 117 to provide for stock assessments on all
marine mammal stocks. New section 117(a) would require the
Secretary, after consultation with the appropriate regional
scientific review group, to prepare a draft stock assessment
for each marine mammal stock by August 1, 1994. In the draft
stock assessment the Secretary is required to categorize each
of the stocks in one of two categories, either--(1) being
healthy and not in any significant danger of declining; or
(2) as being of some concern, because they are depleted,
threatened, endangered, or have a level of anthropogenic
mortality that exceeds their annual population growth rate.
The Secretary is expected to place each stock in either one
category or another. The stock assessments are intended to
provide an accurate estimate of the status of marine
mammal stocks based on the best scientific information
currently available. This subsection also directs the
Secretary to calculate the number of animals that can be
removed from a species or stock while still providing
reasonable assurance that the species or stock will
eventually recover to its optimum sustainable population.
In making such a calculation, the Secretary is required to
use the best available scientific information, and it is
expected that the determination, including the provision
of reasonable assurance, would be made in accordance with
accepted scientific methodology.
One of the main objectives of new section 117(a) is to
establish a process to identify stocks falling into the
second category, so that the Secretary knows where to focus
scarce resources. This is the primary purpose of paragraph
(7), in which the Secretary is asked to specify stocks in
which anthropogenic mortality may be the reason for their
decline or failure to recover. In specifying these stocks, it
is expected that the Secretary will have some substantive
reason to believe that anthropogenic mortality is the
problem, because stocks identified under this paragraph are
the focus of incidental take reduction plans under new
section 118. The Secretary should not use this category as a
catch-all for all stocks for which information is uncertain
or limited.
Under new section 117(b), a ninety-day public notice and
comment period is required, and provision is made for a
proceeding on the record, when requested by an Alaska Native
to which subsection 101(b) of the MMPA applies, for an
assessment involving a stock taken for subsistence. The
Secretary is required to publish a final stock assessment not
later than 90 days after the close of the public comment
period or final action on a subsistence proceeding.
New subsection 117(c) provides for review and revision of
stock assessments, at least annually for stocks specified by
the Secretary as needing attention or for which there is new
information, and at least once every three years for all
other stocks.
At least two independent regional scientific review groups
are established under new subsection 117(d). These groups are
intended to advise the Secretary on all aspects of the stock
assessments, and should be a scientifically balanced group
composed of individuals who are both knowledgeable and
representative of diverse viewpoints and interests.
New subsection 117(e) reaffirms that the stock assessment
provided under this new section is not intended to affect or
modify the depletion determination and other protections
provided to Alaska Native subsistence users under section
101(b) of the MMPA. It is intended that any determination by
the Secretary that a stock is depleted would be based on the
stock assessment made under new section 117.
section 8. taking of marine mammals incidental to commercial fishing
operations
Section 8 would amend title I of the MMPA by adding a new
section 118 to govern the incidental taking of marine mammals
in the course of commercial fishing operations. New section
118(a) establishes the scope of coverage of new section 118,
as well as reiterates that it is the immediate goal of the
MMPA to reduce incidental mortality and serious injury of
marine mammals in commercial fishing operations to
insignificant levels approaching a zero mortality rate. As
stated in paragraph (2), it is intended that both new section
118 and new section 101(a)(5)(E) would govern the incidental
taking in commercial fisheries of threatened or endangered
marine mammal species or stocks.
New section 118(b) directs the Secretary to establish
incidental take reduction plans for each marine mammal stock
specified by the Secretary under new section 117(a)(7) which
interacts with a commercial fishery listed under new section
117(f)(1)(A)(i) or (ii), which are those fisheries that cause
frequent or occasional incidental mortality and serious
injury of marine mammals. In addition, the Secretary may
establish incidental take reduction plans for other marine
mammal stocks, including populations that are not considered
to be in danger, that interact with a commercial fishery
which causes frequent mortality and serious injury if the
Secretary determines that such fishery has an excessive rate,
in comparison with other fisheries in the affected area or
region, of incidental mortality and serious injury of marine
mammals. If insufficient funding is available to allow for
the development and implementation of incidental take
reduction plans for all stocks to which new subsection (b)
applies, then the Secretary is directed to give priority to
the establishment of plans for those stocks in which the
level of incidental mortality and serious injury exceeds the
calculated removal level for that stock, those that have a
small population size, and those that are declining most
rapidly. These criteria are intended to ensure that scarce
resources are focused where they will provide the greatest
benefit to marine mammal stocks in the greatest need.
New section 118(b) also establishes detailed guidelines and
time-frames for the development and implementation of
incidental take reduction plans. Incidental take reduction
plans would be required to include management measures or
voluntary actions to reduce the incidental mortality and
serious injury of marine mammals in fisheries, as well as a
strategy for each fishery to reduce the incidental mortality
and serious injury of marine mammals in each commercial
fishery to insignificant levels approaching a zero mortality
rate within ten years. For stocks in which incidental
mortality and serious injury from a commercial fishery
currently exceeds the calculated removal level, the
incidental take reduction plan will be required to include
measures the Secretary expects will reduce the mortality and
serious injury to a level below the calculated removal level
within six months. Where total anthropogenic mortality and
serious injury exceeds the calculated removal level, a
commercial fishery will have to reduce its incidental
mortality and serious injury to the lowest level that is
feasible for that fishery within six months.
In implementing incidental take reduction plans, the
Secretary would be authorized to use impose fishery
management measures to the extent necessary to implement an
incidental take reduction plan. This could where necessary to
protect or restore a marine mammal stock, include, among
other measures, actions to: (1) establish fishery-specific
limits on incidental mortality and serious injury, or
restrict fisheries by time and area; (2) require the use of
alternative gear or techniques; (3) educate commercial
fishermen through workshops; and (4) monitor the
effectiveness of observer coverage.
Section 118(b) would also require the Secretary within 60
days of completing the final stock assessment, to establish
and appoint members to incidental take reduction teams to
develop incidental take reduction plans for marine mammal
stocks. The teams can be requested to address a single stock
that extends over one or more regions, or multiple stocks
within a single region, based upon the Secretary's
determination of which approach will best facilitate the
development and implementation of incidental take reduction
plans. The Secretary will be required to appoint to the teams
individuals knowledgeable about measures to conserve marine
mammal stocks and methods to reduce the incidental mortality
and serious injury of marine mammals in commercial fishing
operations. The teams are required to include representatives
of each affected regional fishery management council and
State, and may also include representatives of Federal
agencies, interstate fishery commissions, academic and
scientific organizations, environmental and fishery groups,
Alaska Native organizations, Indian Tribes, and others as the
Secretary considers appropriate. To the maximum extent
practicable, each team is required to provide an equitable
balance among interested parties. Incidental take teams would
not be subject to the Federal Advisory Committee Act, but
will be required to hold public meetings and provide adequate
public notice of the time and location of the meetings.
Members will serve without compensation, but will be
reimbursed for their reasonable travel costs and expenses.
Incidental take reduction plans would be developed under
new section 118(b) according to two timetables. A shorter
timetable would apply for the development of incidental take
reduction plans by teams in cases where the anthropogenic
mortality and serious injury to a marine mammal stock
specified under section 117(a)(7) is estimated to be greater
than the calculated removal level for the stock. For stocks
where incidental mortality and serious injury does not exceed
the calculated removal level, a longer timetable would be
applied. In the first case, a draft plan must be submitted by
the team to the Secretary within six months of the team's
establishment, while in the second it would be within eleven
months. The incidental take reduction plans are required to
be developed by consensus among the team members. To the
extent that consensus cannot be reached, the team must
advise the Secretary of the views of both the majority and
minority. Upon receipt of a team's proposal, the Secretary
must publish, within 60 days, a draft incidental take
reduction plan in the Federal Register, specifying any
changes the Secretary has made to the team's
recommendations, including the reasons for the changes. A
final incidental take reduction plan must be published in
the Federal Register following a 90-day public comment
period. The Secretary will continue to meet every six
months with teams focusing on stocks whose incidental
mortality exceeds the calculated removal level, and
annually with teams for stocks where the incidental
mortality is below the calculated removal level, until the
Secretary determines that the objectives of the incidental
take reduction plan are met.
New section 118(c) would allow the Secretary to take
emergency action to protect marine mammal stocks that the
Secretary finds are suffering an immediate and significant
adverse impact from incident mortality and serious injury due
to commercial fishing. In taking such action, it is intended
that the Secretary would, to the extent practicable, consult
with the Marine Mammal Commission, regional fishery
management councils and state fishery management authorities,
and the appropriate incidental take reduction team before
taking any emergency action, and should, whenever possible,
take such action in a manner consistent with existing fishery
management plans.
New section 118(d) would require the Secretary to continue
the observer coverage established under section 114 of the
existing Act. Vessel owners engaging in fisheries with
frequent and occasional incidental mortality and serious
injury of marine mammals must carry observers if requested to
do so by the Secretary. The purpose of observer coverage is
to enhance the quality of and verify the information received
from reports submitted by vessel owners or operators. The
assignment of observers must be fair and equitable, and no
one individual or vessel or one group of individuals or
vessels would be subject to overly burdensome observer
coverage. This subsection also would mandate that the
Secretary give priority to the allocation of observers to
those fisheries that have incidental mortality and serious
injury of marine mammal stocks designated as depleted on the
basis of their listing as endangered or threatened under the
Endangered Species Act, and then to those fisheries that have
incidental mortality and serious injury of marine mammal
stocks specified under section 117(a)(7) having the second
highest priority. The Secretary must have the consent of the
vessel owner of a vessel listed under section (f)(1)(A)(iii)
to station an observer on the vessel, except when using the
emergency authority available under subsection (c).
New section 118(e) reaffirms the MMPA's commitment to
reducing incidental mortality and serious injury in
commercial fisheries to insignificant levels approaching a
zero mortality and serious injury rate within 10 years. The
Secretary is required to review the progress of commercial
fisheries toward that goal three years after the date of
enactment of this bill, and to submit to Congress a report
on that progress within four years of such date. This
subsection also provides that fisheries which maintain an
insignificant level of incidental mortality and serious
injury shall not be required to reduce those levels
further. This provision is intended to ensure that
commercial fisheries which have achieved this goal will
not be shut down to achieve further insignificant
reductions in marine mammal mortality and serious injury.
New section 118(f) would require the Secretary to continue,
with modifications, the registration system developed under
the 1988 amendments to the MMPA. The revised system would
modify the existing classification and listing of fisheries
which frequently, occasionally, or rarely take marine
mammals. Under the new section 118(f), the Secretary would
register vessels in fisheries which have frequent or
occasional incidental mortality and serious injury of marine
mammals. The Secretary would continue to charge a fee to
cover the administrative costs of the program.
Under new section 118(f) category (i) and (ii) vessels
would be authorized to engage in the lawful incidental taking
of marine mammals provided that they have registered, the
decal that may be required is displayed, they report any
incidental mortality or injury of marine mammals, and they
take on board an observer if requested by the Secretary. If
the owner of a vessel is holding a valid certificate of
exemption issued under section 114, then that vessel is
deemed to have registered for the purposes of this subsection
for the period during which the registration is valid. If the
owner of a vessel fails to obtain or maintain an
authorization, then the owner is deemed to have violated this
title, and if the owner of a vessel fails to ensure that the
decal or other physical evidence is displayed, then the owner
is subject to a fine of not more than $100 for each offense.
The owner of a vessel must be in compliance with any
regulations to implement an incidental take reduction plan
otherwise the owner is subject to the penalties of this
title.
Further, new section 118(f) provides that any vessel listed
in category (iii) is authorized to take marine mammals
without registering provided that the owner adhere to the
reporting requirements, and such vessels would not be subject
to penalties for the indential taking of marine mammals as
long as the owner reports any incidental mortality or injury
to the Secretary in the appropriate manner.
New subsection 118(g) is similar to the reporting
requirements found under existing section 114 of the MMPA.
The owner or operator is required to report, on a
standardized postage-paid form, all incidental mortality and
injury of marine mammals. Specific language is included in
the new subsection to require that the form used be capable
of being readily entered into and usable by a computer data
processing system. This requirement was included to prevent a
repeat of what occurred under the reporting requirements of
existing section 114, in which fishermen were required to
file extensive, handwritten observations in log books
which were never utilized by the federal government
because money and personnel were not available to
translate and enter the data into a computer system. It is
intended that the new reporting forms will be simple and
will result in usable data on marine mammal mortality that
is readily accessible to the agency and the public.
New section 118(h) sets forth the penalties applicable
under this section. It is intended that the Secretary shall
use the discretion provided to ensure that the penalty is
appropriate to the violation.
New subsections (i) and (j) clarify that nothing in this
section prohibits the Secretary from employing voluntary
measures to reduce marine mammal mortality, and, since the
term ``Secretary'' is defined to mean the Secretary of
Commerce for purposes of new section 118, that the Secretary
of Commerce shall consult with the Secretary of the Interior
on matters affecting marine mammal stocks under the Interior
Secretary's jurisdiction.
Section 9. Penalties; Prohibitions
This section makes technical and conforming changes to the
provisions of the MMPA dealing with penalties and
prohibitions.
Section 10. Authorization to Deter Marine Mammals Nonlethally
This section would allow for the nonlethal deterrence of
marine mammals which are damaging gear or catch by the owner
of the fishing gear or catch or the employee or agent of the
owner, which are damaging private property by the owner of
private property, which are endangering personal safety, or
which are damaging public property by a government employee.
The measures used could not result in the death of or serious
injury to a marine mammal. The Secretary must publish
guidelines for use in safely deterring marine mammals in the
Federal Register, and in the case of marine mammals
designated as threatened or endangered under the Endangered
Species Act, the Secretary must recommend specific measures
which could be used to nonlethally deter marine mammals. If
actions to deter marine mammals are not consistent with the
guidelines, or specific measures in the case of marine
mammals designated as threatened or depleted, the individual
would be in violation of this Act. The Secretary could also
prohibit any methods of deterrence through regulation if the
Secretary determines, based on the best scientific
information available, that the method of deterrence would
have a significant adverse effect on marine mammals. Finally,
the authority to deter marine mammals applies to all marine
mammals.
Section 11. Treaty Rights; Alaska Native Subsistence
This section provides that nothing in this bill alters any
treaty between the United States and any Indian tribe, and
that, other than as specifically provided in the amendment
made in section 4(h), nothing in this bill would alter or
modify section 101(b) of the MMPA.
Section 12. Transition Rule
This section provides for the transition between existing
section 114 and new section 118 of the MMPA.
Section 13. Technical and Conforming Amendments
This section makes technical and conforming changes to the
MMPA and the Marine Mammal Health and Stranding Response Act.
Section 14. Definitions
This section adds the definitions of ``calculated removal
level'', ``Council'', ``harassment'', ``incidental take
reduction plan'', ``incidental take reduction team'', ``net
productivity rate'', and ``minimum population estimate'' to
the MMPA.
