[House Report 109-180]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 109-180
======================================================================
MARINE MAMMAL PROTECTION ACT AMENDMENTS OF 2005
_______
July 21, 2005.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 2130]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 2130) to amend the Marine Mammal Protection Act of 1972
to authorize research programs to better understand and protect
marine mammals, and for other purposes, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
Purpose of the Bill
The purpose of H.R. 2130 is to amend the Marine Mammal
Protection Act of 1972 to authorize research programs to better
understand and protect marine mammals, and for other purposes.
Background and Need for Legislation
The Marine Mammal Protection Act (MMPA) was enacted in 1972
to protect and conserve marine mammal populations. The original
Act established a moratorium on the taking or importing of
marine mammals and marine mammal products except for certain
activities which are regulated and permitted. The MMPA defines
``take'' as ``to harass, hunt, capture, or kill or attempt to
harass, hunt, capture, or kill any marine mammal.'' Under the
MMPA, the Secretaries of Commerce and the Interior share
jurisdiction of marine mammals in the wild. Interior has
jurisdiction over sea otters, polar bears, manatees, dugongs,
and walruses, while Commerce has jurisdiction over all other
marine mammals.
The MMPA has been amended numerous times since 1972; the
last comprehensive reauthorization occurred in 1994. The
authorization of appropriations for the MMPA expired in 1999.
The Committee on Resources has held four oversight hearings and
three legislative hearings with 72 witnesses over the last
three Congresses.
In the 108th Congress, the Resources Committee passed three
different bills which amended the MMPA. H.R. 1835 amended the
MMPA definition of harassment and the incidental take
authorization for military activities. This bill was enacted as
part of Public Law 108-136. H.R. 2693 was a comprehensive
reauthorization of the MMPA which included: broader changes to
the definition of harassment and incidental take authorization;
modifications to the take reduction plans; public display
permit clarifications; authorizations for research and certain
exports; and authorizations of appropriations for the
Departments of Commerce and the Interior. H.R. 5104 contained
certain provisions from H.R. 2693 including: the take reduction
plan changes; public display and export permit clarifications;
captive release prohibitions; and changes to the Prescott grant
program. Both H.R. 2693 and H.R. 5104 passed out of the
Resources Committee by voice vote; however, no further action
was taken.
H.R. 2130 is similar to H.R. 5104, with these additions: it
clarifies the notification process for marine mammal transfers
where there is no change in ownership; it includes an emergency
assistance process in the Prescott Marine Mammal Stranding
Grant Program; and increases the funding for the Prescott
program.
Committee Action
H.R. 2130 was introduced on May 5, 2005, by Congressman
Wayne Gilchrest (R-MD). The bill was referred to the Committee
on Resources. On May 18, 2005, the Full Resources Committee met
to consider H.R. 2103. There were no amendments offered, and
the bill was ordered favorably reported to the House of
Representatives by unanimous consent.
Section-by-Section Analysis
Section 1. Short title
This section cites the bill as the ``Marine Mammal
Protection Act Amendments of 2005.''
Section 2. Amendment references
This section states that any amendment or repeal of a
section shall be made to such section of the Marine Mammal
Protection Act of 1972.
Section 3. Technical corrections
This section replaces ``Committee on Merchant Marine and
Fisheries'' with ``Committee on Resources'' and deletes an
obsolete reference in MMPA section 118.
Section 4. Limited authority to export marine mammal products
This section clarifies that any U.S. citizen who legally
possesses a marine mammal product may export it in conjunction
with travel outside the U.S. These exports shall be for
noncommercial purposes and the product has to be imported back
into the U.S. at the termination of travel. A foreign national
is also allowed to export a marine mammal product for
noncommercial purposes. This section also allows Native
handicrafts to be exported for noncommercial purposes if owned
by a Native of Canada, Greenland or Russia or if possessed by
an Alaska Native and exported as a part of a cultural exchange.
The import language in MMPA section 101(a)(6)(A)(I) is amended
to state that imports must be for noncommercial purposes.
Section 5. Captive release prohibition
This section amends section 102 of the MMPA to prohibit the
release of captive marine mammals without prior approval from
the Secretary. Temporary releases by the Navy are not subject
to this prohibition.
Section 6. Annual report requirement
This section reinstates the annual reporting requirement on
the status of marine mammal stocks to Congress by the
Secretaries of Commerce and the Interior. It also requires any
federal agency funding or conducting research on marine mammals
to report to the Committee on Resources and Senate Commerce
Committee.
Section 7. Permit clarifications
This section amends MMPA section 104(c)(7) to strengthen
existing language which requires the Secretary to issue a
public display permit to a facility holding a stranded animal
that has been determined under the guidelines developed under
MMPA section 402(a) to not meet the standards for release. The
Committee does not intend that permits be given to those marine
mammals that can be legitimately rehabilitated for release in
the wild; however, the Committee is very concerned that the
Secretary has not been issuing public display permits to
facilities caring for stranded animals that are not viable
release candidates. The Committee's intent is that facilities
shall receive public display permits for animals that do not
meet the release requirements. The Committee does not intend
for the issuance of these permits to diminish research
activities involving these animals and encourages the
facilities to continue to work with the Secretaries to allow
important research activities to continue on these animals.
The Committee commends the public display community for its
role in the conservation and management of marine mammals.
Activities sponsored by public display facilities--research,
educational programs and presentations, animal husbandry,
breeding, and rescue and rehabilitation--are important aspects
to the conservation of marine mammals. The rescue and
rehabilitation programs run by these facilities are critical to
the survival of stranded animals and for many years
participating institutions ran these programs using their own
funds. In addition, these facilities play an invaluable role
for the general public. These public display facilities arethe
only place for many Americans to view marine mammals and learn about
the conservation needs of these animals. These facilities help generate
the general public's goodwill toward marine mammals and develops their
support for conservation and management measures for these and many
other marine species. By allowing facilities to display unreleasable
stranded marine mammals, educational programs can be developed to
further the public's awareness of potential threats to marine mammals.
This section also amends the export provisions of MMPA
section 104 to clarify that the Secretary of Agriculture is the
appropriate entity for determining the adequacy of facilities
holding captive marine mammals. This section further clarifies
that no marine mammal may be exported for the purpose of public
display unless the Secretary of Agriculture determines and then
notifies the relevant Secretary that the receiving facility
meets standards of care and maintenance that are comparable to
the standards of care and maintenance required for a person to
receive a permit under this subsection for that purpose. The
Secretaries of Commerce and the Interior will continue to make
the export determination for marine mammals exported for
scientific research, or enhancing the survival or recovery of a
species or stock.
This section also clarifies that the Secretary may not
require or request, through comity or any other means, that any
exported marine mammal or its progeny remain subject to the
jurisdiction of the United States when located in waters or on
lands that are subject to the jurisdiction of another country.
This section modifies the inventory provision of the MMPA
(subsection (c)(10)) to clarify that the inventory is for
marine mammals in facilities under the jurisdiction of the
United States. In addition, it clarifies that the inventory is
to be updated annually. It is further amended to specify that
facilities have ownership of the marine mammals in their care.
This section requires the Secretaries of Commerce and the
Interior to jointly conduct a review of the marine mammal
inventory regarding the use of the information in the
inventory, and the costs, benefits, and issues associated with
potentially providing the information through an online
inventory.
This section also clarifies that the 15-day waiting period
will not apply if a marine mammal is transferred between
facilities under the same Department of Agriculture permit
where the ownership of the animal does not change. However, a
notice of the transfer must be sent to the appropriate
Secretary after the animal has been relocated.
Section 8. Fines and penalties
This section increases the fines in MMPA section 105 of the
MMPA from $10,000 to $20,000 for civil penalties and from
$20,000 to $30,000 for criminal penalties. It also increases
the penalty in MMPA section 106 from $25,000 to $35,000.
Section 9. Marine mammal research grants
Section 110 of the MMPA is amended by this section to
delete expired provisions and authorize the Secretary to make
grants or other financial assistance to federal or State
agencies, public or private institutions, or other persons to
undertake research in subjects relevant to the protection and
conservation of marine mammals, and the ecosystem upon which
they depend. The Secretary is authorized to receive gifts to
carry out this section. An authorization of appropriation of
$1.5 million for each of the fiscal years 2006-2010 is also
included.
Section 10. Fisheries gear development
This section amends section 111 of the MMPA to authorize
the Secretary to carry out a program of research and
development for the purpose of devising improved fishing
methods and gear to reduce, to the maximum extent practicable,
the incidental taking of marine mammals in connection with
fishing operations. It authorizes a mini-grant program, subject
to the availability of appropriations, and allows the Secretary
to receive donations to carry out the grant program. An
authorization of appropriation is included for $1.5 million for
each of the fiscal years 2006-2010.