Section 15. Human Activities in the Proximity of Whales
This section would allow individuals to approach lawfully a
humpback whale or any other whale by any means other than
aircraft at a distance no closer than 100 yards. The approach
standard would apply only to the waters off the coast of
Hawaii, and would include areas designated in regulation as
cow/calf waters.
Section 16. Pinniped-Fishery Interaction Task Force
This section would establish a new section 119 of the MMPA
to govern the lethal and humane removal of identifiable
nuisance pinnipeds that habitually exhibit dangerous or
damaging behavior that cannot be deterred by any other means,
and require a study of pinniped-fishery interactions in the
Northwest.
The language of the bill remains as described in the
January 25, 1994 Committee Report, except for the addition of
a new section 119(f). This new section directs the Secretary
of Commerce to conduct a study of not less than three high
predation areas in anadromous fish migration corridors within
the Northwest Region of the National Marine Fisheries Service
on the interaction between fish and pinnipeds. The Secretary
is to consult with other State and Federal agencies with
expertise in pinniped-fishery interaction.
The study will evaluate fish behavior in the presence of
predators generally; holding times and passage rates of
anadromous fish in areas where they are vulnerable to
predation; whether additional facilities exist, or could be
reasonably developed, that could improve escapement of
anadromous fish; and other relevant issues.
Subject to availability of funds, within 18 months after
the passage of the Act the Secretary will report on the
results of the study to the Senate Commerce Committee and the
House Merchant Marine and Fisheries Committee.
The Secretary would not be able to use the study for
determining whether to establish a Pinniped-Fishery
Interaction Task Force, or in determining whether to approve
or deny an application, until the study is complete. Further,
the Secretary would not be able to delay or defer a decision
to establish a Task Force or to approve or deny an
application while the study is pending.
Section 17. Marine Mammal Cooperative Agreements In Alaska
This section provides for cooperative agreements between
the Secretary and Alaska Native organizations related to the
conservation of marine mammals and co-management of
subsistence use.
Section 18. Bering Sea Marine Ecosystem Protection
This section provides for a study of the marine ecosystem
of the Bering Sea in order to determine the causes of
population declines in marine mammals, seabirds, and other
living marine resources of that region.
Section 19. Interjurisdictional Fisheries Act of 1986
This section amends the provision of the
Interjurisdictional Fisheries Act of 1986 which authorizes
appropriations for a commercial fisheries failure or serious
disruption affecting future production due to a fishery
resource disaster. Authorized spending under this provision
would be increased to $65 million annually for each of fiscal
years 1994 and 1995.
Section 20. Coastal Ecosystem Health
This section provides for conveyance of property on the
Charleston Naval Base to the Department of Commerce for use
by the National Oceanic and Atmospheric Administration. The
Naval Base in Charleston is slated for closure in 1996 and
the transfer is necessary in order to renovate a facility for
other federal use.
Mr. STEVENS. Madam President, I give my thanks to Senator Kerry and
his staff--in particular Lila Helms and Penny Dalton of the majority
staff of the Commerce Committee--for their assistance in this
bipartisan effort.
The 1988 reauthorization of the Marine Mammal Protection Act included
an interim regime to govern commercial fisheries interactions with
marine mammals. It followed a court of appeals' decision in Kokechik
Fishermen's Association versus Federation of Japan Salmon Fisheries.
The interim regime set up a process to gather data, and directed the
Secretary of Commerce to develop a new program for commercial
fisheries' interactions with marine mammals.
The Secretary presented a proposed regime to Congress in the fall of
1992. But the fishing industry and the environmental community had
serious concerns about the proposal.
In January 1993, representatives of the fishing industry and
environmental organizations began working together on an alternative
proposal. They completed it last June.
One month later, at a July Commerce Committee hearing, Senator Kerry
and I reviewed the negotiated proposal and the administration's
proposal. We asked the groups, the administration, and our staffs to
sit down and blend the two proposals.
On November 9, 1993, Senator Kerry and I introduced S. 1636, which
contained elements of both the administration proposal and the
negotiated proposal. The bill was reported by the Commerce Committee on
November 10, 1993.
Over the past months, Senator Kerry and I, and our staffs, have
worked diligently to revise and improve the bill.
We have worked together to combine the many suggestions we have
received.
And, Madam President, we have kept the process entirely bipartisan.
We have tried to find a balance between the fishing industry, the
environmental community, the administration, and the Alaska Native
community, whose interest in the commercial fisheries regime stems from
a historical dependence on marine mammals for subsistence.
The revised bill provides increased protection for marine mammals--
particularly for endangered and threatened marine mammals.
I believe the revised bill is one that the commercial fishing
industry can work within. It is one that will allow our fisheries to
continue without unnecessary disruption or burden.
ALASKA PROVISIONS
Senator Kerry and I worked together on the section-by-section
analysis in the Record, which provides a summary of the provisions in
the substitute bill.
Some of the items in the bill important to Alaska include:
The authorization of funding through 1999 for continued marine mammal
research, and for the new commercial fishery regime.
A streamlined permitting process for scientific research not likely
to result in the taking or harassment of marine mammals. This would
make research on marine mammals in Alaska easier to accomplish.
The bill codifies the arrangement that has been worked out between
Native subsistence harvesters, the oil industry and executive branch
agencies regarding the authorization of activities--such as oil
exploration--which disturb, or incidentally harass, small numbers of
marine mammals.
The bill adds a new paragraph to section 101(b) of the MMPA to ensure
that the Secretary bears the burden of proof when making regulations
restricting subsistence taking--or any stock assessment which impacts
subsistence stocks--or any determination or finding under this act
which would affect subsistence users or stocks.
In my view, the Secretary should have to demonstrate, by substantial
evidence on the record as a whole, that the Government is correct
before taking action or publishing information that would restrict a
legislatively-granted exemption. This provision does not in any way
increase the Secretary's authority to regulate subsistence users.
This provision would make it be clear that the Secretary would have
the burden of showing--based on substantial evidence--that a
determination of depletion is justified.
Native subsistence users would also be allowed to request a hearing
on the record if they disagree with the stock assessment under the new
section 117. As with the hearing on regulations limiting the taking of
subsistence stocks, the Secretary would have the burden of
demonstrating that the stock assessment is supported by substantial
evidence on the record as a whole.
These changes would help Alaska Natives to avoid being unnecessarily
regulated under the existing law. The changes would also help Alaska
Natives to avoid spending millions of dollars to refute faulty stock
assessments under the new section 117.
The bill would solve a problem relating to the MMPA's import ban
which has occurred when Alaska Natives engage in cultural exchanges
with other indigenous peoples. The bill would also help those who
lawfully own marine mammal products to bring the items back into the
United States after traveling.
A new subsection 101(a)(6) of the MMPA would allow marine mammal
products to be imported into the United States when the item was
carried out of the United States in conjunction with travel, or when it
was acquired outside the United States as part of a cultural exchange
by Alaska Indians, Aleuts or Eskimos.
The provision also allows marine mammal products to be imported by
Native inhabitants of Russia, Canada and Greenland in conjunction with
their travel to the United States, or as part of their cultural
exchanges with Alaska Indians, Aleuts and Eskimos.
This provision is particularly important to Alaskans in Western
Alaska and in the Arctic as they continue to rekindle their ties with
family and friends in Russia.
It is also important to visitors to Alaska who purchase Native
handicrafts, and who in the past have had the handicrafts confiscated
when they drive through Canada and try to reenter the United States.
The bill also includes a provision authorizing the Secretary to enter
into cooperative agreements with Native organizations to conserve
marine mammals. I have worked with the Indigenous People's Council for
Marine Mammals to develop this provision. I believe it would allow the
Alaska Native community to conserve marine mammals and protect their
historic harvest rights to marine mammals.
The bill also creates a scientific research program to monitor the
health and stability of the Bering Sea ecosystem and to resolve
uncertainties about the decline in some Bering Sea marine mammal
stocks.
I refer to the section-by-section analysis which Senator Kerry and I
have submitted for the Record for a description of the other provisions
of the bill, including the new commercial fisheries interaction
program, but I wanted to briefly mention some of the other provisions
which are important to Alaska.
Mr. HOLLINGS. Madam President, I am pleased that we are considering
the Marine Mammal Protection Act Amendments of 1994. The legislation
before the Senate is an amendment in the nature of a substitute to S.
1636, which was introduced by Senators Kerry, Stevens, and Packwood on
November 8, 1993, and was reported without objection by the Commerce
Committee last session. S. 1636 reauthorizes the Marine Mammal
Protection Act [MMPA] for 6 years, and amends the Act to provide for a
regime to govern the interactions between marine mammals and commercial
fishermen. The amendment under consideration today reflects careful
consideration and balancing of diverse viewpoints among the Committee
members and addresses the legitimate concerns of the various interest
groups which participated in its development.
In 1972, when the Congress enacted the MMPA, there was considerable
debate over how far we should go in protecting marine mammals. Some
environmentalists preferred tough restrictions which could have
crippled our domestic fishing industry, while the fishing industry
favored no regulations at all. The debate centered on striking the
proper balance between the desire to protect marine mammals and the
need to preserve important commercial fisheries. After long
deliberation, Congress finally reached what has proven to be an
effective compromise. The number of marine mammals taken by our
fishermen has been reduced dramatically without seriously damaging the
economic viability of most sectors of our domestic fishing fleet.
In the years since 1972, the central issue has changed very little.
In reauthorizing this Act, we must again strike the proper balance.
After long negotiations, I believe that we have reached such a
compromise. Although I understand that not everyone is completely
satisfied with all aspects of this bill, such is the nature of a
compromise, and I am pleased to support the Marine Mammal Protection
Act Amendments of 1994. I believe this legislation fine-tunes the MMPA,
increasing the protection afforded to marine mammals without hurting
the competitiveness of the American fishing industry.
The legislation before us today contains a new regime for protecting
marine mammals in the course of commercial fishing with the following
provisions: specific time tables and procedures for conducting marine
mammal stock assessments and preparing incidental take reduction plans
for those marine mammal population stocks in most need of attention; a
prohibition against the intentional killing of marine mammals; a
mandatory vessel registration system for those vessels that have
frequent and occasional interaction with marine mammals; a mandatory
observer program to verify the data on takes of marine mammals; and
effective emergency authority for the Secretary of Commerce--
Secretary--to control circumstances in which stocks are declining. The
substitute amendment also contains a 6-year reauthorization of
appropriations to carry out Federal activities under the MMPA.
More specifically, the interim system established by the 1988
amendments was designed to collect information regarding fishery-marine
mammal interactions in order to develop a permanent regime to govern
those interactions. S. 1636 would require publication of a stock
assessment for each marine mammal stock based on the data that has been
collected during the past 5 years.
The legislation also would establish a regulatory process to govern
the interactions between marine mammals and commercial fisheries. Once
the Secretary has completed the stock assessment, the Secretary
determines whether the condition of the marine mammal population
requires development of a plan for reducing incidental takings by
fishermen so that the population may recover. The legislation also
reiterates the longstanding goal of the Marine Mammal Protection Act,
``to reduce incidental mortality and serious injury from commercial
fishing operations to significant rates approaching zero,''
establishing a 10-year time line for that goal.
The proposed regime in S. 1636 as amended is based on an agreement
reached between representatives of the fishing industry and several
conservation organizations after extensive negotiations. Fishermen who
interact with marine mammals must register and report their
interactions. Fisheries which frequently take marine mammals also will
be required to participate in an observer program.
S. 1636 will allow protection of all marine mammals with greatest
emphasis being placed on those populations that are depleted and need
the most assistance to recover. I commend the representatives of both
the fishing industry and those conservation organizations that
continued to participate in legislative discussions and made
constructive recommendations on S. 1636.
In summary, the legislation before us today will strengthen and
extend the protection afforded to marine mammals under the MMPA without
damaging our important commercial fisheries. The legislation is
consistent with the original goals and intent of the MMPA and will
facilitate our attempts to meet these goals. Passage of S. 1636 as
amended reaffirms our commitment to preserving and protecting this
group of animals, and I urge my colleagues' support.
(By request of Mr. Johnston, the following statement was ordered to
be printed in the Record:)
Mrs. MURRAY. Madam President, I rise today in support of S. 1636, a
bill to reauthorize the Marine Mammal Protection Act. I do so with some
reservation, however.
Mr. President, the Pacific Northwest has been struggling for many
years over the appropriate management of our natural resources,
including water, timber, and salmon. It is this latter category I am
concerned about today. Of all the things we value in the Northwest,
salmon are perhaps the greatest symbol of our cultural heritage.
Over the past decade, as bureaucrats have bickered and politicians
have debated, the condition of this tremendous resource has
deteriorated badly. On rivers throughout the region--rivers with dams,
rivers without dams--once mighty salmon runs are withering away. At the
same time, another valuable resource, marine mammals native to the
region, have come back in great strength. In fact, you cannot take a
boat ride anywhere in Puget Sound without encountering a seal or sea
lion these days.
The combination of these two factors has created a very difficult and
unfortunate circumstance: because they are voracious eaters, marine
mammals now pose a direct threat, in many cases, to the continued
viability of certain salmon populations.
Madam President, this bill provides limited authority to lethally
remove marine mammals that can be identified as posing a threat to
certain fish populations. This is a narrowly focused, short-term
management tool designed to protect the continued viability of such
populations. I support this provision, and believe it is needed in
order to address critical situations.
I must say however, that I am sad it has come to this. The decline of
our salmon runs is not news. We have known there are problems for a
while now. Unfortunately, the wheels of government are slow to turn;
even today, the region is without a comprehensive plan to conserve
salmon habitat. There are efforts underway to address habitat issues.
The President's forest plan calls for important riparian protection;
the Northwest Power Planning Council has proposed a regional salmon
strategy; and NMFS is working even now on a recovery plan for Columbia
and Snake River salmon. These efforts will not come soon enough to save
the steelhead that spawn--or used to spawn--in the Cedar and Sammamish
Rivers. But I think ultimately, this issue will only be resolved
through comprehensive habitat conservation planning.
I am pleased to recognize the committee substitute contains language
at my suggestion that requires further study of salmon-pinniped
interaction on a regionwide basis. This problem, while graphically
illustrated by the Ballard Locks issue, is not limited to that area. I
hope that the Secretary will examine this issue closely; specifically,
we need to look at the root causes of predation, the effect of
predation on species viability, and possible long-term solutions. In
short, we must not convince ourselves that treating the symptom--rather
than the cause--will solve the underlying problem. We need to know how
much of a threat predation is, and we need to know what effect habitat
conditions have on interactions.
I will conclude by commending the committee, especially Chairman
Hollings and Chairman Kerry, for their timely and judicious action in
this matter. We live in a time where desperate measures appear to be
needed; I sincerely hope we will see a day in the Pacific Northwest
where we won't need to resort to killing seals and sea lions in order
to preserve salmon.
Mr. PACKWOOD. Madam President, I rise today as a cosponsor of S.
1636, the Marine Mammal Protection Act Amendments of 1994.
This bill reflects a bipartisan effort and many months of discussions
and drafting that included the Congress, the environmental and
conservation groups, and the fishing industry.
All participants are to be praised for their achievement in crafting
this very balanced bill that improves the program to reduce the
incidental taking of marine mammals in the course of commercial fishing
operations.
If this bill is not passed by Congress and signed by the President by
April 1, the commercial fishing industry will simply come to a halt
because the industry will have no exemption from its unavoidable
interactions with marine mammals while fishing. The economic impacts
would be dire for my State and for the Nation.
The bill also includes incidental take reduction plans for stocks in
need. It takes into account the limited funding available by addressing
those stocks in the greatest peril first.
Also, an excellent and realistic change has been made to address
problems fishermen have had with the present cumbersome reporting
system. The act now directs the reporting process to be done simply by
a postage paid card or by computer within 48 hours, rather than
requiring fishermen to keep logbooks throughout the season.
This is a difficult time for the fishing communities of my State of
Oregon and the Pacific Northwest, Madam President, as once again, the
chance of any commercial or recreational salmon fishing season this
year looks bleak.
In many of these communities, people stand by and watch as factors
beyond their control from El Nino to the growing seal and sea lion
populations that feed on our salmon, lead to diminished salmon runs.
This bill will neither make those who think these pinniped
populations are growing out of control completely happy nor those who
seek to totally protect all marine mammals. What it is, through, is a
fair balance that should serve both groups well.
Also, the Exon amendments to the act that I have cosponsored
thoughtfully addresses the care and maintenance of marine mammals used
for education and public display.
Again, this was done through many months of work by the Congress, the
public display community, and some of the environmental and
conservation groups, and also has bipartisan support.
I was pleased to receive word that our own Washington Park Zoo in
Portland, one that Oregonians are justifiably proud of, has given the
public display amendment its total support.
How many of us here on the Senate floor, as a fascinated kid, saw our
first marine mammal at a zoo or aquarium; an experience that brought
those magnificent creatures of the sea right before our very eyes.
The legislation before us reflects our respect and admiration for
marine mammals and addresses the stability of our fishing communities
and marine mammals in the wild. I ask for your support for its passage.
Mr. GORTON. Madam President, today the Senate considers a bill which
is, in large part, the result of the collaborative efforts of various
individuals and groups which have a vested interest in the
reauthorization of this important act. These groups put aside their
differences and worked hard to put together the bill which is before us
today. The groups--the Center for Marine Conservation, Trout Unlimited,
Northwest Indian Fisheries Commission, commercial and recreational
fisheries organizations, and more--put forward a proposal to
reauthorize the act which would allow economic and environmental
interests to work together.
In addition,the groups recognized the very serious budget constraints
which we are operating under, and have proposed a system to allocate
Federal resources to those marine mammal stocks which are in the most
serious need of recovery. I applaud the hard work which went into this
process and only wish that more groups would be willing to iron out
their differences to achieve a workable balance between economic and
environmental concerns.
Pinniped-Fishery Interaction Task Force
Included within S. 1636, is an amendment which I offered during the
Commerce Committee markup of the legislation. This provision, entitled
the ``Pinniped-Fishery Interaction Task Force,'' was the result of
negotiation and collaboration on behalf of various groups concerned
with predation by ``nuisance'' animals.
The task force provision may appear as obscure to some, but in fact
it addresses a decade-long problem in Washington State which has the
potential to put two major environmental laws at odds with one another.
Briefly, the situation is this: Each year a wild run of steelhead
salmon return to spawn at the Ballard Locks in Seattle, WA. Not
coincidentally, 10 or so California sea lions have made the Ballard
Locks their feeding ground for well over a decade. As a result of the
incredible appetite of these sea lions, there has been a dramatic
decline in a run of wild steelhead salmon. Consequently, this fish
run--a run which 10 years ago numbered nearly 2,000--today numbers less
than 40.
In addition, a similar mammal-fishery interaction on the Columbia
River is widely believed to have caused a decline in fish runs along
the river. Although this case is not nearly as well documented as the
Ballard Locks, it too deserve careful attention by fishery officials
from the State and Federal level.
At the Ballard Locks, numerous nonlethal means of removal have been
attempted by the Washington State Department of Wildlife, National
Marine Fisheries Service, with assistance from the U.S. Fish and
Wildlife. The non-lethal means of removal have ranged from underwater
fireworks, underwater ultrasound, underwater lights, and physically
transporting the nuisance sea lions back to California--only to have
them return to the Locks a few short weeks later.
The task force provision would allow any person to apply to the
Secretary to authorize the legal removal of identified nuisance
animals. The application must include a means of identifying the
individual mammal(s) as well as a detailed description of the problem
interaction and the expected benefits of the removal.
The Secretary must review the application within 15 days upon
receipt. If the application contains sufficient evidence, the Secretary
would be authorized to establish a Task Force, and publish notice in
the Federal Register requesting public comment on the application.
In making its recommendation, the task force will consider criteria
such as: population trends; feeding habits; location of the
interaction; time of occurrence of the interaction; number of animals
involved; past efforts to nonlethally deter the animal(s); a
demonstration that all reasonable nonlethal steps have been taken with
no success; the extent of harm, impact or imbalance with other species
in the ecosystem; and the extent of behavior that presents an ongoing
threat to public safety.
The task force shall consist of Department of Commerce staff,
scientist familiar with the fishery, representatives of interested
conservation and fishing groups, tribes, State wildlife officials, and
others.
Within 60 days of establishment of the task force, the task force
would make a recommendation to the Secretary either approving or
disapproving the application for removal of the nuisance animal. The
recommendation would include: a description of the specific animal(s);
proposed location, time and method of removal; criteria for evaluating
the success of the removal; and the duration of the authority for
removal. The task force may also suggest nonlethal alternatives.
After receiving the recommendation, the Secretary would have 30 days
to either approve or deny the application. Upon approval, the Secretary
would begin immediately to implement the lethal removal. The removal
must be performed by a Federal or State agency, or a qualified
individual under contract to a Federal or State agency.
As you can tell there are numerous opportunities for public comment
and safeguards in this provision to ensure a careful and thoughtful
deliberation of the request to lethally remove a nuisance animal.
Over the past several weeks, as many groups in the Pacific Northwest
have written to me in support of the task force provision. I would like
to read from a few of these letters for you.
The National Fisheries Institute calls the task force--
the best way to address each particular situation [of
nuisance predation] in a professional and scientific manner.
Everyone would have an opportunity to participate [in the
process].
The Pacific States Marine Fisheries Commission, which represents the
States of Washington, Oregon and California, wrote and said:
We support your amendment to S. 1636 * * * PSMFC views that
provision as a step toward achieving a balanced ecosystem
management approach within the MMPA.
Trout Unlimited, which was one of the authors of the provision,
states that,
As Congress and the Nation struggle to preserve our fish
and wildlife resources, it appears to us that appropriate
changes in the MMPA can help. In our view, your task force
provision provides the best tool for this situation, and
others like it which may arise in the future.
And the Pacific Fisheries Legislative Task Force, which is made up of
members from California, Alaska, Hawaii, Idaho, Oregon and Washington,
wrote in support of my provision, stating,
Your [provision] will help control the exploding
populations of California Sea lions and harbor seals, and
will help us save our west coast fishery resources. Your
amendment is a modest approach.
The Northwest Indian Fisheries Commission, another author of the
provision, states:
This very narrow provision is necessary to protect other
valuable main resources in the ecosystem, such as Pacific
Salmon and Steelhead, from extraordinary predation by marine
mammals. * * * This is common sense.
The Washington State Wildlife Commission wrote in support of the task
force, stating:
The Commission believes that the proposed Pinniped-Fishery
Interaction Task Force, with its well-balanced
representation, will use sound judgment when recommending to
the Secretary approval or denial of an application for lethal
removal of problem marine mammals.
Rob Turner, director of the Washington State Department of Fish and
Wildlife, wrote to tell me that,
I fully support this approach that will provide the
Secretary of Commerce and the State of Washington with the
flexibility that will help us to avoid future listings of
settlehead and salmon stocks on our rivers.
The Mountaineers, a conservation group in Washington State which
represents over 14,000 members, supports my provision.
The Sportfishing Alliance, which is a coalition of major Washington
State county sportsman councils, and represents over 20,000 members,
supports the task force provision.
The King County Outdoor Sports Council ``strongly supports'' the task
force provision.
And I have received letters from concerned fishermen, like Thomas
Wilken, of Port Orchard, WA, who wrote that,
I regret lethal removal of the sea lions but I feel it is
necessary to protect the steelhead. After all other previous
attempts to save the sea lions have failed, lethal removal is
the only viable and economic solution to the problem.
And the Lake City Sportsmen's club wrote to tell me that,
The wild salmon and steelhead should not be allowed to
become extinct. Control and management of sea lions and
harbor seals is needed now to remove these predators from the
locks, so the steelhead and wild salmon can return to their
spawning streams.
I have even more letters of support which I could read from today,
however, I believe I have established the wide support for my provision
from groups throughout the Pacific Northwest.
At this time, however, I would like to further clarify my position on
the issue of lethal removal. My task force provision does not, much to
my regret, effectively address the sea lion predation problem on the
Columbia River. The task force provision does not address how to manage
robust populations of mammals, in large part because the provision was
the result of negotiation and compromise. Unfortunately, I anticipate
that a few years from now, I may be required to come before the
committee once again to attempt to correct the situation on the
Columbia River.
The Columbia River is, perhaps, an even more disturbing and
potentially more difficult problem than that of the Ballard Locks. The
Columbia River is home to one endangered fish stock, two threatened,
and the potential listing of several more. Combined with the fact that,
according to the recommendations of the recovery team assigned to
exploring options for recovery of these stocks. California sea lions
have appeared as far up river as the Bonneville Dam and Wilamette
Falls. Since 1991, the report states, partial counts of the sea lions
number 200. The harbor seal also consistently feeds upon fish along the
Columbia River. If you read the task force provision included within
the Senate bill, you quickly realize that this provision will do
nothing to correct the situation presented by the herds of hungry seals
and sea lions on the Columbia River.
HOuse of Representatives
While I am pleased that the Senate will go on record as supporting
the task force provision, I continue to be concerned with recent
actions in the House of Representatives on this issue.
As I have outlined here today, the task force provision addresses an
issue of concern to people in my State, and to an extent the Pacific
Northwest. The situation which we face at the Ballard Locks is unique
to Washington State, and in the opinion of this Senator, those
individual, scientists, environmentalists, recreational and commercial
fishing interests, and interested parties should be able to give their
recommendation to the Secretary of Commerce on how to best solve it.
The House, in its bill to reauthorize the MMPA, has elected to tie
the hands of Washington State by linking Secretarial authority to allow
for the lethal removal of nuisance animals to the listing of the
preyed-upon species under the Endangered Species Act. Mr. President, in
doing this, the House of Representatives places itself in the ironic
position of advocating for the listing of a species before allowing an
act to save it. It is ironic, for this Senator, that under the guise of
advocating for the preservation of a few marine mammals, proven to be a
nuisance, that the House committee would advocate for an ESA listing of
a wild run of steelhead salmon. This Senator does not pretend to have
the answers to such difficult questions, but knows that the House
provision will not solve the problem of nuisance mammals in the
Northwest, but rather will create new ones.
I realize that my dissatisfaction with the House provision on
nuisance animals will carry little weight with the members of that
committee. I will fight hard during the House-Senate conference for the
adoption of the Senate-approved provision because it reflects the input
and views of Washington interests knowledgeable in this specific
fishery-pinniped interaction.
Mr. LOTT. Madam President, I rise in support of the amendment offered
by Senators Exon and Danforth.
Public display and scientific research institutions in Mississippi
and throughout the United States play an essential role in marine
mammal conservation. Over 100 million people annually visit such
institutions and learn about the conservation of these magnificent
creatures. The Marine Mammal Protection Act creates a special,
favorable category for these activities, and it provides for
simplified, nonburdensome procedures for them.
It is essential that permits continue to be granted for these
beneficial purposes, and that they be granted on a timely and
nonburdensome basis. This amendment accomplishes two important goals.
First, it reaffirms the role of public display in increasing public
awareness and understanding about marine mammals. Second, it simplified
and clarifies the public display permitting process.
Madam President, I am pleased to cosponsor this amendment. It
represents a carefully crafted compromise that his bipartisan support.
It is identical to language added to companion legislation in the House
of Representatives by the Merchant Marine and Fisheries Committee.
Mr. CHAFEE. Madam President, I would like to direct a question on S.
1636 to my distinguished colleague, Senator Stevens. Section 4(f) of S.
1636 provides for the granting of permits under the Marine Mammal
Protection Act for the incidental take of marine mammals that are
designated as depleted because they are listed as endangered or
threatened under the Endangered Species Act. My understanding is that
this provision does not affect any requirements of the Endangered
Species Act, including the requirements of section 7 of the Endangered
Species Act. Is this correct?
Mr. STEVENS. The requirements of the Endangered Species Act,
including section 7 requirements, are not affected by this bill.
Mr. BAUCUS. Madam President, I share the concerns of Senator Chafee
regarding the Endangered Species Act, which is within the jurisdiction
of the Environment and Public Works Committee. I ask the distinguished
chairman of the Commerce Committee whether he agrees that nothing in S.
1636 alters or amends the Endangered Species Act.
Mr. HOLLINGS. Yes, I agree.
Mr. BAUCUS. I thank the Senator.
The ACTING PRESIDENT pro tempore. Are there further amendments to be
proposed?
Amendment No. 1551
(Purpose: To provide procedures relating to permits for the public
display of marine mammals)
Mr. JOHNSTON. Madam President, I send a further amendment to the
desk.
The ACTING PRESIDENT pro tempore. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Louisiana [Mr. Johnston] for Mr. Exon, for
himself, Mr. Danforth, Mr. Graham, Mr. Inouye, Mr. Mack, Mrs.
Hutchison, Mr. Packwood, Mr. Pressler, Mr. Cochran, Mr. Lott,
Mr. Gorton, Mr. Kerrey, Mr. Daschle, Mr. DeConcini, Mr.
Simon, Ms. Mikulski, Ms. Moseley-Braun, and Mr. D'Amato,
proposes an amendment numbered 1551.
Mr. JOHNSTON. Madam President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:
Strike all on page 13, line 15, through page 15, line 19,
and insert the following:
SEC. 5. PERMITS.
(a) Prohibitions.--Section 102(a) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1372(a)) is amended--
(1) in paragraph (2)(B), by striking ``for any purpose in
any way connected with the taking or importation of'' and
inserting in lieu thereof ``to take or import''; and
(2) by amending paragraph (4) to read as follows:
``(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 section 104(c); and''.