Section 11. Tropical treaty conforming amendment
This section makes a technical and clarifying change to the
Dolphin Protection Consumer Information Act. The reference to
``160 degrees west longitude'' is changed to ``150 degrees west
longitude''.
Section 12. Take reduction plans
This section amends section 118 of the MMPA to include
recreational fisheries in the list of fisheries that could have
interactions with marine mammals that are frequent or
occasional and result in the incidental mortality and serious
injury of marine mammals. The National Marine Fisheries Service
(NMFS) of the Department of Commerce would be required to
include both commercial and recreational fishermen's
interactions with marine mammals in assessing whether a
particular fishery should be placed in either category I
(frequent incidental mortality or serious injury) or category
II (occasional incidental mortality and serious injury). All
recreational fishermen who participate in a category I or II
fishery would be required to obtain the same annual
authorizations and file the same reports regarding marine
mammal interactions as are now required of commercial
fishermen. In such cases, a recreational fishing representative
will also be included in the take reduction plan process.
This section does not alter existing law for category III
fisheries where there is only a remote likelihood of, or no
known incidental mortality or serious injury of, marine
mammals. By not expanding category III to include the millions
of recreational fishermen who only fish with rods and reels,
the regulatory burden on both the agency and the public is kept
to a minimum. However, the Committee strongly supports the
inclusion of those recreational fisheries using commercial-type
fishing gear, if they are contributing to the mortality or
serious injury to marine mammals in a category I or II fishery.
These recreational fishermen should be subject to the same
regulatory requirements as commercial fishermen when using the
same gear and having the same effect on marine mammals.
The timelines in this section of the MMPA are modified to
allow the Secretary of Commerce additional time to meet the
requirements of this section. The Secretary will be given six
extra months to complete the take reduction plans. The
Committee was concerned with groups using missed timelines as
the basis for litigation against the Secretary. The Committee
believes the extension to the timelines in this section will
not reduce protections for marine mammals, but will provide
litigation relief for the Secretary--allowing staff and funding
to be used for conservation and management activities rather
than preparing documents for litigation.
The Secretary, where appropriate, should include a
representative from each of the following NOAA offices--the
National Oceanic and Atmospheric Administration (NOAA) General
Counsel office, the appropriate regional Administrator's
office, NMFS fisheries, and NMFS law enforcement at take
reduction team (TRT) meetings.
This section also requires the Secretary to reconvene a TRT
and explain any differences the Secretary makes between the
draft plan, which was written by the TRT, and the published
plan. A TRT should not be reconvened for minor changes to a
plan, which might includetechnical or unsubstantial changes
like typographical errors. Instead, the Secretary should reconvene a
TRT when changes are made to the reduction measures required in the
plan which were recommended by the TRT. It is the understanding of the
Committee that the involvement of additional agency personnel, as
mentioned above, early in the process will help facilitate the process
and ensure that appropriate measures are included in the TRT's
recommendations.
This section clarifies that contributions from private
sources can be used for observers, research, education and
outreach programs undertaken by the Secretary.
This section gives the Secretary some flexibility on
convening TRTs. After notice and pubic comment, the Secretary
may decide not to convene TRTs for those fisheries that are
having a negligible impact on a specific marine mammal stock.
This flexibility will allow the Secretary to focus staff time
and resources on those fisheries that have high interactions
with marine mammals.
This section amends section 118(a)(1) and (b)(1) of the
MMPA to delete the phrase ``within 7 years after the date of
enactment of this section.'' Discussions with the agency have
clarified that the removal of the expired date will not effect
how NMFS is implementing the zero mortality rate goal under
MMPA section 118, 16 U.S.C. 1387. The removal of the expired
date will not require immediate development of a take reduction
plan or an immediate reduction to levels approaching zero. As
stated in the Administration's views letter, section 118
requires NMFS to develop and implement take reduction plans for
commercial fisheries that have an incidental mortality
inconsistent with the zero mortality rate goal. However, the
take reduction process remains dependent on prioritization and
availability of information and resources. Specifically,
section 118(f)(3) of the MMPA provides priorities for
development and implementation of take reduction plans if funds
are insufficient for all necessary plans. The deletion of the
expired date removes potential litigation by parties arguing
that the zero mortality rate goal must be achieved by a date
certain and frees the agency to prioritize and implement the
requirements of this section.
This section also clarifies that section 118(c)(3)(E),
which applies to category III fisheries, is a requirement for
commercial vessels only. Owners of a vessel are not subject to
penalties of the MMPA if they report any incidental mortality
or injury of marine mammals in the course of the fishery.
A conforming amendment to section 101(a)(5)(E) of the MMPA
has been included to clarify that both commercial and
recreational fisheries can incidentally take endangered marine
mammals, as long as the taking would have a negligible effect
and is in accordance with a take reduction plan.
MMPA section 117(a)(4) is amended to require that
conservation benefits provided by State and regional fishery
management regulations be included in the scientific review of
marine mammal stocks. Similar changes are made in the take
reduction plan process in section 118, to allow the TRTs to
review the conservation benefits of state and regional fishery
management regulations.
The Committee is concerned that benefits of State and
regional management actions may have been overlooked by TRTs in
the past, and the measures and the benefits these regulations
may have had on marine mammal populations have been ignored.
The Committee intends that State and regional management
measures should be factored into the TRT process. The Committee
does not want this process to become burdensome on the TRT;
however, every effort should be made to understand what actions
have been taken and how commercial fisheries may have changed
due to State or regional management measures and if those
changes have been beneficial to marine mammal populations. The
TRT should work to ensure that measures are developed to
protect marine mammals, but it should include an analysis of
restrictions already in place from State and regional
management actions.
Section 13. Pinniped research
Section 120 of the MMPA is amended to require the Secretary
to conduct research on the nonlethal removal and control of
nuisance pinnipeds. The Secretary shall include representatives
from commercial and recreational fishing industries and, where
appropriate, use independent marine mammal research
institutions. The Secretary shall report annually to the
Committee on Resources and the Senate Committee on Commerce,
Science and Transportation on research conducted under this
section.
This section also authorizes ``Qualified Nonlethal Control
Projects.'' The Secretary is authorized to issue grants to a
State, local government, or interstate or regional agency to
carry out and monitor or maintain a nonlethal control of
nuisance pinnipeds project. The grants are authorized for up to
two years and the recipient is required to report to the
Secretary when the grant expires. The report is required to
contain information on the methods and techniques used and the
ensuing results. The federal share of these projects shall not
exceed 75% of the overall cost. In-kind contributions are
authorized for the non-federal share of the activity. This
section authorizes an appropriation of $1.5 million for these
activities for each of fiscal years 2006-2010.
Section 14. Marine mammal commission
This section deletes the $100 per diem rate cap which is
currently in the MMPA. It also clarifies the staffing
authorization for the Commission. Finally, it removes the
requirement that the Commission use the General Services
Administration for its financial and administrative services.
Section 15. Stranding and entanglement response
This section authorizes the Secretary of Commerce to enter
into agreements with qualified facilities to assist in removing
line, gear, rope, net or other material from marine mammals
while at sea.
This section prohibits the Secretary from retaining funds
beyond those needed for administrating the stranding and
entanglement response program. The cap on administrative costs
is reduced from 6 percent to 5 percent. The MMPA is also
amended to allow the Secretary to accept gifts, devises and
bequests to run the program. In addition, funding for the
Prescott Marine Mammal Stranding Grant program is increased by
$2 million for a total of $7 million for each of fiscal years
2006-2010. Finally, this section authorizes funding for the
Unusual Mortality Event Fund.
This section also authorizes the Secretary to enter into
cooperative agreements, contracts or other agreements to
address stranding events that need emergency assistance.
Emergency assistance is defined as stranding events that: are
not an unusual mortality event; lead to an immediate increase
in costs; may be cyclical or endemic; and may involve out-of-
habitat animals. It also clarifies that funding for emergency
assistance is not subject to the funding limit of $100,000 and
the matching requirement does not apply.
Section 16. Scrimshaw exemption
This section continues the authorization for permits for
those individuals that obtained ivory prior to the enactment of
the Endangered Species Act to continue to possess, carve, and
sell the ivory for the length of the authorization contained in
this bill.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Federal Advisory Committee Statement
The bill reauthorizes the functions of an existing advisory
committee.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, credit
authority, or an increase or decrease in tax expenditures.