(b) Permits.--Section 104(a) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1374(a)) is amended--
(A) by inserting ``, harassment,'' immediately after
``taking''; and
(B) by inserting ``except for the incidental taking of
marine mammals during the course of commercial fishing
operations'' immediately before the period at the end.
(2) Section 104(c)(1) of the Marine Mammal Protection Act
of 1972 (16 U.S.C. 1374(c)(1) is amended by striking ``and
after'' in the first sentence.
(3) Paragraph (2) of section 104(c) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1374(c)) is amended to read
as follows:
``(2)(A) A permit may be issued to take or import a marine
mammal for the purpose of public display only to a person
which the Secretary determines--
``(i) offers a program for education or conservation
purposes that is based on professionally recognized standards
of the public display community;
``(ii) is registered or holds a license issued under the
Animal Welfare Act (7 U.S.C. 2131 et seq.); and
``(iii) maintains facilities for the public display of
marine mammals that are open to the public on a regularly
scheduled basis and that access to such facilities is not
limited or restricted other than by charging of an admission
fee.
``(B) A permit under this paragraph shall grant to the
person to which it is issued the right, without obtaining any
additional permit or authorization under this Act, to--
``(i) take, import, purchase, offer to purchase, possess,
or transport the marine mammal that is the subject of the
permit; and
``(ii) sell, export, or otherwise transfer possession of
the marine mammal, or offer to sell, export, or otherwise
transfer possession of the marine mammal--
``(I) for the purpose of public display, to a person that
meets the requirements of clauses (i), (ii), and (iii) of
subparagraph (A);
``(II) for the purpose of scientific research, to a person
that meets the requirements of paragraph (3); or
``(III) for the purpose of enhancing the survival or
recovery of a species or stock, to a person that meets the
requirements of paragraph (4).
``(C) A person to which a marine mammal is sold or exported
or to which possession of a marine mammal is otherwise
transferred under the authority of subparagraph (B) shall
have the rights and responsibilities described in
subparagraph (B) with respect to the marine mammal without
obtaining any additional permit or authorization under this
Act. Such responsibilities shall--
``(i) for the purpose of public display, be limited to the
responsibility to meet the requirements of clauses (i), (ii),
and (iii) of subparagraph (A);
``(ii) for the purpose of scientific research, be limited
to the responsibility to meet the requirements of paragraph
(3); and
``(iii) for the purpose of enhancing the survival or
recovery of a species or stock, be limited to the
responsibility to meet the requirements of paragraph (4).
``(D) If the Secretary--
``(i) finds, in concurrence with the Secretary of
Agriculture, that a person that holds a permit under this
paragraph for a marine mammal, or a person exercising rights
under subparagraph (c), no longer meets the requirements of
subparagraph (A)(ii) and is not reasonably likely to meet
those requirements in the near future, or
``(ii) finds that a person that holds a permit under this
paragraph for a marine mammal, or a person exercising rights
under subparagraph (C), no longer meets the requirements
of subparagraph (A)(i) or (iii) and is not reasonably
likely to meet those requirements in the near future,
the Secretary may revoke the permit in accordance with
section 104(e), seize the marine mammals, or cooperate with
other persons authorized to hold marine mammals under this
Act for disposition of the marine mammal. The Secretary may
recover from the person expenses incurred by the Secretary
for that seizure.
``(E) No marine mammal held pursuant to a permit issued
under subparagraph (A) may be sold, purchased, exported, or
transported unless the Secretary is notified of such action
no later than 15 days before such action, and such action is
for purposes of public display, scientific research, or
enhancing the survival or recovery of a species or stock. The
Secretary may only require the notification to include the
information required for the inventory established under
paragraph (10).''.
(4) Paragraph (3) of section 104(c) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1374(c)) is amended to read
as follows:
``(3)(A) A permit may be issued, for scientific research
purposes that are likely to result in the taking or
harassment of a marine mammal, to an applicant who submits
information with the permit application indicating that the
taking or harassment is required to further a bona fide
scientific purpose. The Secretary is authorized to issue
permits under this paragraph prior to the end of the
mandatory public review and comment period if delaying the
issuance of such permit could result in harm to a species,
stock, or individual marine mammal, or result in loss of
unique research opportunities.
``(B) No permit issued for purposes of scientific research
under subparagraph (A) shall authorize the lethal taking of a
marine mammal unless the applicant submits documentation to
the Secretary that a nonlethal method of conducting the
research is not feasible. The Secretary shall not issue a
permit for research which involves the lethal taking of a
marine mammal from a species or stock designated as depleted,
unless the Secretary determines that the results of such
research will directly benefit that species or stock, or that
such research fulfills a critically important research need.
``(C) Not later than 60 days after the date of enactment of
the Marine Mammal Protection Act Amendments of 1994, the
Secretary shall grant a general authorization and shall issue
implementing regulations allowing bona fide scientific
research that is not likely to result in the taking or
harassment of a marine mammal. Such authorization shall apply
to persons who submit, at least 60 days prior to commencement
of the research, a letter of intent to the Secretary
specifying--
``(i) the species or stock of marine mammal on which the
research will be conducted;
``(ii) the geographic location of the research;
``(iii) the period of time over which the research will be
conducted;
``(iv) the purpose of the research, including a description
of how the definition of bona fide research as established by
the Secretary under this Act would apply; and
``(v) the methods used to conduct the research.
Not later than 30 days after receipt of a letter of intent to
conduct scientific research under the general authorization,
the Secretary may notify the applicant that the proposed
research is likely to result in the taking or harassment of a
marine mammal, and that the provisions of subparagraph (A)
apply. If no such notification is received, the proposed
research shall be covered under the general authorization.''.
(5) Section 104(c) of the Marine Mammal Protection Act of
1972 (16 U.S.C. 1374(c)) is amended by adding at the end the
following new paragraphs:
``(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 if that
person--
``(A) meets the requirements of clauses (i), (ii), and
(iii) of paragraph (2)(A), in the case of a request for a
permit under paragraph (2);
``(B) meets the requirements of paragraph (3), in the case
of a request for a permit under that paragraph; or
``(C) meets the requirements of paragraph (4), in the case
of a request for a permit under that paragraph.
``(8)(A) No additional permit or authorization shall be
required to possess, sell, purchase, transport, export, or
offer to sell or purchase the progeny of marine mammals taken
or imported under this subsection, if such possession, sale,
purchase, transport, export, or offer to sell or purchase
is--
``(i) for the purpose of public display, and by or to,
respectively, a person which meets the requirements of
clauses (i), (ii), and (iii) of paragraph (2)(A);
``(ii) for the purpose of scientific research, and by or
to, respectively, a person which meets the requirements of
paragraph (3); or
``(iii) for the purpose of enhancing the survival or
recovery of a species or stock, and by or to, respectively, a
person which meets the requirements of paragraph (4).
``(B)(i) A person which has possession of a marine mammal
pursuant to a permit under paragraph (2), or a persons
exercising rights under paragraph (2)(C), that gives birth to
progeny shall--
``(I) notify the Secretary of the birth of such progeny
within 30 days after the date of birth; and
``(II) notify the Secretary of the sale, purchase, or
transport of such progeny no later than 15 days before such
action.
``(ii) The Secretary may only require notification under
clause (i) to include the information required for the
inventory established under paragraph (10).
``(C) Any progeny of a marine mammal born in captivity
before the date of enactment of the Marine Mammal protection
Act Amendments of 1994 and held in captivity for the purpose
of public display shall be treated as though born after that
date of enactment.
``(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
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.
``(10) The Secretary shall establish and maintain an
inventory of all marine mammals possessed pursuant to permits
issued under paragraph (2) and all progeny of such marine
mammals. The inventory 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) The name of the marine mammal or other
identification.
``(B) The sex of the marine mammal.
``(C) The estimated or actual birth date of the marine
mammal.
``(D) The date of acquisition or disposition of the marine
mammal by the permit holder.
``(E) The source from whom the marine mammal was acquired,
including the location of the take from the wild, if
applicable.
``(F) If the marine mammal is transferred, the name of the
recipient.
``(G) A notion if the animal was acquired as the result of
a stranding.
``(H) The date of death of the marine mammal and the cause
of death when determined.''.
(c) Existing Permits.--Any permit issued under section
104(c)(2) of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1374(c)(2)) before the date of the enactment of this
Act is hereby modified to be consistent with that section, as
amended by this Act.
Mr. EXON. Madam President, I am pleased to file an amendment to the
Marine Mammal Protection Act to improve the administration of the act
as it relates to zoos, aquariums, and scientific research institutions.
This amendment has broad bipartisan support from all regions of the
country. It embraces a compromise worked out in the House of
Representatives between those who display marine mammals, and the
Clinton administration.
In 1992 alone, over 108 million people visited American zoos and
aquariums. In fact, I can think of no better form of family
entertainment and education. Research has also shown that wildlife
public display programs are not only educational, they enhance public
commitment to conservation.
In Nebraska, we are blessed with a number of premier zoos. The Henry
Doorly Zoo in Omaha, the Riverside Zoo in Scottsbluff, and the Folsom's
Children's Zoo in Lincoln, NE are nationally and internationally known.
And the Henry Doorly Zoo will soon be the home of a world class
aquarium.
America's public display institutions are playing an absolutely
critical role in the conservation of marine mammals and endangered
species. They have taken their responsibilities to the public, their
animals and future generations very seriously. Self regulation among
America's zoos, aquariums, and marine parks significantly exceeds
minimum Federal and State standards.
In recent months, the U.S. Department of Agriculture and the U.S.
Department of Commerce have been engaged in a jurisdictional tussle,
which, if unresolved threatens to significantly complicate zoo and
aquarium operations. Unless the Congress acts, there will be confusion,
duplication, and added expense for virtually all American zoos and
aquariums.
This amendment, worked out between the public display community, the
House Environment and Natural Resources Subcommittee and the Clinton
administration takes a common sense approach and attempts to untangle a
complicated knot of regulation and oversight.
The amendment will clarify the lines of responsibility, between the
U.S. Department of Commerce and the U.S. Department of Agriculture,
streamline the paperwork required when animals are transferred between
exhibitors, improve the animal inventory system, maintain high
standards for animal care and facilities and give Federal authorities
the ability to act quickly to protect marine mammals when facilities
and care fall below acceptable levels.
I encourage my colleagues to join in support for this common sense
compromise. Thank you Madam President.
The ACTING PRESIDENT pro tempore. The question is on agreeing to the
amendment.
The amendment (No. 1551) was agreed to.
Mr. JOHNSTON. Madam President, I move to reconsider the vote.
Mr. WALLOP. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The ACTING PRESIDENT pro tempore. If there are no further amendments
to be proposed, the substitute amendment, as amended, is agreed to.
So the amendment (No. 1550), as amended, was agreed to.
The ACTING PRESIDENT pro tempore. The bill is deemed read three times
and passed.
So the bill (S. 1636) was deemed read three times and passed, as
follows:
S. 1636
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Marine Mammal Protection Act
Amendments of 1994''.
SEC. 2. PURPOSES.
The purposes of this Act are to--
(1) authorize appropriations to carry out the Marine Mammal
Protection Act of 1972 for the fiscal years 1994 through
1999;
(2) ensure that the incidental mortality and serious injury
of marine mammals in commercial fisheries does not cause any
species or stock of marine mammals to be reduced to or
maintained at, for significant periods of time, a level that
is below the lower limit of its optimum sustainable
population range;
(3) prohibit intentional killing of marine mammals during
commercial fishing;
(4) improve efforts to identify and address the most
significant problems involving incidental mortality and
serious injury of marine mammals in commercial fishing
operations, considering the population size and status of the
affected marine mammal stocks and the numbers of marine
mammals that are incidentally killed or injured in commercial
fisheries;
(5) ensure that the procedure for authorizing the
incidental taking of marine mammals in commercial fisheries
is consistent with the long-term objective of identifying and
taking such steps as may be practicable to reduce incidental
mortality and serious injury from commercial fishing
operations to insignificant rates approaching zero; and
(6) continue cost-effective programs for reliably
monitoring (A) the levels of incidental mortality and serious
injury of marine mammals in commercial fisheries and (B) the
size and current population trends of the affected marine
mammal stocks.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
(a) Department of Commerce.--Section 7(a) of the Act
entitled ``An Act to improve the operation of the Marine
Mammal Protection Act of 1972, and for other purposes'',
approved October 9, 1981 (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 such functions and responsibilities as it may
have been given under title I of the Marine Mammal Protection
Act of 1972 (other than sections 117 and 118 of that Act),
$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 of the Marine Mammal Protection Act of 1972,
$15,000,000 for each of the fiscal years 1994 through
1999.''.
(b) Department of the Interior.--Section 7(b) of the Act
entitled ``An Act to improve the operation of the Marine
Mammal Protection Act of 1972, and for other purposes'',
approved October 9, 1981 (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 such functions and responsibilities
as it may have been given under title I of the Marine Mammal
Protection Act of 1972, $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.''.
(c) Marine Mammal Commission.--Section 7(c) of the Act
entitled ``An Act to improve the operation of the Marine
Mammal Protection Act of 1972, and for other purposes'',
approved October 9, 1981 (16 U.S.C. 1407), is amended to read
as follows:
``(c) Marine Mammal Commission.--There are authorized to be
appropriated to the Marine Mammal Commission, for purposes of
carrying out such functions and responsibilities as it may
have been given under title II of the Marine Mammal
Protection Act of 1972, $1,350,000 for fiscal year 1994,
$1,400,000 for fiscal year 1995, $1,450,000 for fiscal year
1996, $1,500,000 for fiscal year 1997, $1,550,000 for fiscal
year 1998, and $1,600,000 for fiscal year 1999.''.
SEC. 4. MORATORIUM AND EXCEPTIONS.
(a) In General.--In introductory matter of section 101(a)
of the Marine Mammal Protection Act of 1972 (16 U.S.C.
1371(a)) is amended--
(1) by inserting ``, harassment,'' immediately before ``and
importation''; and
(2) by inserting ``or harassment'' immediately after ``for
the taking''.
(b) Permits for Research, Display, Enhancing Survival or
Recovery.--Section 101(a)(1) of the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1371(a)(1)) is amended to read as
follows:
``(1) Consistent with the provisions of section 104,
permits may be issued by the Secretary for the taking,
harassment, and importation of marine mammals for purposes of
scientific research, public display, or enhancing the
survival or recovery of a species or stock. Such permits may
be issued if the taking, harassment, or importation proposed
to be made is first reviewed by the Marine Mammal Commission
and the Committee of Scientific Advisors on Marine Mammals
established under title II. The Commission and the Committee
shall recommend any proposed taking, harassment, or
importation which is consistent with the purpose and policies
of section 2. The Secretary shall, if the Secretary grants
approval for importation, issue to the importer concerned a
certificate to that effect which shall be in such form as the
Secretary of Treasury prescribes and such importation may be
made upon presentation of the certificate to the customs
officer concerned.''.
(c) Authorization for Incidental Taking During Commercial
Fisheries.--The first sentence of section 101(a)(2) of the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2))
is amended by inserting immediately before the period at the
end the following: ``, or in lieu of such permits,
authorizations may be granted therefor under section 118,
subject to regulations prescribed under that section by the
Secretary without regard to section 103.''.
(d) Taking or Importation From Depleted Stocks.--(1)
Section 101(a)(3)(A) of the Marine Mammal Protection Act of
1972 (16 U.S.C. 1371(a)(3)(A)) is amended by inserting ``,
except as provided in paragraph (6),'' after ``that'' in the
second proviso.
(2) Section 101(a)(3)(B) of the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1371(a)(3)(B)) is amended by inserting
``, or as provided for under paragraph (5) of this
subsection,'' immediately after ``subsection,''.
(e) Authorization for Harassment of Small Numbers of Marine
Mammals.--Section 101(a)(5) of the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1371(a)(5)) is amended--
(1) in subparagraph (A), by inserting ``or harassment''
immediately after ``taking'' each place it appears; and
(2) by adding at the end the following new subparagraph:
``(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 one
year, subject to such conditions as the Secretary may
specify, the incidental, but not intentional, 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) will have a negligible impact on such species or
stock; and
``(II) will not have an unmitigable adverse impact on the
availability of such species or stock for taking for
subsistence uses pursuant to subsection (b), or section
109(f), or pursuant to a cooperative agreement under section
120.
``(ii) The authorization for such activity shall prescribe,
where applicable--
``(I) permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable
impact on such species or stock and its habitat, paying
particular attention to rookeries, mating grounds, and areas
of similar significance, and on the availability of such
species or stock for subsistence uses pursuant to subsection
(b), or section 109(f), or pursuant to a cooperative
agreement under section 120;
``(II) the measures that the Secretary determines are
necessary to ensure no unmitigable adverse impact on the
availability of the species or stock for subsistence uses
pursuant to subsection (b), or section 109(f), or pursuant to
a cooperative agreement under section 120; and
``(III) requirements pertaining to the monitoring and
reporting of such taking, including requirements for the
independent peer review of proposed monitoring plans or other
research proposals where the proposed activity may affect the
availability of a species or stock for taking for subsistence
uses pursuant to subsection (b), or section 109(f), or
pursuant to a cooperative agreement under section 120.
``(iii) The Secretary shall publish a proposed
authorization not later than 45 days after receiving an
application under this subparagraph and request public
comment through notice in the Federal Register, newspapers of
general circulation, and appropriate electronic media and to
all locally affected communities for a period of 30 days
after publication. Not later than 45 days after the close of
the public comment period, if the Secretary makes the
findings set forth in clause (i), the Secretary shall issue
an authorization with appropriate conditions to meet the
requirements of clause (ii).
``(iv) The Secretary shall modify, suspend, or revoke an
authorization if the Secretary finds that the provisions of
clauses (i) and (ii) are not being met.
``(v) A person conducting an activity for which an
authorization has been granted under this subparagraph shall
not be subject to the penalties of this Act for harassment
that occurs in compliance with such authorization.''.
(f) Permits Concerning Endangered or Threatened Marine
Mammal Stocks.--Section 101(a)(5) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1371(a)(5)), as amended by
this Act, is further amended by adding at the end the
following new subparagraph:
``(E)(i) During any period of three consecutive years, the
Secretary shall allow the incidental, but not the
intentional, taking or harassment 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 fishing
operations, of marine mammals from a species or stock
designated as depleted because of its listing as an
endangered 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 fisheries will have a negligible impact on such
species or stock;
``(II) a recovery plan has been developed or is being
developed for such species or stock pursuant to the
Endangered Species Act of 1973; and
``(III) where required under section 118, a monitoring
program is established under subsection (d) of such section,
vessels engaged in such fisheries are registered in
accordance with such section, and an incidental take
reduction plan has been developed or is being developed for
such species or stock.
``(ii) Upon a determination by the Secretary that the
requirements of clause (i) have been met, the Secretary shall
publish in the Federal Register a list of those fisheries for
which such determination was made, and, for vessels required
to register under section 118, shall issue an appropriate
permit for each authorization granted under such section to
vessels to which this paragraph applies. Vessels engaged in a
fishery included in the notice published by the Secretary
under this clause which are not required to register under
section 118 shall not be subject to the penalties of this Act
for the incidental taking of marine mammals to which this
paragraph applies, so long as the owner or master of such
vessel reports any incidental mortality or injury of such
marine mammals to the Secretary in accordance with section
118.
``(iii) If, during the course of the commercial fishing
season, the Secretary determines that the level of incidental
mortality or serious injury from commercial 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.
``(iv) The Secretary may suspend for a time certain or
revoke a permit granted under this subparagraph only if the
Secretary determines that the conditions or limitations set
forth in such permit are not being substantially complied
with. The Secretary may amend or modify, after notice and
opportunity for public comment, the list of fisheries
published under clause (ii) whenever the Secretary determines
there has been a substantial change in the information or
conditions used to determine such list.
``(v) Sections 103 and 104 shall not apply to the taking of
marine mammals under the authority of this subparagraph.''.
(g) Importation of Certain Products.--Section 101(a) of the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)) is
amended by adding at the end the following new paragraph:
``(6)(A) A marine mammal product may be imported into the
United States if the product--
``(i) was owned and exported by any person in conjunction
with travel outside the United States;
``(ii) was acquired outside of the United States 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 imported for noncommercial purposes in
conjunction with travel within the United States or as part
of a cultural exchange with an Indian, Aleut, or Eskimo
residing in Alaska.
``(B) For the purposes of this paragraph, the term--
``(i) `Native inhabitant of Russia, Canada, or Greenland'
means a person residing in Russia, Canada, or Greenland who
is related by blood, is a member of the same clan or
ethnological grouping, or shares a common heritage with an
Indian, Aleut, or Eskimo residing in Alaska; and
``(ii) `cultural exchange' means the sharing or exchange of
ideas, information, gifts, clothing, or handicrafts between
an Indian, Aleut, or Eskimo residing in Alaska and a Native
inhabitant of Russia, Canada, or Greenland, including
rendering of raw marine mammal parts as part of such exchange
into clothing or handicrafts through carving, painting,
sewing, or decorating.''.
(h) Actions Affecting Section 101(b).--Section 101(b) of
the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(b))
is amended by adding at the end the following new sentence:
``In promulgating any regulation or making any assessment
pursuant to a hearing or proceeding under this subsection or
section 117(b)(2), or in making any determination or finding
under this Act that affects stocks or persons to which this
subsection applies, the Secretary shall be responsible for
demonstrating that such regulation, assessment,
determination, or finding is supported by substantial
evidence on the basis of the record as a whole. The preceding
sentence shall only be applicable in an action brought by one
or more Alaska Native organizations representing persons to
which this subsection applies.''.
(i) Taking in Defense of Self or Another Person.--Section
101(c) of the Marine Mammal Protection Act of 1972 (16 U.S.C.
1371(c)) is amended to read as follows:
``(c) It shall not be a violation of this Act to take a
marine mammal if--
``(1) such taking is imminently necessary in self-defense
or to save the life of a person in immediate danger; and
``(2) such taking is reported to the Secretary within 48
hours and, whenever feasible, any carcass is made available
to the Secretary intact.''.
SEC. 5. PERMITS.
(a) Prohibitions.--Section 102(a) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1372(a)) is amended--
(1) in paragraph (2)(B), by striking ``for any purpose in
any way connected with the taking or importation of'' and
inserting in lieu thereof ``to take or import''; and
(2) by amending paragraph (4) to read as follows:
``(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 section 104(c); and''.
(b) Permits.--(1) Section 104(a) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1374(a)) is amended--
(A) by inserting ``, harassment,'' immediately after
``taking''; and
(B) by inserting ``except for the incidental taking of
marine mammals during the course of commercial fishing
operations'' immediately before the period at the end.
(2) Section 104(c)(1) of the Marine Mammal Protection Act
of 1972 (16 U.S.C. 1374(c)(1) is amended by striking ``and
after'' in the first sentence.
(3) Paragraph (2) of section 104(c) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1374(c)) is amended to read
as follows:
``(2)(A) A permit may be issued to take or import a marine
mammal for the purpose of public display only to a person
which the Secretary determines--
``(i) offers a program for education or conservation
purposes that is based on professionally recognized standards
of the public display community;
``(ii) is registered or holds a license issued under the
Animal Welfare Act (7 U.S.C. 2131 et seq.); and
``(iii) maintains facilities for the public display of
marine mammals that are open to the public on a regularly
scheduled basis and that access to such facilities is not
limited or restricted other than by charging of an admission
fee.
``(B) A permit under this paragraph shall grant to the
person to which it is issued the right, without obtaining any
additional permit or authorization under this Act, to--
``(i) take, import, purchase, offer to purchase, possess,
or transport the marine mammal that is the subject of the
permit; and
``(ii) sell, export, or otherwise transfer possession of
the marine mammal, or offer to sell, export, or otherwise
transfer possession of the marine mammal--
``(I) for the purpose of public display, to a person that
meets the requirements of clauses (i), (ii), and (iii) of
subparagraph (A);
``(II) for the purpose of scientific research, to a person
that meets the requirements of paragraph (3); or
``(III) for the purpose of enhancing the survival or
recovery of a species or stock, to a person that meets the
requirements of paragraph (4).
``(C) A person to which a marine mammal is sold or exported
or to which possession of a marine mammal is otherwise
transferred under the authority of subparagraph (B) shall
have the rights and responsibilities described in
subparagraph (B) with respect to the marine mammal without
obtaining any additional permit or authorization under this
Act. Such responsibilities shall--
``(i) for the purpose of public display, be limited to the
responsibility to meet the requirements of clauses (i), (ii),
and (iii) of subparagraph (A);
``(ii) for the purpose of scientific research, be limited
to the responsibility to meet the requirements of paragraph
(3); and
``(iii) for the purpose of enhancing the survival or
recovery of a species or stock, be limited to the
responsibility to meet the requirements of paragraph (4).
``(D) If the Secretary--
``(i) finds, in concurrence with the Secretary of
Agriculture, that a person that holds a permit under this
paragraph for a marine mammal, or a person exercising rights
under subparagraph (C), no longer meets the requirements of
subparagraph (A)(ii) and is not reasonably likely to meet
those requirements in the near future, or
``(ii) finds that a person that holds a permit under this
paragraph for a marine mammal, or a person exercising rights
under subparagraph (C), no longer meets the requirements of
subparagraph (A) (i) or (iii) and is not reasonably likely to
meet those requirements in the near future,
the Secretary may revoke the permit in accordance with
section 104(e), seize the marine mammal, or cooperate with
other persons authorized to hold marine mammals under this
Act for disposition of the marine mammal. The Secretary may
recover from the person expenses incurred by the Secretary
for that seizure.
``(E) No marine mammal held pursuant to a permit issued
under subparagraph (A) may be sold, purchased, exported, or
transported unless the Secretary is notified of such action
no later than 15 days before such action, and such action is
for purposes of public display, scientific research, or
enhancing the survival or recovery of a species or stock. The
Secretary may only require the notification to include the
information required for the inventory established under
paragraph (10).''.
(4) Paragraph (3) of section 104(c) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1374(c)) is amended to read
as follows:
``(3)(A) A permit may be issued, for scientific research
purposes that are likely to result in the taking or
harassment of a marine mammal, to an applicant who submits
information with the permit application indicating that the
taking or harassment is required to further a bona fide
scientific purpose. The Secretary is authorized to issue
permits under this paragraph prior to the end of the
mandatory public review and comment period if delaying the
issuance of such permit could result in harm to a species,
stock, or individual marine mammal, or result in loss of
unique research opportunities.
``(B) No permit issued for purposes of scientific research
under subparagraph (A) shall authorize the lethal taking of a
marine mammal unless the applicant submits documentation to
the Secretary that a nonlethal method of conducting the
research is not feasible. The Secretary shall not issue a
permit for research which involves the lethal taking of a
marine mammal from a species or stock designated as depleted,
unless the Secretary determines that the results of such
research will directly benefit that species or stock, or that
such research fulfills a critically important research need.
``(C) Not later than 60 days after the date of enactment of
the Marine Mammal Protection Act Amendments of 1994, the
Secretary shall grant a general authorization and shall issue
implementing regulations allowing bona fide scientific
research that is not likely to result in the taking or
harassment of a marine mammal. Such authorization shall apply
to persons who submit, at least 60 days prior to commencement
of the research, a letter of intent to the Secretary
specifying--
``(i) the species or stock of marine mammal on which the
research will be conducted;
``(ii) the geographic location of the research;
``(iii) the period of time over which the research will be
conducted;
``(iv) the purpose of the research, including a description
of how the definition of bona fide research as established by
the Secretary under this Act would apply; and
``(v) the methods used to conduct the research.
Not later than 30 days after receipt of a letter of intent to
conduct scientific research under the general authorization,
the Secretary may notify the applicant that the proposed
research is likely to result in the taking or harassment of a
marine mammal, and that the provisions of subparagraph (A)
apply. If no such notification is received, the proposed
research shall be covered under the general authorization.''.
(5) Section 104(c) of the Marine Mammal Protection Act of
1972 (16 U.S.C. 1374(c)) is amended by adding at the end the
following new paragraphs:
``(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 if that
person--
``(A) meets the requirements of clauses (i), (ii), and
(iii) of paragraph (2)(A), in the case of a request for a
permit under paragraph (2);
``(B) meets the requirements of paragraph (3), in the case
of a request for a permit under that paragraph; or
``(C) meets the requirements of paragraph (4), in the case
of a request for a permit under that paragraph.
``(8)(A) No additional permit or authorization shall be
required to possess, sell, purchase, transport, export, or
offer to sell or purchase the progeny of marine mammals taken
or imported under this subsection, if such possession, sale,
purchase, transport, export, or offer to sell or purchase
is--
``(i) for the purpose of public display, and by or to,
respectively, a person which meets the requirements of
clauses (i), (ii), and (iii) of paragraph (2)(A);
``(ii) for the purpose of scientific research, and by or
to, respectively, a person which meets the requirements of
paragraph (3); or
``(iii) for the purpose of enhancing the survival or
recovery of a species or stock, and by or to, respectively, a
person which meets the requirements of paragraph (4).
``(B)(i) A person which has possession of a marine mammal
pursuant to a permit under paragraph (2), or a person
exercising rights under paragraph (2)(C), that gives birth to
progeny shall--
``(I) notify the Secretary of the birth of such progeny
within 30 days after the date of birth; and
``(II) notify the Secretary of the sale, purchase, or
transport of such progeny no later than 15 days before such
action.