According to the Congressional Budget Office, enactment of this
bill would increase direct spending and revenues by less than
$500,000 a year.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Marine Mammal Protection
Act of 1972 to authorize research programs to better understand
and protect marine mammals.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 2130--Marine Mammal Protection Act Amendment of 2005
Summary: H.R. 2130 would authorize appropriations for
programs to protect and conserve marine mammals. CBO estimates
that implementing the bill would cost $1 million in 2006 and
$35 million over the 2006-2010 period, assuming appropriation
of the authorized amounts. We also estimate that H.R. 2130
would increase both direct spending and revenues by less than
$500,000 a year.
H.R. 2130 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2130 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars
----------------------------------------------------------------
2006 2007 2008 2009 2010
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level............................ 12 12 12 12 12
Estimated Outlays.............................. 1 4 8 10 12
----------------------------------------------------------------------------------------------------------------
Basis of estimate: H.R. 2130 would authorize the
appropriation of almost $12 million a year over the 2006-2010
period for programs to protect and conserve marine mammals. The
amount authorized for each year includes $7 million for grants
to organizations that rescue marine mammals, $3 million for
research on pinnipeds and marine mammals, $1.5 million for
efforts to design fishing equipment that minimizes adverse
impacts on marine mammals, and $125,000 for grants to respond
to stranded animals. Based on historical spending patterns for
similar programs, CBO estimates that fully funding those
activities would cost $1 million in 2006 and $35 million over
the 2006-2010 period.
In addition, H.R. 2130 could increase revenues and
subsequent direct spending of those revenues. The bill would
increase fines for certain violations of federal law related to
the protection of marine mammals. Under current law, the
Secretary of the Interior can spend such fines, without further
appropriation, for programs to protect and conserve those
mammals. Based on information from the Department of the
Interior, CBO expects that a relatively small number of cases
would be affected and that any increases in revenues and direct
spending from this provision would be negligible.
Intergovernmental and private-sector impact: H.R. 2130
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Megan Carroll. Impact
on State, Local, and Tribal Governments: Marjorie Miller.
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
MARINE MAMMAL PROTECTION ACT OF 1972
AN ACT To protect marine mammals; to establish a Marine Mammal
Commission; for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act, with the following table of contents, may be cited as the
``Marine Mammal Protection Act of 1972''.
TABLE OF CONTENTS
Sec. 2. Findings and declaration of policy.
* * * * * * *
Title IV--Marine Mammal Health and Stranding Response
Sec. 401. Establishment of program.
Sec. 402. Determination; data collection and dissemination.
[Sec. 403. Stranding response agreements.]
Sec. 403. Stranding or entanglement response agreements.
* * * * * * *
TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS
moratorium and exceptions
Sec. 101. (a) There shall be a moratorium on the taking and
importation of marine mammals and marine mammal products,
commencing on the effective date of this Act, during which time
no permit may be issued for the taking of any marine mammal and
no marine mammal or marine mammal product may be imported into
the United States except in the following cases:
(1) * * *
* * * * * * *
(5)(A) * * *
* * * * * * *
(E)(i) During any period of up to 3 consecutive
years, the Secretary shall allow the incidental, but
not the intentional, taking by persons using vessels of
the United States or vessels which have valid fishing
permits issued by the Secretary in accordance with
section 204(b) of the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1824(b)), while engaging in
commercial or recreational fishing operations, of
marine mammals from a species or stock designated as
depleted because of its listing as an endangered
species or threatened species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) if the
Secretary, after notice and opportunity for public
comment, determines that--
(I) the incidental mortality and serious
injury from commercial or recreational
fisheries will have a negligible impact on such
species or stock;
* * * * * * *
(iii) If, during the course of the commercial or
recreational fishing season, the Secretary determines
that the level of incidental mortality or serious
injury from commercial or recreational fisheries for
which a determination was made under clause (i) has
resulted or is likely to result in an impact that is
more than negligible on the endangered or threatened
species or stock, the Secretary shall use the emergency
authority granted under section 118 to protect such
species or stock, and may modify any permit granted
under this paragraph as necessary.
* * * * * * *
(6)(A) A marine mammal product may be imported into
the United States if the product--
(i) was legally possessed and exported by any
citizen of the United States for noncommercial
purposes in conjunction with travel outside the
United States, provided that the product is
imported into the United States by the same
person upon the termination of travel;
* * * * * * *
(B) A marine mammal product may be exported from the
United States if the product--
(i) is legally possessed, and exported by, a
citizen of the United States for noncommercial
purposes in conjunction with travel outside the
United States and the product is imported into
the United States by the same person upon the
termination of travel;
(ii) is legally possessed, and exported by, a
person that is not a citizen of the United
States for noncommercial purposes;
(iii) is legally possessed and exported as
part of a cultural exchange, by an Indian,
Aleut, or Eskimo residing in Alaska; or
(iv) is owned by a Native inhabitant of
Russia, Canada, or Greenland and is exported
for noncommercial purposes--
(I) in conjunction with, and upon the
completion of, travel within the United
States; or
(II) as part of a cultural exchange
with an Indian, Aleut, or Eskimo
residing in Alaska.
[(B)] (C) For the purposes of this paragraph, the
term--
(i) * * *
* * * * * * *
PROHIBITIONS
Sec. 102. (a) Except as provided in sections 101, 103, 104,
109, 111, 113, 114, and 118 of this title and title IV, it is
unlawful--
(1) * * *
* * * * * * *
(4) for any person to transport, purchase, sell,
export, or offer to purchase, sell, or export any
marine mammal or marine mammal product--
(A) that is taken in violation of this Act;
or
(B) for any purpose other than public
display, scientific research, or enhancing the
survival of a species or stock as provided for
under [subsection 104(c); and] section 104(c);
(5) for any person to use, in a commercial fishery,
any means or methods of fishing in contravention of any
regulations or limitations, issued by the Secretary for
that fishery to achieve the purposes of this Act[.];
and
(6) for any person that is subject to the
jurisdiction of the United States to release any
captive marine mammal unless specifically authorized to
do so under section 104(c)(3)(A), 104(c)(4)(A), or
109(h), except that this paragraph shall not apply to
the temporary release of any marine mammal that is--
(A) maintained in captivity under section
7524 of title 10, United States Code (including
any progeny of a marine mammal maintained under
that section); or
(B) the progeny of a marine mammal excluded
from coverage under this Act by section 102(e).
* * * * * * *
REGULATIONS ON TAKING OF MARINE MAMMALS
Sec. 103. (a) * * *
* * * * * * *
(f) Within six months after the effective date of this Act
and every twelve months thereafter and notwithstanding Public
Law 104-66, the Secretary shall report to the public through
publication in the Federal Register and to the Congress on the
current status of all marine mammal species and population
stocks subject to the provisions of this Act. His report shall
describe those actions taken and those measures believed
necessary, including where appropriate, the issuance of permits
pursuant to this title to assure the well-being of such marine
mammals.
(g) The head of each Federal agency that conducts and
provides funds for research on marine mammals shall report
annually to the Committee on Resources of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate on funding provided and research
conducted regarding marine mammals during the preceding year.
PERMITS
Sec. 104. (a) * * *
* * * * * * *
(c)(1) * * *
(2)(A) * * *
* * * * * * *
(E) No marine mammal held pursuant to a permit issued
under subparagraph (A), or by a person exercising
rights under subparagraph (C), 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, except that if the
transport is for purposes of public display and the
transfer is between facilities where the ownership and
care of the marine mammal will be under the same
license or registration issued under the Animal Welfare
Act (7 U.S.C. 2131 et seq.) then only a notice of
transport is required. The Secretary may only require
the notification to include the information required
for the inventory established under paragraph (10).
* * * * * * *
(7) Upon request by a person for a permit under
paragraph (2), (3), or (4) for a marine mammal which is
in the possession of any person authorized to possess
it under this Act and which is determined under
guidance under section 402(a) not to be releasable to
the wild, the Secretary shall issue the permit to the
person requesting the permit notwithstanding any other
provision of law if that person--
(A) * * *
* * * * * * *
(8)(A) * * *
(B)(i) A person which has a permit under paragraph
(2), or a person exercising rights under paragraph
(2)(C), which has possession of a marine mammal 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, except that if
the transport is for purposes of public display
and the transfer is between facilities where
the ownership and care of the marine mammal
will be under the same license or registration
issued under the Animal Welfare Act (7 U.S.C.
2131 et seq.) then only a notice of transport
is required.
* * * * * * *
[(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.]
(9)(A) No marine mammal may be exported--
(i) for the purpose of public
display, unless the Secretary of
Agriculture evaluates and verifies, and
thereafter notifies the Secretary, that
the receiving facility meets standards
that are comparable to the requirements
that a person must meet to receive a
permit under this subsection for that
purpose; or
(ii) for the purpose of 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.
(B) The Secretary may not require or request, through
comity or any other means, that any marine mammal or
its progeny remain subject to the jurisdiction of the
United States when located in waters or on lands that
are subject to the jurisdiction of another country.
(10) The Secretary shall establish and maintain an
inventory of all marine mammals held within the lands
and waters of the United States possessed pursuant to
permits issued under paragraph (2)(A), by persons
exercising rights under paragraph (2)(C), and all
progeny of such marine mammals held within the lands
and waters of the United States. The Secretary shall
update the inventory on an annual basis. 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) * * *
* * * * * * *
(D) The date of ownership, or other
acquisition or disposition of the marine mammal
by the permit holder.
* * * * * * *
PENALTIES
Sec. 105. (a)(1) Any person who violates any provision of
this title or of any permit or regulation issued thereunder,
except as provided in section 118, may be assessed a civil
penalty by the Secretary of not more than [$10,000] $20,000 for
each such violation. No penalty shall be assessed unless such
person is given notice and opportunity for a hearing with
respect to such violation. Each unlawful taking or importation
shall be a separate offense. Any such civil penalty may be
remitted or mitigated by the Secretary for good cause shown.
Upon any failure to pay a penalty assessed under this
subsection, the Secretary may request the Attorney General to
institute a civil action in a district court of the United
States for any district in which such person is found, resides,
or transacts business to collect the penalty and such court
shall have jurisdiction to hear and decide any such action.
* * * * * * *
(b) Any person who knowingly violates any provision of this
title or of any permit or regulation issued thereunder (except
as provided in section 118) shall, upon conviction, be fined
not more than [$20,000] $30,000 for each such violation, or
imprisoned for not more than one year, or both.
VESSEL FINE, CARGO FORFEITURE, AND REWARDS
Sec. 106. (a) * * *
(b) Any vessel subject to the jurisdiction of the United
States that is employed in any manner in the unlawful taking of
any marine mammal shall be liable for a civil penalty of not
more than [$25,000] $35,000. Such penalty shall be assessed by
the district court of the United States having jurisdiction
over the vessel. Clearance of a vessel against which a penalty
has been assessed, from a port of the United States, may be
withheld until such penalty is paid, or until a bond or
otherwise satisfactory surety is posted. Such penalty shall
constitute a maritime lien on such vessel which may be
recovered by action in rem in the district court of the United
States having jurisdiction over the vessel.
* * * * * * *
MARINE MAMMAL RESEARCH GRANTS
Sec. 110. [(a) The Secretary is authorized to make grants, or
to provide financial assistance in such other form as he deems
appropriate, to any Federal or State agency, public or private
institution, or other person for the purpose of assisting such
agency, institution, or person to undertake research in
subjects which are relevant to the protection and conservation
of marine mammals. In carrying out this subsection, the
Secretary shall undertake a program of, and shall provide
financial assistance for, research into new methods of locating
and catching yellowfin tuna without the incidental taking of
marine mammals. The Secretary shall include a description of
the annual results of research carried out under this section
in the report required under section 103(f).]
(a) Authorization of Assistance; Annual Report.--
(1) Authorization of assistance.--The Secretary may
make grants, or provide financial assistance in such
other form as the Secretary considers appropriate, to
any Federal or State agency, public or private
institution, or other person for the purpose of
assisting such agency, institution, or person to
undertake research in subjects that are relevant to the
protection and conservation of marine mammals, and the
ecosystems upon which they depend, including, but not
limited to, the Bering/Chukchi Sea ecosystem and the
California coastal marine ecosystem.
(2) Inclusion of information in reports.--The
Secretary shall include a description of the annual
results of research carried out with assistance under
this section in the report required under section
103(f).
(3) Contributions.--For purposes of carrying out this
section, the Secretary may accept, solicit, receive,
hold, administer, and use gifts, devises, and bequests.
* * * * * * *
[(c)(1) No later than 1 year after the date of enactment of
the Marine Mammal Protection Act Amendments of 1994, the
Secretary of Commerce shall convene a regional workshop for the
Gulf of Maine to assess human-caused factors affecting the
health and stability of that marine ecosystem, of which marine
mammals are a part. The workshop shall be conducted in
consultation with the Marine Mammal Commission, the adjacent
coastal States, individuals with expertise in marine mammal
biology and ecology, representatives from environmental
organizations, the fishing industry, and other appropriate
persons. The goal of the workshop shall be to identify such
factors, and to recommend a program of research and management
to restore or maintain that marine ecosystem and its key
components that--
[(A) protects and encourages marine mammals to
develop to the greatest extent feasible commensurate
with sound policies of resource management;
[(B) has as the primary management objective the
maintenance of the health and stability of the marine
ecosystems;
[(C) ensures the fullest possible range of management
options for future generations; and
[(D) permits nonwasteful, environmentally sound
development of renewable and nonrenewable resources.
[(2) On or before December 31, 1995, the Secretary of
Commerce shall submit to the Committee on Merchant Marine and
Fisheries of the House of Representatives and the Committee on
Commerce, Science and Transportation of the Senate a report
containing the results of the workshop under this subsection,
proposed regulatory or research actions, and recommended
legislative action.
[(d)(1) The Secretary of Commerce, in consultation with the
Secretary of the Interior, the Marine Mammal Commission, the
State of Alaska, and Alaska Native organizations, shall, not
later than 180 days after the date of enactment of the Marine
Mammal Protection Act Amendments of 1994, undertake a
scientific research program to monitor the health and stability
of the Bering Sea marine ecosystem and to resolve uncertainties
concerning the causes of population declines of marine mammals,
sea birds, and other living resources of that marine ecosystem.
The program shall address the research recommendations
developed by previous workshops on Bering Sea living marine
resources, and shall include research on subsistence uses of
such resources and ways to provide for the continued
opportunity for such uses.
[(2) To the maximum extent practicable, the research program
undertaken pursuant to paragraph (1) shall be conducted in
Alaska. The Secretary of Commerce shall utilize, where
appropriate, traditional local knowledge and may contract with
a qualified Alaska Native organization to conduct such
research.
[(3) The Secretary of Commerce, the Secretary of the
Interior, and the Commission shall address the status and
findings of the research program in their annual reports to
Congress required by sections 103(f) and 204 of this Act.]
(c) Authorization of Appropriations.--To carry out this
section there is authorized to be appropriated to the Secretary
$1,500,000 for each of fiscal years 2006 through 2010.
COMMERCIAL FISHERIES GEAR DEVELOPMENT
Sec. 111. [(a) The Secretary of the department in which the
National Oceanic and Atmospheric Administration is operating
(hereafter referred to in this section as the ``Secretary'') is
hereby authorized and directed to immediately undertake a
program of research and development for the purpose of devising
improved fishing methods and gear so as to reduce to the
maximum extent practicable the incidental taking of marine
mammals in connection with commercial fishing. At the end of
the full twenty-four calendar month period following the date
of the enactment of this Act, the Secretary shall deliver his
report in writing to the Congress with respect to the results
of such research and development. For the purposes of this
section, there is hereby authorized to be appropriated the sum
of $1,000,000 for the fiscal year ending June 30, 1973, and the
same amount for the next fiscal year. Funds appropriated for
this section shall remain available until expended.]
(a) Research and Development Program.--
(1) In general.--The Secretary of Commerce (in this
section referred to as the ``Secretary'') shall--
(A) carry out a program of research and
development for the purpose of devising
improved fishing methods and gear so as to
reduce to the maximum extent practicable the
incidental taking of marine mammals in
connection with fishing operations; and
(B) make every practicable effort to develop,
evaluate, and make available to owners and
operators of fishing vessels such gear and
fishing method improvements as quickly as
possible.
(2) Coordination with other countries.--The Secretary
may coordinate with other countries to foster gear
technology transfer initiatives to reduce to the
maximum extent practicable the incidental mortality and
serious injury of marine mammals throughout the full
extent of their range.
* * * * * * *
(e) Gear Research Mini-Grant Program.--
(1) In general.--Subject to the availability of
appropriations, the Secretary may establish a grant
program to provide financial assistance for developing,
manufacturing, testing, or designing new types of
fishing gear designed to reduce to the maximum extent
practicable the incidental taking (including incidental
mortality and serious injury) of marine mammals.