``(ii) The Secretary may only require notification under
clause (i) to include the information required for the
inventory established under paragraph (10).
``(C) Any progeny of a marine mammal born in captivity
before the date of enactment of the Marine Mammal Protection
Act Amendments of 1994 and held in captivity for the purpose
of public display shall be treated as though born after that
date of enactment.
``(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
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.
``(10) The Secretary shall establish and maintain an
inventory of all marine mammals possessed pursuant to permits
issued under paragraph (2) and all progeny of such marine
mammals. The inventory 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) The name of the marine mammal or other
identification.
``(B) The sex of the marine mammal.
``(C) The estimated or actual birth date of the marine
mammal.
``(D) The date of acquisition or disposition of the marine
mammal by the permit holder.
``(E) The source from whom the marine mammal was acquired,
including the location of the take from the wild, if
applicable.
``(F) If the marine mammal is transferred, the name of the
recipient.
``(G) A notation if the animal was acquired as the result
of a stranding.
``(H) The date of death of the marine mammal and the cause
of death when determined.''.
(c) Existing Permits.--Any permit issued under section
104(c)(2) of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1374(c)(2)) before the date of the enactment of this
Act is hereby modified to be consistent with that section, as
amended by this Act.
SEC. 6. CONSERVATION PLANS.
Section 115(b) of the Marine Mammal Protection Act of 1972
(16 U.S.C. 1383b(b)) is amended by adding at the end the
following new paragraph:
``(4) If the Secretary determines that an incidental take
reduction plan is necessary to reduce the incidental taking
of marine mammals in the course of commercial fishing
operations from a stock specified under section 117(a)(7), or
for stocks which interact with a commercial fishery for which
the Secretary has made a determination under section
118(b)(1), any conservation plan prepared under this
subsection for such stock shall incorporate the incidental
take reduction plan required under section 118 for such
stock.''.
SEC. 7. STOCK ASSESSMENTS.
(a) In General.--Title I of the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1371 et seq.) is amended by adding at
the end the following new section:
``SEC. 117. STOCK ASSESSMENTS.
``(a) In General.--Not later than August 1, 1994, the
Secretary shall, after consultation with the appropriate
regional scientific working 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) describe the geographic range of the affected stock,
including any seasonal or temporal variation in such range;
``(2) provide for such stock the minimum population
estimate, current and maximum net productivity rates, and
current population trend, including a description of the
information upon which these are based;
``(3) estimate the annual anthropogenic mortality and
serious injury of the stock and, for a stock specified under
paragraph (7), other factors that may be causing a decline or
impeding recovery of the stock, including effects on marine
mammal habitat and prey;
``(4) describe commercial fisheries that interact with the
stock, including--
``(A) the approximate number of vessels actively
participating in each such fishery;
``(B) the estimated level of incidental mortality and
serious injury of the stock by each such fishery on an annual
basis;
``(C) seasonal or area differences in such incidental
mortality or serious injury; and
``(D) the rate, based on a 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;
``(5) categorize the status of the stock as one that
either--
``(A) has a level of anthropogenic mortality and serious
injury that is not likely to cause the stock to be reduced
below its optimum sustainable population; or
``(B)(i) meets the criteria described under paragraph (7);
``(ii) is listed as threatened or endangered under the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), or
designated as depleted under this Act; or
``(iii) meets the criteria specified in both clauses (i)
and (ii);
``(6) estimate the calculated removal level for the stock,
describing the information used to calculate it, including
the recovery factor; and
``(7) specify whether the Secretary has reason to believe
that the level of anthropogenic mortality and serious injury
for the stock is such that it may cause the stock to be
reduced or maintained below its optimum sustainable
population.
``(b) Public Comment.--(1) The Secretary shall publish in
the Federal Register a notice of the availability of a draft
stock assessment or any revision thereof and provide an
opportunity for public review and comment during a period of
90 days. Such notice shall include a summary of the
assessment and a list of the sources of information or
published reports upon which the assessment is based.
``(2) Subsequent to the notice of availability required
under paragraph (1), if requested by a person to which
section 101(b) applies, the Secretary shall conduct a
proceeding on the record prior to publishing a final stock
assessment or any revision thereof for any stock subject to
taking under section 101(b).
``(3) After consideration of the best scientific
information available, the advice of the appropriate regional
scientific review group established under subsection (d), and
the comments of the general public, the Secretary shall
publish in the Federal Register a notice of availability and
a summary of the final stock assessment or any revision
thereof, not later than 90 days after--
``(A) the close of the public comment period on a draft
stock assessment or revision thereof; or
``(B) final action on an agency proceeding pursuant to
paragraph (2).
``(c) Review and Revision.--(1) The Secretary, in
consultation with the appropriate regional scientific review
group established under subsection (d), shall review stock
assessments under this section--
``(A) annually for stocks specified under subsection (a)(7)
or for which substantial new information is available; and
``(B) at least once every 3 years for all other marine
mammal stocks.
``(2) If the review under paragraph (1) indicates that the
status of the stock has changed or can be more accurately
determined, the Secretary shall revise the stock assessment
in accordance with subsection (b).
``(d) Regional Scientific Review Groups.--(1) Not later
than 60 days after the date of enactment of this section, the
Secretary of Commerce shall, in consultation with the
Secretary of the Interior (with respect to marine mammals
under that Secretary's jurisdiction), the Governors of
affected adjacent coastal States, regional fishery and
wildlife management authorities, Alaska Native organizations
and Indian tribes, environmental and fishery groups,
establish at least two independent regional scientific review
groups consisting of individuals with expertise in marine
mammal biology and ecology, population dynamics and modeling,
commercial fishing technology and practices, and stocks taken
under section 101(b). The Secretary of Commerce shall, to the
maximum extent practicable, attempt to achieve a balanced
representation of viewpoints among the individuals on each
regional scientific working group. The regional scientific
review groups shall advise the Secretary on all aspects of
the stock assessments required under this section.
``(2) The regional scientific review groups established
under this section shall not be subject to the Federal
Advisory Committee Act (5 App. U.S.C.).
``(3) Members of the regional scientific review groups
shall serve without compensation, but may be reimbursed by
the Secretary, upon request, for reasonable travel costs and
expenses incurred in performing their duties as members of
such regional scientific review groups.
``(4) The Secretary may appoint or reappoint individuals to
the regional scientific working groups under paragraph (1) as
needed.
``(e) Effect on Section 101(b).--This section shall not
affect or otherwise modify the provisions of section
101(b).''.
SEC. 8. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL
FISHING OPERATIONS.
Title I of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371 et seq.), as amended by this Act, is further
amended by adding at the end the following new section:
``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 section, 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.
``(2) In the case of the incidental taking of marine
mammals from species or stocks designated under this Act as
depleted on the basis of their listing as threatened or
endangered species under the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.), both this section and section
101(a)(5)(E) of this Act shall apply.
``(3) Sections 104(h) and title III, and not this section,
shall govern the taking of marine mammals in the course of
commercial purse seine fishing for yellowfin tuna in the
eastern tropical Pacific Ocean.
``(4) This section shall not govern the taking of marine
mammals from the California population of sea otters to which
the Act of November 7, 1986 (Public Law 99-625; 100 Stat.
3500) applies.
``(5) Sections 103 and 104 shall not apply to the
incidental taking of marine mammals under the authority of
this section.
``(6) Except as provided in section 101(c)(2), the
intentional killing of any marine mammal in the course of
commercial fishing operations is prohibited.
``(b) Incidental Take Reduction Plans.--(1) The Secretary
shall develop and implement an incidental take reduction plan
designed to assist in the recovery of each marine mammal
stock that is specified under section 117(a)(7) which
interacts with a commercial fishery listed under subsection
(f)(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 (f)(1)(A)(i) which
the Secretary determines, after notice and opportunity for
public comment, has an excessive rate of mortality and
serious injury across a number of such marine mammal stocks.
``(2) If there is insufficient funding available to develop
and implement an incidental take reduction plan for all such
stocks that interact with commercial fisheries listed under
subsection (f)(1)(A) (i) or (ii), the Secretary shall give
highest priority to the development and implementation of
incidental take reduction plans for species or stocks whose
level of incidental mortality and serious injury exceeds the
calculated removal level, those that have a small population
size, and those which are declining most rapidly.
``(3) Each incidental take reduction plan developed under
this subsection for a stock shall include the following:
``(A) A review and evaluation of the information contained
in the stock assessment published under section 117 and any
substantial new information that may be available.
``(B) An evaluation and estimate of the total number and
percentage of animals from the stock that are being killed or
seriously injured each year as a result of commercial fishing
activities.
``(C) Proposed management measures and voluntary actions
for the reduction of incidental mortality and serious injury
of marine mammals in commercial fisheries which interact with
such stock.
``(D) A long-term strategy to reduce, to insignificant
levels approaching a zero rate within 10 years, the
incidental mortality and serious injury of marine mammals
from the stock in the course of commercial fishing
operations.
``(4)(A) Each incidental take reduction plan shall include
projected dates for achieving the objectives of the plan.
``(B) For any stock in which incidental mortality and
serious injury from commercial fisheries exceeds the
calculated removal level established under section 117, the
plan shall include measures the Secretary expects will
reduce, within 6 months after commencement of operations by
commercial fisheries that interact with that stock, such
mortality and serious injury to a level below the calculated
removal level.
``(C) For any stock in which anthropogenic mortality and
serious injury exceeds the calculated removal level, other
than a stock to which subparagraph (B) applies, the plan
shall include measures the Secretary expects will reduce, to
the maximum extent practicable within 6 months after
commencement of operations by commercial fisheries that
interact with that stock, 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.
``(5)(A) At the earliest possible time (not later than 60
days) after the Secretary issues a final stock assessment for
a stock specified under section 117(a)(7), the Secretary
shall, and for stocks that interact with a fishery listed
under subsection (f)(1)(A)(i) for which the Secretary has
made a determination under paragraph (1), the Secretary may--
``(i) establish an incidental take reduction team for such
stock and appoint the members of such team in accordance with
subparagraph (C); and
``(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 that cause incidental mortality
and serious injury of marine mammals from such stock.
``(B) The Secretary may charge an incidental take reduction
team to address a stock that extends over one or more regions
or fisheries, or multiple stocks within a region or fishery,
if the Secretary determines that doing so would facilitate
the development and implementation of plans required under
this subsection.
``(C) Members of incidental take reduction teams shall be
individuals knowledgeable and experienced regarding measures
to conserve such stocks and to reduce incidental mortality
and serious injury to such stock from commercial fishing
operations. Members may include representatives of Federal
and State agencies, Councils, interstate fishery commissions,
academic and scientific organizations, environmental and
fishery groups, Alaska Native organizations and Indian
tribes, and others as the Secretary considers appropriate.
Incidental take reduction teams shall include a
representative of each affected Council and State, and shall,
to the maximum extent practicable, include an equitable
balance among representatives of government, resource user
interests, and public interest groups. Incidental take
reduction teams shall not be subject to the Federal Advisory
Committee Act (5 App. U.S.C.) but their meetings shall be
open to the public, after timely notice of the time and place
of such meetings.
``(D) Members of incidental take reduction teams shall
serve without compensation, but may be reimbursed by the
Secretary, upon request, for reasonable travel costs and
expenses incurred in performing their duties as members of
the team.
``(6) Where the anthropogenic mortality and serious injury
from a stock specified under section 117(a)(7) is estimated
to be equal to or greater than the calculated removal level
established under section 117 for such stock and such stock
interacts with a fishery listed under subsection (f)(1)(A)
(i) or (ii), the following procedures shall apply in the
development of the incidental take reduction plan for the
stock:
``(A)(i) Not later than 6 months after the date of
establishment of an incidental take reduction team for the
stock, the team shall submit a draft incidental take
reduction plan for such stock to the Secretary, consistent
with the other provisions of this section.
``(ii) Such draft incidental take reduction plan shall be
developed by consensus. In the event consensus cannot be
reached, the team shall advise the Secretary in writing on
the range of possibilities considered by the team, and the
views of both the majority and minority.
``(B)(i) The Secretary shall take the draft incidental take
reduction plan into consideration and, not later than 60 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.
``(ii) In the event that the incidental take reduction team
does not submit a draft plan to the Secretary within 6
months, the Secretary shall, not later than 8 months after
the establishment of the team, publish in the Federal
Register a proposed incidental take reduction plan and
implementing regulations, for public review and comment
during a period of not to exceed 90 days.
``(C) Not later than 90 days after the close of the comment
period required under subparagraph (B), the Secretary shall
issue a final incidental take reduction plan and implementing
regulations, consistent with the other provisions of this
section.
``(D) the Secretary and the incidental take reduction team
shall meet every 6 months, or at such other intervals as the
Secretary determines are necessary, to monitor the
implementation of the final incidental take reduction plan
until such time that the Secretary determines that the
objectives of such plan have been met.
``(E) the Secretary shall amend the incidental take
reduction plan and implementing regulations as necessary to
meet the requirements of this section, in accordance with the
procedures in this section for the issuance of such plans and
regulations.
``(7) Where the anthropogenic mortality and serious injury
from a stock specified under section 117(a)(7) is estimated
to be less than the calculated removal level established
under section 117 for such stock and such stock interacts
with a fishery listed under subsection (f)(1)(A) (i) or (ii),
or for any marine mammal stocks which interact with a
commercial fishery listed under subsection (f)(1)(A)(i) for
which the Secretary has made a determination under paragraph
(1), the following procedures shall apply in the development
of the incidental take reduction plan for such stock:
``(A)(i) Not later than 11 months after the date of
establishment of an incidental take reduction team for the
stock, the team shall submit a draft incidental take
reduction plan for the stock to the Secretary, consistent
with the other provisions of this section.
``(ii) Such draft incidental take reduction plan shall be
developed by consensus. In the event consensus cannot be
reached, the team shall advise the Secretary in writing on
the range of possibilities considered by the team, and the
views of both the majority and minority.
``(B)(i) The Secretary shall take the draft incidental take
reduction plan into consideration and, not later than 60 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.
``(ii) In the event that the incidental take reduction team
does not submit a draft plan to the Secretary within 11
months, the Secretary shall, not later than 13 months after
the establishment of the team, publish in the Federal
Register a proposed incidental take reduction plan and
implementing regulations, for public review and comment
during a period of not to exceed 90 days.
``(C) Not later than 90 days after the close of the comment
period required under subparagraph (B), the Secretary shall
issue a final incidental take reduction plan and implementing
regulations, consistent with the other provisions of this
section.
``(D) The Secretary and the incidental take reduction team
shall meet on an annual basis, or at such other intervals as
the Secretary determines are necessary, to monitor the
implementation of the final incidental take reduction plan
until such time that the Secretary determines that the
objectives of such plan have been met.