(2) Grant amount and purposes.--The amount of a grant
under this subsection may not exceed $20,000.
(3) Grant applications.--To receive a grant under
this section, an applicant must submit an application
in such form and manner as the Secretary may prescribe.
(4) Consultation regarding criteria.--The Secretary
shall consult with the Secretary of the Interior and
the Marine Mammal Commission regarding the development
of criteria for the awarding of grants under this
subsection.
(5) Administrative costs.--Of amounts available each
fiscal year to carry out this subsection, the Secretary
may expend not more than $40,000 to pay the
administrative expenses necessary to carry out this
subsection.
(6) Contributions.--For purposes of carrying out this
section, the Secretary may accept, solicit, receive,
hold, administer, and use gifts, devises, and bequests.
(f) Authorization of Appropriations.--To carry out this
section there is authorized to be appropriated to the Secretary
$1,500,000 for each of fiscal years 2006 through 2010.
* * * * * * *
APPLICATION TO OTHER TREATIES AND CONVENTIONS
Sec. 113. (a) * * *
* * * * * * *
(c) The Secretary of the Interior, in consultation with the
Secretary of State and the Marine Mammal Commission, shall
review the effectiveness of United States implementation of the
Agreement on the Conservation of Polar Bears, particularly with
respect to the habitat protection mandates contained in Article
II. The Secretary shall report the results of this review to
the Committee on [Merchant Marine and Fisheries] Resources of
the House of Representatives and the Committee on Commerce,
Science, and Transportation of the Senate not later than April
1, 1995.
(d) Not later than 6 months after the date of enactment of
the Marine Mammal Protection Act Amendments of 1994, the
Secretary of the Interior, acting through the Secretary of
State and in consultation with the Marine Mammal Commission and
the State of Alaska, shall consult with the appropriate
officials of the Russian Federation on the development and
implementation of enhanced cooperative research and management
programs for the conservation of polar bears in Alaska and
Russia. The Secretary shall report the results of this
consultation and provide periodic progress reports on the
research and management programs to the Committee on [Merchant
Marine and Fisheries] Resources of the House of Representatives
and the Committee on Commerce, Science and Transportation of
the Senate.
INTERIM EXEMPTION FOR COMMERCIAL FISHERIES
Sec. 114. (a) * * *
* * * * * * *
(l)(1) * * *
* * * * * * *
(4) On or before January 1, 1992, the Secretary, after
consultation with the Marine Mammal Commission, and
consideration of public comment, shall transmit to the
Committee on Commerce, Science, and Transportation of the
Senate and the Committee on [Merchant Marine and Fisheries]
Resources of the House of Representatives recommendations
pertaining to the incidental taking of marine mammals, other
than those subject to section 104(h)(2), after October 1, 1993.
The recommendations shall include--
(A) * * *
* * * * * * *
SEC. 117. STOCK ASSESSMENTS.
(a) In General.--Not later than August 1, 1994, the Secretary
shall, in consultation with the appropriate regional scientific
review group established under subsection (d), prepare a draft
stock assessment for each marine mammal stock which occurs in
waters under the jurisdiction of the United States. Each draft
stock assessment, based on the best scientific information
available, shall--
(1) * * *
* * * * * * *
(4) describe commercial fisheries that interact with
the stock, including--
(A) * * *
* * * * * * *
(C) seasonal or area differences in such
incidental mortality or serious injury; [and]
(D) the rate, based on the appropriate
standard unit of fishing effort, of such
incidental mortality and serious injury, and an
analysis stating whether such level is
insignificant and is approaching a zero
mortality and serious injury rate; and
(E) potential conservation benefits provided
by State and regional fishery management
regulations;
* * * * * * *
SEC. 118. TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING
OPERATIONS.
(a) In General.--(1) Effective on the date of enactment of
this section, and except as provided in section 114 and in
paragraphs (2), (3), and (4) of this subsection, the provisions
of this section shall govern the incidental taking of marine
mammals in the course of [commercial] fishing operations by
persons using vessels of the United States or vessels which
have valid fishing permits issued by the Secretary in
accordance with section 204(b) of the Magnuson Fishery
Conservation and Management Act (16 U.S.C. 1824(b)). In any
event it shall be the immediate goal that the incidental
mortality or serious injury of marine mammals occurring in the
course of [commercial] fishing operations be reduced to
insignificant levels approaching a zero mortality and serious
injury rate [within 7 years after the date of enactment of this
section].
* * * * * * *
(5) Except as provided in section 101(c), the intentional
lethal take of any marine mammal in the course of [commercial]
fishing operations is prohibited.
(6) Sections 103 and 104 shall not apply to the incidental
taking of marine mammals under the authority of this section.
(b) 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 7 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 and serious injury 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] Resources of the House of Representatives
a report setting forth the results of such review within 1 year
after commencement of the review. The Secretary shall note any
commercial fishery for which additional information is required
to accurately assess the level of incidental mortality and
serious injury of marine mammals in the fishery.
(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 (f).
[(c) Registration and Authorization.--(1) The Secretary
shall, within 90 days after the date of enactment of this
section--
[(A) publish in the Federal Register for public
comment, for a period of not less than 90 days, any
necessary changes to the Secretary's list of commercial
fisheries published under section 114(b)(1) and which
is in existence on March 31, 1994 (along with an
explanation of such changes and a statement describing
the marine mammal stocks interacting with, and the
approximate number of vessels or persons actively
involved in, each such fishery), with respect to
commercial fisheries that have--
[(i) frequent incidental mortality and
serious injury of marine mammals;
[(ii) occasional incidental mortality and
serious injury of marine mammals; or
[(iii) a remote likelihood of or no known
incidental mortality or serious injury of
marine mammals;]
(c) Registration and Authorization.--(1) The Secretary shall,
within 90 days after the date of enactment of the Marine Mammal
Protection Act Amendments of 2005--
(A) publish in the Federal Register for public
comment, for a period of not less than 90 days, any
necessary changes to the Secretary's list of fisheries
published under section 114(b)(1) in the Federal
Register on August 24, 1994 (along with an explanation
of such changes and a statement describing the marine
mammal stocks interacting with, and the approximate
number of vessels or persons actively involved in, each
such fishery), with respect to--
(i) commercial and recreational fisheries
that have frequent incidental mortality and
serious injury of marine mammals;
(ii) commercial and recreational fisheries
that have occasional incidental mortality and
serious injury of marine mammals; or
(iii) commercial fisheries that have a remote
likelihood of or no known incidental mortality
or serious injury of marine mammals;
(B) after the close of the period for such public
comment, publish in the Federal Register a revised list
of [commercial] fisheries and an update of information
required by subparagraph (A), together with a summary
of the provisions of this section and information
sufficient to advise vessel owners on how to obtain an
authorization and otherwise comply with the
requirements of this section; and
(C) at least once each year thereafter, and at such
other times as the Secretary considers appropriate,
reexamine, based on information gathered under this Act
and other relevant sources and after notice and
opportunity for public comment, the classification of
[commercial] fisheries and other determinations
required under subparagraph (A) and publish in the
Federal Register any necessary changes.
(2)(A) An authorization shall be granted by the Secretary in
accordance with this section for a vessel engaged in a
[commercial] fishery listed under paragraph (1)(A) (i) or (ii),
upon receipt by the Secretary of a completed registration form
providing the name of the vessel owner and operator, the name
and description of the vessel, the fisheries in which it will
be engaged, the approximate time, duration, and location of
such fishery operations, and the general type and nature of use
of the fishing gear and techniques used. Such information shall
be in a readily usable format that can be efficiently entered
into and utilized by an automated or computerized data
processing system. A decal or other physical evidence that the
authorization is current and valid shall be issued by the
Secretary at the time an authorization is granted, and so long
as the authorization remains current and valid, shall be
reissued annually thereafter.
* * * * * * *
(3)(A) An owner of a vessel engaged in any fishery listed
under paragraph (1)(A) (i) or (ii) shall, in order to engage in
the lawful incidental taking of marine mammals in [a commercial
fishery] that fishery--
(i) have registered as required under paragraph (2)
with the Secretary in order to obtain for each such
vessel owned and used in the fishery an authorization
for the purpose of incidentally taking marine mammals
in accordance with this section[, except that owners of
vessels holding valid certificates of exemption under
section 114 are deemed to have registered for purposes
of this subsection for the period during which such
exemption is valid];
* * * * * * *
(E) Each owner of a vessel engaged in any commercial fishery
not listed under paragraph (1)(A) (i) or (ii), and the master
and crew members of such a vessel, shall not be subject to the
penalties set forth in this title for the incidental taking of
marine mammals if such owner reports to the Secretary, in the
form and manner required under subsection (e), instances of
incidental mortality or injury of marine mammals in the course
of that fishery.
* * * * * * *
(5)(A) * * *
(B) The Secretary shall utilize newspapers of general
circulation, fishery trade associations, electronic media, and
other means of advising [commercial] fishermen of the
provisions of this section and the means by which they can
comply with its requirements.
* * * * * * *
(d) Monitoring of Incidental Takes.--(1) The Secretary shall
establish a program to monitor incidental mortality and serious
injury of marine mammals during the course of [commercial
fishing operations] fishing operations in a fishery listed
under subsection (c)(1)(A)(i) or (ii). The purposes of the
monitoring program shall be to--
(A) * * *
* * * * * * *
[(C) identify changes in fishing methods or
technology that may increase or decrease incidental
mortality and serious injury.]
(C) identify current fishery regulations and changes
in fishing methods or technology that may increase or
decrease incidental mortality and serious injury.
* * * * * * *
(3) In determining the distribution of observers among
[commercial fisheries] fisheries listed under subsection
(c)(1)(A)(i) or (ii) and vessels within a fishery, the
Secretary shall be guided by the following standards:
(A) * * *
* * * * * * *
(4) To the extent practicable, the Secretary shall allocate
observers among [commercial fisheries] fisheries listed under
subsection (c)(1)(A)(i) or (ii) in accordance with the
following priority:
(A) The highest priority for allocation shall be for
[commercial fisheries] fisheries listed under
subsection (c)(1)(A)(i) or (ii) that have incidental
mortality or serious injury of marine mammals from
stocks listed as endangered species or threatened
species under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
(B) The second highest priority for allocation shall
be for [commercial fisheries] fisheries listed under
subsection (c)(1)(A)(i) or (ii) that have incidental
mortality and serious injury of marine mammals from
strategic stocks.
(C) The third highest priority for allocation shall
be for [commercial fisheries] fisheries listed under
subsection (c)(1)(A)(i) or (ii) that have incidental
mortality or serious injury of marine mammals from
stocks for which the level of incidental mortality and
serious injury is uncertain.
(5) The Secretary may establish an alternative observer
program to provide statistically reliable information on the
species and number of marine mammals incidentally taken in the
course of [commercial fishing operations] fishing operations in
fisheries listed under subsection (c)(1)(A)(i) or (ii). The
alternative observer program may include direct observation of
fishing activities from vessels, airplanes, or points on shore.
* * * * * * *
(e) Reporting Requirement.--The owner or operator of a
[commercial] fishing vessel subject to this [Act] section shall
report all incidental mortality and injury of marine mammals in
the course of [commercial] fishing operations to the Secretary
by mail or other means acceptable to the Secretary within 48
hours after the end of each fishing trip on a standard postage-
paid form to be developed by the Secretary under this section.
Such form shall be capable of being readily entered into and
usable by an automated or computerized data processing system
and shall require the vessel owner or operator to provide the
following:
(1) * * *
* * * * * * *
[(f) Take Reduction Plans.--(1) The Secretary shall develop
and implement a take reduction plan designed to assist in the
recovery or prevent the depletion of each strategic stock which
interacts with a commercial fishery listed under subsection
(c)(1)(A) (i) or (ii), and may develop and implement such a
plan for any other marine mammal stocks which interact with a
commercial fishery listed under subsection (c)(1)(A)(i) which
the Secretary determines, after notice and opportunity for
public comment, has a high level of mortality and serious
injury across a number of such marine mammal stocks.]
(f) Take Reduction Plans.--(1) The Secretary shall develop
and implement a take reduction plan designed to assist in the
recovery or prevent the depletion of each strategic stock which
interacts with a fishery listed under subsection (c)(1)(A)(i)
or (ii), unless the Secretary determines, after notice and
opportunity for public comment, that the level of fishery
related mortality and serious injury is having a negligible
impact on that stock. The Secretary may develop and implement a
take reduction plan for any other marine mammal stocks which
interact with a fishery listed under subsection (c)(1)(A)(i)
which the Secretary determines, after notice and opportunity
for public comment, has a high level of mortality and serious
injury across a number of such marine mammal stocks.
(2) The immediate goal of a take reduction plan for a
strategic stock shall be to reduce, within [6] 9 months of its
implementation, the incidental mortality or serious injury of
marine mammals incidentally taken in the course of [commercial
fishing operations] fishing operations in fisheries listed
under subsection (c)(1)(A)(i) or (ii) to levels less than the
potential biological removal level established for that stock
under section 117. The long-term goal of the plan shall be to
reduce, within 5 years of its implementation, the incidental
mortality or serious injury of marine mammals incidentally
taken in the course of [commercial fishing operations] fishing
operations in fisheries listed under subsection (c)(1)(A)(i) or
(ii) to insignificant levels approaching a zero mortality and
serious injury rate, taking into account the economics of the
fishery, the availability of existing technology, and existing
conservation benefits of State or regional fishery management
plans.
(3) If there is insufficient funding available to develop and
implement a take reduction plan for all such stocks that
interact with [commercial] fisheries listed under subsection
(c)(1)(A) (i) or (ii), the Secretary shall give highest
priority to the development and implementation of take
reduction plans for species or stocks whose level of incidental
mortality and serious injury exceeds the potential biological
removal level, those that have a small population size, and
those which are declining most rapidly.
(4) Each take reduction plan shall include--
[(A) a review of the information in the final stock
assessment published under section 117(b) and any
substantial new information;]
(A) a review of the information in the final stock
assessment published under section 117(b), any
substantial new information, a review of the
conservation benefits from current State and regional
fishery management regulations;
(B) an estimate of the total number and, if possible,
age and gender, of animals from the stock that are
being incidentally lethally taken or seriously injured
each year during the course of [commercial fishing
operations] fishing operations in fisheries listed
under subsection (c)(1)(A)(i) or (ii), by fishery;
* * * * * * *
(5)(A) For any stock in which incidental mortality and
serious injury from [commercial] fisheries exceeds the
potential biological removal level established under section
117, the plan shall include measures the Secretary expects will
reduce, within [6 months] 9 months of the plan's
implementation, such mortality and serious injury to a level
below the potential biological removal level.
(B) For any stock in which human-caused mortality and serious
injury exceeds the potential biological removal level, other
than a stock to which subparagraph (A) applies, the plan shall
include measures the Secretary expects will reduce, to the
maximum extent practicable within 6 months of the plan's
implementation, the incidental mortality and serious injury by
such [commercial] fisheries from that stock. For purposes of
this subparagraph, the term ``maximum extent practicable''
means to the lowest level that is feasible for such fisheries
within the 6-month period.
(6)(A) At the earliest possible time [(not later than 30
days)] after the Secretary issues a final stock assessment
under section 117(b) for a strategic stock, the Secretary
shall, and for stocks that interact with a fishery listed under
subsection (c)(1)(A)(i) for which the Secretary has made a
determination under paragraph (1), the Secretary may--
(i) establish a 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] fisheries listed
under subsection (c)(1)(A)(i) or (ii) that cause
incidental mortality and serious injury of marine
mammals from such stock.
* * * * * * *
(C) Members of take reduction teams shall have expertise
regarding the conservation or biology of the marine mammal
species which the take reduction plan will address, or the
fishing practices which result in the incidental mortality and
serious injury of such species. Members shall include
representatives of Federal agencies, each coastal State which
has fisheries which interact with the species or stock,
appropriate Regional Fishery Management Councils, interstate
fisheries commissions, academic and scientific organizations,
environmental groups, all commercial and recreational fisheries
groups and gear types which incidentally take the species or
stock, Alaska Native organizations or Indian tribal
organizations, where appropriate a representative of the office
of General Counsel of the National Oceanic and Atmospheric
Administration, a representative of the National Marine
Fisheries Service having responsibilities related to fisheries
science, a representative of the National Marine Fisheries
Service having responsibilities related to law enforcement, and
a representative of the appropriate National Marine Fisheries
Service Regional Administrator, and others as the Secretary
deems appropriate. Take reduction teams shall, to the maximum
extent practicable, consist of an equitable balance among
representatives of resource user interests and nonuser
interests.