``(E) The Secretary shall amend the incidental take
reduction plan and implementing regulations as necessary to
meet the requirements of this section, in accordance with the
procedures in this section for the issuance of such plans and
regulations.
``(8) In implementing an incidental take reduction plan
developed pursuant to this subsection, the Secretary may,
where necessary to implement an incidental 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 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 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, as set forth in subsection (d).
``(9)(A) Notwithstanding paragraph (5), in the case of any
stock to which paragraph (5) applies for which a final stock
assessment has not been published under section 117(b)(3) by
April 1, 1995, due to a proceeding under section 117(b)(2),
or any Federal court review of such proceeding, the Secretary
shall establish an incidental take reduction team under
paragraph (5) for such stock as if a final stock assessment
had been published.
``(B) The draft stock assessment published for such stock
under section 117(b)(1) shall be deemed the final stock
assessment for purposes of preparing and implementing an
incidental take reduction plan for such stock under this
section.
``(C) Upon publication of a final stock assessment for such
stock under section 117(b)(3) the Secretary shall immediately
reconvene the incidental take reduction team for such stock
for the purpose of amending the incidental take reduction
plan, and any regulations issued to implement such plan, if
necessary, to reflect the final stock assessment or court
action. Such amendments shall be made in accordance with
paragraph (6)(E) or (7)(E), as appropriate.
``(D) A draft stock assessment may only be used as the
basis for an incidental take reduction plan under this
paragraph for a period of not to exceed two years, or until a
final stock assessment is published, whichever is earlier.
If, at the end of the two-year period, a final stock
assessment has not been published, the Secretary shall
categorize such stock under section 117(a)(5)(A) and shall
revoke any regulations to implement an incidental take
reduction plan for such stock.
``(E) Subparagraph (D) shall not apply for any period
beyond two years during which a final stock assessment for
such stock has not been published due to review of a
proceeding on such stock assessment by a Federal court.
Immediately upon final action by such court, the Secretary
shall proceed under subparagraph (C).
``(10) Incidental take reduction plans developed under this
section for a species or stock listed as a threatened or
endangered species under the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.) shall be consistent with any
recovery plan developed for such species or stock under
section 4 of such Act.
``(c) Emergency Regulations.--(1) If the Secretary finds
that incidental mortality and serious injury of marine
mammals from commercial fisheries is having, or is likely to
have, an immediate and significant adverse impact on a stock
or species, the Secretary shall take action as follows:
``(A) In the case of a stock or species for which an
approved incidental take reduction plan is in effect, the
Secretary shall--
``(i) prescribe emergency regulations that, consistent with
such plan to the maximum extent practicable, reduce such
incidental mortality and serious injury in that fishery; and
``(ii) approve and implement, on an expedited basis, any
amendments to such plan that are recommended by the
incidental take reduction team to address such adverse
impact.
``(B) In the case of a stock or species for which an
incidental take reduction plan is being developed, the
Secretary shall--
``(i) prescribe emergency regulations to reduce such
incidental mortality and serious injury in that fishery; and
``(ii) approve and implement, on an expedited basis, such
plan, which shall provide methods to address such adverse
impact if still necessary.
``(C) In the case of a stock or species for which an
incidental take reduction plan does not exist and is not
being developed, or in the case of a commercial fishery
listed under subsection (f)(1)(A)(iii) which the Secretary
believes may be contributing to such adverse impact, the
Secretary shall--
``(i) prescribe emergency regulations to reduce such
incidental mortality and serious injury in that fishery, to
the extent necessary to mitigate such adverse impact;
``(ii) immediately review the stock assessment for such
stock or species under section 117 and the classification of
such commercial fishery under subsection (f)(1)(A) to
determine if an incidental take reduction team should be
established under this section; and
``(iii) may, where necessary to address such adverse
impact, require the placement of observers pursuant to
subsection (d) upon vessels in a commercial fishery listed
under subsection (f)(1)(A)(iii), if the Secretary has reason
to believe that such vessels may be causing incidental
mortality and serious injury to marine mammals from such
stock.
``(2) Prior to taking action under paragraph (1) (A), (B),
or (C), the Secretary shall consult with the Marine Mammal
Commission, all appropriate Councils, State fishery managers,
and the appropriate incidental take reduction team (if
established).
``(3) Emergency regulations prescribed under this
subsection--
``(A) shall be published in the Federal Register, together
with an explanation thereof;
``(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
``(C) may be terminated by the Secretary at an earlier date
by publication in the Federal Register of a notice of
termination, if the Secretary determines that the reasons for
the emergency regulations no longer exist.
``(4) If the Secretary finds that incidental mortality and
serious injury of marine mammals in a commercial fishery 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.
``(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 for commercial fisheries listed
under subsection (f)(1)(A) (i) or (ii). The purposes of the
monitoring program shall be to--
``(A) obtain statistically reliable estimates of incidental
mortality and serious injury;
``(B) determine the reliability of reports of incidental
mortality and serious injury under subsection (g); and
``(C) report on the impacts of changes in commercial
fishing methods or technology.
``(2) Pursuant to paragraph (1), the Secretary is
authorized to place observers on board vessels as necessary,
subject to the provisions of this section. Observers may
perform other tasks including, but not limited to--
``(A) recording other sources of mortality;
``(B) recording the number of marine mammals sighted and
the behavior of such mammals observed in the vicinity of
commercial fishing gear;
``(C) other related scientific or fishery management
observations; and
``(D) collection of marine mammals tissues, where such
collection can be done safely and without interruption of
commercial fishing operations.
``(3) When determining the distribution of observers among
fisheries and vessels within a fishery, the Secretary shall
be guided by the following standards:
``(A) the need to obtain the best scientific information
available;
``(B) the requirement that assignment of observers be fair
and equitable among fisheries and among vessels in a fishery;
``(C) the requirement that no individual person or vessel,
or group of persons or vessels, be subject to excessive or
overly burdensome observer coverage; and
``(D) where practicable, the need to minimize costs and
avoid duplication.
``(4) To the extent practicable, the Secretary shall
allocate observers among commercial fisheries in accordance
with the following priority:
``(A) The highest priority for allocation shall be for
commercial fisheries that have incidental mortality or
serious injury of marine mammals from stocks designated as
depleted on the basis of their listing as endangered 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 that have incidental mortality and
serious injury of marine mammals from stocks specified under
section 117(a)(7).
``(C) The third highest priority for allocation shall be
for commercial fisheries 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) Notwithstanding paragraph (1), the Secretary may
establish an alternative observer program to provide
statistically reliable information on the species and number
of any marine mammals incidentally taken in the course of
commercial fishing operations. The alternative program may
include, but need not be limited to, direct observation of
fishing activities from vessels, airplanes, or points on
shore.
``(6) The Secretary may, with the consent of the vessel
owner, station an observer on board a vessel engaged in a
commercial fishery not listed under subsection (f)(1)(A) (i)
or (ii).
``(7) The Secretary shall not be required to place an
observer on a vessel in a commerical fishery if the Secretary
finds that--
``(A) in a situation where harvesting vessels are
delivering fish to a processing vessel and the catch is not
taken on board the harvesting vessel, statistically reliable
information can be obtained from an observer on board the
processing vessel to which the fish are delivered;
``(B) the facilities of a vessel for quartering of an
observer, or for carrying out observer functions, are so
inadequate or unsafe that the health or safety of the
observer or the safe operation of the vessel would be
jeopardized; or
``(C) for reasons beyond the control of the Secretary, an
observer is not available.
``(8) Any proprietary information collected under this
subsection shall be confidential and shall not be disclosed
except--
``(A) to Federal employees whose duties require access to
such information;
``(B) to State or tribal employees pursuant to an agreement
with the Secretary that prevents public disclosure of the
identity or business of any person;
``(C) when required by court order; or
``(D) in the case of scientific information involving
fisheries, to employees of Councils who are responsible for
fishery management plan development and monitoring.
``(9) The Secretary shall prescribe such procedures as may
be necessary to preserve the confidentiality of proprietary
information collected under this subsection, except that the
Secretary shall release or make public upon request any such
information in aggregate, summary, or other form which does
not directly or indirectly disclose the identity or business
of any person.
``(e) Zero Mortality Rate Goal.--(1) Commercial fisheries
shall reduce incidental mortality and serious injury of
marine mammals to insignificant levels approaching a zero
mortality and serious injury rate within 10 years after the
date of enactment of this section.
``(2) Fisheries which maintain insignificant serious injury
and mortality levels approaching a zero rate shall not be
required to further reduce their mortality rates.
``(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 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
inadequate information exists on the level of incidental
mortality and serious injury of marine mammals in the
fishery.
``(4) If the Secretary determines after review under
paragraph (3) that the rate of incidental mortality and
serious injury of marine mammals in a commercial fishery is
not consistent with paragraph (1), then the Secretary shall
take appropriate action under subsection (b), and shall make
recommendations to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Merchant
Marine and Fisheries of the House of Representatives on any
legislative changes needed to achieve the goal specified in
paragraph (1).
``(f) 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 (along with an explanation of such changes
and a statement of the marine mammals and the approximate
number of vessels or persons actively involved in each such
fishery) 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;
``(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.
``(B) No authorization may be granted under this section to
the owner of a vessel unless such vessel--
``(i) is a vessel of the United States; or
``(ii) has a valid fishing permit issued by the Secretary
in accordance with section 204(b) of the Magnuson Fishery
Conservation and Management Act (16 U.S.C. 1824(b)).
``(C) Except as provided in subsection (a), an
authorization granted under this section shall allow the
incidental taking of all species and stocks of marine mammals
to which this Act applies.
``(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--
``(i) have registered as required under paragraph (2) with
the Secretary in order to obtain for each such vessel owned
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
registration is valid;
``(ii) ensure that a decal or such other physical evidence
of a current and valid authorization as the Secretary may
require is displayed on or is in the possession of the master
of each such vessel; and
``(iii) report as required by subsection (g).
``(B) Any owner of a vessel receiving an authorization
under this section for any fishery listed under paragraph
(1)(A) (i) or (ii) shall, as a condition of that
authorization, take on board an observer if requested to do
so by the Secretary.
``(C) An owner of a vessel engaged in a fishery listed
under paragraph (1)(A) (i) or (ii) who--
``(i) fails to obtain from the Secretary an authorization
for such vessel under this section;
``(ii) fails to maintain a current and valid authorization
for such vessel; or
``(iii) fails to ensure that a decal or other physical
evidence of such authorization issued by the Secretary is
displayed on or is in possession of the master of the vessel,
and the master of any such vessel engaged in such fishery,
shall be deemed to have violated this title. Such owner and
master shall be subject to penalty under sections 105 and 107
for a violation of clause (i) or (ii), and shall be subject
to a fine of not more than $100 for each offense for a
violation of clause (iii).
``(D) If the owner of a vessel has obtained and maintains a
current and valid authorization from the Secretary under this
section and meets the requirements set forth in this section,
including compliance with any regulations to implement an
incidental take reduction plan under this section, the owner
of such vessel, and the master and crew members of the
vessel, shall not be subject to the penalties set forth in
this title for the incidental taking of marine mammals while
such vessel is engaged in a fishery to which the
authorization applies.
``(E) Each owner of a vessel engaged in any 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 (g), instances
of incidental mortality or injury of marine mammals in the
course of that fishery.
``(4) The Secretary shall suspend or revoke an
authorization granted under this section and shall not issue
a decal or other physical evidence of the authorization for
any vessel until the owner of such vessel complies with the
reporting requirements under subsection (g) and such
requirements to take on board an observer under paragraph
(3)(B) as are applicable to such vessel. Previous failure to
comply with the requirements of section 114 shall not bar the
grant of an authorization under this section for an owner who
complies with the requirements of this section. The Secretary
may suspend or revoke an authorization granted under this
subsection, and may not issue a decal or other physical
evidence of the authorization for any vessel which fails to
comply with regulations implementing an incidental take
reduction plan or emergency regulations issued under this
section.
``(5)(A) The Secretary shall develop, in consultation with
the appropriate States, affected Councils, and other
interested persons, the means by which the granting and
administration of authorizations under this section shall be
integrated and coordinated, to the maximum extent
practicable, with existing fishery licenses, registrations,
and related programs.
``(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.
``(C) The Secretary is authorized to charge a fee for the
granting of an authorization under this section. The level of
fees charged under this subparagraph shall not exceed the
administrative costs incurred in granting an authorization.
Fees collected under this subparagraph shall be available to
the Under Secretary of Commerce for Oceans and Atmosphere for
expenses incurred in the granting and administration of
authorizations under this section.
``(g) Reporting Requirement.--The owner or operator of a
commercial fishing vessel subject to this Act 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 or computerized data
processing system and shall require the vessel owner or
operator to provide the following:
``(1) The vessel name, and Federal, State, or tribal
registration numbers of the registered vessel.
``(2) The name and address of the vessel owner or operator.
``(3) The name and description of the fishery.
``(4) The species of each marine mammal incidentally killed
or injured, and the date, time, and approximate geographic
location of such occurrence.
``(h) Penalties.--Except as provided in subsection (f), any
person who violates this section shall be subject to the
provisions of section 105 and 107, and may be subject to
section 106 as the Secretary establishes by regulations.
``(i) Voluntary Measures.--Nothing in this section shall be
construed to limit the Secretary's authority to permit
voluntary measures to be utilized in reducing the incidental
taking of marine mammals in commercial fisheries.
``(j) Consultation With Secretary of the Interior.--The
Secretary shall consult with the Secretary of the Interior on
measures promulgated under this section which affect species
or stocks under such Secretary's jurisdiction.''.
SEC. 9. PENALTIES; PROHIBITIONS.
(a) Civil Penalties.--Section 105(a)(1) of the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1375(a)(1)) is
amended by inserting ``, except as provided in section 118,''
immediately after ``thereunder'' and by inserting ``,
harassment,'' immediately after ``taking''.
(b) Criminal Penalties.--Section 105(b) of the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1375(b)) is amended
by inserting ``(except as provided in section 118)''
immediately after ``thereunder''.
(c) Prohibitions.--Section 102(a) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1372(a)) is amended by
striking ``and 114 of this title or title III'' and inserting
in lieu thereof ``114, and 118 of this title and title IV''.
SEC. 10. AUTHORIZATION TO DETER MARINE MAMMALS NONLETHALLY.
Section 101 of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371) is amended by adding at the end the following
new subsection:
``(d)(1) Except as provided in paragraph (2), the
provisions of this Act shall not apply to the use of
measures--
``(A) by the owner of fishing gear or catch, or an employee
or agent of such owner, to deter a marine mammal from
damaging the gear or catch;
``(B) by the owner of other private property, or an agent,
bailee, or employee of such owner, to deter a marine mammal
from damaging private property;
``(C) by any person, to deter a marine mammal from
endangering personal safety; or
``(D) by a government employee, to deter a marine mammal
from damaging public property,
so long as such measures do not result in the death or
serious injury of the marine mammal.