* * * * * * *
(7) Where the human-caused mortality and serious injury from
a strategic stock is estimated to be equal to or greater than
the potential biological removal level established under
section 117 for such stock and such stock interacts with a
fishery listed under subsection (c)(1)(A) (i) or (ii), the
following procedures shall apply in the development of the take
reduction plan for the stock:
(A)(i) Not later than [6 months] 9 months after the
date of establishment of a take reduction team for the
stock, the team shall submit a draft take reduction
plan for such stock to the Secretary, consistent with
the other provisions of this section.
* * * * * * *
(B)(i) The Secretary shall take the draft take
reduction plan into consideration and, [not later than
60 days] not later than 120 days after the submission
of the draft plan by the team, the Secretary shall
publish in the Federal Register the plan proposed by
the team, any changes proposed by the Secretary with an
explanation of the reasons therefor, and proposed
regulations to implement such plan, for public review
and comment during a period of not to exceed 90 days.
Before publishing any plan that is different than the
draft plan proposed by a take reduction team, the
Secretary shall reconvene the team and explain to the
team the differences between the published plan and the
draft plan proposed by the team.
(ii) In the event that the take reduction team does
not submit a draft plan to the Secretary within [6
months] 9 months, the Secretary shall, [not later than
8 months] not later than 11 months after the
establishment of the team, publish in the Federal
Register a proposed take reduction plan and
implementing regulations, for public review and comment
during a period of not to exceed 90 days.
(C) [Not later than 60 days] Not later than 90 days
after the close of the comment period required under
subparagraph (B), the Secretary shall issue a final
take reduction plan and implementing regulations,
consistent with the other provisions of this section.
(D) The Secretary shall, during a period of 30 days
after publication of a final take reduction plan,
utilize newspapers of general circulation, fishery
trade associations, electronic media, and other means
of advising [commercial] fishermen of the requirements
of the plan and how to comply with them.
* * * * * * *
(8) Where the human-caused mortality and serious injury from
a strategic stock is estimated to be less than the potential
biological removal level established under section 117 for such
stock and such stock interacts with a fishery listed under
subsection (c)(1)(A) (i) or (ii), or for any marine mammal
stocks which interact with a [commercial] fishery listed under
subsection (c)(1)(A)(i) for which the Secretary has made a
determination under paragraph (1), the following procedures
shall apply in the development of the take reduction plan for
such stock:
(A) * * *
* * * * * * *
(C) [Not later than 60 days] Not later than 180 days
after the close of the comment period required under
subparagraph (B), the Secretary shall issue a final
take reduction plan and implementing regulations,
consistent with the other provisions of this section.
(D) The Secretary shall, during a period of 30 days
after publication of a final take reduction plan,
utilize newspapers of general circulation, fishery
trade associations, electronic media, and other means
of advising [commercial] fishermen of the requirements
of the plan and how to comply with them.
* * * * * * *
(9) In implementing a take reduction plan developed pursuant
to this subsection, the Secretary may, where necessary to
implement a take reduction plan to protect or restore a marine
mammal stock or species covered by such plan, promulgate
regulations which include, but are not limited to, measures
to--
(A) establish fishery-specific limits on incidental
mortality and serious injury of marine mammals in
[commercial fisheries or restrict commercial fisheries]
fisheries listed under subsection (c)(1)(A)(i) or (ii)
or restrict such fisheries by time or area;
(B) require the use of alternative [commercial]
fishing gear or techniques and new technologies,
encourage the development of such gear or technology,
or convene expert skippers' panels;
(C) educate [commercial] fishermen, through workshops
and other means, on the importance of reducing the
incidental mortality and serious injury of marine
mammals in affected [commercial] fisheries; and
(D) monitor, in accordance with subsection (d), the
effectiveness of measures taken to reduce the level of
incidental mortality and serious injury of marine
mammals in the course of [commercial fishing
operations] participation in a fishery listed under
subsection (c)(1)(A)(i) or (ii).
* * * * * * *
(g) Emergency Regulations.--(1) If the Secretary finds that
the incidental mortality and serious injury of marine mammals
from [commercial fisheries] fisheries listed under subsection
(c)(1)(A)(i) or (ii) is having, or is likely to have, an
immediate and significant adverse impact on a stock or species,
the Secretary shall take actions as follows:
(A) * * *
* * * * * * *
(3) Emergency regulations prescribed under this subsection--
(A) * * *
(B) shall remain in effect for not more than 180 days
or until the end of the applicable [commercial] fishing
season, whichever is earlier; and
* * * * * * *
(4) If the Secretary finds that incidental mortality and
serious injury of marine mammals in a [commercial fishery]
fishery listed under subsection (c)(1)(A)(i) or (ii) is
continuing to have an immediate and significant adverse impact
on a stock or species, the Secretary may extend the emergency
regulations for an additional period of not more than 90 days
or until reasons for the emergency no longer exist, whichever
is earlier.
* * * * * * *
(j) Contributions.--For purposes of carrying out this
section, including observer, research, and education and
outreach programs, the Secretary may accept, solicit, receive,
hold, administer, and use gifts, devises, and bequests.
* * * * * * *
SEC. 120. PACIFIC COAST TASK FORCE; GULF OF MAINE.
(a) * * *
* * * * * * *
(k) Research on Nonlethal Removal and Control.--(1) The
Secretary shall conduct research on the nonlethal removal and
control of nuisance pinnipeds. The research shall include a
review of measures that have been taken to effect such removal
and control, the effectiveness of these measures, and the
development of new technologies to deter nuisance pinnipeds.
(2) The Secretary shall include, among the individuals that
develop the research program under this subsection,
representatives of the commercial and recreational fishing
industries.
(3) The Secretary is encouraged, where appropriate, to use
independent marine mammal research institutions in developing
and in conducting the research program.
(4) The Secretary shall, by December 31 of each year, submit
an annual report on the results of research under this
subsection to the Committee on Resources of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate.
(l) Qualified Nonlethal Control Projects.--
(1) In general.--The Secretary may, to the extent
amounts are available to carry out this subsection,
provide a grant to any eligible applicant to carry out
a qualified nonlethal control project in accordance
with this subsection.
(2) Applications.--The Secretary shall--
(A) publish guidelines for and solicit
applications for grants under this subsection
not later than 6 months after the date of
enactment of this subsection; and
(B) receive, review, evaluate, and approve
applications for grants under this subsection.
(3) Eligible applicant.--To be an eligible applicant
for purposes of paragraph (1), an applicant must--
(A) be a State, local government, or
interstate or regional agency; and
(B) have adequate personnel, funding, and
authority to carry out and monitor or maintain
a nonlethal control of nuisance pinnipeds
project.
(4) Qualified control project.--To be a qualified
control project under this subsection, a project must--
(A) by humane and nonlethal means, remove,
deter, and control nuisance pinnipeds in areas
where they are a recurrent and persistent
threat to public health and safety; and
(B) encourage public notice, education, and
outreach on project activities in the affected
community.
(5) Grant duration.--Each grant under this subsection
shall be to provide funding for the Federal share of
the cost of a project carried out with the grant for up
to 2 fiscal years.
(6) Reporting by grantee.--
(A) In general.--A grantee carrying out a
control project with a grant under this
subsection shall report to the Secretary at the
expiration of the grant.
(B) Report contents.--Each report under this
subsection shall include specific information
on the methods and techniques used to control
nuisance pinniped species in the project area,
and on the ensuing results.
(7) Cost sharing.--
(A) Federal share.--Except as provided in
paragraphs (2) and (3), the Federal share of
the cost of a project carried out with a grant
under this subsection shall not exceed 75
percent of such cost.
(B) Application of in-kind contributions.--
The Secretary may apply to the non-Federal
share of costs of a control project carried out
with a grant under this subsection the fair
market value of services or any other form of
in-kind contribution to the project made by
non-Federal interests that the Secretary
determines to be an appropriate contribution
equivalent to the monetary amount required for
the non-Federal share of the activity.
(C) Derivation of non-federal share.--The
non-Federal share of the cost of a control
project carried out with a grant under this
subsection may not be derived from a Federal
grant program or other Federal funds.
(8) Authorization of appropriations.--There are
authorized to be appropriated to the Secretary
$1,500,000 for each of fiscal years 2006 through 2010.
(9) Clarification.--Nothing in this subsection shall
be interpreted as suspending or waiving any requirement
under any other provision of this Act.
TITLE II--MARINE MAMMAL COMMISSION
* * * * * * *
ADMINISTRATION OF COMMISSION
Sec. 206. The Commission, in carrying out its
responsibilities under this title, may--
(1) * * *
* * * * * * *
(4) procure the services of such experts or
consultants or an organization thereof as is authorized
under section 3109 of Title 5, United States Code [(but
at rates for individuals not to exceed $100 per diem)];
and
(5) incur such necessary expenses and exercise such
other powers, as are consistent with and reasonably
required to perform its functions under this title[;
except that no fewer than 11 employees must be employed
under paragraph (1) at any time]. [Financial and
administrative services (including those related to
budgeting, accounting, financial reporting, personnel,
and procurement) shall be provided the Commission by
the General Services Administration, for which payment
shall be made in advance, or by reimbursement from
funds of the Commission in such amounts as may be
agreed upon by the Chairman and the Administrator of
General Services.]
* * * * * * *
TITLE IV--MARINE MAMMAL HEALTH AND STRANDING RESPONSE
* * * * * * *
SEC. 402. DETERMINATION; DATA COLLECTION AND DISSEMINATION.
(a) * * *
(b) Collection.--The Secretary shall, in consultation with
the Secretary of the Interior, collect and update,
periodically, existing information on--
(1) procedures and practices for--
(A) rescuing and rehabilitating stranded or
entangled marine mammals, including criteria
used by stranding network participants, on a
species-by-species basis, for determining at
what point a marine mammal undergoing rescue
and rehabilitation is returnable to the wild;
and
* * * * * * *
[SEC. 403. STRANDING RESPONSE AGREEMENTS.]
SEC. 403. STRANDING OR ENTANGLEMENT RESPONSE AGREEMENTS.
(a) In General.--The Secretary may enter into an agreement
under section 112(c) with any person to take marine mammals
under section 109(h)(1) in response to a stranding or
entanglement.
* * * * * * *
SEC. 406. LIABILITY.
(a) In General.--A person who is authorized to respond to a
stranding or entanglement pursuant to an agreement entered into
under section 112(c) is deemed to be an employee of the
government for purposes of chapter 171 of title 28, United
States Code, with respect to actions of the person that are--
(1) * * *
* * * * * * *
SEC. 408. JOHN H. PRESCOTT MARINE MAMMAL RESCUE ASSISTANCE GRANT
PROGRAM.
(a) In General.--(1) Subject to the availability of
appropriations, the Secretary shall conduct a grant program to
be known as the John H. Prescott Marine Mammal Rescue
Assistance Grant Program, to provide grants to eligible
stranding network participants for the recovery or treatment of
marine mammals, the collection of data from living or dead
stranded marine mammals for scientific research regarding
marine mammal health, and facility operation costs that are
directly related to those purposes. All funds available to
implement this section shall be distributed to eligible
stranding network participants for the purposes set forth in
this paragraph and paragraph (2), except as provided in
subsection (f).
(2) Subject to the availability of appropriations, the
Secretary may also enter into cooperative agreements,
contracts, or such other agreements or arrangements as the
Secretary considers appropriate to address stranding events
requiring emergency assistance.
[(2)] (3)(A) The Secretary shall ensure that, to the greatest
extent practicable, funds provided as grants under this
subsection are distributed equitably among the stranding
regions designated as of the date of the enactment of the
Marine Mammal Rescue Assistance Act of 2000, and in making such
grants shall give preference to those facilities that have
established records for rescuing or rehabilitating sick and
stranded marine mammals in each of the respective regions, or
subregions.
(B) In determining priorities among such regions, the
Secretary may consider--
(i) any episodic stranding or any mortality event
other than an event described in section [410(6)]
410(7), that occurred in any region in the preceding
year;
* * * * * * *
(d) Limitation.--(1) The amount of a grant under this section
shall not exceed $100,000.
(2) Funding for emergency stranding projects shall not be
subject to the funding limit established in paragraph (1).
(e) Matching Requirement.--
(1) In general.--[The non-Federal] Except as provided
in paragraph (2), the non-Federal share of the costs of
an activity conducted with a grant under this section
shall be 25 percent of such costs.
(2) Emergency assistance.--No non-Federal
contribution shall be required for funding for a
response to an emergency stranding event.
[(2)] (3) In-kind contributions.--The Secretary may
apply to the non-Federal share of an activity conducted
with a grant under this section the amount of funds,
and the fair market value of property and services,
provided by non-Federal sources and used for the
activity.
[(f ) Administrative Expenses.--Of amounts available each
fiscal year to carry out this section, the Secretary may expend
not more than 6 percent or $80,000, whichever is greater, to
pay the administrative expenses necessary to carry out this
section.]
(f) Administrative Costs and Expenses.--Of the amounts
available each fiscal year to carry out this section, the
Secretary may expend not more than 5 percent or $80,000,
whichever is greater, to pay the administrative costs and
administrative expenses to implement the grant program under
subsection (a). Any such funds retained by the Secretary for a
fiscal year for such costs and expenses that are not used for
such costs and expenses before the end of the fiscal year shall
be provided as grants under subsection (a).
(g) Definitions.--In this section:
(1) * * *
(2) Emergency assistance.--The term ``emergency
assistance'' means assistance provided for a stranding
event that--
(A) is not an unusual mortality event as
defined in section 409(6);
(B) leads to an immediate increase in
required costs for stranding response,
recovery, or rehabilitation in excess of
regularly scheduled costs;
(C) may be cyclical or endemic; and
(D) may involve out-of-habitat animals.
[(2)] (3) Secretary.--The term ``Secretary'' has the
meaning given that term in section 3(12)(A).
(h) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section [$5,000,000 for each
of fiscal years 2001 through 2003] $7,000,000 for each of
fiscal years 2006 through 2010, to remain available until
expended, of which--
(1) [$4,000,000] $6,000,000 may be available to the
Secretary of Commerce; and
* * * * * * *
(i) Contributions.--For purposes of carrying out this
section, the Secretary may solicit, accept, receive, hold,
administer, and use gifts, devises, and bequests.
SEC. 409. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated--
(1) * * *
* * * * * * *
(3) to the Fund, [$500,000 for fiscal year 1993]
$125,000 for each of fiscal years 2006 through 2010.
SEC. 410. DEFINITIONS.
In this title, the following definitions apply:
(1) The term ``entanglement'' means an event in the
wild in which a living or dead marine mammal has gear,
rope, line, net, or other material wrapped around or
attached to it and is--
(A) on a beach or shore of the United States;
or
(B) in waters under the jurisdiction of the
United States.
[(1)] (2) The term ``Fund'' means the Marine Mammal
Unusual Mortality Event Fund established by section
405(a).
[(2)] (3) The term ``Office'' means the Office of
Protected Resources, in the National Marine Fisheries
Service.
[(3)] (4) The term ``stranding'' means an event in
the wild in which--
(A) * * *
* * * * * * *
[(4)] (5) The term ``stranding network participant''
means a person who is authorized by an agreement under
section 112(c) to take marine mammals as described in
section 109(h)(1) in response to a stranding.
[(5)] (6) The term ``Tissue Bank'' means the National
Marine Tissue Bank provided for under section 407(a).
[(6)] (7) The term ``unusual mortality event'' means
a stranding that--
(A) * * *
* * * * * * *
----------
DOLPHIN PROTECTION CONSUMER INFORMATION ACT
DOLPHIN PROTECTION
Sec. 901. (a) Short Title.--This section may be cited as the
``Dolphin Protection Consumer Information Act''.
* * * * * * *
(c) Definitions.--For purposes of this section--
(1) * * *
(2) the term ``eastern tropical Pacific Ocean'' means
the area of the Pacific Ocean bounded by 40 degrees
north latitude, 40 degrees south latitude, [160 degrees
west longitude] 150 degrees west longitude, and the
western coastlines of North, Central, and South
America;
* * * * * * *
ADDITIONAL VIEWS
H.R. 2130 is the product of lengthy negotiations with the
Majority. Ideally, we would draft a very different bill, but
this effort is intended to avoid major controversies.
Some marine mammals in U.S. waters have rebounded since the
passage of the original Marine Mammal Protection Act in 1972
and the international moratorium on commercial whaling in 1986.
However, the status of many others remains poorly understood
and some struggle on the brink of extinction.
H.R. 2130 modestly improves the Marine Mammal Protection
Act. However, as Ranking Minority member Rahall noted at the
markup, the bill fails to meaningfully address bycatch and
harassment issues, particularly the exemptions for Department
of Defense enacted over our objections in the prior Congress.
During committee consideration of this measure, we received
assurances from subcommittee Chairman Gilchrest that this is
the beginning of a process and we look forward to working with
the majority to address those concerns in subsequent
legislation.
Nick J. Rahall, II.
Frank Pallone, Jr.