``(2) The Secretary shall, through consultation with
appropriate experts, and after notice and opportunity for
public comment, publish in the Federal Register a list of
guidelines for use in safely deterring marine mammals. In the
case of marine mammals designated as threatened or endangered
under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.), the Secretary shall recommend specific measures which
may be used to nonlethally deter such marine mammals. Actions
to deter marine mammals consistent with such guidelines or
specific measures shall not be a violation of this Act.
``(3) If the Secretary determines, using the best
scientific information available, that certain forms of
deterrence have a significant adverse effect on marine
mammals, the Secretary may prohibit such deterrent methods,
after notice and opportunity for public comment, through
regulation under this Act.
``(4) The authority to deter marine mammals pursuant to
paragraph (1) applies to all marine mammals, including all
stocks designated as depleted under this Act.''.
SEC. 11. INDIAN TREATY RIGHTS; ALASKA NATIVE SUBSISTENCE.
Nothing in this Act, including any amendments to the Marine
Mammal Protection Act of 1972 made by this Act--
(1) alters or is intended to alter any treaty between the
United States and one or more Indian tribes; or
(2) affects or otherwise modifies the provisions of section
101(b) of the Marine Mammal Protection Act of 1972 (16 U.S.C.
1371(b)), except as specifically provided in the amendment
made by section 4(h) of this Act.
SEC. 12. TRANSITION RULE; IMPLEMENTING REGULATIONS.
(a) Transition Rule.--Section 114(a)(1) of the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1383a(a)(1)) is
amended by striking ``ending April 1, 1994,'' and inserting
in lieu thereof ``until superseded by regulations prescribed
under section 118, or until December 31, 1996, whichever is
earlier,''.
(b) Implementing Regulations.--Except as provided otherwise
in this Act, or the amendments to the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361 et seq.) made by this
Act, the Secretary of Commerce or the Secretary of the
Interior, as appropriate, shall, after notice and opportunity
for public comment, promulgate regulations to implement this
Act and the amendments made by this Act within 270 days after
the date of enactment of this Act.
SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Definitions.--Section 3 of the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1362) is amended--
(1) by striking paragraph (17);
(2) by redesignating the second paragraph (15) and
paragraph (16) as paragraphs (16) and (17), respectively; and
(3) in paragraph (12)(B), by striking ``in title III'' and
inserting in lieu thereof ``In section 118 and in title IV''.
(b) Marine Mammal Health and Stranding Response.--The
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.)
is amended--
(1) by redesignating title III, as added by Public Law 102-
587 (106 Stat. 5060), as title IV; and
(2) by redesignating the sections of that title (16 U.S.C.
1421 through 1421h) as sections 401 through 409,
respectively.
(c) Unusual Mortality Event Fund.--Section 405(a) of the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1421d(a)), as
so redesignated by subsection (b)(2) of this section, is
amended by striking ``a fund'' and inserting in lieu thereof
``an interest bearing fund''.
SEC. 14. DEFINITIONS.
Section 3 of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1362), as amended by this Act, is further amended--
(1) in paragraph (12), as redesignated by section 15 of
this Act, by striking ``harass,'' each place it appears; and
(2) by adding at the end the following new paragraphs:
``(18) The term `calculated removal level' for a marine
mammal stock is the product of the following factors:
``(A) the minimum population estimate of the stock;
``(B) one-half the maximum theoretical or estimated net
productivity rate for the stock at a small population size;
and
``(C) if the stock is specified under section 117(a)(7),
listed as endangered or threatened under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.), or designated
as depleted under this Act, a recovery factor that is no
greater than 1.0 to ensure that the stock will recover to its
optimum sustainable population.
The recovery factor under subparagraph (C) shall not be less
than 0.1 for an endangered stock, shall not be less than 0.3
for a threatened or depleted stock, and shall not be less
than 0.5 for any other stock.
``(19) The term `Council' means any Regional Fishery
Management Council established under section 302 of the
Magnuson Fishery Conservation and Management Act (16 U.S.C.
1852).
``(20) The term `harassment' means any act of approach,
pursuit, torment, or annoyance which--
``(A) has the potential to harm a marine mammal in the
wild; or
``(B) 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,
respiration, nursing, breeding, feeding, and sheltering.
``(21) The term `incidental take reduction plan' means a
plan developed under section 118.
``(22) The term `incidental take reduction team' means a
team established under section 118.
``(23) The term `net productivity rate' means the annual
per capita rate of increase in a stock resulting from
additions due to reproduction, less losses due to mortality.
``(24) The term `minimum population estimate' means an
estimate of the number of animals in a stock that--
``(A) is based on the best available scientific information
on abundance, incorporating the precision and variability
associated with such information; and
``(B) provides reasonable assurance that the stock size is
equal to or greater than the estimate.''.
SEC. 15. HUMAN ACTIVITIES WITHIN PROXIMITY OF WHALES.
(a) Lawful Approaches.--In waters of the United States
surrounding the State of Hawaii, it is lawful for a person
subject to the jurisdiction of the United States to approach,
by any means other than an aircraft, no closer than 100 yards
to a humpback whale or any other whale, regardless of whether
the approach is made in waters designated under section
222.31 of title 50, Code of Federal Regulations, as cow/calf
waters.
(b) Termination of Legal Effect of Certain Regulations.--
Subsection (b) of section 222.31 of title 50, Code of Federal
Regulations, shall cease to be in force and effect.
SEC. 16. PINNIPED-FISHERY INTERACTION TASK FORCE.
Title I of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371 et seq.), as amended by this Act, is further
amended by adding at the end the following new section:
``SEC. 119. PINNIPED-FISHERY INTERACTION TASK FORCE.
``(a) Pinniped Removal Authority.--Notwithstanding any
other provision of this title, the Secretary may permit the
lethal removal of pinnipeds in accordance with this section.
``(b) Application.--Any person may apply to the Secretary
to authorize the lethal removal of pinnipeds identified as
habitually exhibiting dangerous or damaging behavior that
cannot otherwise be deterred. Any such application shall
include a means of identifying the individual pinniped or
pinnipeds, and shall include a detailed description of the
problem interaction and expected benefits of the removal.
``(c) Actions in Response to Application.--(1) Within 15
days of receiving an application, the Secretary shall
determine whether the application has produced sufficient
evidence to warrant establishing a Pinniped-Fishery
Interaction Task Force to address the situation described in
the application. If the Secretary determines that such
sufficient evidence has been provided, the Secretary shall
establish a Pinniped-Fishery Interaction Task Force and
publish a notice in the Federal Register requesting public
comment on the application.
``(2) A Pinniped-Fishery Interaction Task Force established
under paragraph (1) shall consist of designated employees of
the Department of Commerce, scientists who are knowledgeable
about the pinniped interaction that the application
addresses, representatives of affected conservation and
fishing community organizations, Indian treaty tribes, the
States, and such other organizations as the Secretary deems
appropriate.
``(3) Within 60 days after establishment, and after
reviewing public comments in response to the Federal Register
notice, the Pinniped-Fishery Interaction Task Force shall--
``(A) recommend to the Secretary whether to approve or deny
the proposed lethal removal of the pinniped or pinnipeds,
including along with the recommendation a description of the
specific pinniped individual or individuals, the proposed
location, time, and method of removal, criteria for
evaluating the success of the action, and the duration of the
authority; and
``(B) suggest nonlethal alternatives, if available and
practicable, including a recommended course of action.
``(4) Within 30 days after receipt of recommendations from
the Pinniped-Fishery Interaction Task Force, the Secretary
shall either approve or deny the application. If such
application is approved, the Secretary shall immediately take
steps to implement the lethal removal, which shall be
performed by Federal or State agencies, or qualified
individuals under contract to such agencies.
``(5) After implementation of an approved application, the
Pinniped-Fishery Interaction Task Force shall evaluate the
effectiveness of the permitted lethal removal or alternative
actions implemented. If implementation was ineffective in
eliminating the problem interaction, the Task Force shall
recommend additional actions. If the implementation was
effective, the Task Force shall so advise the Secretary, and
the Secretary shall disband the Task Force.
``(d) Considerations.--In considering whether an
application should be approved or denied, the Task Force and
the Secretary shall consider--
``(1) population trends, feeding habits, the location of
the pinniped interaction, how and when the interaction
occurs, and how many individual pinnipeds are involved;
``(2) past efforts to nonlethally deter such pinnipeds, and
whether the applicant has demonstrated that no feasible and
prudent alternatives exist and that the applicant has taken
all reasonable nonlethal steps without success;
``(3) the extent to which such pinnipeds are causing undue
harm, impact, or imbalance with other species in the
ecosystem, including fish populations; and
``(4) the extent to which such pinnipeds are exhibiting
behavior that presents an ongoing threat to public safety.
``(e) Limitation.--The Secretary shall not approve lethal
removal for any pinniped from a species or stock that is--
``(1) listed as threatened or endangered under the
Endangered Species Act of 1973;
``(2) designated as depleted under this Act; or
``(3) specified under section 117(a)(7) of this Act.
``(f) Regionwide Pinniped-Fishery Interaction Study.--
(1)(A) The Secretary shall conduct a study, of not less than
three high predation areas in anadromous fish migration
corridors within the Northwest Region of the National Marine
Fisheries Service, on the interaction between fish and
pinnipeds. In carrying out the study, the Secretary shall
consult with other State and Federal agencies with expertise
in pinniped-fishery interaction. The study shall evaluate--
``(i) fish behavior in the presence of predators generally;
``(ii) holding times and passage rates of anadromous fish
stocks in areas where such anadromous fish are vulnerable to
predation;
``(iii) whether additional facilities exist, or could be
reasonably developed, that could improve escapement for
anadromous fish; and
``(iv) other issues the Secretary considers relevant.
``(B) Subject to the availability of appropriations, the
Secretary shall, not later than 18 months after the date of
enactment of this section, transmit a report on the results
of the study required by this paragraph to the Committee on
Commerce, Science, and Transportation of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives.
``(C) There are authorized to be appropriated to the
Secretary $700,000 for the purpose of carrying out the study
required by this paragraph.
``(2) The study conducted under this subsection shall not
be considered relevant in any determination under subsection
(c), nor reviewed by any task force in connection with
considerations under subsection (d), until such study is
completed, and may not be used by the Secretary as a reason
for delaying or deferring a determination under subsection
(C).''.
SEC. 17. MARINE MAMMAL COOPERATIVE AGREEMENTS IN ALASKA.
Title I of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371 et seq.), as amended by this Act, is further
amended by adding at the end the following new section:
``SEC. 120. MARINE MAMMAL COOPERATIVE AGREEMENTS IN ALASKA.
``(a) In General.--The Secretary may enter into cooperative
agreements with Alaska Native organizations to conserve
marine mammals and provide co-management of subsistence use
by Alaska Natives.
``(b) Grants.--Agreements entered into under this section
may include grants to Alaska Native organizations for, among
other purposes--
``(1) collecting and analyzing data on marine mammal
populations;
``(2) monitoring the harvest of marine mammals for
subsistence use;
``(3) participating in marine mammal research conducted by
the Federal Government, States, academic institutions, and
private organizations; and
``(4) developing marine mammal co-management structures
with Federal and State agencies.
``(c) Effect of Jurisdiction.--Nothing in this section is
intended or shall be construed--
``(1) as authorizing any expansion or change in the
respective jurisdiction of Federal, State, or tribal
governments over fish and wildlife resources; or
``(2) as altering in any respect the existing political or
legal status or Alaska Natives, or the governmental or
jurisdictional status of Alaska Native communities or Alaska
Native entities.
``(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.
The amounts authorized to be appropriated under this
subsection are in addition to the amounts authorized to be
appropriated under section 7 of the Act entitled `An Act to
improve the operation of the Marine Mammal Protection Act of
1972, and for other purposes', approved October 9, 1981 (16
U.S.C. 1384).''.
SEC. 18. BERING SEA MARINE ECOSYSTEM PROTECTION.
Section 110 of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1380) is amended by striking subsection (c) and
inserting in lieu thereof the following:
``(c)(1) The Secretary of Commerce, in consultation with
the Secretary of the Interior, the Marine Mammal Commission,
the State of Alaska, Alaska Native organizations, and fishery
and environmental groups, 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
of such uses.
``(2) To the maximum extent practicable, the research
program undertaken pursuant to paragraph (1) shall be
conducted in Alaska. The Secretary 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.''.
SEC. 19. INTERJURISDICTIONAL FISHERIES ACT OF 1986.
Section 308(b) of the Interjurisdictional Fisheries Act of
1986 (16 U.S.C. 4107(b)) is amended by striking ``$2,500,000
for each of the fiscal years 1989, 1990, 1991, 1992, 1993,
1994, and 1995'' and inserting in lieu thereof ``$65,000,000
for each of the fiscal years 1994 and 1995''.
SEC. 20. COASTAL ECOSYSTEM HEALTH.
(a) Requirement to Convey.--Not later than September 30,
1994, the Secretary of the Navy shall convey, without payment
or other consideration, to the Secretary of Commerce, all
right, title, and interest to the property comprising that
portion of the Naval Base, Charleston, South Carolina,
bounded by Hobson Avenue, the Cooper River, the landward
extension of the northwest side of Pier R, and the fenceline
between the buildings knows as RTC-1 and 200. Such property
shall include Pier R, the buildings known as RTC-1 and RTC-4,
and all walkways and parking areas associated with such
buildings and Pier R.
(b) Survey; Effect on Liability of Secretary of the Navy.--
The acreage and legal description of the property to be
conveyed pursuant to this section shall be determined by a
survey approved by the Secretary of the Navy. Such conveyance
shall not release the Secretary of the Navy from any
liability arising prior to, during, or after such conveyance
as a result of the ownership or occupation of the property by
the United States Navy.
(c) Use by National Oceanic and Atmospheric
Administration.--The property conveyed pursuant to this
section shall be used by the Secretary of Commerce in support
of the operations of the National Oceanic and Atmospheric
Administration.
(d) Reversion Rights.--Conveyance of the property pursuant
to this section shall be subject to the condition that all
right, title, and interest in and to the property so conveyed
shall immediately be conveyed to the public entity vested
with ownership of the remainder of the Charleston Naval Base,
if and when--
(1) continued ownership and occupation of the property by
the National Oceanic and Atmospheric Administration no longer
is compatible with the comprehensive plan for reuse of the
Charleston Naval Base developed by the community reuse
committee and approved by the Secretary of the Navy; and
(2) such public entity provides for relocation of the
programs and personnel of the National Oceanic and
Atmospheric Administration occupying such property, at no
further cost to the United States Government, to comparable
facility, including adjacent waterfront and pier, within the
Charleston area.
Mr. JOHNSTON. Madam President, I move to reconsider the vote.
Mr. WALLOP. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________